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This opinion will be unpublished and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 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0090

In re the Marriage of:

Maria Rothen, petitioner,
Respondent,

vs.

Jason David Rothen,
Appellant.

Filed November 30, 2020
Affirmed
Smith, Tracy M., Judge

Fillmore County District Court
File No. 23-FA-14-914

Jocylyn Poehler, Law Offices of Southern Minnesota Regional Legal Services, Inc.,
Winona, Minnesota (for respondent)

Jason D. Rothen, Rushford, Minnesota (pro se appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Worke, Judge; and
Connolly, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant-father Jason David Rothen challe nges the district court’s denial of his
motion to modify the terms of custody with respondent-mother Maria Rothen with respect
to the parties’ three youngest minor children. Father argues th at the district court abused

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its discretion by (1) misapplying the law, (2) making factual findings regarding abuse and
neglect that are contrary to th e record, (3) improperly disreg arding the preference of one
of the parties’ children, (4) excluding certai n evidence at the evid entiary hearing, and
(5) exhibiting clear bias against him.1 We affirm.
FACTS
Father and mother’s marriage was dissolved by a stipulated judgment and decree in
2015. By agreement of the parties, the judgment and decree granted mother sole physical
custody of the parties’ four minor children. The parties were granted joint legal custody.
In 2018, father moved to modify custody for all four minor children based on child
endangerment; he requested sole legal and sole physical custody. The parties then
stipulated that father would ha ve sole physical custody of th eir eldest minor child. As to
the parties’ remaining three minor children, the district court denied father’s request for an
evidentiary hearing and denied his motion to modify. On appeal of that decision, we
concluded that, because father had made a pr ima facie showing to modify custody based
on endangerment, he was entitled to an evidentiary hearing and remanded the case. Rothen
v. Rothen, A18-1161, 2019 WL 664915, at *5 (Minn. Ap p. Feb. 19, 2019). The district
court held a five-day evidentiary hearing, at which it heard testimony from 17 witnesses

1 Father also alleges in the fact section of his brief that his child-support payments are
unjust. Father cites no caselaw in support of his contention, and he did not raise the issue
of child support before the district court. For both reasons, we decline to consider the issue
here. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 198 8) (explaining that appellate
courts generally will not consid er matters not argued to and considered by the district
court); Grigsby v. Grigsby , 648 N.W.2d 716, 726 (Minn. Ap p. 2002) (observing that
arguments submitted without legal authority are forfeited).

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and received over 50 exhibits. The district c ourt thereafter rejected father’s motion to
modify, concluding that no endangerment existed and that a change in custody was not in
the best interests of the three youngest minor children.
Father appeals.
D E C I S I O N
I. The district court did not abuse its discretion by denying modification of
custody.

A district court has “broad discretion in determining custody matters.” Goldman v.
Greenwood, 748 N.W.2d 279, 282 (Minn. 2008) (quotation omitted). Appellate review of
custody determinations is limited to whether the trial court abused its discretion by making
findings unsupported by the evidence or by improperly applying the law. Sefkow v. Sefkow,
427 N.W.2d 203, 210 (Minn. 1988). On appeal , we will affirm custody determinations
absent an abuse of discretion. Englund v. Englund , 352 N.W.2d 800, 802 (Minn. App.
1984).
Minnesota Statutes section 518.18 gover ns the modification of existing custody
orders. Crowley v. Meyer, 897 N.W.2d 288, 293 (Minn. 2017). Under that statute, a district
court may modify custody if “the child’s present environment endangers the child’s
physical or emotional health or impairs th e child’s emotional deve lopment and the harm
likely to be caused by a change of environment is outweighed by the advantage of a change
to the child.” Minn. Stat. § 518.18(d)(iv) (2 018). To justify modification on the basis of
endangerment, the moving party must allege and the district court must determine that
“(1) the circumstances of the children or custodian have changed; (2) modification would

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serve the children’s best intere sts; (3) the children’s presen t environment endangers their
physical health, emotional health, or emotio nal development; and (4) the benefits of the
change outweigh its detriments with respect to the children.” Crowley, 897 N.W.2d at 293.
Father broadly argues that the district court abused its di scretion by denying
modification of custody because its conclusion was not guided by law and was against the
facts in the record. He asserts several sub-ar guments in support of that contention, which
we address in turn.
A. The district court did not misapply the law.

Father first argues that the district cour t committed legal error by not accepting as
true the affidavits that he submitted in support of his motion and by weighing the evidence
at the evidentiary hearing. He next argues that the district court erred by failing to apply
the law that governs motions to modify custody.
Contrary to father’s first argument, the district court was not required to accept
father’s evidence as true. Father misunde rstands the two-stage process of custody-
modification proceedings based on endangerment. At the first stage, the moving party must
establish a prima facie case that satisfies the statutory requirements. Crowley, 897 N.W.2d.
at 293. In determining whether a prima facie case is established, the district court must take
the facts in the moving party’ s supporting affidavits as true and disregard any contrary
allegations in the nonmoving party’s supporting affidavits. Boland v. Murtha, 800 N.W.2d
179, 183 (Minn. App. 2011). If a prima facie case is established, as it was here, the matter
moves to the second stage. At this second st age, the district court holds an evidentiary
hearing to determine the truth of the allegations asserted in support of the necessary

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statutory findings. Nice-Petersen v. Nice-Petersen , 310 N.W.2d 471, 4 72 (Minn. 1981);
Matson v. Matson, 638 N.W.2d 462, 467 (Minn. App. 2002). Here, the district court held
an evidentiary hearing, fou nd facts, and determined that the statutory standard for
modification was not, in fact, met. It did not err, at this second stage of the custody
modification proceeding, by declining to accept father’s proffered affidavits as true or by
weighing the evidence.
As to father’s second argument, he asserts that the district court failed to apply the
four-part statutory standard under Minn. Stat. § 518.18(d)(iv). It is tr ue that the district
court’s order is organized primarily around the children’s best interests and that it evaluates
their best interests according to the factors set forth in Minn. Stat. § 518.17. But the
children’s best interests are one part of the four-part standard under Minn. Stat.
§ 518.18(d)(iv), see Crowley, 897 N.W.2d at 293, and, even within its analysis of the best-
interest factors, the district c ourt made findings relevant to all four parts of that statutory
test. Moreover, the district court’s order also properly describes the legal standard for
modification based on endangerment, citing both Minn. Stat. § 518.18(d)(iv) and leading
caselaw (specifically, Nice-Petersen, 310 N.W.2d 471), and ex pressly finds that the
evidence does not establish the existence of abuse or neglect or a change of circumstances
that would support a change in custody and that modification of custody is not in the
children’s best interests. Thus, the district court applied the correct law in making its
determination.

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B. The district court’s factual findings of no abuse or neglect are supported
by the record.

Father argues that the district court abused its discretion by making factual findings
regarding the abuse and neglect that are not supported by the record.
We review a district court’s factual findings for clear error. Kampf v. Kampf, 732
N.W.2d 630, 633 (Minn. App. 2007), review denied (Minn. Aug. 21, 2007). Findings are
clearly erroneous if they are “manifestly cont rary to the weight of the eviden ce or not
reasonably supported by th e evidence as a whole.” Id. (quotation omitted). Additionally,
we defer to a district court’s evaluation of witness credibility. Thornton v. Bosquez , 933
N.W.2d 781, 790 (Minn. 2019). The district court is in the best position to weigh the
evidence and determine witness credibility, and we do not reweigh evidence on appeal. See
In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).
The district court’s findings of facts and conclusions of law span 12 single-spaced
pages. Father argues that the district cour t erred by determining that mother testified
credibly and by not finding that she engaged in abuse or in medical or dental neglect of the
children. The district court consistently found mother’s testimony as to abuse and neglect
credible compared with the veracity of the children in reporting incidents. It concluded that
there were no issues of chemical dependen cy, medical or dental neglect, or abuse
necessitating a change in custody. These fi ndings are supported by the record. Mother
repeatedly testified before the court that she was neither abusing nor neglecting the
children; she refuted each specific allegation made by father, and she explained others. The
guardian ad litem (GAL) testified that she found no evidence of endangerment and had no

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concerns regarding mother’s parenting. Moreover, both the mother’s testimony and the
GAL’s report support the district court’s finding that father engaged in manipulation of the
children, undermining the re liability of their accounts. We defer to the credibility
determinations of the district court and discern no clear error in its determination that abuse
and neglect were not established.
C. The district court did not improperly disregard preference of one of the
minor children.

Father contends that the district court improperly disregarded the preference of one
of the three children, M.E.R., to live with him.
A district court may consider the preference of a minor child in determining the best
interests of a child with respect to custody. Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn.
App. 1997). But it should rely on the child’s preference “when the court is convinced that
it is not the product of manipulation by the non-custodial parent.” Roehrdanz v. Roehrdanz,
438 N.W.2d 687, 691 (Minn. App. 1989). Additionally, “[w]h ile Minnesota courts have
sometimes endorsed an older child’s custody preference, those cases have predominantly
involved the preference to rema in in the present arrangement or to return to a previous
long-term custodial arrangement.” In re Weber , 653 N.W.2d 804, 811-12 (Minn. App.
2002).
The district court found that the parties, including father as the non-custodial parent,
manipulated M.E.R. and that M.E.R.’s expression of preference was not reliable. It
specifically found that the vera city of the minor children was suspect due to father’s
involvement and that father’s actions were “used to manipulate the minor children’s current

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circumstances.” Additionally, the district court noted that, on the last day of the evidentiary
hearing, mother testified that M.E.R. had de cided that she now wish ed to remain living
with mother.
The district court’s findings are supported by the record. M.E.R. was 11 years old
when she wrote affidavits in support of father’s motion to modify custody and was 12 years
old by the conclusion of th e evidentiary hearing. In he r testimony and report, the GAL
stated that the children are manipulated by th eir parents and that they have given her
conflicting accounts of events. Mother testified that M.E.R. ultimately expressed a wish to
live with her. The record supports the district court’s determination that M.E.R.’s purported
custodial choice was not reliable. The district court did not abuse its discretion by not
following M.E.R.’s expressed preference to live with her father.
D. The district court’s evidentiary rulin gs were not an abuse of discretion.

Father asserts that the district court impr operly excluded cruc ial evidence at the
evidentiary hearing.
We review a district court’s evidentiary rulings for an abuse of discretion. Goldman,
748 N.W.2d at 281-82. A distri ct court may exclude evidence on the basis of materiality,
lack of foundation, remoteness, relevanc y, or evidence wh ich is cumulative. Johnson v.
Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted).
At the evidentiary hearing, father listed 39 recordings that he had made that he
wanted admitted into evidence. The district court excluded a number of them. Significantly,
much of this excluded evidence was cumulative. Exhibits 50, 54, 55, 57, 64, and 74 are all
recordings that father made; although the district court ex cluded them, it took testimony

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from father as to the contents of the recordings. Exhibits 150 and 151 are a video and a
photo taken by minor child M.E.R., and, alt hough these exhibits were also excluded,
M.E.R. testified as to their contents at the hearing. The district court told father that M.E.R.
could testify “from what she personally observ ed regarding the incident” at issue in the
exhibits. The district court, for over two pages of transcript, then proceeded to ask M.E.R.
about what occurred in the recordings.
Exhibits 13 to 15 are the report cards of the parties’ eldest child; they were properly
excluded as irrelevant since custody of that child was not at issue in the evidentiary hearing.
Exhibit 157 is a letter from a sc hool superintendent, offered to show that father, contrary
to mother’s allegations, did no t enroll one of the mi nor children in a new school district
without her permission. It was objected to a nd excluded on grounds of hearsay, and the
district court properly explained to father that, because the letter’s author was not there to
testify or sit for cross-examination, it would not be admitted. Exhibit 79 is a recording of a
conversation father had with nursing supervisor G.M., offered to show that father was not
allowed to make a medical appo intment for one of the minor children. The district court
properly excluded it on the same grounds.
Father also argues the district court improperly stopped him from “prov[ing]
[mother] was lying” on the ground that he was being argumentative. For example, the
district court sustained an objection when mother was on the stand and father, who was
representing himself, asked her if she considered her testimony to be “a falsification” based
on information that he suggested in his ques tions. Father was given ample opportunity to

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cross-examine mother and to submit other te stimony and evidence. We discern no abuse
of discretion in the district court’s ending father’s argumentative lines of questioning.
E. The district court’s decision was not the result of judicial bias.

Father argues that the district court judg e, in declining to consider many of his
exhibits and in finding certain witnesses eith er credible or not cr edible, exhibited bias
throughout the proceeding. He also argues that the district court was biased when it failed
to modify custody.
When reviewing a claim that a judge was partial against a party, we presume the
judge “discharged his or her judicial duties properly.” State v. Munt, 831 N.W.2d 569, 580
(Minn. 2013) (quoting McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998)). “[A]dverse
rulings are not a basis for imputing bias to a judge.” Ag Servs. of Am., Inc. v. Schroeder ,
693 N.W.2d 227, 236-37 (Minn. App. 2005).
The record and the order contain no eviden ce that the trial judge did not meet his
obligation of impartiality. The district court’s credibility and evidentiary determinations do
not demonstrate bias. As to its decision, the district court made clear in its findings that
both parties have contributed to their inability to co-parent and that proceedings were
contentious due to the actions of both parties. Father identifies no valid basis to conclude
that the district court’s custody determination was preordained. The decisions made by the
district court do not overcome the presumption that the district court judge discharged his
duties properly.2

2 On father’s earlier appeal from the district court’s denial of an evidentiary hearing, he
also argued the district court judge was biased against him. Rothen, 2019 WL 664915, at

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II. Father’s challenge to the district court’s order regarding psychological
counseling and parenting classes fails.

In its order denying modification, the di strict court also imposed a number of
obligations on the parents, ordering that “[t] he parents and stepparent participate in
parenting classes and consider having psychological evaluations that include information
from collateral sources, and all recommendations shall be followed.”
Father argues that court- ordered parenting classes a nd a psychological evaluation
would create an undue financial burden on him and therefore is erroneous. Father cites no
legal authority in support of this argument, see Grigsby, 648 N.W.2d at 726 (concluding
that arguments submitted without legal authority are waived), and this court has repeatedly
held that “pro se litigants are generally held to the same standards as attorneys.” Fitzgerald
v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001). Additionally, father did not make
this argument to the district court, and it is therefore not properly before us on appeal. See,
e.g., Thiele, 425 N.W.2d at 582 (stating that appellate courts generally will not consider
matters not argued to and considered by the dist rict court). In any event, we note that the
district court order requires the parties to “consider” having psychological evaluations and,
as to the required parenting classes, father makes no persuasive argument that affordable
parenting classes are unavailable to him.
Affirmed.

*5 n.3. We rejected the argument there, too, because father’s accusations were based on
the district court’s rulings against him. Id.