Opinion
No. C8-96-522.
Filed September 3, 1996.
Appeal from the District Court, Norman County, File No. F4-91-124.
James A. Beuning, Beuning Law Office, (for Respondent)
Thomas A. Opheim, Opheim Rantla Law Office, (for Appellant)
Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
In a custody modification proceeding, appellant-father claims that the district court erroneously placed the burden of proof on him, made findings of fact not supported by the record, and should have granted his "posttrial" motions. We affirm.
FACTS
The stipulated judgment dissolving the marriage of appellant-father Douglas Lloyd Nelson and respondent-mother Patricia Louise Nelson awarded mother custody of the parties' children. In 1994, the district court entered an amended judgment awarding father custody of the children. The amended judgment was unclear about the duration of father's custody. In June 1995, father moved for his current custody of the children to be extended or to obtain permanent custody of the children. In a November 1995 order, the district court ruled that the 1994 amended judgment awarded father temporary custody, put the burden of proof for a custody modification on father, and denied father's motion for custody because he had not shown that a custody modification was in the children's best interests. In February 1996, the district court denied father's "posttrial" motions. Father appeals.
DECISION
1. district court read the 1994 amended judgment to award father temporary custody and concluded that, for father to prevail in the current proceeding, he had to meet the custody modification standard set out in Minn. Stat. § 518.18 (1994). Father claims that, because there was no motion before the district court to interpret the 1994 amended judgment, the district court erred in requiring him to meet the statutory standard.
Referring to an in-chambers discussion occurring before the hearing on father's motion, the district court stated that "[t]he Court made it clear, and the attorneys acquiesced, that this was in fact a motion to modify [custody] with the burden being upon [father]." (Emphasis added.) Because father did not provide this court with a transcript of the in-chambers discussion, our review is limited to whether the district court's conclusions of law are supported by the findings of fact. Mesenbourg v. Mesenbourg , 538 N.W.2d 489, 494 (Minn.App. 1995). The conclusion that father has the burden of proof in this modification proceeding is supported by both case law and the finding that father agreed that he had that burden. See Truesdale v. Friedman , 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) (party seeking review must provide appellate court with a record showing alleged errors); Loth v. Loth , 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (appellate courts cannot assume district court error).
2. challenges several findings regarding the children's best interests. District court findings of fact are not set aside unless "clearly erroneous." Minn.R.Civ.P. 52.01. After a review of the record and the conflicting evidence therein, we conclude that while the record contains evidence to support some of father's claims, it also contains evidence to support the district court's findings. We will not reverse the district court's findings. See Stiff v. Associated Sewing Supply Co. , 436 N.W.2d 777, 779-80 (Minn. 1989) (where record contains conflicting evidence, appellate court will not alter district court's findings merely because appellate court might have found facts differently in the first instance); see also Sefkow v. Sefkow , 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations). A similar analysis also addresses father's claim that the district court should have granted his motion for amended findings because the district court's findings were not supported by the record.
3. also claims that the district court should have granted his motion for amended findings because of newly discovered evidence. We disagree. The record is not well developed regarding the children's church-related activities but, on the record currently before us, it is not clear that mother perjured herself on this issue. Also, father's cite to a 1992 police report to claim that mother's fiance may harm the children is unpersuasive because the report is stale and because there is no current danger to the children due to the fact that mother's fiance is attending school outside of Minnesota. Further, we cannot say that the record currently before us shows that mother "abandons" the children by leaving them in the care of the parties' 13-year-old child.
4. custody modification proceeding is a "special proceeding" and a new trial motion "is not authorized" therein. Huso v. Huso , 465 N.W.2d 719, 720-21 (Minn.App. 1991). The district court did not err in denying father's new trial motion.