In re the Marriage of: Michelle Grace Friesen, petitioner, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1548

In re the Marriage of:
Michelle Grace Friesen, petitioner,
Respondent,

vs.

Joshua David Friesen,
Appellant.

Filed March 14, 2022
Affirmed
Ross, Judge

Washington County District Court
File No. 82-FA-19-89

Kathryn A. Graves, Benjamin J. Hamborg, Henson & Efron, P.A., Minneapolis, Minnesota
(for respondent)

Beau D. McGraw, McGraw Law Firm, P.A., Lake Elmo, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Kirk,
Judge.
*
NONPRECEDENTIAL OPINION
ROSS, Judge
This case arises from a child-custody dispute between the parents of two children.
Father appeals from the district court’s judgment granting mother sole physical and legal

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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custody and affording him limited parenting time. We conclude that the district court did
not violate father’s due-process rights by requiring him to submit deposition testimony
during pandemic-related, in-person restrictions rather than allow him to examine witnesses
at a trial using online technology. We also conclude that the district court did not abuse its
discretion by excluding a child-custody evaluation from evidence. We therefore affirm.
FACTS
Joshua Friesen and Michelle Friesen had two daughters during their eight -year
marriage, which ended in divorce in 2020. Before their dissolution trial, the parties first
stipulated to a temporary parenting-time schedule with Joshua having the children
alternating weekends and two evenings during each week. They then stipulated to modify
the temporary schedule, with Joshua having the children Thursday overnight and all-day
Friday every week.
One dispute in the district court proceedings, and in this appeal, involves a custody
evaluation. In January 2020 the district court ordered the parents to participate in a
child-custody evaluation by a court-appointed evaluator. The district court ordered a
second court-appointed evaluator to assist the first, and the two coauthored a report. But
the report did not make it into evidence at the bench trial. During the first day of the
dissolution trial, Joshua, self-represented, attempted to offer hearsay evidence of
statements made by the evaluators. The district court prohibited the hearsay but indicated
that it would allow evidence of the evaluators’ statements either by their own testimony or
through the evaluation report if the report was supported by proper foundation. Joshua did
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not produce the evaluators either to testify or to lay the foundation for their report to be
admitted into evidence.
Shutdowns arising from the burgeoning COVID-19 pandemic disrupted the
proceedings after the first day of trial. The district court postponed the second day of trial
four times before it ordered the parties to submit any remaining evidence through
deposition testimony. Joshua objected to this process as unfairly burdensome and
complained that he lacked the time to conduct depositions. He instead attempted to offer
the child-custody evaluation into evidence by filing the report with the district court. The
district court did not receive the report into evidence, but it offered to extend the
proceedings if either party requested to allow more time for any depositions. Neither party
requested any extension nor conducted any depositions.
The district court entered a judgment and decree dissolving the marriage, and it
based its custody and parenting-time decision on the testimony and exhibits admitted
during the first day of trial. It granted Michelle sole legal and physical custody of the
children and assigned Joshua parenting time on alternating weeks with Thursday overnight
and all-day Friday and then Thursday overnight through Sunday evening. The district court
reasoned that the parties’ acrimonious interactions justified minimizing parenting
exchanges and contact between them. The district court complained that Joshua was
responsible for the length of the litigation, observing that he “cycled through two attorneys”
and opining that “it is very clear . . . that [Joshua] sought to obtain an outcome in this case
that was contrary, in all likelihood to the advice of his prior counsel, resulting in additional
cost to the parties and friction between the parties.” The district court awarded Michelle
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$20,000 in need-based attorney fees. Joshua appeals only the custody and parenting-time
decision.
DECISION
Joshua challenges the district court’s custody and parenting-time order and asks that
we remand the case for a new trial. He bases his challenge first on the district court’s
procedural restrictions regarding trial testimony and second on its decision to exclude the
evaluators’ report. For the following reasons, neither challenge prevails, and we will affirm
despite our concern over aspects of the district court proceedings.
One concern is that the district court seemingly based its attorney-fee decision in
part on its observation that Joshua “sought to obtain an outcome . . . that was contrary, in
all likelihood, to the advice of his prior counsel.” We do not see how either the district
court’s apparent speculation about privileged communication between a party and his
attorney, or its censure of that party for seeking a result that might differ from one
suggested by his attorney, are acts within the district court’s discretion. Of related concern
is the district court’s explanation limiting one parent’s parenting time based on acrimony
between both parents and its corresponding failure to explain how limiting parenting time
rather than limiting the number of contacts between the parents responds to a concern about
acrimony. (We see that the district court’s parenting-time determination results in the same
number of exchanges as J oshua’s proposed equal parenting-time schedule—four
transitions within each 14-day period.) We comment here only to e nsure that our
affirmance on the specific issues raised not be mistaken as our endorsing elements of the
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district court’s order discussed during the appeal but not specifically challenged. We base
our decision only on the issues presented for our review.
I
Joshua argues that the district court’s decision requiring the parties to submit
witness testimony through depositions rather than administering an online, remote trial
violated his right to due process. The state and federal constitutions prohibit the state from
depriving a person of liberty without due process of law. Minn. Const. art. 1, § 7 ;
U.S. Const. amend. XIV, § 1. Joshua has a liberty interest in presenting evidence bearing
on child custody and parenting time. See Troxel v. Granville, 530 U.S. 57, 65 (2000)
(holding a parent has a protected fundamental right to make decisions concerning the care,
custody, and control of his children); SooHoo v. Johnson, 731 N.W.2d 815, 820 (Minn.
2007) (applying this principle); see also Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970)
(holding an opportunity to present evidence is a protected procedural due-process right);
Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994)
(applying this principle), rev. denied (Minn. Feb. 14, 1995). The principal question in any
due-process challenge is whether the complaining party had sufficient notice and “the
opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (quotation omitted). We evaluate whether the
procedure satisfies the constitutional requirement by weighing several factors: the private
interest at stake, the risk that the procedure would mistakenly infringe on that interest, the
likely benefit of a different procedure, and the interests of the state, including the burdens
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a different procedure would impose. Id. at 335. Based on our weighing of these factors, we
conclude that imposing the deposition process did not violate Joshua’s right to due process.
The private interest at stake—the opportunity to present evidence to determine child
custody and parenting time—is particularly significant. Few controversies resolved in
court include stakes as high as a decision affecting the parent-child relationship. See, e.g.,
Troxel, 530 U.S. at 65 (stating that one of the oldest fundamental liberty interests
recognized by the Court is the interest of parents in the care, custody, and control of their
children). Any judicial procedure affecting that interest must be especially fair.
We do not believe that the district court’s pandemic-driven procedural change posed
any significant risk of mistakenly infringing on Joshua’s interest in relation to any benefit
that might result from a different procedure. Neither party questions the district court’s
need to alter the process from taking live, in- person trial testimony as a response to the
pandemic and the uncertain danger posed by personal contact. Our focus is on any contrast
between the risk-benefit balance in taking testimony by deposition and in taking testimony
live through interactive, online technology. We observe that the parties could and did
engage witnesses directly in the first day of trial. Joshua had the opportunity to present
evidence, and he did so. He cross-examined Michelle and provided his own testimony
bearing on custody and parenting time. As to t he second day of trial, we can assume that
Joshua would have called other witnesses if the trial were conducted live. And we can
assume that deposing witnesses and introducing a video recording or transcripts of their
testimony is administratively more cumbersome and time consuming than offering
testimony live through online technology. But Joshua does not explain how presenting
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additional evidence using one form of technology rather than another would affect the
substance of the evidence. Nor does he explain how the district court’s procedure inhibited
his opportunity to be meaningfully heard. Whether the parties took witness depositions in
person or online, the substance of their direct examination and cross -examination would
presumably have been identical to the substance of the same examination occurring live,
online, during the trial. The only difference would have been the district court judge’s
participation in one but not the other, with no reason to suppose any impact on witness
responses. The district court’s procedure did not risk mistakenly infringing on Joshua’s
interest.
We are not persuaded otherwise by the fact that Joshua lacked the time, legal
expertise, or funds to conduct depositions. The district court invited the parties to request
additional time to conduct depositions, and Joshua did not do so. Regarding Joshua’s
assertion that he lacked the legal skill to conduct a deposition, self-represented litigants
face the same procedural rules that represented parties face. Gruenhagen v. Larson,
246 N.W.2d 565, 569 (Minn. 1976). And the process and substance of his unrepresented
questioning of witnesses during an online trial would have presumably been the same as
the process and substance of his similarly unrepresented questioning of witnesses
beforehand during a deposition. We do not consider the merits of Joshua’s assertion that
conducting depositions posed too great an e xpense to meet his due-process rights. He
presented neither this argument nor supporting evidence of this assertion in the district
court, and under Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988), we will not generally
address arguments raised for the first time on appeal.
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The final factor also does not support Joshua’s due-process challenge. The district
court’s significant interest in fashioning a proceeding that avoided in-person contact is
obvious under the circumstances of the pandemic posing unknown hazards. Mindful of the
objective to preserve and promote the children’s welfare in a timely fashion, see Santosky
v. Kramer, 455 U.S. 745, 766 (1982), the district court also was motivated to avoid
additional potential pandemic-related continuances and consequent delays in resolving the
dispute over the children’s custody, among other trial issues. Postponing the hearing yet
again in the hope of receiving live testimony was therefore a problematic option. Less clear
is the district court’s interest in trying the case through recorded deposition testimony rather
than live, online trial testimony. But because of the reasons already discussed, the
incremental additional challenge of questioning witnesses by deposition was marginal and
raises no constitutional concern.
We hold that the district court’s trial procedure did not violate Joshua’s right to due
process. We are not asked and do not decide whether the district court’s decision to require
that remaining witness testimony be submitted through depositions complied with the rules
of civil procedure, and we offer no opinion about it.
II
Joshua also contends that the district court abused its discretion by excluding the
child-custody evaluation from evidence and that, as a result, the district court’s custody
and parenting-time decision should be reversed. The district court has broad discretion to
resolve child-custody disputes. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989). We
review custody decisions by considering whether the district court abused its discretion by
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making unsupported findings or by errantly applying the law. Silbaugh v. Silbaugh,
543 N.W.2d 639, 641 (Minn. 1996). The decision whether to admit opinion testimony also
rests within the district court’s discretion. Id. We are satisfied that the district court acted
within its discretion in its treatment of the evaluators’ report.
We first clarify the dispute. The district court here did not generally prevent Joshua
from introducing either the evaluators’ report or their potential statements about it. It
instead invited this evidence conditioned only on the evaluators being presented for
questioning. This requirement comports with the statutory rule that child-custody
evaluations must be made available to all parties before the hearing and that evaluators
must be available both for prehearing discovery and cross-examination during the hearing.
Minn. Stat. § 518.167, subd. 3 (2020). Joshua does not raise any question that the district
court’s condition followed the statutory examination requirement, and he cites no statute
or rule of evidence that the district court violated by conditioning admissibility on proper
foundation. The district court acted within its discretion by excluding the evidence.
Affirmed.