In re the Marriage of:

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0624

In re the Marriage of:

Jeffrey Scott Hoover, petitioner,
Appellant,

vs.

Kelly Jane Hoover,
Respondent.

Filed March 6, 2017
Affirmed in part and remanded
Schellhas, Judge

Dakota County District Court
File No. 19AV-FA-12-1651

Diana Longrie, Longrie Law Office, Maplewood, Minnesota (for appellant)

Beau McGraw, McGraw Law Office, Lake Elmo, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges the district court’s orders that modify his physical custody of,
and parenting time with, his three minor child ren, appoint a guardian ad litem for the

2
children, and deny his motion for amended fi ndings and a new evidentiary hearing. We
affirm in part and remand.
FACTS
The judgment dissolving the marriage of appellant Jeffrey Hoover (father) and
respondent Kelly Hoover (mother) was entered on March 13, 2013. The judgment granted
the parties joint legal and physical custody of their three minor children, now ages 16, 14,
and 11, and included a specific parenting-time schedule.
Father’s employment requires him to carry a firearm. In March of 2014, police and
child-protection officials investigated a report that father had angrily cocked his gun at his
child, C.H., and that C.H. was afraid that his father was going to kill him. Police determined
that the allegations were unfounded, and child -protection officials concluded that no
maltreatment occurred but recommended that fa ther accept in-home se rvices because of
concerns about him yelling at the children. Also in March of 2014, after speaking to mother
by telephone while at father’s house, C.H. told father that he had suicidal thoughts. Father
overheard mother tell C.H. that “he needs to be frightened of [father] since [father] carr[ies]
a gun” and that C.H. did not need to feel guilty about telling his therapist untrue things
about father. Father believes that mother’s comments to C.H. caused his suicidal thoughts.
The parties subsequently asked their pare nting consultant (PC) to complete a
parenting evaluation. The PC concluded th at the children were being emotionally
endangered and harmed in father’s care a nd therefore temporarily reduced father’s
parenting time. Although both parties objected to some of the PC’s opinions and

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recommendations, they accepted his recommendatio n to engage Carol R. Tellett, M.A.,
L.P., to conduct a custody and parenting-time evaluation.
On January 29, 2015, Tellett orally opined to the parties’ counsel that there had been
“a significant change of circumstances sinc e the parties’ dissolution in March 2013 and
that the current custody and parenting ti me arrangement ha[d] . . . endangered the
children’s mental health.” Sh e recommended that mother be granted sole legal and sole
physical custody of the children, that fathe r’s court-ordered, unsupervised parenting time
be suspended, that father’s parenting time be supervised at an agency, and that a guardian
ad litem (GAL) be appointed for the children. On January 30, th e district court issued an
ex parte order, granting mother’s emergency motion for temporary sole legal and sole
physical custody of the children, subject to father’s supervised parenting time by an agency.
On February 12, the court modified the orde r to allow father’s parenting time to be
supervised by a responsible adult instead of an agency.
At an evidentiary hearing on July 6, 2 015, Tellett testified and opined that father
loves his children and they love him but r ecommended that father have only supervised
visitation with the children until he engaged in dialectical beha vior therapy so that he is
less prone to be angry with the children a nd more able to understand how his behavior
affects the children. In an August 25 order, the district court fo und that “[father]’s
consistently angry and unpredictable behavior ha[d] caused all three children increased fear
and stress, to the point where circumstances have changed and their emotional development
is endangered,” that mother “ha[d] met her burden to prove that modification of the current
physical custodial arrangement is warranted” because “[t]he evidence demonstrate[d] that

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[father] endangers the emotiona l health of the minor children and, if similar behavior
continues, will impair their emotional deve lopment.” The court granted mother sole
physical custody of the minor children, leaving unchanged the parties’ joint legal custody;
ordered that father’s parenting time be supervised until further order of the court, approved
father’s parents as parenting-time supervisors, and ordered that the children be appointed
a GAL as a permissive appointment and noted that a separate appointment order would be
issued. On September 17, 2015, the court appointed a GAL. In a February 19, 2016 order,
the court denied father’s motion for amended findings and a new trial.
Father appeals the orders of August 25, 2015, September 17, 2015, and February 19,
2016.
D E C I S I O N
I
Father argues that he was unfairly prejud iced by two procedural and evidentiary
rulings. “Procedural and evidentiary rulings ar e within the district court’s discretion and
are also reviewed under an a buse-of-discretion standard.” Braith v. Fischer, 632 N.W.2d
716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001). “A district court’s ruling
on the admissibility of evidence will only be reversed if the court abused its discretion and
the abuse of discretion prejudiced the objecting party.” Melius v. Melius, 765 N.W.2d 411,
417 (Minn. App. 2009). Generally, “[a]n evidentiary error is not prejudicial unless it might
reasonably have influenced the trier of fact and changed the result” of the proceeding. Id.
at 418 (citing George v. Estate of Baker, 724 N.W.2d 1, 9 (Minn. 2006)).

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A

Father argues that the district court e rred by failing to admit therapist Randall
Pottebaum’s records into evidence. Pottebaum had provided therapy to one of the parties’
children, C.H. The court exclud ed the therapy reco rds for lack of fo undation. Before a
document is admitted into evidence, it must be auth enticated or identified. See Minn. R.
Evid. 901(a) (“The requirement of authentication or identification as a condition precedent
to admissibility is satis fied by evidence sufficient to supp ort a finding that the matter in
question is what its proponent claims.”).
Father attempted to introduce Pottebaum’s records during cr oss-examination of
Tellett, whose written report reflects that she cited the records in her custody and parenting-
time evaluation. Pottebaum’s records were admissible under Minn. R. Evid. 703(b) because
Tellett used the records as a basis for forming her opinion about custody and parenting time
in this case. “Nothing in [Minn. R. Evid. 703 ] restricts admissibility of underlying expert
data when inquired into on cross-examination.” Minn. R. Evid. 703(b); see State v.
Morrison, 437 N.W.2d 422, 427−28 (Minn. App. 1989) (holding that district court did not
err by admitting autopsy report of autopsy physician who did not testif y when testifying
coroner used report as basis for forming his own opinion about cause of death), review
denied (Minn. Apr. 26, 1989). The district cour t abused its discre tion by not admitting
Pottebaum’s records into evidence.
But this court will not reverse the distri ct court unless the e rror might reasonably
have changed the result. Father argues that admitting Pottebaum’s therapy records might
have changed the result of th e proceeding because the records substantiate his claim that

6
mother manipulated C.H. We are not persuade d. Even without Pott ebaum’s records, the
evidentiary record contains extensive tes timony about Pottebaum’s opinion concerning
mother’s manipulation of C.H. In Tellett’ s custody and parenting-time evaluation, she
specifically noted that Pottebaum had “concl uded that [mother] was telling [C.H.] how
awful [father] was,” that at C.H.’s last visit, Pottebaum “told [mother] he thought she was
fabricating [C.H.]’s symptoms ,” and that mother termin ated C.H.’s therapy with
Pottebaum. And Tellett testifie d that Pottebaum thought that “[mother] was kind of
encouraging [C.H.] to say things that were not his actual experience.” So, regardless of the
court’s exclusion of Pottebaum’s records, the evidence includes Pottebaum’s opinions, as
summarized by Tellett in her report and testimony. And mother testified that “in the early
stages with [C.H.] . . . [she ] was too involved with the children in going to therapy.” We
therefore conclude that the court’s error in excluding Pottebaum’s records was harmless
because their admission would not have a reasona ble chance to influence the trier of fact
or change the result of the proceeding. See Melius, 765 N.W.2d at 418 (“An evidentiary
error is not prejudicial unless it might reasona bly have influenced the trier of fact and
changed the result of the trial.”); cf. Minn. R. Evid. 403 (noting th at “relevant” evidence
can be excluded if it is “cumulative”).
B

Father also complains that he was prejudiced by a break in his testimony during the
third day of the hearing due to respondent’s counsel’s one-and-one-half-hour absence. The
purpose of his complaint is difficult to understand. Parents have a constitutional right to be
heard on custody issues. Cf. In re Child of P.T., 657 N.W.2d 577, 586 (Minn. App. 2003)

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(discussing, in context of termination of pare ntal rights, procedural and substantive due-
process rights, and explaining that “[t]he due process clause provides that the state may not
deprive a person of life, liberty, or property without due process of law,” and “[t]he
fundamental requirement of due process is the opportunity to be heard at a meaningful time
in a meaningful manner” (quotation omitted)), review denied (Minn. Apr. 15, 2003);
Halverson ex rel. Halverson v. Taflin, 617 N.W.2d 448, 451 (Minn. App. 2000) (explaining
that “[t]he failure to grant a parent an opportunity to be heard on custody issues is a denial
of equal protection and due process”).
Here, after father’s counsel conducted her direct examination of father, she stated
that she had no further questions and mother waived cross-examination. Later, father
argued in a letter to the district court that his testimony was cut short and that he did not
have a full and fair opportunity to be hear d. In its August 25, 2015 order, the court
addressed father’s claim, concluding that it was unfounded, as follows:
First, the court held the hearing after hours on the afternoon of
July 6 in order to accommodate the parties; Second, at the
conclusion of the hearing on July 8 the Court gave the parties
the option to return the following morning to present further
testimony, which both parties declined; and Third, that
[mother] waived any cross ex amination of [father] after
[father]’s testimony concluded.

Father cites no authority to support his claim that he was denied a full and fair opportunity
to be heard before the district court. We conclude that his claim is without merit.
II
Father argues that the district court erre d in finding that enda ngerment exists with
respect to each of the partie s’ children and that endanger ment justifies the permanent

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modification of father’s physical custody and parenting time. “Appellate review of custody
modification . . . is limited to considering whether the trial c ourt abused its discretion by
making findings unsupported by the eviden ce or by improperly applying the law.”
Goldman v. Greenwood , 748 N.W.2d 279, 284 (Min n. 2008) (quotation omitted).
“Appellate court[s] set aside a district court’ s findings of fact only if clearly erroneous,
giving deference to the district court’s opportunity to evaluate witness credibility.” Id.; see
also Minn. R. Civ. P. 52.01 (stating that “due regard shall be given to the opportunity of
the trial court to judge the cr edibility of the witnesses”). “F indings of fact are clearly
erroneous where an appellate court is left w ith the definite and firm conviction that a
mistake has been made.” Goldman, 748 N.W.2d at 284 (quotation omitted).
“We view the record in the light most favor able to the district court’s findings and
defer to the district court’ s credibility determinations.” In re Kremer v. Kremer , 827
N.W.2d 454, 457–58 (Minn. App. 2013), review denied (Minn. Apr. 16, 2013). Even if the
record might support factual findings other than those the court made, the district court’s
findings are not defective unless no evidence exists to support the findings of the court. Id.
at 458 (“But that the record might support findings other than those made by the district
court does not show that the court’s findings are defective.” (quotation omitted)).
Before modifying custody, “the court must first make a two-fold finding: (1) that a
change has occurred in the circumstances of the child or his custodi an, and (2) that the
modification of custody is necessary to serve the best interests of the child.” State ex rel.
Gunderson v. Preuss, 336 N.W.2d 546, 548 (Minn. 1983); Minn. Stat. § 518.18(d) (2016).
Even if a court determines th at a change has occurred and that custody modification is

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necessary to serve the best interests of the child, the court must not modify custody unless
the court also determines that at least one of five circumstances is present, including “the
child’s present environment endangers the child’s physical or emotional health or impairs
the child’s emotional development and the ha rm likely to be caus ed by a change of
environment is outweighed by the advantage of a change to the child.” Minn. Stat.
§ 518.18(d)(iv).
Father argues that the district court erred in concluding that endangerment existed
because “no less than 32 significant findings of fact are in conflict with the direct testimony
of credible witnesses and the testimony of Father.” He also challenges the court’s findings
that Tellett was credible, that her work was pr ofessional and neutral, and that her report
was well reasoned. Father’s brief contains ten pages of complaints about Tellett’s custody
evaluation and argument that the evaluation was “incomplete, utilize[d] flawed evaluation
techniques, and [was] shaped by confirmation bias.” To determine whether Tellett’s work
was professional and neutral and whether her report was well reasoned required the court
to reconcile conflicting evidence and decide issues of witn ess credibility. These tasks are
exclusively the province of the fact-finder. See Gada v. Dedefo , 684 N.W.2d 512, 514
(Minn. App. 2004) (stating, in case in wh ich mother sought order for protection against
father, that appellate courts “neither reconc ile conflicting evidence nor decide issues of
witness credibility, which are exclusively the province of the factfinder”).
The district court devoted more than four pages to a thorough analysis of the best-
interests factors, before setting forth its conclusion that, “considering all relevant factors, a
change in physical custody is necessary in order to protect the children’s mental and

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emotional health.” The court also analyzed whether the advantage of the change in custody
outweighed the possible harm and conclude d that “[a]ny harm in limiting [father]’s
unsupervised parenting time is outweighed by providing the ch ildren a healthy space to
grow and develop until [father] can address his behaviors and better relate to the children.”
Based on our thorough review of the evidence, and viewing the record in the light most
favorable to the district court’s findings and giving deference to the district court’s ability
to assess the credibility of witnesses, we conclude that sufficient evidence supports the
district court’s conclusion that a change of circumstances occurred and that a custody and
parenting-time modification is necessary to se rve the children’s best interests. Sufficient
evidence supports the court’s conclusion that any harm in limiting father’s parenting time
is outweighed by the advantag e of providing the children a healthy space to grow and
develop. Cf. Kuebelbeck v. Humphrey , 402 N.W.2d 202, 203–05 (Minn. App. 1987)
(affirming order limiting noncustodial father’s supervised visitation with his two children
because of evidence that father had used past visitation to “vilify” mother and father’s
impatient and aggressive conduct had caused problems for children and harmed efforts of
other people to give children advantage of good relationship with each parent), review
denied (Minn. Apr. 29, 1987). We will not disturb the district court’s findings because it
was in the best position to dete rmine how much weight to gi ve to different pieces of
evidence and to determine the credibility of witnesses giving conflicting testimony.
Because the district court made findings that are supported by the evidence, and
because the court correctly applied the law, the court did not abuse its discretion by
concluding that endangerment exists with respect to all three children, and that

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endangerment justifies the permanent modi fication of father’s physical custody and
parenting time.
III
Father argues that the district court abused its discretion by denying his motion for
permission to have his fiancée, S.M., supe rvise his parenting time. “Appellate courts
recognize that a district court has broad disc retion to decide parenting-time questions and
will not reverse a parenting-time decision unless the district court abused its discretion by
misapplying the law or by relying on findings of fact that are not supported by the record.”
Suleski v. Rupe , 855 N.W.2d 330, 334 (Minn. App. 2014) (citations omitted). When a
district court makes a finding of endangerment, as it did he re, the district court has the
authority to restrict the supervision of pare nting time in a way the court finds warranted
under the circumstances. See Minn. Stat. § 518.175, subd. 1(b) (2016) (stating that “the
court shall restrict parenting time with [a] parent [causing endangerment] as to time, place,
duration, or supervision a nd may deny parenting time entirely, as the circumstances
warrant”).
Here, the district court denied father’s motion to allow S.M. to serve as a parenting-
time supervisor for two reasons. First, the court found that adding her as a supervisor
“presents a conflict of interest” and, second, that adding her as a parenting-time supervisor
“has been discouraged by the children’s therapists and other professionals.” We agree with
father that no record evidence supports the court’s finding that adding S.M. as a supervisor
“has been discouraged by the children’s therapists and other professionals.” The court’s
finding therefore is clearly erroneous becaus e it is not supported by the record. But,

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considering the totality of th e evidence, the court neverthe less had the discretion to deny
father’s request that S.M. be allowed to supe rvise his parenting time. This is not because
the record contains any evidence to suggest that S.M. is in any way unsuitable to supervise
children, but the record as a whole contains sufficient evidence that her service as a
parenting-time supervisor could present a conflic t of interest. We therefore conclude that
the court acted within its discretion by denying father’s motion to add S.M. as a parenting-
time supervisor even though the decision was based, in part, on an erroneous finding. See
Minn. R. Civ. P. 61 (requiring courts to ignore harmless error).
IV
Father argues that the district court erre d in its permissive appointment of a GAL
and, alternatively, that the court’s September 17, 2015 order, appointing a GAL, supersedes
the court’s August 25, 2015 order. The August 25 order merely provides that “[a GAL]
will be appointed in a separate order. The [GAL] will provide input on the progress of the
case and make recommendations as to when [father]’s unsupervised parenting time can
recommence.” (Emphasis added.) The August 25 order does not state whether the court
anticipated that the GA L appointment would be permissive or mandatory. In a “separate
order” on September 17—a form order—the court appointed a GAL for the children, as a
“permissive1 appointment under Minn. Stat. § 518.165.”
A court may appoint a GAL permissively

1 The September 17, 2015 form GAL-appointme nt order contains endnote 1 here, which
includes a description of the circumstances under which a GAL appointment is permissive,
replete with statutory references and caselaw.

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In all proceedings for child cu stody . . . where custody or
parenting time with a minor ch ild is in issue, the court may
appoint a guardian ad litem to represent the interests of the
child. The guardian ad litem shall advise the court with respect
to custody and parenting time.
Minn. Stat. § 518.165, subd. 1 (2016) (emphasis added); see also Cepek v. Cepek , 684
N.W.2d 521, 524 (Minn. App. 2004) (“In a family cour t child-custody proceeding,
appointment of a [GAL] for the minor child[ren] is permissive, unless the court has reason
to believe that the minor child [ren] [are] victim[s] of domestic child abuse or neglect.”)
(citing Minn. Stat. § 518.165, subds. 1, 2); cf. Tischendorf v. Tischendorf, 321 N.W.2d 405,
409 (Minn. 1982) (explaining that district court has discretion to appoint GAL). When the
court makes a permissive appointment of a GA L, such GAL “shall advise the court with
respect to custody and parenting time.” Minn. Stat. § 518.165, subd. 2.
This court reviews a district court’s d ecision to appoint a gua rdian ad litem for an
abuse of discretion when there are no allegati ons of domestic chil d abuse or neglect. See
Reed v. Albaaj , 723 N.W.2d 50, 59 (Minn. App. 2 006). A district court can abuse its
discretion either by making findings unsup ported by the evidence or by improperly
applying the law. Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 716 (Minn. App. 2009),
review granted (Minn. Sept. 29, 2009) and appeal dismissed (Minn. Feb. 1, 2010).
In the August 25, 2015 order, the district court e xplained that the GAL would,
“provide input on the progress of the case and make recommendations as to when [father]’s
unsupervised parenting time can recommence. ” In the September 17, 2015 order, the
district court specifically added the follo wing language: “Make recommendations in
consultation with the children’s and parties’ therapists as to when [father] may resume

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unsupervised parenting time.” This provision is entirely consistent with the August 25
order, and we therefore reject father’s argume nt that the September 17 order contradicts
the August 25 order.
We agree with father that neither the evidence nor th e district court’s findings
support a mandatory appointmen t of a GAL for the children. 2 But we reject father’s
argument that the September 17 order cons titutes a mandatory GAL appointment; it does
not. The September 17 order constitutes a permissive appo intment under Minn. Stat.
§ 518.165, subd. 1.
Yet we are not entirely unsympathetic to father’s argument that the August 25, 2015
and September 17, 2015 orders are in conf lict because the September 17 order “expands
the scope of work of the GAL over that outline d in the August order.” The district court
checked every box in the September 17, 2015 form order, and two of the boxes are clearly
inapplicable to this case because they pertain to a GA L making recommendations about

2 Under Minn. Stat. § 51 8.165, subd. 2 (2016), a district court must appoint a GAL in
custody proceedings involving abuse or neglect:

In all proceedings for child cust ody . . . in which custody or
parenting time with a minor child is an issue, if the court has
reason to believe that the minor child is a victim of domestic
child abuse or neglect, as those terms are defined in sections
260C.007 and 626.556, respectively, the court shall appoint a
guardian ad litem. The guardian ad litem shall represent the
interests of the child and advi se the court with respect to
custody and parenting time.
(Emphasis added.)

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which party should receive temporary and perm anent custody of the children. As to the
other boxes, we cannot be certain about the court’s intention. Even mother’s counsel agreed
at oral argument before this court that at least some of the GAL du ties authorized in the
September 17 order are inapplicable to the parties’ current circumstances, explaining that
the court just filled out the form and inadvertently checked all of the boxes on the form.
We conclude that the district court properly exercised its discretion by appointing a
GAL for the children as a permissive appoin tment under Minn. Stat. § 518.165, subd. 1.
Because the court mistakenly checked all of the boxes on the form order, we remand the
September 17, 2015 order to the district co urt for correction or am endment to eliminate
confusion about the GAL’s duties and authority in this case.
Affirmed in part and remanded.