In re the Marriage of: Emily Kay Stilwagon, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A21-0739

In re the Marriage of: Emily Kay Stilwagon, petitioner,
Appellant,

vs.

Shawn Bradford Stilwagon,
Respondent.

Filed January 10, 2022
Affirmed
Florey, Judge

Washington County District Court
File No. 82-FA-20-4378

Roger E. Meyer, Morrison Sund, P.L.L.C., Minnetonka, Minnesota (for appellant)

Mark R. Carver, Einhaus, Mattison, Carver & Haberman, P.A., Owatonna, Minnesota (for
respondent)

Considered an d decided by Florey, Presiding Judge; Worke, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
On appeal from the district court’s denial of her emergency motion, appellant argues
that the district court erred by ( 1) denying her custody -modification motion; (2) ordering
appellant’s parenting time be less than the 25% statutory presumption; ( 3) failing to
consider and rule on several of appellant’s motions; (4) not giving appellant 30 days to
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request a hearing in accordance with the court’s order appointing a guardian ad litem; and
(5) appointing a parenting consultant. We affirm.
FACTS
Appellant Emily Kay Stilwagon and respondent Shawn Bradford Stilwagon are the
parents of three minor children: L.S.S., C.E.S., and E.K.S. The parties were granted joint
legal custody of the three ch ildren, and appellant was awarded sole physical custody by
order dated April 19, 2018.
In December 2018, r espondent moved for sole physical custody of the children
based on neglect and endangerment . After an evidentiary hearing, t he district court
awarded sole physical custody of the children to respondent, subject to appellant’s
parenting time every other weekend and two-hours on Tuesday evenings.
Respondent remarried and, in May 2020, he and his children moved to Stillwater
(in Washington County) with his new wife and her three children. On September 8, 2020,
appellant filed an emergency motion with the Steele County District Court. On appellant’s
motion, venue was subsequently transferred to Washington County, and on December 23,
2020, appellant filed an amended emergency motion seeking, among other things : (1) an
award of “temporary sole physical custody and legal custody” of the parties’ minor
children; (2) an award of “all parenting time wit h the parties’ minor children except
[respondent] shall have supervised parenting time as agreed to by the parties; ” and (3) the
appointment of a guardian ad litem “to investigate the alleged physical abuse and sexual
abuse allegations and recommend perman ent custody and an appropriate parenting time
schedule with conditions.” In support of her motion, appellant alleged C.E.S. was being
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sexually and physically abused by respondent’s stepson; that respondent physically harmed
E.K.S., and that the parties’ children had been assaulted by respondent’s wife and stepson.
A guardian ad litem was appointed and recommended that legal and physical
custody, as well as parenting time, remain as currently ordered. The district court adopted
the recommendations and o rdered that legal and physical custody and parenting time
remain as currently ordered by the Steele County District Court.
This appeal follows.
DECISION
Before addressing appellant’s specific assertions of error, we note several principles
that govern this court’s review. First, a “reviewing court must generally consider only
those issues that the record shows were presented and considered by the [district] court.”
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Second , “error is never presumed.”
Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949). It is the appellant’s duty to show that the
district court erred. Potter v. Potter, 27 N.W.2d 784, 786 (Minn. 1947). Third, if error is
shown, the mere existence of that error is, by itself, insu fficient to require a reversal. The
complaining party must also show that the error prejudiced the complaining party. See
Minn. R. Civ. P. 61 (requiring harmless error to be ignored); Loth, 35 N.W.2d at 546
(stating that “error without prejudice is not g round for reversal”) (quotation omitted)).
Finally, there is no obligation on an appellate court to demonstrate or otherwise show that
a challenged ruling is, in fact, correct. The supreme court recently stated: “In applying the
clear-error standard, [ap pellate courts] will not conclude that a factfinder clearly erred
unless, on the entire evidence, we are left with a definite and firm conviction that a mistake
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has been committed.” In re Commitment of Kenney , 963 N.W.2d 214, 221 (Minn. 2021)
(quotations and citations omitted). Additionally,
[the] clear-error review does not permit an appellate court to
weigh the evidence as if trying the matter de novo. Neither
does it permit [an appellate court] to engage in fact -finding
anew, even if the court would find the facts to be different if it
determined them in the first instance. Nor should an appellate
court reconcile conflicting evidence. Consequently, an
appellate court need not go into an extended discussion of the
evidence to prove or demonstrate the correctness of the
findings of the trial court.

Id. at 221-22 (quotations and citations omitted); see Engquist v. Wirtjes, 68 N.W.2d 412,
414 (Minn. 1955) (stating that “[t]he function of an appellate court is that of review. It
does not exist for the purpose of demonstrating to the litigants through a detailed statement
of the evidence that its decision is right. If the l ength of judicial opinions is to be kept
within reasonable bounds, appellate courts must more closely adhere to the purpose for
which they exist”); Wilson v. Moline, 47 N.W.2d 865, 870 (Minn. 1951) (stating that the
function of an appellate court “does not require [it] to discuss and review in detail the
evidence for the purpose of demonstrating that it supports the trial court’s findings,” and
that an appellate court’s “duty is performed when [it] consider[s] all the evidence, as we
have done here, and det ermine[s] that it reasonably supports the findings”); Cook v.
Arimitsu, 907 N.W.2d 233, 240 n.3 (Minn. App. 2018) (applying this aspect of Wilson in
a family law appeal); Peterka v. Peterka , 675 N.W.2d 353, 357 -58 (Minn. App. 2004)
(same).
Rather, because the factfinder has the primary responsibility of
determining the fact issues and the advantage of observing the
witnesses in view of all the circumstances surrounding the
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entire proceeding, an appellate court’s duty is fully performed
after it has fairly considered all the evidence and has
determined that the evidence reasonably supports the decision.

Kenney¸ 963 N.W.2d at 222. As a result, an appellate court must “fully and fairly consider
the evidence, but so far only as is necessary to determine [whether that evidence]
reasonably tends to support the findings of the factfinder.” Id. at 223 (quotation omitted).
And “[w]hen the record reasonably supports the findings at issue on appeal, it is immaterial
that the record might also provide a reasonable basis for inferences and findings to the
contrary.” Id. (quotation omitted). We make these general observations because many of
appellant’s assertions run afoul these basic tenets of appellate practice.
I. Physical-custody modification
Appellant first challenges the district court’s failure to modify the parties’ parenting-
time schedule and physical -custody designation. She argues that, because she requested
that she be awarded “all parenting time,” the district court should have treated her motion
to modify parenting time as a de facto custody modification.
Our review of the record reveals that this issue was not adequately raised before the
district court. Generally, a reviewing court must consider “only those issues that the record
shows were presented and considered by the [district] court in deciding the matter before
it.” Thiele, 425 N.W.2d at 582 (stating that appellate courts do not address questions not
presented to and considered by the district court, and that even if an issu e is preserved for
appeal, an appellate court will not address that issue on a theory other than the theory on
which the issue was addressed to the district court).
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In her emergency motion, appellant sought, in relevant part, (1) an award of
temporary sole physical custody and legal custody and (2) all parenting time. Appellant
did not file a motion for a permanent change of custody at any point during the proceedings.
Appellant now argues on appeal that the district court should have applied the
“endangerment standard” set forth in Minn. Stat. § 518.18(d)(iv) (2020) for modifying
custody to determine whether custody modification was warranted because, if her request
for all parenting time were to be granted, it would result in a de facto custody modification
and would change the primary residence of the children. However, absent some sort of
argument from appellant to the district court that her motion to modify parenting time was
actually a de facto custody modification, the district court did not have the opportunity to
consider whether the endangerment standard should apply. Alternatively stated: Appellant
is arguing that the district court erred by not applying the modification-of-custody standard
that appellant did not ask the district court to apply. We cannot say that a district court errs
by not doing what it was not asked to do.
Parties have an affirmative obligation to clearly explain to a court the relief they
seek and upon what basis they seek that relief. Cf. Antonson v. Ekvall, 186 N.W.2d 187,
189 (Minn. 1971) (holding that a claim was not before the district court when “the
pleadings were general enough to have possibly made out a claim on the theory, [but] there
was no language in the complaint that would alert anyone to a claim” based on that theory).
Because p leadings are intended to alert the parties to the relevant claims being raised ,
Rogers v. Drewry, 264 N.W.2d 226 (Minn. 1935), general language in a pleading is only
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sufficient to raise an issue if i t “would alert anyone to a claim” based on that issue. See
Antonson, 186 N.W.2d at 189.
Based on the record before us, appellant did not adequately present her de facto
custody-modification argument to the district court. Appellant did not cite to Minn. Stat.
§518.18(d)(iv) in any of her filings or otherwise argue that her motion amounted to a de
facto custody modification. Neither the statute nor the argument was ever mentioned in
appellant’s motion or supporting affidavits, and she did not file a memo randum of law
articulating her de facto custody-modification argument.
Appellant could have made clear that she was seeking a permanent modification of
physical custody rather than temporary relief by referencing Minn. Stat. §518.18(d)(iv) in
her emergency motion, filing a memorandum of law explaining that the relief requested, if
granted, amounts to a de facto custody modificatio n and that the endangerment standard
applies to such de facto custody modifications. Under these circumstances, a better
practice would have been to file a motion for a permanent change of custody. Moreover,
appellant failed to provide this court with the transcripts of the district court proceedings
to show this court exactly what she orally argued to the district court. Because this was
not done, we are left to speculate.
Even assuming appellant adequately raised the issue before the district court, we
conclude that appellant has not met her burden showing that the district court erred by
failing to apply the endangerment standard to her emergency motion for temporary relief.
It is the appellant’s duty to demonstrate that the district court erred. “[O]n appeal error is
never presumed. It must be made to appear affirmatively before there can be reversal.”
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Potter, 27 N.W.2d at 786 (quotation omitted). Here, appellant failed to provide any legal
authority for the proposition that the district court should have applied Minn. Stat.
§ 518.18(d)(iv) to her emergency motion for temporary sole physical custody of the
parties’ children.
Because appellant did not adequately raise the issue of a de facto custody
modification to the district court, it is not properly before this court. 1 Further, even if it
were, appellant’s reliance on the application of the endangerment standard to her temporary
motion is not supported by the law. Consequently, the district court did not err by denying
her emergency motion.
II. Parenting time
Appellant argues that the district court abused its discretion by ordering appellant’s
parenting time with the parties’ minor children to be less than 25%. Specifically, appellant
argues that the district court failed to address and comply with Minn. Stat. §518.175, subd.
1(g) (2020): “[i]n the absence of other evidence, there is a rebuttab le presumption that a
parent is entitled to receive a minimum of 25% of the parenting time for the child.”

1 At oral arguments, the parties informed this court that appellant has filed an additional
child-custody-modification motion, and an evidentiary hearing has been scheduled in that
case based on allegations of sexual abuse. Accordingly, appellant’s request for an
evidentiary hearing here based on allegations of sexual abuse is, arguably, moot. See In re
Paternity of B.J.H., 573 N.W.2d 99, 104-105 (Minn. App. 1988) (stating that an appeal of
an issue will be dismissed as moot if the harm has been alleviated or it is impossible to
award relief); In re Inspection of Minnesota Auto Specialties, Inc. , 346 N.W.2d 657, 658
(Minn. 1984) (stating if, during appeal, events occur that makes decision on merits
unnecessary or award of effective relief impossible, the appeal “will be dismissed as
moot.”).
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Appellant failed to expressly raise the issue in district court, and this court will not
consider an argument based on the 25% presumption when tha t argument has not been
raised in the district court. See Hagen v. Schirmers , 783 NW.2d 212, 217 (Minn. App.
2010) (noting that it is “important” that the 25% parenting -time presumption was brought
to the attention of the district court in that case becau se appellate courts do not consider
matters not argued to and considered by the district court) (citing Thiele, 425 N.W.2d at
582); see also Dahl v. Dahl, 765 N.W.2d 118, 124 (directing district courts to demonstrate
an awareness and application of the presumption when the issue is appropriately raised and
the court awards less than 25% parenting time). Because appellant did not raise the
parenting-time presumption, the issue is not properly before this court. 2
III. Failure to rule on all motions
Appellant argues that the district court erred by failing to consider and rule on all
the motions she raised and requests the case be remanded for the district court to address
the additional motions.
While it is the better practice to expressly rule on ea ch and every part of each and
every motion made, we treat the district court’s decision not to directly address appellant’s
motions as an implicit denial. See Anderson v. Anderson , 897 N.W.2d 828, 832 (Minn.
App. 2017), rev. granted (Minn. Aug. 22, 2017) (stating “a district court’s failure to

2 Even if the issue were properly before this court, appellant’s argument fails. The
Washington County district court did not restrict or otherwise modify the parenting -time
arrangement, but rather, it ordered that “bot h parents’ parenting time remain as currently
Ordered.” Appellant’s parenting time was already reduced below the assumed threshold
by the Steele County district court by its order dated October 23, 2019. Because appellant
did not challenge the October 23, 2019 order, it is outside our scope of review.
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specifically address or reserve a motion constitutes a denial of that motion.”) appeal
dismissed (Minn. Jan. 30, 2018) ; Palladium Holdings, LLC v. Zuni Mortg. Loan Trust
2006-OA1, 775 N.W.2d 168, 177 -78 (Minn. App. 2 009) (“[S]ilence on a motion is . . .
treated as an implicit denial of the motion.”) (citation omitted), rev. denied (Minn. Jan. 27,
2010). And even if we treat the decision not to address appellant’s arguments as an implicit
denial of her motions, appell ant does not claim that such a denial was erroneous .
Additionally, appellant has not demonstrated that any of the unaddressed motions
constitute an emergency. As such, based on appellant’s characterization of her motion as
an emergency, the district court did not err in failing to specifically address those motions.
IV. Objection to guardian ad litem report
Appellant argues that the district court erred in not affording her the full 30 days to
object to the guardian ad litem’s report and request a hearing.
The district court’s order appointing a guardian ad litem provides: “[i]f any party
objects to the [g]uardian ad [l]item’s written report and recommendations, the objecting
party shall contact court administration within 30 days of the date of the report to schedule
a hearing. If no hearing is set af ter 30 days, the Court may issue its final order.” The
guardian ad litem’s report was filed on March 26, 2021, which was only 17 days before the
district court issued its order. In its order, the district court stated that the “parties had ten
(10) days from receiving the Report to respond to any of the findings and recommendations
by the [g]uardian at which the time the Court would formerly[sic] take the matter under
advisement.”
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While the district court apparently made a timing error, appellant fails to assert any
basis for an objection to the report and has not shown that the district court’s error was
prejudicial. As such, appellant fails to carry her burden. See Minn. R. Civ. P. 61 (2020)
(requiring harmless error to be ignored); see also Midway Ctr. Assocs. v. Midway Ctr., Inc.,
237 N.W.2d 76, 78 (Minn. 1975) (to prevail on appeal a party must show error and that
error caused prejudice); Loth, 35 N. W.2d at 544 ( stating “the burden is on the party
asserting it not only to make error appear, but also that it was prejudicial.”).
V. Parenting consultant
Appellant argues that the district court did not have the legal authority to appoint a
parenting consultant and asks this court to reverse the district court’s decision. Here, while
the dis trict court’s order made reference to a parenting consultant , it did not actually
appoint a parenting consultant. At most, it suggests that a parenting consultant would be a
suitable form of dispute resolution to resolve the recurring issues between the parties.
Because appellant has failed to demonstrate any prejudicial error on appeal, we
affirm.
Affirmed.