In re the Marriage of: Sheree Rosett Curry, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0074

In re the Marriage of: Sheree Rosett Curry, petitioner,
Appellant,

vs.

Michael David Levy,
Respondent.

Filed December 10, 2018
Affirmed; motion denied
Reyes, Judge

Hennepin County District Court
File No. 27-FA-06-9089

Sheree R. Curry, Maple Grove, Minnesota (pro se appellant)

Kay Nord Hunt, Marc A. Johannsen , Lommen Abdo, P.A., Minneapoli s, Minnesota (for
respondent)

Caroline B. Heicklen, Jones Day, Minneapolis, Minnesota (for am icus Minneapolis
Chapter of NAACP)

Considered and decided by Florey, Presiding Judge; Ross, Judge ; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this marital-dissolution appeal, pro se appellant-mother arg ues that the district
court abused its discretion in: (1) denying her motion to disqualify the referee for bias and
prejudice; (2) failing to obtain confirmation of the referee’s decision to interview the

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parties’ minor child; (3) taking judicial notice without giving her an opportunity to be
heard; (4) denying her a deviation from the presumptive child-s upport obligation
guidelines; and (5) omitting consid eration of race in its evalu ation of a parenting-time
modification. Respondent-father cross-appeals, challenging the district court’s findings of
fact regarding each parties’ litigiousness and credibility. We affirm.
FACTS
Appellant-mother Sheree Rosett C urry (mother) and respondent-f ather Michael
David Levy (father) married in 1 9 9 9 . T h e i r m a r r i a g e d i s s o l v e d in August 2008. The
parties had two minor children during the marriage. A first re feree presided over the
parties’ case until 2016, when t he parties’ case was reassigned to a second referee (the
referee). Beginning in 2016, th e parties brought various motions focused on requests for
modifications of parenting time and child support. In August 2 016, mother appealed a
district court decision to this court. We reversed in part and remanded to the district court
for consideration of additional factors to determine the childr en’s primary residence, and
re-consideration of the parenting-time division and the parties’ child-support obligations.
Father moved to request, among other things, that the referee interview the younger
of the parties’ minor children to obtain his preference on a pr oposed modification of
parenting time. Mother filed ne w motions, seeking modification of parenting time and a
downward deviation from the presumptive child-support-obligation guidelines. At a two-
day motion hearing, on July 20 and 21, 2017, both parties presented arguments on the issue
of interviewing the minor child. During the hearing, the refer ee informed the parties that
he would be taking judicial notice of “all adjudicated facts in the file, specifically all prior

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orders by [the first referee] or any other judicial officer and the Court of Appeals
decisions.” After the first day of the hearing, the referee se nt an e-mail to all parties,
indicating that he would interview the minor child. Mother unsuccessfully petitioned this
court for a writ of prohibition that same day, seeking to precl ude the interview. On the
second day of the motion hearing, the referee stated on the record his reasons for wanting
to interview the minor child, and he interviewed the child later that day.
Mother filed a motion to strike th e interview of the minor chil d. In her affidavit,
she also included a request for the referee to disqualify himself from the case, alleging that
he exhibited bias or prejudice against her. Mother cited to a variety of cases from
approximately seventeen years ago when the referee had been a p rosecutor. These cases
involved prosecutorial misconduct by the referee, including inappropriately inviting jurors
to apply racial and socio-econom ic considerations to their fact -finding when race should
have been irrelevant. Mother, an African-American woman, argue d that these cases
suggested that the referee harbored latent bias or prejudice against minorities.
The referee issued an order on remand (1) denying mother’s requ est for parenting-
time modification based on a more in-depth determination of the childrens’ primary
residence; (2) amending mother’s basic child-support obligation but denying her request
for a downward deviation; and (3) implicitly affirming the dist rict court’s earlier decision
to take judicial notice of prior findings and orders in the dis trict court’s file. This order
also denied mother’s request to remove the referee for cause. Mother sent a letter to the
chief judge, requesting review of the referee’s denial of her m otion to remove. The chief
judge filed her order in February 2018, denying mother’s motion to remove the referee.

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Mother filed this appeal. In March 2018, father filed a notice of related appeal, and the
National Association for the Advancement of Colored People (NAACP) filed a motion for
leave to participate as amicus curiae in support of mother.
D E C I S I O N
I. The district court did not abuse its discretion in denying moth er’s motion for
disqualification.

Mother argues that the referee should have been disqualified fo r bias or prejudice
because of his past race-related misconduct as a county prosecutor. We disagree.
The decision to deny a motion to disqualify a judge based on bias or prejudice will
be reversed only upon a showing of an abuse of discretion. Matson v. Matson, 638 N.W.2d
462, 469 (Minn. App. 2002). “A judge shall disqualify himself or herself in any proceeding
in which the judge’s impartiality might reasonably be questioned, including but not limited
to [when] . . . the judge has a personal bias or prejudice concerning a party.” Minn. Code.
Jud. Conduct Rule 2.11(A)(1) (emphasis added).
Mother makes several arguments in support of her position. The NAACP filed an
amicus brief in support of mothe r, raising a pertinent argument . Each argument will be
addressed in turn.
A. The referee did not exhibit an appearance of bias.
Mother argues that disqualification was warranted because she satisfied her burden
of proof under Minnesota Code of Judicial Conduct Rule 2.11 by citing to the various prior
cases in which the referee engaged in race-based misconduct as a county prosecutor. She
interprets the “might reasonably be questioned” language of rule 2.11 to mean that, in order

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to be disqualifying, she only needs to demonstrate an appearanc e of bias by the referee
without evidence of actual bias against her. Mother’s interpre tation of the rule is
unfounded.
The types of circumstances that warrant disqualification of a j udge involve more
than a mere “appearance” of bias or prejudice. The plain language of rule 2.11 states that
a judge’s alleged bias or prejudice must “concern a party” in t he current proceeding. See
Minn. Code. Jud. Conduct Rule 2.11(A)(1). In Pedro vs. Pedro, a case mother relies on,
this court held that any alleged bias or prejudice is disqualifying only if it “stem[s] from an
extrajudicial source and results in an opinion on the merits on some basis other than w hat
the judge learned from his participation in the case.” 489 N.W .2d 798, 804 (Minn. App.
1992), review denied (Minn. Oct. 20, 1992) (emphasis added). Therefore, in addition to
proving that the referee engage d in extrajudicial misconduct, m other had the burden of
proving such misconduct resulted in bias or prejudice against h er in the current
controversy. On appeal, mother fails to point to any evidence that the referee exhibited
bias or prejudice against her in the current proceeding or that his past misconduct had an
effect on the result of her case. As a result, mother’s disqualification claim is unfounded.
B. The district court properly executed the standard for reviewing a motion
for disqualification.

Mother argues that it was improper for the chief judge to review the referee’s denial
of her motion for disqualification because the chief judge was not an unbiased layperson.
Mother’s argument lacks merit.

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Mother relies on a footnote in State v. Pratt that discusses the “reasonable examiner”
standard for reviewing disqualification cases. 813 N.W.2d 868, 876 (Minn. 2012). Under
this standard, the reviewing judg e must adopt the perspective o f an objective, unbiased
layperson with full knowledge of the facts and circumstances. Id.
Mother’s argument lacks merit fo r two reasons. First, the fact s in Pratt are
dissimilar because the chief judge in Pratt expressly chose to evaluate the motion for
disqualification from the perspective of a chief judge, which is not the standard. Id. Here,
the chief judge cited the corr ect reasonable-examiner standard i n h e r F e b r u a r y 7 , 2 0 1 8
order. Second, it appears that mother misunderstands how the r easonable-examiner
standard operates in practice. It requires the chief judge to review the facts from the
perspective of an unbiased layperson, which the chief judge here did. Therefore, the chief
judge properly executed the standard for reviewing a motion for disqualification.
C. Any error in the interpretation of Rule 2.11(A)(5) was harmless.

The NAACP argues that the district court erred by improperly applying expression
unis est exclusio alterius 1 to Rule 2.11(A). For purposes of this appeal, we will assume
that the district court committed error. However, on this record, any error is harmless.
This court reviews questions of rule interpretation de novo. Walsh v. U.S. Bank ,
851 N.W.2d 598, 601 (Minn. 2014) (citing Mingen v. Mingen, 679 N.W.2d 721, 727 (Minn.
2004)). Rule 2.11(A) lists certain circumstances in which a ju dge must disqualify herself
if her impartiality might reasonably be questioned. Minn. Code . Jud. Conduct Rule

1 Expressing one item of an associated group or series excludes another left unmentioned.
NLRB v. SW General, Inc., 137 S. Ct. 929, 941 (2017).

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2.11(A). The “including but not limited to” language indicates that the list is non-
exhaustive. This qualification extends to all of Rule 2.11(A)’s subsections, (1) through (5).
Rule 2.11(A)(5) contains a sub-list of disqualifying circumstan ces that relate to a
judge’s previous work as a lawyer. Upon close reading of Rule 2.11(A)(5), all of the listed
circumstances are characterized by some degree of direct involv ement in the matter in
c o n t r o v e r s y . W h i l e i t i s t r u e t h a t t h e r e f e r e e ’ s p r i o r c o n d u c t in unrelated cases is not
covered by any of the listed provisions of the rule, the “inclu ding but not limited to”
language makes it possible that o ther circumstances would quali fy despite not being
expressly listed.2 Therefore, we conclude that the chief judge erred in determining that the
referee’s past conduct cannot be a disqualifying circumstance under Rule 2.11(A)(5).
However, here this error was harmless. As previously noted, the rule itself and the
caselaw related to disqualification for bias or prejudice makes clear that the judge’s
extrajudicial conduct must bear some relation to the present ma tter or result in a biased
opinion in the present matter. Mother fails to provide evidence of bias or prejudice by the
referee against her in the current proceeding. Therefore, any error was harmless.

2 “Under [Rule 2.11], a judge is disqualified whenever the judge s impartiality might
reasonably be questioned, regardless of whether any of the specific provisions of
paragraphs (A)(1) through (5) apply. ” Minn. Code. Jud. Conduct Rule 2.11, advisory
comm. cmt. 1 (emphasis added).

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II. T h e d i s t r i c t c o u r t d i d n o t a b u s e i t s d i s c r e t i o n b y i n t e r v i e w i n g t h e p a r t i e s ’
minor child without first obtaining confirmation by a district court judge.

Mother argues that the referee violated Minnesota Statute § 484 .65 (2018) and her
due-process rights by holding an evidentiary hearing to intervi ew the parties’ minor child
without first issuing an order and obtaining confirmation by a district court judge and seeks
to have the interview stricken from the record. We disagree.
The application of statutes to undisputed facts is a legal conclusion that we review
de novo. City of Morris v. Sax Invs., Inc., 749 N.W.2d 1, 5 (Minn. 2008). Upon conclusion
of a case, the referee’s recommended findings and final orders are subject to confirmation
by a district court judge. Minn. Stat. § 484.65, subd. 10.
Here, the referee held an eviden tiary hearing on father’s motio n to have the court
interview the parties’ minor child, and granted father’s motion. Evidentiary rulings are not
final orders. Matter of Welfare of K.P.H., 289 N.W.2d 722, 724 (Minn. 1980). Therefore,
the referee did not have to seek confirmation from a district c ourt judge for his ruling on
father’s motion, and he was not i n violation of Minnesota Statu te § 484.65. Because the
referee did not commit error, we need not evaluate mother’s due-process claim.
III. The district court did not abuse its discretion in taking judic ial notice of all
adjudicative facts in the file.

Mother argues that the district court denied her an opportunity to be heard as to the
propriety of taking judicial notice, thus violating her due-process rights, and erred in failing
to identify with specificity the parameters of the judicial notice. We address each argument
in turn.

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A. Mother’s due-process rights were not violated.
Mother argues that she was not given an opportunity to be heard pursuant to Minn.
Evid. R. 201. This argument is belied by the record.
Under Rule 201, courts may take judicial notice of adjudicative facts in civil cases.
Minn. R. Evid. 201(a). “A party is entitled, upon timely request, to an opportunity to be
heard as to the propriety of taking judicial notice.” Id. (emphasis added)
The transcripts for the July 20 and 21 hearings indicate that the referee informed the
parties that the district court would be taking judicial notice of certain adjudicative facts.
At no point during these hearings did mother request an opportu nity to be heard on this
issue. It was only one month af ter the second day of the heari ng that mother objected to
the taking of judicial notice in an affidavit. Mother’s objection was not timely as the taking
of judicial notice had already occurred.
B. The district court properly spec ified the parameters of the rec ord that
were subject to judicial notice.

Mother argues that the district court abused its discretion in taking judicial notice
without specifying the scope of the record implicated because i t rendered her unable to
anticipate how to defend herself. We disagree.
“A district court’s decision whether to take judicial notice of proffered facts is an
evidentiary ruling that we review only for abuse of discretion.” Fed. Home Loan Mortgage
Corp. v. Mitchell, 862 N.W.2d 67, 71 (Minn. App. 2015), review denied (Minn. June 30,
2015). Court records and files from prior adjudicative proceedings are appropriate subjects
for judicial notice. Matter of Welfare of D.J.N. , 568 N.W.2d 170, 174-175 (Minn. App.

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1997). However, district courts may not take judicial notice o f entire files without
specifying which parts are being considered. Id.
Mother challenges the district court’s decision to take judicia l notice of what she
describes as “all court orders in any district court, for a 10-year period.”3 However, hearing
transcripts confirm that the referee specified that the district court would be taking judicial
notice of “all the adjudicative facts in the file, specifically all prior orders by [the first
referee] or any other judicial officer and the Court of Appeals de cisions.” The referee
articulated, with adequate spec ificity, the adjudicative facts subject to judicial notice.
Therefore, the district court’s specification of judicial notice was proper.
IV. The district court did not abuse its discretion in denying a de viation from the
presumptively appropriate child-support-obligation guidelines.

We construe mother’s argument to be that the district court err ed in denying her a
deviation from the presumptive child-support guidelines because it incorrectly held that
she failed to submit updated documentation of her income. We disagree.
A district court’s order regarding child support will be revers ed only if we are
convinced it abused its broad discretion by resolving the matter in a manner that is against
logic and the facts on the record. Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999). In
considering whether to deviate from child-support guidelines, d istrict courts consider

3 Mother contradicts her current argument in her affidavit of Au gust 21, 2017. In that
affidavit, mother objects to the court taking judicial notice of “adjudicative facts,” arguing
that the district court should have taken judicial notice of th e “entire record” instead. See
Thiele v. Stich , 425 N.W.2d 580, 582-83 (Minn. 1 988) (noting that party may no t, on
appeal, argue issue raised in di strict court that was argued to district court on different
theory).

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factors including, but not limited to, all of the earnings, inc ome, and resources of each
parent, including real and persona l property. Minn. Stat. § 518 A.43 (2018). As the party
seeking a deviation, mother had the burden of demonstrating why a lower support order is
necessary. See Cty. of Anoka ex rel Hassan v. Roba , 690 N.W.2d 322, 325 (Minn. App.
2004) (citation omitted).
In May 2017, this court remanded the matter to the district cou rt to determine
whether or not a downward deviation of child support should be granted. On remand, the
district court found that mother failed to provide updated income and expense information
to support her request for a deviation. After a careful and ex tensive review of the record,
we agree with the district court that the documents supplied by mother fall short of
satisfying mother’s burden under Minn. Stat. §518A.28 to establish a basis for a downward
deviation of child support. Beca use mother failed to supply th e record with updated
information as to her income, her claim fails.
V. The di s t r i c t c our t di d n ot e xhi bi t bi as t o w ar d m ot he r a nd di d not abuse its
discretion by omitting consideration of race in its evaluation of parenting-time
modification.

Mother argues that the district court exhibited bias towards he r and abused its
discretion by omitting considerati on of race in its evaluation of parenting-time
modification. We address each argument in turn.
A. Bias
Mother supports her claim of bias by citing to prior adverse and allegedly erroneous
rulings by the district court in her case. Prior adverse rulin gs, on their own, do not
constitute bias. Greer v. State, 673 N.W.2d 151, 157 (Minn. 2004). Mother fails to offer

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any other reasons or relevant legal authority to support her cl aim of bias. Therefore,
mother’s argument is forfeited. Stephens v. Bd. Of Regents , 614 N.W.2d 764, 770 n.4
(Minn. App. 2000) (citation omitted).
Even if we considered mother’s claim of bias, it lacks merit. In support of her
argument, mother cites to the district court’s denials of her v arious motions to modify
parenting time. In denying the motions, the district court held that a modification to equal
parenting time was not in the best interests of the children be cause the parties’ extensive
litigation reflected their inability to co-parent their childre n cooperatively. The district
court highlighted mother’s apparent disinterest in co-parenting , “irrespective of whatever
detrimental impact it had on the children.” Mother argues that this holding reflects bias
against her because the parties ceased litigation for the period of 2012 to 2015.
On appeal, mother fails to cite evidence that contradicts the district court’s finding.
See Minn. R. Civ. App. P. 128.02, s ubd. 1(c) (requiring appellant t o cite the evidence
supporting, directly or by reasonable inference, the finding of fact appellant is challenging).
Instead, mother focuses on allegations of father’s bad-faith li tigation. Also, while the
record supports mother’s claim t hat litigation between the part ies ceased for a time, the
record shows that the parties’ litigious patterns recommenced a t the start of 2016.
Therefore, we conclude that the district court did not exhibit bias toward mother.
B. Consideration of race
Mother claims that the district court abused its discretion in omitting consideration
of race in its evaluation of parenting-time modification.

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The district court has broad discretion in determining parenting-time issues and will
not be reversed absent an abuse of that discretion. Dahl v. Dahl , 765 N.W.2d 118, 123
(Minn. App. 2009) (citation omitte d). A district court abuses its discretion if its findings
are unsupported by the record or if it misapplies the law. Id. (citation omitted).
On appeal, mother fails to provide any relevant legal authority to support her claim.
As a result, her argument is forfeited.
Even if we were to consider her claim, it fails. The district court on remand noted
that it was reviewing mother’s request for parenting-time modif ication pursuant to Minn.
Stat. § 518.175, subd. 5, which states that “all relevant facto rs” must be considered in
evaluating the best interests of the child. Minn. Stat. § 518. 17 does not include race as a
factor that courts must conside r. Therefore, we conclude that the district court did not
abuse its discretion in omitting consideration of race in its e valuation, under § 518.17, of
parenting-time modification.
VI. T h e d i s t r i c t c o u r t d i d n o t e r r i n i t s f i n d i n g s o f f a c t r e g a r d i ng each parties’
litigiousness and credibility.

On cross-appeal, father argues that several of the district cou rt’s findings of fact
regarding the parties’ litigiousness and credibility are errone ous and should be amended.
We disagree.
This court reviews a district court’s finding of fact for clear error. Rasmussen v.
Two Harbors Fish Co. , 832 N.W.2d 790, 797 (Minn. 2013). A finding of fact is clear ly
erroneous only if we are left with the definite and firm conviction that a mistake has been
made. Id.

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Father seeks to have certain findings from the chief judge’s February 7, 2018 order
removed from the record. They consist of:
(1) A finding that “both parties have brought a plethora of
post-decree motions . . .”;
(2) A finding that “[the referee] remained patient and fair
while dealing with the exceedingly litigious parties ”;
and
(3) A finding that the referee decided to interview the
parties’ minor child because he “found neither party to
be credible.”

Father seeks to have the first and second findings of fact amen ded because the
referee acknowledged in a prior order that most filings in this case were initiated by mother.
However, in the same prior order, the referee found that betwee n March 2007 and May
2016, mother filed 113 motions and father filed 78. While it i s true that mother initiated
more filings than father, he was not far behind her.
Father seeks to have the third finding of fact amended because nowhere in the
referee’s November 9, 2017 order does the referee cite the part ies’ credibility as a reason
for wanting to interview the parties’ minor child. This findin g of fact is not erroneous
because the referee stated during the July 21, 2017 hearing that the parties’ credibility was
a motivation for interviewing the parties’ minor child. See Minn. R. Civ. P. 52.01 (noting
that findings may be stated ora lly and recorded in open court). The chief judge’s use of
the word “record” includes both trial transcripts and orders. Therefore, while it is true that
the referee did not mention the parties’ credibility in his prior November 9, 2017 order, the
hearing transcript confirms th at credibility was a reason why t he referee needed to
interview the parties’ minor child. Therefore, since we are no t left with the definite and

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firm conviction that the distric t court made a mistake, we conc lude that the district court
did not abuse its discretion.
VII. Mother’s motion to strike portions of father’s reply brief is denied.
On July 26, 2018, mother filed a motion to strike portions of father’s reply brief on
the ground that father’s reply brief addressed new matters not raised in mother’s principal
brief. We conclude that the arguments raised in father’s reply brief constitute permissible
rebuttal to mother’s arguments on the cross-appeal issues.
A respondent/cross-appellant’s r eply brief must comply with rul e 128.02,
subdivision 4, and must be limite d to the issues presented by t he cross-appeal. Minn. R.
Civ. App. P. 131.01, subd. 4(d)(4). Reply briefs are liberally construed to allow appellant
to respond to the arguments raised by respondent, even if they are technically new matter.
3 Eric J. Magnuson, David F. Herr & Sam Hanson, Minnesota Practice § 128.8 (2017).
To the extent that a reply brief offers a rebuttal to the arguments raised by respondent, the
brief does not violate rule 128.02. Goeman v. Allstate Ins. Co. , 725 N.W.2d 375, 378
(Minn. App. 2006).
Father’s reply brief directly rebuts mother’s statement in her brief that the
challenged findings were not erroneous or that any error was ha rmless. In view of this
court’s practice to liberally construe the rule defining the sc o p e o f a r e p l y b r i e f , w e
conclude that father’s brief is limited to the cross-appeal issues and does not impermissibly
raise new issues.
Affirmed; motion denied.