In re the Matter of: Joseph Michael Krznarich, Respondent, vs. Kathleen Ann Freeman, Appellant.

In re the Matter of: Joseph Michael Krznarich, Respondent, vs. Kathleen Ann Freeman, Appellant. A07-993, Court of Appeals Unpublished Decision, December 18, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A07-993

 

In re the Matter of: Joseph Michael Krznarich,
Respondent,
 
vs.
 
Kathleen Ann Freeman,
Appellant.

Filed December 18, 2007

Affirmed

Minge, Judge

 

Anoka County District Court

File No. F6-05-1480

 

Sarah Martin Arendt,  Hedback, Arendt, Kohl & Carlson, PLLC, 2855 Anthony Lane South, Suite 201, St. Anthony, MN 55418 (for respondent)
 
Kathleen Ann Freeman, 1553 111th Avenue N.W., Coon Rapids, MN 55433 (pro se appellant)

 

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

U N P U B L I S H E D   O P I N I O N

MINGE, Judge

Appellant mother challenges the denial of her motions for a new trial and for amended findings in a case awarding sole legal and physical custody of their child to respondent father.  Appellant claims that the district court improperly failed to consider additional evidence, abused its discretion in determining custody, conducted the custody proceedings improperly, and erred by requiring her to pay child support.  We affirm. 

FACTS

Appellant Kathleen Ann Freeman and respondent Joseph Michael Krznarich are the parents of L.B.K., who was born on August 3, 2003.  After the child's birth, appellant and respondent, who were not married, ended their relationship and each sought sole custody of L.B.K.  In reaching its decision regarding custody, the district court considered psychological evaluations conducted on both parties, testimony from both parties, supportive character witnesses, and the independent evaluation of court services.  The district court determined that the respondent should be awarded sole legal and physical custody of L.B.K, and ordered appellant to make child support payments.  Appellant made motions for a new trial and for amended findings.  The district court denied these motions.  This appeal follows. 

D E C I S I O N

I.

The first issue is whether the district court should have considered evidence that the mother wished to add to the record for consideration in connection with her motions for amended findings and a new trial.

"When considering a motion for amended findings, a district court must apply the evidence as submitted during the trial of the case and may neither go outside the record, nor consider new evidence."  Zander v. Zander, 720 N.W.2d 360, 364 (Minn. App. 2006) (quotation omitted).  In addition, new evidence may be considered in connection with a motion for a new trial only if it is material and it could not have been found with reasonable diligence and produced at the original trial.  Minn. R. Civ. P. 59.01.  "This court reviews denials of such motions under an abuse-of-discretion standard."  Zander, 720 N.W.2d at 364. 

Appellant relied on new evidence in making her motion for amended findings and a new trial.  The evidence consisted of more than 20 different items including letters, medical and police records, psychological reports and evaluations, affidavits, agency rules, and an abstract of an article in an academic journal.  These are specified in footnote five in the district court order dated March 20, 2007.

Because there is no showing that the new evidence could not have been submitted at the original trial, the district court could not properly consider that evidence incident to appellant's motion for amended findings. 

II.

The second issue is whether the district court abused its discretion in awarding custody to the father.  A district court has broad discretion to provide for the custody of the parties' children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989); Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984); see In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002) (reciting this standard in a case involving the separation of a child from a natural parent).  Appellate review of custody determinations is limited to determining 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).  Currently, the law "leaves scant if any room for an appellate court to question the trial court's balancing of best-interests considerations."  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  Furthermore, we do not re-weigh a district court's credibility determinations on appeal.  Id. at 472.

Although the mother wished to present new affidavits and evidence to this court, that is not permitted.  We only review the record before the district court.  Minn. R. Civ. App. P. 110.01.  Evidence is presented to the district court; we review the record and the law in order to assure that the district court did not make findings without evidentiary support or incorrectly apply the law.  Silbaugh, 543 N.W.2d at 641; W. World Ins. Co. v. Anothen, Inc., 391 N.W.2d 70, 73 (Minn. App. 1986).  Relief cannot be granted on assertions unsupported by any evidence in the record as it was presented to the district court.  See Minn. R. Civ. App. P. 110.01 (stating that the record on appeal consists of the papers and exhibits filed with the district court, as well as the transcript of the proceedings); see also State v. Gilles, 279 Minn. 363, 365, 157 N.W.2d 64, 66 (1968); State v. Williams, 279 Minn. 152, 153, 155 N.W.2d 739, 740 (1968).  An appeal is not a new trial.  Rather, it is a review of the trial that has already taken place. 

Mother argues that the district court abused its discretion by awarding custody to father because the weight of the evidence favored granting custody to her.  Mother's argument both renews factual assertions that she made at trial and relies on new evidence not considered by the district court.  Because our review is limited to the record before the district court, we do not consider mother's proffered "new" evidence.  Rather, we consider her claims based on the record.  

In determining custody, the law directs the district court to consider 13 factors.  Minn. Stat. § 518.17, subd. 1(a) (2006).  Mother argues that the district court made improper and incorrect factual findings when evaluating many of the best-interests factors involved in awarding custody.  Although the appellant raises several contentions, her challenge emphasizes three best-interests factors: (1) who was the primary caretaker;
(2) the importance of the relationship between the child and the child's half-sibling; and (3) the comparative mental health of the mother and the father.  We consider each.

A.  Child's Primary Caretaker

One of the statutory best-interests factors in determining custody is who has been "the child's primary caretaker."  Minn. Stat. § 518.17, subd. 1(a)(3) (2006).  Appellant asserts that she was the primary caretaker of the child before the separation because she cared for the child during the day.  She also contends that she was present during most evenings and not out gambling, as the district court stated in its findings. 

The district court found that both parties had been primary caretakers before their separation, with the mother caring for the child during the day and the father providing care on weekends and during the evenings.

The district court's findings were based on the court evaluator's report and testimony, which were properly admitted.  The evaluator testified that:

I was not able to say there was one primary caretaker.  [Mother] was home with the child during the day, and certainly would have cared for her more there.  [Father] reports that he cared for the child in the evening from the time he got home.  And he said that Ms. Freeman was in the casino, and not home often.  And sometimes he would be required to stay home from work because she wasn't home yet.  So . . . I determined that they . . . shared caring for the child. 

 

Id.  The district court found this evidence to be credible.  Mother asserts that the court evaluator was not a reliable source and that the district court should not have considered her to be convincing.  Regardless, because we defer to the district court regarding credibility determinations, there is adequate evidence in the record to assure that this shared-care finding by the district court was not an abuse of discretion.  We also note that both parties stipulated to the evaluator's qualifications before she testified.

            B.  Interaction of the Child with Others

 

In determining custody, the statute also requires that the district court evaluate "the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interest."  Minn. Stat.
§ 518.17, subd. 1(a)(5) (2006).  Mother also contends that the district court failed to recognize the importance of L.B.K.'s relationship with her half-brother, who is in mother's sole custody.   Mother asserts that this fact should weigh heavily in her favor.  The district court found that

[L.B.K.] is positively attached to each parent according [to] the Court Services report.  [L.B.K.] reacted in a positive and comfortable way with her father.  In the home visit with her mother, she was clingy and quiet, but had just awakened from her nap.  On that home visit she would not go to her brother, but again, this may be a reflection of [L.B.K.] just awakening rather than a broader statement. 

 

When asked at trial about the child's relationship with her half-brother, the court-appointed evaluator stated that during her visit "[s]he really didn't interact with him much at all.  [Her half-brother] was busy on the phone.  He's a teenager.  And [L.B.K.] had just gotten up, so she was rather clingy with her mother, and really did not interact much with [her half brother] at that time."  L.B.K.'s half-brother provided an affidavit stating that he had a good relationship with L.B.K. 

Based on this record, we conclude that the district court did not abuse its discretion in refusing to give this half-sibling relationship substantial weight in determining custody.

C.  Mental and Physical Health of All Individuals Involved

Another best-interests factor that the statute requires the district court to evaluate in determining custody of a child is "the mental and physical health of all individuals involved."  Minn. Stat. § 518.17, subd. 1(a)(9) (2006).  

Mother challenges the district court's findings related to this factor.  When considering the parties' mental health, the district court relied on an evaluation conducted by court services, which included psychological testing.  The district court also considered testimony from both of the parties and expert witnesses.  There was testimony that mother had gambling problems, that she was prone to angry outbursts, that she wrote father multiple letters about their relationship long after it had ended, that she called him between five and ten times a day, and that she frequently filled up his work phone with messages.    Mother also admitted at trial to "monitoring" father's activities with women. 

Mother asserts that father has a sex addiction and that he is abusive.  There is evidence on the record that father engaged in name calling, but mother introduced no evidence other than her own testimony regarding father's mental condition in regard to these assertions.  The district court ultimately did not find the mother's testimony related to the mental health of the parties to be credible. 

As previously noted, we defer to credibility determinations made by the district court.  The district court relied on testimony and psychological evaluations of the parties in reaching its conclusions regarding their mental health.  Here, there is adequate evidence on the record to sustain the district court's finding that this factor weighed in favor of awarding custody to the father. 

Overall, the factual contentions made by mother in reference to the district court's evaluation of the 13 factors enumerated in Minn. Stat. § 518.17, subd. 1(a), are inadequate to show that the district court abused its discretion in making factual findings.  This does not mean that the district court found her to be an unfit mother; it only indicates that the district court determined that based on the record and the legal standards, sole legal and physical custody should be given to father.  Our review is limited to ensuring that the evidence presented was sufficient to support the district court's decision. 

III.

The third issue is whether the district court's conduct of the trial was improper and requires a reversal.  Minn. R. Civ. P. 59.01 states that a new trial may be granted for any of the following reasons:

(a)   Irregularity in the proceedings of the court, referee, jury, or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial;

(b)  Misconduct of the jury or prevailing party;

(c)  Accident or surprise which could not have been prevented

by ordinary prudence;

            . . . .

(f)   Errors of law occurring at the trial, and objected to at the time or, if no objection need have been made pursuant to Rules 46 and 51, plainly assigned in the notice of motion;
(g) The verdict, decision, or report is not justified by the evidence, or is contrary to law; but, unless it be so expressly stated in the order granting a new trial, it shall not be presumed, on appeal, to have been made on the ground that the verdict, decision, or report was not justified by the evidence.

 

Appellant argues that she was denied a fair trial, that she was not properly presented with certain documents, that new material evidence should have been considered by the district court, and that the district court's conclusions were not supported by the evidence as submitted.  The new-evidence/adequacy-of-the-evidence claims have already been considered.  We briefly address the two other contentions.   

            A.  Irregularity in the Proceedings

 

Appellant appears to argue that she was deprived of a fair trial because of irregularity in the proceedings.  Among her complaints are that misfiled documents from another case were found in her district court file and that the district court did not read motions filed by the parties until after the hearing to which they related.  To obtain a new trial, an appellant must prove (1) an irregularity occurred and (2) she was deprived of a fair trial.   Boschee v. Duevel,  530 N.W.2d 834, 840 (Minn. App. 1995). 

There is no evidence in the record that the district court based its conclusions on the documents of another party.  In making its findings, the district court explicitly referred to the record that was developed over the course of mother's case and exhibited no confusion as to which case it was considering.  Mother was not prejudiced by any misfiled documents. 

The district court acknowledged that on one occasion, it did not read motions filed by the parties until after the hearing they pertained to.  Any detriment mother may have faced because of this was remedied when the district court judge later reviewed the documents that had been filed.  Mother did not show that this procedure denied her a fair trial. 

            B.  Accident or Surprise

 

Mother claims that she never received the ex parte order informing her that legal and physical custody of her child had been awarded to father pending a district court hearing.  The ex parte order is dated February 15, 2005, and, according to an affidavit of service, was served on mother on February 16, 2005.  Even if the order was not delivered, this was a temporary order.  Thus, we conclude mother was not prejudiced by any failure of service of the ex parte order. 

There is no evidence of an abuse of discretion by the district court.  Based on the foregoing review of the district court proceedings, we conclude that the district court neither erred nor abused its discretion in denying mother's motion for a new trial. 

IV.

Mother asserts that the district court abused its discretion when it ordered her to pay child support and that the amount of child support ordered is an unreasonable financial burden.  The district court has broad discretion to provide for the support of the parties' children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion when it sets support in a manner that is against logic and the facts on the record.  Id.; see Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998) (stating that an abuse of discretion occurs when the judge improperly applies the law to the facts). 

            The district court conducted a thorough evaluation of mother's financial situation.  The district court found that mother was employed full time and capable of paying child support.  The district court correctly applied the guidelines in determining the amount to be paid by mother in child support.  According to the guidelines, mother was required to pay 25% of her net income to support one child in the sole custody of father, or $751.50.  Minn. Stat. § 518.55 (2004)[1].  A comparison of her income with father's further indicates under Minn. Stat. § 518.551, subd. 5(b), that the district court was also correct in determining that she should pay $193.50 per month for child-care costs. 

Based on our review of the record, we conclude that the district court did not abuse its discretion in setting the amount of child support.

Affirmed.

 

Dated:

 

[1] Here, we use the version of the statute in effect at the time of the trial.  Interstate Power Co. v. Nobles County Bd. Of Comm'rs, 617 N.W.2d 566, 576 (Minn. 2000).  A modified version became effective on January 1, 2007.  See 2006 Minn. Laws ch. 280, § 44, at 1145 (reciting effective date of amended child support laws); compare Minn. Stat.
§§ 518.551, .64 (2004) with Minn. Stat. §§ 518 A. 26-78 (2006).