Jay Darren Gaskill, petitoner, Appellant, vs. Brenda Kay Larsen, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-447

 

Jay Darren Gaskill, petitoner,

Appellant,

 

vs.

 

Brenda Kay Larsen,

Respondent.

 

Filed December 23, 2003

Affirmed; motion to strike granted

Toussaint, Chief Judge

 

Mower County District Court

File No. F2-02-50126

  Brandon Vaughn Lawhead, Lawhead Law Offices, 301 South Main Street, Austin, MN 55912 (for appellant)

 

Thomas Carl Baudler, Baudler, Baudler, Maus & Blahnik, 108 N. Main Street, Austin, MN 55912 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

Appellant Jay Darren Gaskill appeals the district court's custody determination awarding sole physical and legal custody of the parties' child to respondent Brenda Kay Larsen.  Gaskill argues the district court (1) minimized the significance of Larsen's mental health problems; (2) over emphasized his unsubstantiated reports of child endangerment and child neglect; and (3) abused its discretion by failing to exclude expert testimony.  Larsen moves to strike a letter contained in Gaskill's brief, arguing that it is not part of the record on appeal.  Because the record supports the district court's custody determination, we affirm.  We also grant Larsen's motion to strike the letter from Gaskill's brief.

FACTS

 

Jay Gaskill and Brenda Larsen never married, but lived together for five-and-one-half years.  During the course of their relationship the parties had one child, C.G., born May 27, 1998.  C.G. lived with Gaskill and Larsen until the two parties separated in September 2002.

During the course of the relationship, Larsen sought medical assistance to cope with her continuing bouts with bulimia and depression.  Her bulimia treatment lasted for over two years, in which she completed a program designed to teach individuals how to manage the disease.  Approximately a year later, while she was still receiving treatment for bulimia, she attempted to commit suicide.  Following the attempt, she received therapy to treat her mental health problems in addition to her ongoing bulimia treatment.  She continued therapy until her primary physician believed it was no longer necessary.  Larsen continues to suffer from bulimia, but is taking medication to treat the disease and has not had any occurrences recently.

After the parties separated, Gaskill made two unsubstantiated reports in which he alleged that Larsen was endangering the welfare of C.G.  On one occasion, Gaskill reported to the police that Larsen was driving under the influence of alcohol while C.G. was in the car.  The police subsequently stopped Larsen, and it was determined that she was not intoxicated.  The following month, while C.G. was in Gaskill's custody, he reported Larsen to the Iowa Department of Human Services alleging that she was neglecting C.G. and did not have any food in the house.  An investigation by the Department of Human Services revealed these allegations were false.

Gaskill now appeals the district court's custody determination.  He contends the court erred as a matter of law when it minimized the significance of Larsen's mental health problems and over emphasized the importance of his unfounded allegation of child endangerment and child neglect.  Additionally, Gaskill contends the district court abused its discretion and denied him his due process rights by failing to exclude Larsen's expert witness because he was not adequately notified and did not have an opportunity to cross-examine her.

D E C I S I O N

I.

Custody Determination

The district court has broad discretion in determining custody matters.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Appellate review of a custody determination is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  Currently, the law "leaves scant if any room for an appellate court to question the trial court's balancing of the best interests considerations." Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

Even though the district court found the mental and physical health factor to favor Gaskill, he contends the court abused its discretion by not placing custody in him based solely on this factor.  Gaskill argues that the mental and physical health factor should trump the other best interests factors.  See In re Welfare of Bergin, 299 Minn. 218, 218 N.W.2d 757 (Minn. 1974) (trial court allowing father to retain custody of three children reversed because the father had been found by juvenile court to have sexually molested two of the children); Jones v. Jones, 377 N.W.2d 38 (Minn. App. 1985) (granting custody of children to mother was clearly erroneous, when evidence established that she suffered from unpredictable psychotic episodes resulting from manic depression).

Although there have been circumstances where Minnesota appellate courts have reversed custody determinations based on the mental health factor alone, the facts here do not warrant such action.  Larsen's bulimia and depression are of a completely different character than the sexual molestation found in Bergin or the psychotic episodes found in Jones, because they do not pose a similar threat to C.G.'s best interests.  Therefore, it cannot be said it was an abuse of discretion to place custody in Larsen.

Gaskill also contends that the district court erred as a matter of law when it improperly considered evidence of false allegations of child neglect and child endangerment when he has never been charged or convicted of that crime.  District courts are required to consider "all relevant factors" when determining the best interests of the child.  Minn. Stat. § 18.17, subd. 1 (2002).  Moreover, this court has recognized that the best interest factors listed section 518.17 are not an exhaustive list of factors a court may consider.  In re Paternity of B.J.H., 573 N.W.2d 99, 102 (Minn. App. 1998).  Because a district court is permitted to consider all relevant factors relating to the best interests of the child, it acted within its discretion when it considered Gaskill's unfounded allegations of child neglect and child endangerment.

II.

Motion to strike

We now address Larsen's motion to strike a letter contained in the appendix to Gaskill's brief.  The record on appeal comprises "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any[.]"  Minn. R. Civ. App. P. 110.01. An appellate court may not base its decision on matters outside the record on appeal. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  The letter is not part of the district court record and therefore is not part of the record on appeal.  Larsen's motion to strike is granted.

We do not reach Gaskill's argument regarding the admissibility of Larsen's expert witness because he failed to timely object.  Generally, to preserve issues for appeal, including evidentiary rulings, counsel must make a timely objection and move for a new trial.  In re Gonzalez, 456 N.W.2d 724, 727 (Minn. App. 1990); see also Minn. R. Evid. 103(a)(1) (stating general requirement of timely objection or motion to strike to preserve evidentiary issue for review).  Failure to preserve an issue precludes review of that issue on appeal.  Gonzalez, 456 N.W.2d at 727.  Gaskill did not object to the district court's decision to leave the record open to receive additional testimony, and in fact agreed to the arrangement.  Because Gaskill did not object he failed to preserve the issue for appeal.

Affirmed; motion to strike granted.