Monica Jones-Albert, petitioner, Respondent, vs. Ikechi Kallys Albert, Appellant.

This opinion will be unpublished and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

A04-395

 

Monica Jones-Albert, petitioner,

Respondent,

 

vs.

 

Ikechi Kallys Albert,

Appellant.

 

Filed November 9, 2004

Affirmed; motion denied Forsberg, Judge*

 

Hennepin County District Court

File No. DA 287598

 

Roderick N. Hale, 301 Fourth Avenue South, #270, Minneapolis, Minnesota 55415 (for respondent)

 

Ikechi Kallys Albert, P.O. Box 583352, Minneapolis, MN  55458 (pro se appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

In this appeal from a domestic abuse order for protection, pro se appellant-father Ikechi Kallys Albert (father) argues (1) the referee lacked jurisdiction to decide custody when a dissolution file was active before another referee; (2) he was denied a full hearing under the Domestic Abuse Act; (3) he was entitled to district court review of the order for protection; (4) the district court erred by awarding respondent-mother Monica Jones-Albert (mother) temporary custody without making findings as to the best interests of the children; (5) there was insufficient evidence to grant mother child support; (6) there was insufficient evidence to grant the order for protection; and (7) the district court is prejudiced against him.  Because we conclude that the bulk of father's allegations of error are meritless, we generally affirm the rulings at issue.  While we also conclude that father was entitled to district court review of the order for protection, we decline to remand because the district court would find that the record supports the decision to issue an order for protection. 

FACTS

Mother petitioned for an order for protection (OFP) from father.  A family court referee conducted a hearing on mother's petition for an OFP.  During the hearing, mother testified that father pushed her on July 9, 2003, called her names, and said he would kill her and himself if she ever made him go to jail; in 1994 and 1996 father hit, slapped, choked, and kicked her; she has sustained black eyes and bruises from father; and she sought professional help after the July 2003 incident and takes lorazepam for depression and stress.  Mother also testified that father was charged with domestic abuse prior to the July 2003 incident, but that she dropped the charge because he threatened her.  Father denied mother's charges of domestic abuse. 

The referee granted mother an OFP, finding that mother is afraid of imminent physical harm from father.  The referee also granted temporary sole legal and sole physical custody of the parties' three minor children to mother and ordered father to pay child support.  Father filed a notice of review of the referee's decision to grant mother an OFP. 

Father also petitioned for an OFP from mother.  The referee granted father an OFP, in which the referee vacated the child support award in mother's OFP.  After the OFPs were granted, the district court ordered a dissolution judgment and decree, granting mother permanent custody of the parties' children.  Father appeals the district court's decision to grant mother an OFP.

D E C I S I O N I.          Motion to Strike

 

            Father first moves to strike mother's entire brief, arguing that mother made false statements in the brief.  While the statement in mother's brief that father was convicted of assaulting mother is not supported by the record, we decline to strike the misstatement because it did not bear on our decision.  See AFSCME, Council No. 14 v. Scott County, 530 N.W.2d 218, 223 (Minn. App. 1995) (holding that a court may selectively disregard improper references to evidence outside the record without striking the entire brief), review denied (Minn. May 16, 1995 and June 14, 1995).  We also decline to strike the rest of mother's brief because the challenged portions of the brief are either (1) not contradicted by the record; or (2) contain legal arguments.  Accordingly, we deny father's motion to strike mother's brief.

II.        Jurisdiction

            Father argues that the referee lacked subject-matter jurisdiction to award custody of the parties' children in the OFP proceeding because custody was simultaneously at issue in the dissolution action.  We disagree.

Lack of subject-matter jurisdiction may be raised at any time, including for the first time on appeal, and whether subject-matter jurisdiction exists is a legal question subject to de novo review.  Koes v. Advanced Design, Inc., 636 N.W.2d 352, 361 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002).

            A domestic abuse OFP may be granted, regardless of whether there is a pending action between the parties.  Minn. Stat. § 518B.01, subd. 4(d) (2002).  In domestic abuse OFP proceedings, referees are authorized to "award temporary custody or establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children," and a copy of an order doing so shall be provided to the dissolution court, which shall consider the order in any custody determination it makes.  Minn. Stat. § 518B.01, subd. 6(a)(4), (e), subd. 17 (2002); see also Minn. Stat. § 518B.01, subd. 16 (2002) (stating that proceedings under chapter 518B "shall be in addition to other civil or criminal remedies").  Thus, the existence of a simultaneously pending dissolution action does not preclude a domestic abuse OFP from addressing custody matters. 

Father bases his argument to the contrary on Minn. Stat. § 518.003, subd. 3(g) (2002).  That statute defines "custody proceeding," but does not preclude a referee from making a custody award in an OFP.  As such, we reject this argument. 

Father also argues that Minn. Stat. § 484.78 (2002) requires cases to be consolidated under one judicial officer.  This argument does not address subject-matter jurisdiction.  Also, because the statute provides that the Second and Fourth Judicial Districts "may" assign related family matters to a single judge or referee, it is clear that such an assignment is not required.  See Minn. Stat. § 645.44, subd. 15 (2002) ("[m]ay" is permissive).  The referee had subject-matter jurisdiction to decide custody in the OFP, even though the referee was not adjudicating the dissolution action.

III.       Full Hearing

            Father argues that he was denied a full evidentiary hearing, alleging he was neither permitted to call witnesses, nor present exhibits. 

The respondent in an OFP action has a right to a hearing on the petition.  Minn. Stat. § 518B.01, subds. 4(i), 7(c) (2002).  That right includes the opportunity to present and cross-examine witnesses, to produce documents, and to have the case decided on the merits.  El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn. App. 1995).  Evidentiary rulings are within the district court's discretion and are reviewed under the abuse-of-discretion standard.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001). 

Here, the district court did not allow father's witnesses to testify because father stated that they were going to testify to the "violent nature of [mother]," an issue the court was not addressing at the hearing on mother's petition alleging father was abusive.  The district court explained that the witnesses would properly testify at father's OFP hearing, which involved father's allegations that mother was abusive.  Additionally, the district court excluded father's exhibits because the court found they were not relevant after review.  The district court found that the records from Hennepin County Child, Family and Adult Services "mainly address possible physical abuse to the children," and because the OFP petition was for mother, not the children, the court found the documents were not relevant.  Additionally, the district court found that the other written documents were "generally not probative as to whether or not domestic abuse [] occurred as found herein."  After reviewing father's proffered exhibits, we conclude that the district court did not abuse its discretion in excluding the documents and in holding that they were not relevant to whether father abused mother.

IV.       District Court Review

            Father argues that he is entitled to district court review of mother's OFP.  Assuming that father was improperly denied district court review of the referee's OFP decision, we decline to remand to the district court here.  Review of this record, which includes evidence that father pushed mother and threatened to kill mother and himself, makes it clear that district court review of mother's OFP would yield the same result.  See Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (refusing to remand custody modification decision that lacked findings where remand would not alter result). 

V.        Custody Findings and Child Support

Father also argues that the district court erred by awarding temporary custody of the parties' three minor children to mother without making the requisite findings as to the best interests of the children.  And father argues that the district court's decision to award mother child support is not supported by sufficient evidence.

Here, the dissolution court awarded permanent, prospective sole legal and physical custody of the parties' children to mother in the dissolution judgment. Thus, even if the OFP lacked adequate findings regarding temporary custody, father would not receive custody of the children and awarding father relief on this point is impossible.  Therefore, we conclude that the issue of custody is moot.  See In re Inspection of Minn. Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn. 1984) (stating issue is moot if a decision on the merits is unnecessary or an award of effective relief is impossible).

A similar analysis addresses father's argument regarding his child support obligation, as father admits that the referee vacated that obligation.  Therefore, because the OFP does not require father to pay child support, we conclude that the issue of child support is moot.

VI.       Prejudice

            Finally, father argues in his reply brief that he has been the "grand victim of gross abuse of judicial process, of bias, manipulation, prejudice and selective enforce[ment] of equal protection under the law."  Father argues that the district court is prejudiced against him and has engaged in a conspiracy against him.  We decline to address father's claims on these issues, however, because father did not raise them in his original brief, thus he cannot raise them in his reply brief.  See McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).

Affirmed; motion denied.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.