In re the Marriage of: Anthony Linus Orner v. Shauna Orner

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1430

In re the Marriage of:
Anthony Linus Orner, petitioner,
Respondent,

vs.

Shauna Orner,
Appellant.

Filed May 26, 2015
Affirmed
Kirk, Judge

Otter Tail County District Court
File No. 56-FA-12-2611

Anthony Linus Orner, Fargo, North Dakota (pro se respondent)

Shauna Orner, Richville, Minnesota (pro se appellant)

Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Kirk, Judge.

UNPUBLISHED OPINION

KIRK, Judge

Appellant-mother argues that the district court erred in awarding physical and

legal custody of the parties’ minor child to respondent-father. We affirm.
 FACTS

Appellant-mother Shauna Orner and respondent-father Anthony Linus Orner were

married in 2008 and are parents to a minor child, C.J.O. In August 2012, father

petitioned for dissolution of the marriage. In October 2012, the parties participated in the

Social Early Neutral Evaluation process and voluntarily agreed to share temporary joint

physical and legal custody of the child. In April 2013, the district court granted the

parties’ stipulation to a bifurcated judgment dissolving their marriage and reserved for

trial all issues relating to child custody, parenting time, and spousal maintenance.

In anticipation of a court trial on custody and parenting time issues, the parties

hired a custody investigator. The custody investigator filed her report with the district

court in July 2013 recommending that the parties share joint legal custody and that father

have sole physical custody of the child.

On October 31, father filed an ex parte motion requesting that the district court

grant him temporary sole legal and physical custody of the child. In his affidavit, father

alleged numerous violations of the October 2012 custody agreement by mother, including

that she withheld the child from him during his court-ordered parenting time and that she

was planning to relocate to California with the child. On November 5, Mother was

served notice of father’s ex parte motion, affidavit, and notice of the hearing.

On November 13, the district court held a hearing on father’s ex parte motion and

awarded father temporary sole legal and sole physical custody of the child subject to

mother’s supervised parenting time. The district court found that there were reasonable

grounds to believe that mother intended to flee the jurisdiction with the child. The

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following month, the state charged mother with felony deprivation of parental rights after

she absconded with the child to Colorado and was apprehended by federal authorities.

The child was reunited with father. In light of mother’s conduct, the custody investigator

amended her initial report and recommended that the district court grant father sole legal

and sole physical custody subject to mother’s supervised parenting time.

A two-day custody trial was held in March 2014, and both parties were

represented by counsel. On June 25, the district court entered a detailed order including

factual findings concerning each of the best-interest custody factors. See Minn. Stat.

§ 518.17 (2014). The district court awarded father sole legal and sole physical custody of

the child subject to mother’s supervised parenting time.

Mother appeals.

DECISION

I. The district court did not err in making the child custody determination.

A district court has broad discretion to provide for the custody of the parties’

children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). “The guiding principle in

all custody cases is the best interest of the child.” Pikula v. Pikula, 374 N.W.2d 705, 711

(Minn. 1985). “Appellate review of custody determinations is limited to whether the

[district] court abused its discretion by making findings unsupported by the evidence or

by improperly applying the law.” Id. at 710. A district court’s findings of fact will be

sustained unless they are clearly erroneous. Id.; see Minn. R. Civ. P. 52.01 (stating that

findings of fact are not set aside unless clearly erroneous). The law “leaves scant if any

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room for an appellate court to question the [district] court’s balancing of best-interests

considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

In her pro se brief, mother argues that the district court erred in awarding custody

of the child to father because (1) the judge was unfairly biased against her; (2) the

custody investigator was unfairly biased against her; (3) an intoxicated witness who was

not previously disclosed on the witness list was allowed to testify on behalf of father;

(4) she did not receive notice of father’s October 31, 2013 ex parte motion; and (5) the

child is currently endangered by living with father.

We note that mother’s brief cites no legal authority in support of her claims. Pro

se litigants are typically held to the same standards as attorneys. Liptak v. State, 340

N.W.2d 366, 367 (Minn. App. 1983). If the brief does not contain an argument or

citation to legal authority in support of the allegations waived, the allegations are deemed

waived. State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002). However, appellate courts

may address any matter “as the interest of justice may require.” Minn. R. Civ. App. P.

103.04. Given the serious nature of this custody dispute, we elect to address mother’s

arguments in turn.

A. The district court judge was not biased.

Mother argues that the district court judge was biased against her in its custody

determination because he overemphasized the fact that she absconded with the child out

of state. The record does not indicate any bias by the district court judge, and mother

offers no evidence of bias. “The mere fact that a party declares a judge partial does not in

itself generate a reasonable question as to the judge’s impartiality.” Hooper v. State, 838

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N.W.2d 775, 790 (Minn. 2013) (quotation omitted). Rather, mother’s argument appears

to reflect strong dissatisfaction with the district court judge’s ruling.

The record supports the district court’s determination that mother posed a serious

flight risk with the child to another state. See Pikula, 374 N.W.2d at 710. In awarding

father physical and legal custody of the child, the district court found that the primary,

but not exclusive factor in its custody determination was the very real risk that mother

would flee again with the child out of state. The district court based its determination on

its opportunity to observe and assess the credibility of mother’s testimony at trial and her

“past disregard and disdain” in complying with the court’s custody and parenting time

order. At trial, mother characterized the court’s temporary order as “bullcrap.” Mother

also admitted at trial that she did not inform father in advance of her decision to take the

child out of state, that she believes the child is presently in danger while residing with

father, and that she would do “anything to keep [her] daughter safe.” Based on mother’s

admissions, the district court reasonably concluded that if it awarded her physical

custody, she would likely abscond with the child again.

B. The custody investigator was not biased.

Absent an abuse of discretion, this court will not overturn a district court’s

decision to adopt the findings of the custody investigator. Rutanen v. Olson, 475 N.W.2d

100, 104 (Minn. App. 1991). Mother argues that the custody investigator was unfairly

biased against her because father paid for the investigator’s services, and that the custody

report was flawed because it ignored evidence of father’s past violent behavior towards

her and the mother of his oldest daughter.

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 A district court may order a professional custody investigation and report in a

contested custody proceeding. Minn. Stat. § 518.167, subd. 1 (2014). The custody

investigator “must consider and evaluate” the best-interest factors that are set forth in

Minn. Stat. § 518.17, subd. 1, and conduct “a detailed analysis of all information

considered for each factor.” Id., subd. 2(b). The district court may receive the custody

investigator’s report into evidence, but is not required to follow a custody investigator’s

recommendation if it is outweighed by other evidence. Pikula, 374 N.W.2d at 712. This

court defers to the district court’s credibility determinations. Vangsness, 607 N.W.2d at

472.

There is no evidence that the custody investigator was unfairly biased against

mother. In preparation for issuing her report, the custody investigator conducted in-home

visits of both parties, interviewed numerous witnesses, including the child, and reviewed

numerous documents. The custody investigator also investigated father’s criminal

history and testified at trial about her conversations with him regarding a previous

domestic-assault incident involving himself and the mother of his oldest daughter. The

custody investigator also acknowledged at trial that it was unusual that mother never

mentioned to her during their repeated interactions that father had ever physically

assaulted her. The district court did not make any finding that the custody investigator

was biased, nor did it wholly adopt the custody investigator’s recommendations. We

conclude mother’s arguments are without merit.

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 C. There was no harm in allowing a non-disclosed witness to testify.

In general, the district court is in the best position to determine what harm is

caused by discovery violations and whether such harm can be eliminated or alleviated.

State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). Mother argues that the district

court erred when it allowed a previous neighbor of the parties to testify because she did

not receive timely notice from father that the neighbor was on his witness list, and

because the neighbor was intoxicated when she testified. The record shows that mother’s

counsel objected to the neighbor’s testimony on the ground that she had not received

notice that the neighbor would testify. The district court denied the motion, stating on the

record that it had previously allowed three witnesses to testify on behalf of mother who

had not been previously disclosed, and that it preferred allowing the parties to fully

develop their cases.

Mother has not shown any harm caused by the district court in allowing the

neighbor to briefly testify to the fact that law enforcement made several visits to the

parties’ residence in 2006. The district court did not reference the neighbor’s testimony

in its custody determination, and there is also no evidence in the record presented to this

court that the neighbor was intoxicated during her testimony.

D. Mother received notice of the hearing on father’s ex parte motion.

Mother’s argument that she did not receive notice of father’s October 31, 2013 ex

parte motion is without merit. The record indicates that mother received notice of the

hearing on father’s motion on November 5. Moreover, the district court acted in

accordance with Minn. R. Gen. Pract. 303.04(f) (stating that when the district court grants

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a party emergency relief without notice and the relief affects custody or parenting time,

the court shall set the matter for hearing within 14 days of the date that emergency relief

is granted).

E. Mother’s motion to modify custody is outside the trial record.

Mother requests that this court modify custody because the child is presently

endangered by father because he is physically abusive and is facing criminal drug charges

in North Dakota. We will not consider these claims because they are outside the trial

record. The record on appeal consists only of “[t]he papers filed in the trial court, the

exhibits, and the transcript.” Minn. R. Civ. App. P. 110.01. Generally, an appellate court

will not consider matters not argued to and considered by the district court. Thiele v.

Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Affirmed.

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