In re the Marriage of: Yusuf Haji-Ismail Ali, 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This opinion will be unpublished and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
A18-1596

In re the Marriage of:
Yusuf Haji-Ismail Ali, petitioner,
Appellant,

vs.

Myrna Wati Ali,
Respondent,

County of Scott, intervenor,
Respondent.

Filed June 3, 2019
Affirmed
Jesson, Judge

Scott County District Court
File No. 70-FA-17-5017

Yusuf Haji-Ismail Ali, Eden Prairie, Minnesota (pro se appellant)

Amy Edwall, Law Offices of Southern Minnesota Regional Legal Services, Inc., St. Paul,
Minnesota (for respondent Myrna Wati Ali)

Ron Hocevar, Scott County Attorney, Ingrid Dixon, Assistant County Attorney, Shakopee,
Minnesota (for respondent Scott County)

Considered and decided by Jesson, Presiding Judge; Ross, Judge ; and Johnson,
Judge.

2
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant-father Yusuf Haji-Is mail Ali challenges the district court’s award of sole
legal and physical custody of the parties’ children to responde nt-mother Myrna Wati Ali.
Several months after father returned from an almost two-year tr ip to Somalia, he filed for
dissolution. After a court trial, the district court awarded m other sole legal and physical
custody, with parenting time for father. Father argues that th e district court erred in its
findings of fact, and erred by re moving the custody evaluation requirement, denying his
continuance request, allowing mother to present her evidence fi rst at trial, and dening his
motion for a new trial. Because the district court did not err and acted within its wide
discretion, we affirm.
FACTS
Appellant-father Yusuf Haji-Isma il Ali and respondent-mother My rna Wati Ali
married in April 2008. Father and mother are the parents of two children, born in 2009 and
2010. Father filed a petition to dissolve the marriage in March 2017.
Father and mother resided toge ther with their children until M arch 2015, when
father left to claim an inheritance in Somalia. Before father left, he told mother that he was
not sure when, or if, he would return. While in Somalia, fathe r had little contact with the
children. During this time, mother changed her phone number, b ut she testified that
father’s relatives had her new phone number, and father could c ontact her through social
media.

3
In December 2016, father returned. Upon his return, he moved b ack into the
apartment he previously shared with mother. Mother had already removed father from the
lease and did not want him to move back in. But she allowed hi m to move in because he
wanted to be near the children. Mother testified that upon fat her’s return, he became
physically abusive and threatened to kill her if she took the children without his permission.
In March 2017, father was removed from the home upon service of an ex parte order for
protection.1 After father’s removal from the marital home, he moved in wit h a family
friend and her son, S.M., who ha d previously been adjudicated d elinquent for an offense
related to child pornography.
Prior to trial, a stipulated order for temporary relief was is sued that stated neither
party would allow either S.M. or J.C., a friend of mother’s wit h a prior sex-offense
conviction, to be around the children. And because father stil l lived in the same home as
S.M., father’s parenting time would take place away from his home.
A dissolution pretrial order was issued in July 2017, ordering the parties to complete
a custody evaluation prior to trial. Almost five months later, mother filed a letter stating
that she could not afford to pay for a custody evaluation. The following day, father filed a
letter requesting a continuance on the basis that a custody evaluation should be performed,
and that he was unable to secure witnesses for trial because th e order for protection
prevented him from approaching witnesses in mother’s apartment complex. The district

1 Following an evidentiary hearing, the district court granted mother an order for protection
with findings of domestic abuse. Over a year later, father cha llenged the district court’s
extension of the order for protection. This court affirmed the district court’s decision in
Ali v. Ali, No. A18-1413 (Minn. App. May 6, 2019).

4
court denied father’s request for a continuance. It further declined to order that the parties
pay for a custody evaluation and removed the previously imposed custody evaluation
requirement.
In January 2018, the dissolution matter proceeded to a two-day court trial where
both parties sought sole legal and physical custody of the children. The district court heard
testimony from father, mother, a member of mother’s support group, and a representative
from the county.
The district court issued its findings of fact, conclusions of l a w , a n d o r d e r f o r
judgment, granting mother sole le gal and physical custody of th e children. Shortly
thereafter, father filed a motion for amended findings, request ing that the district court
amend six findings of fact and one conclusion of law, and reque sting a new trial on
unspecified grounds. After a motion hearing, the district court denied father’s motions.2
Father appeals.
D E C I S I O N
Father raises several arguments on appeal. First, father argues that the district court
made erroneous findings of fact not supported by the record. S econd, father asserts that,
when the district court removed the custody evaluation requirem ent, it abused its
discretion. Third, father contends that the district court erred procedurally when it denied
his continuance request and by allowing mother to present her e vidence first at trial.

2 In support of his motion for amended findings, father submitted new evidence, in addition
to what was already presented at trial. But the district court stated that it would not review
any new evidence. And in its order, the district court noted t hat it disregarded all
information outside of the record for purposes of father’s motion for amended findings.

5
Finally, father challenges the district court’s denial of his m otion for a new trial. 3 We
address each argument in turn.
I. The district court did not m ake erroneous findings of fact.

Father asserts that the district court made the following error s in its findings of
fact: (1) finding that mother’s phone number was changed due to a billing dispute;
(2) finding that father told mothe r he may not be returning fro m Somalia; (3) failing to
make a finding that mother alienated the children from father; (4) failing to find that mother
did not fully disclose childcare providers in her answers to fa ther’s discovery; and
(5) finding that father committed acts of domestic abuse agains t mother. We review the
district court’s findings of fact for clear error and will only reverse when this court “is left
with the definite and firm conviction that a mistake has been m ade.” Rasmussen v. Two
Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013) (quotation omitted).
Here, the record supports the di strict court’s findings of fact . Mother’s testimony
addressed all of these disputed facts. And the district court made clear that it found mother
credible and made its findings because of that credibility dete rmination. See Sefkow v.
Sefkow, 427 N.W.2d 203, 210 (Minn. 1988 ) (stating that a reviewing co urt defers to the

3 Father also appears to argue that the district court made inap propriate findings on the
best-interests factors and failed to apply them judiciously. But he does not challenge any
particular best-interests factor finding. In its order, the district court addressed each of the
best-interests factors, determined who the factors favored, and b a l a n c e d t h e f a c t o r s ,
ultimately determining that mothe r should have sole physical an d legal custody, with
parenting time for father. And this court will affirm a trial court’s analysis of the
best-interests factors, unless the trial court abused its discretion or erroneously applied the
law. Vangsness v. Vangsness, 607 N.W.2d 468, 475 (Minn. App. 2000). Here, the district
court did neither.

6
district court for credibility determinations). Because the fi ndings of fact that father
challenges are supported by the r ecord, the district court did not clearly err in making its
findings of fact.
II. The district court did not abuse its discretion in removing t h e c u s t o d y
evaluation requirement.

Minnesota Statutes section 518.167 (2018) governs the district court’s ability to
order a custody evaluation. As pa rt of a custody dispute, “the court may order an
investigation and report concer ning custodial arrangements for the child.” Minn.
Stat. § 518.167, subd. 1. We review the district court’s decis ion to order a custody
evaluation for an abuse of discretion. J.W. ex rel. D.W. v. C.M. , 627 N.W.2d 687, 696
(Minn. App. 2001), review denied (Minn. Aug. 15, 2001).
Before this case was reassigned, the previous judicial officer ordered a custody
evaluation pursuant to Minnesota Statutes section 518.167, subdivision 1. But due to the
parties’ inability to pay for a custody evaluation, the distric t court removed the
requirement.4 In doing so, the court found th at both parties were receiving public
assistance. And the district court “may not order costs . . . to be paid by a party receiving
public assistance.” Minn. Stat. § 518.167, subd. 5.
Still, father challenges the district court’s decision to remove the custody evaluation
requirement. But he fails to argue how the district court abused its discretion by removing
the evaluation. At no point does he assert that he attempted t o have a custody evaluation

4 Mother filed a letter with the court stating that she was unab l e t o a f f o r d a c u s t o d y
evaluation. While father asserted that he wanted the custody evaluation, he did not indicate
how he planned to pay for it.

7
completed. Nor did he state how he intended to pay for the cus tody evaluation. And the
record does not establish that the district court was unable to reach a determination as to
custody without the assistance of a custody evaluation. As such, the district court did not
abuse its discretion when it removed the custody evaluation requirement.
III. The district court did not err procedurally.

Father contends that the district court erred twice procedurally. First, father asserts
that the district court erred in allowing mother to present her case-in-chief first. Then,
father challenges the district court’s denial of his continuance request.
At trial, father did not object to mother presenting her case-i n-chief first. Before
trial began, the district court informed father that “[t]ypical ly we would have the person
who files the petition start with the presentation of the evide nce,” but asked if he would
allow mother to present her evidence first, as she was represen ted by an attorney. Father
stated, “I don’t have an issue with that.” As such, father did not preserve for appeal any
allegation of error on this point. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)
(stating that, generally, appellate courts address only questions previously presented to and
considered by the district court). Additionally, father fails to demonstrate how he was
prejudiced by mother presenting her case first. Thus, even if this was error, “error without
prejudice is not ground for reversal.” Midway Ctr. Assocs. v. Midway Ctr., Inc. , 237
N.W.2d 76, 78 (Minn. 1975) (quotation omitted).
Father’s second procedural argument is that the district court erred in denying his
continuance request. Because it is within the district court’s discretion to grant a
continuance request, the denial of such a request will not be r eversed absent a clear abuse

8
of that discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977). And “[t]he test
is whether a denial prejudices the outcome of the trial.” Jones v. Jones, 402 N.W.2d 146,
150 (Minn. App. 1987).
Here, father requested a continuance because, he asserted, he c ould not secure
witnesses due to the order for protection against him. But fat her was unable to even
identify any possible witnesses. In response, the district cou rt noted that the trial had
already been continued from October and found that father was a ware of alternative
methods for contacting witnesses for trial beyond personally en tering mother’s apartment
complex in violation of the order for protection. And it found that father did not make use
of any alternative contact methods, which father does not dispute. Based upon the record
before us, the district court di d not abuse its discretion in d enying father’s continuance
request.
VI. The district court did not a buse its discretion when it den ied father’s motion
for a new trial.

Father argues that the district court abused its discretion when it denied his motion
for a new trial. This court reviews a district court’s decisio n to grant or deny a new trial
for an abuse of discretion. Christie v. Estate of Christie , 911 N.W.2d 833, 838 (Minn.
2018). This court may not grant a new trial on grounds not raised in the motion for a new
trial. Peters v. Indep. Sch. Dist. No. 657, 447 N.W.2d 757, 760 (Minn. App. 1991). There
are seven grounds upon which a new trial may be granted. Minn. R. Civ. P. 59.01(a)-(g).
Father fails to identify the ground upon which he is requesting a new trial. Because father

9
failed to identify any specific ground for a new trial, the dis trict court did not abuse its
discretion in denying father’s request for a new trial.
In sum, the district court thoughtfully considered father’s arguments and did not err
or abuse its discretion in de nying father’s motions and awar din g mother sole legal and
physical custody, with parenting time for father.
Affirmed.