Jennifer Lynn Diver, petitioner, Appellant, vs. Daryl Lee Diver, 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This opinion will be unpublished and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

A03-1837

Jennifer Lynn Diver, petitioner,

Appellant,

vs.

Daryl Lee Diver,

Respondent.

Filed September 14, 2004

Affirmed

Lansing, Judge

St. Louis County District Court

File No. F2-01-600896

Arthur M. Albertson, Suite 107, 101 West Second Street, Duluth, MN 55802 (for appellant)

Mary E. Lockwood, Suite 200, 2233 North Hamline Avenue, Roseville, MN 55113 (for respondent)

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            This appeal from judgment and the denial of an alternative motion for amended findings or a new trial in a marital-dissolution proceeding challenges the admissibility of a paragraph in a prosecutorial-review memorandum, the determination of child custody, and the denial of attorneys' fees.  Because the district court did not misapply the law, abuse its discretion, or make a decision against logic and the facts of record, we affirm.

F A C T S

            Jennifer Diver and Daryl Diver were married from September 1995 to September 2003 and are the parents of four children.  Following a two-day contested dissolution hearing, the district court divided the marital property, ordered twenty-four months of spousal maintenance for Jennifer Diver, determined that the Divers would have joint legal custody and that Daryl Diver would have sole physical custody of the four children, and provided that each of the Divers "shall pay his or her own attorney's fees."

            The primary issue litigated at the contested hearing was the custody of the Divers' four children.  While the dissolution proceeding was pending, the Duluth Police Department investigated allegations that Daryl Diver had sexually abused one of the children.  The police department twice used a First Witness protocol to interview the Divers' child.  The First Witness protocol involves a multidisciplinary team that conducts interviews of children who may have been sexually or physically abused.  The district court, in its findings, stated "[t]he evidence to support the allegations was insufficient to satisfy the experienced First Witness interviewers, the prosecutors who monitored and reviewed those interviews, and the [s]ocial [s]ervices investigator."  The district court found that "[n]o evidence was offered at trial" from which it "could conclude that there was any improper conduct."

Jennifer Diver moved for amended findings or a new trial and for attorneys' fees.  The memorandum accompanying the motion requested amendments to twelve findings and six conclusions, directed primarily at child custody.  The district court denied Jennifer Diver's motion, stating that it did "not find that any individual claimed error or all of the claimed errors in their totality would change this Court's exercise of its discretion in awarding the physical custody of the children to their father."  Jennifer Diver appeals, challenging (1) the admissibility of a paragraph in a county attorney's prosecutorial-review memorandum, (2) the custody determination, and (3) the denial of her request for attorneys' fees.

D E C I S I O N

I

Jennifer Diver disputes the admissibility of a paragraph in a county attorney's prosecutorial-review memorandum.  This memorandum was written by an assistant county attorney and directed to a lieutenant in the Duluth Police Department.  It essentially explains why the county attorney's office agrees with the police department's conclusion that the investigation provided insufficient support for criminal-sexual-conduct charges against Daryl Diver.

The assistant county attorney who wrote the memorandum was called as a witness at the hearing.  He provided foundation for the memorandum, and Daryl Diver's attorney offered it into evidence.  Jennifer Diver's attorney did not object to the first page of the two-page memorandum, but objected to the second page.  The second page consists of a paragraph explaining that the child's statements about improper physical contact appeared to be coached or contrived, demonstrated a bias against Daryl Diver, and that the bias may have been created by Jennifer Diver.  The court ruled that the statements about coaching or creating bias were speculative and would require additional foundation, but admitted, without objection, the first page of the memorandum.  The first page summarized the content of the videotaped interviews of the child and incorporated the conclusion of two police officers who monitored the interviews that the videotapes provide no reliable disclosures of criminal sexual conduct and that the videotapes and the files provide insufficient evidence of sexual misconduct to support a criminal charge.

The paragraph on the second page of the memorandum was admitted at the conclusion of the evidentiary hearing after the guardian ad litem testified to the child's statements to her that had triggered the First Witness investigation.  Jennifer Diver's attorney elicited testimony from the guardian ad litem about her conversation with the child and whether the child's disclosure appeared to be spontaneous.  When the guardian testified to her belief that the statements were natural and spontaneous, Daryl Diver's attorney moved to admit, as rebuttal evidence, the second-page paragraph in the county attorney's memorandum that concluded that the child's statements were coached or contrived and explained the reasons for that conclusion.

Over objection, the district court admitted the paragraph as rebuttal evidence.  The court stated that the guardian's testimony on the spontaneity of the child's statements was hearsay and therefore the hearsay of the county attorney's observations should also be admitted, "limited to his reasoning in agreeing that there should not be a charge against [Daryl] Diver." 

Jennifer Diver raises three specific objections to the admissibility of the paragraph:  (1) lack of foundation, (2) lack of qualifications to provide an expert opinion, and (3) improper testimony on the credibility of the child.  These objections appear to be more directly aimed at the first page of the memorandum, which was admitted without objection.  Applying these objections to the disputed paragraph on the memorandum's second page, we discern no error.

First, the assistant county attorney who prepared the memorandum testified that he had worked for the St. Louis County Attorney's Office for more than thirty years, that one of his primary jobs as an assistant county attorney is to "review law enforcement reports to make decisions whether there's enough evidence to charge people with crimes," that he is familiar with the Duluth police department's procedures for interviewing children who may have been sexually abused, that he monitors the interviews and suggests what types of questions should be asked, and that he recommends whether to charge a suspect with sexually abusing a child.  This testimony provides ample foundation for a memorandum explaining why he did not believe that the file or the videotaped interviews would support a charge of sexual misconduct.

Furthermore, the memorandum is admissible as a public document.  A public document is defined as a document "bearing a seal purporting to be that of . . . any State . . . or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution."  Minn. R. Evid. 902(1).  The memorandum was written by the assistant county attorney and directed to the Duluth police department.  The letter is on the St. Louis County Attorney's official letterhead, contains the county attorney's seal, and is signed by the assistant county attorney.  Public documents under seal are self-authenticating and additional foundation is not required.  The district court did not abuse its discretion by admitting the paragraph into evidence. 

Second, Jennifer Diver's objection to the assistant county attorney's qualifications is the same as her objection to foundation.  The inquiry that established foundation for the memorandum also establishes that the assistant county attorney has the training and experience to provide an expert opinion on why a case has not been charged.  The objection that Jennifer Diver raises on the qualifications of the other assistant county attorneys was not raised at trial and relates to comments on page one, which was the page admitted at trial without objection.

Jennifer Diver's final objection to the admissibility of the paragraph on page two is that it constitutes improper testimony on the credibility of the child.  This objection is not persuasive because it misstates the content of the paragraph and the context of its admission.  The paragraph is essentially the county attorney's review of the child's videotaped interviews and explains why no charges were issued.  The paragraph was admitted as rebuttal evidence after the guardian ad litem testified that she believed the statements by the Divers' child were spontaneous and not coached. 

Rebuttal evidence consists of evidence that "explains, contradicts or refutes" previously submitted evidence.  State v. Williams, 586 N.W.2d 123, 126 (Minn. 1998) (quotation omitted); Van Tassel v. Patterson, 235 Minn. 152, 160, 50 N.W.2d 113, 117 (1951).  "[T]he determination of what constitutes proper rebuttal evidence rests almost wholly in the discretion of the trial court."  State v. Eling, 355 N.W.2d 286, 291 (Minn. 1984); Briggs v. Chi. Great W. Ry., 248 Minn. 418, 427, 80 N.W.2d 625, 633 (1957).  The district court pointed out that the guardian ad litem's statements about the spontaneity of the child's testimony were hearsay and that no one had submitted the tapes as evidence.  Even when testimony is otherwise inadmissible, the district court, may, within its discretion, allow curative admissibility as rebuttal evidence limited to the same evidentiary facts as the original inadmissible evidence.  Thurman v. Pepsi-Cola Bottling Co., 289 N.W.2d 141, 144 (Minn. 1980).  Under these circumstances the district court did not abuse its discretion in admitting the paragraph on the second page of the prosecutorial-review memorandum as rebuttal evidence.

II

            A district court has broad discretion in resolving custody issues.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  On appeal, review of a district court's custody decision is narrow and "limited to whether the [district] court abused its discretion by making findings unsupported by the evidence or by improperly applying the law."  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (quotation omitted).  The overriding concern in custody determinations is the best interests of the child, which requires consideration of the factors listed in Minn. Stat. § 518.17, subd. 1(a) (2002).

Appellate courts will not alter a finding of fact underlying a custody determination unless the finding is clearly erroneous.  Minn. R. Civ. P. 52.01; Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (quotation omitted).  In determining whether the findings are clearly erroneous, we view the record in the light most favorable to the district court's findings, giving deference to the district court's credibility determinations.  Id. at 472.  "That the record might support findings other than those made by the trial court does not show that the court's findings are defective."  Id. at 474.  

Jennifer Diver argues that the district court abused its discretion in determining that Daryl Diver should have physical custody of the Divers' four children.  The district court made its custody determination after addressing the best-interests factors enumerated in Minn. Stat. § 518.17, subd. 1(a).  The detailed best-interests findings were based on the testimony of nine witnesses and extensive exhibits, which included psychological evaluations, social-service reports, and the guardian ad litem's reports. 

Jennifer Diver challenges the district court's findings under ten of the sixteen best-interests factors.  Most of the challenges address the district court's inferences from evidence rather than the evidence itself.  Jennifer Diver's proposed amendments acknowledge that the evidence at the hearing did not establish sexual abuse but argues, instead, that the district court should have made a finding of domestic abuse.  She testified, however, that Daryl Diver had never hit her and that the events that would support a finding of domestic abuse occurred before Daryl Diver stopped consuming alcohol, more than ten years before the hearing.

The district court considered the psychological evaluations of both Jennifer Diver and Daryl Diver, their parenting styles and philosophy, and their interactional history.  The court acknowledged that either parent was a suitable custodian for the children and that the custody determination was difficult.  The court relied primarily on its assessment of the testimony and demeanor of Jennifer Diver and Daryl Diver, the psychological evaluations, and the court's finding that Jennifer Diver seemed "strongly opposed to any normal level of contact" between Daryl Diver and the children.  Although the record might support findings other than those made by the district court, the arguments in Jennifer Diver's motion and memorandum do not demonstrate error in the district court's detailed findings under section 518.17. 

We conclude that the district court's findings demonstrate a careful analysis of the statutory best-interests factors.  The findings meet the particularized requirements for custody determination and are not clearly erroneous.  The district court did not abuse its discretion in determining that Daryl Diver should have physical custody of the children, subject to Jennifer Diver's liberal visitation, including six weeks during the children's summer school vacation. 

III

A determination on attorneys' fees is almost entirely within the district court's discretion and will not be disturbed absent an abuse of discretion.  Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987).  The district court shall order attorneys' fees based on the need of the requesting party, if the other party has the ability to pay, and may order attorneys' fees against a party who unreasonably contributed to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1 (2002). 

Jennifer Diver contends that the district court abused its discretion by denying her motion for need-based fees.  The record shows that, at the time of trial, Jennifer Diver was a full-time student and Daryl Diver was employed as a full-time police officer with a net monthly income of $3,575.  The district court found that it will be "difficult" for Daryl Diver "to meet the needs of himself and the children, as well as the needs of [Jennifer]," but that his income would exceed his expenses by approximately $1,000.  Based on this finding, the district court ordered Daryl Diver to provide Jennifer Diver $800 in monthly spousal maintenance for twenty-four months, leaving Daryl Diver with a $200 surplus over his monthly expenses.  To equalize the property division, the district court then ordered Daryl Diver to pay Jennifer Diver $25,000 in $200 monthly installments. 

In light of the Divers' relative financial circumstances, the district court did not abuse its discretion in denying Jennifer Diver's motion for need-based attorneys' fees.  Jennifer Diver also appealed the district court's property division, contingent on the reversal of the district court's custody determination.  Because we affirm the custody determination, we do not address the contingent property-division issues.

            Affirmed.