In re the Matter of: John Erik Ensrud, 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This opinion is nonprecedential except as provided by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
A22-1240

In re the Matter of:
John Erik Ensrud, petitioner,
Respondent,

vs.

Janette Lea Eastman,
Appellant.

Filed May 8, 2023
Affirmed
Wheelock, Judge

Hennepin County District Court
File No. 27-FA-17-1630

Rachel L. Farhi, Barna, Guzy & Steffen, Ltd., Coon Rapids, Minnesota (for respondent)

Janette Lea Eastman, Maple Grove, Minnesota (pro se appellant)

Considered and decided by Gaïtas, Presiding Judge; Ross, Judge; and Wheelock ,
Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In this custody dispute, appellant argues that the district court appointed the wrong
guardian ad litem (GAL) for the child and should not have relied on the evidence the GAL
submitted in making its parenting- time order. Because we conclude that mother did not
preserve her arguments for appeal, we affirm.
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FACTS
Appellant Janette Lea Eastman (mother) and respondent John Erik Ensrud (father)
are the parents of E.E. (the child), born in April 2015. Mother and father were not married
and separated in August 2016. The child has significant special needs.
In September 2017, the district court issued an initial custody order granting mother
sole legal and sole physical custody and father weekly parenting time. A s ubsequent
parenting-time order modified father’s parenting-time schedule and supervision
requirements.
In August 2020, the district court filed an amended parenting-time order granting
father parenting time on the second and fourth Saturday of each month and, beginning in
December 2020, an overnight on the fourth Saturday of each month. The order provided
that father’s parenting time would be supervised by his parents (grandparents) at their
residence. The district court further amended the order in February 2021 to clarify that
father’s overnight visitation would occur every other month.
In April 2021, mother filed a motion to modify father’s parenting time. The motion
requested that the district court reinstate professionally supervised parenting time for
father. Mother’s accompanying affidavit alleged that, since the new parenting -time
schedule began, the child had developed behavioral concerns. Mother made several other
allegations, including that father was not appropriately informed about the child’s care or
in communication with the child’s care team, father might be abusive to the child, mother’s
communication with grandparents had become “stilted and hostile,” and grandparents were
not appropriate supervisors for father’s parenting time. One month later, in May, the
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district court temporarily suspended father’s overnight parenting time based on these
allegations.
The district court appointed a GAL in July 2021. In December, the GAL filed her
initial report, in which she recommended that father have unsupervised parenting time on
the second and fourth weekend of every month. Mother’s attorney then requested an
evidentiary hearing. Mother’s affidavit in response to the GAL’s report asserted several
concerns about the GAL, including that she ignored the district court’s prior orders, the
child’s special needs, and the requirement that father engage with the child’s treatment
team; she misstated and ignored important facts of the case; she failed to support her
recommendations with evidence; and she failed to talk to the child’s treatment team or
teacher. Father’s response to mother’s affidavit accepted the GAL’s report and requested
that father’s proposed parenting time end on Sunday evenings rather than Monday
mornings.
The district court set the matter for a review hearing in March 2022. Shortly after
the hearing, the GAL submitted a supplemental report in which the GAL asserted that
mother’s affidavit restated mother’s original arguments, that the GAL had already
considered those arguments, and that mother did not provide “any new information that
would support modifications to the [GAL’s] recommendations” in the initial report.
On June 28, 2022, the district court filed a new parenting-time order. The district
court found that mother did not meet her burden of proof to modify father’s parenting time.
It also found that four overnights per month with father would not be a substantial
modification to the parenting-time arrangement that would require an evidentiary hearing.
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The district court granted father unsupervised parenting time that would increase
incrementally until December 2022, at which point father’s parenting time would be the
second and fourth weekend of every month from Friday afternoon to Sunday evening.
Shortly after the district court released its order, mother filed a pro se request to
bring a motion under Minn. R. Gen. Prac. 115.11 asking the district court to reconsider its
decision; she also filed a motion under Minn. R. Gen. Prac. 904, which governs removal
and suspension of GALs. In September 2022, mother filed a notice of appeal of the
June 28, 2022 order. The district court denied mother’s request to bring a rule 115.11
motion for reconsideration, based on lack of jurisdiction due to the pending appeal, and it
declined to schedule a hearing on her rule 904 motion.
DECISION
Mother first asserts that the GAL “should never have been assigned a disability
case” because “[s]he had no background in families affected by disabilities or autism.”
Mother cites the “Minnesota Supreme Court Rules of Guardian ad Litem Procedure, ”
which were promulgated in 1997 and have since been revised and renamed as the
“Guardian ad Litem Program Requirements and Guidelines (Non- statutory)” under the
administration of the State Guardian ad Litem Board. 1 The current version of the cited
provision states that the district court shall consider
[a]ll pertinent factors . . . in the identification and selection of
the guardian ad litem to be appointed, including the age,
gender, race, cultural heritage, and needs of the child; the

1 The “Guardian ad Litem Program Requirements and Guidelines” are distinct from the
“Rules of Guardian ad Litem Procedure in Juvenile and Family Court” found in Minn. R.
Gen. Prac. 901-907.
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cultural heritage, understanding of ethnic and cultural
differences, background, and expertise of each available
guardian ad litem, as those factors relate to the needs of the
child; the caseload of each available guardian ad litem; and
such other circumstances as may reasonably bear upon the
matter.

See Minn. Guardian ad Litem Bd., Guardian ad Litem Program Requirements and
Guidelines, https://mn.gov/guardian-ad-litem/assets/GALP%20PROGRAM%20REQUIR
EMENTS_tcm27-419529.pdf [https://perma.cc/W4NZ-QRJM].
The district court may appoint a GAL in child-custody proceedings in which
custody or parenting time is an issue. Minn. Stat. § 518.165, subd. 1 (2022). The district
court has “extremely broad discretion” in its decision to appoint a GAL. Sheeran v.
Sheeran, 401 N.W.2d 111, 117 (Minn. App. 1987). Appellate courts review the district
court’s decision to appoint a guardian ad litem for an abuse of discretion. Reed v. Albaaj,
723 N.W.2d 50, 59 (Minn. App. 2006). “A district court abuses its discretion by making
findings of fact that are unsupported by the evidence, misapplying the law, or delivering a
decision that is against logic and the facts on record.” Bender v. Bernhard, 971 N.W.2d
257, 262 (Minn. 2022) (quotation omitted).
Mother’s argument implies that the district court failed to consider the child’s
disability and the GAL’s background and expertise regarding disabled children when it
appointed the GAL. Thus, we construe mother’s argument to be that the district court
abused its discretion by misapplying the cited provision of the Guardian ad Litem Program
Requirements and Guidelines.
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Mother does not cite any statute or caselaw, however, to support her argument that
the district court abused its discretion in its appointment of the GAL. “An assignment of
error based on mere assertion and not supported by any argument or authorities in
appellant’s brief is waived and will not be considered on appeal unless prejudicial error is
obvious on mere inspection.” Schoepke v. Alexander Smith & Sons Carpet Co.,
187 N.W.2d 133, 135 (Minn. 1971); see Minn. Dep’t of Labor & Indus. v. Wintz Parcel
Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to address an inadequately
briefed issue); Brodsky v. Brodsky, 733 N.W.2d 471, 479 (Minn. App. 2007) (applying
Wintz in a family-law appeal). Thus, mother’s argument on this point is not properly before
this court, and we need not address it.
Even if this court did address mother’s argument, however, relief would still not be
appropriate. Appellate courts do not presume error by the district court, and the burden of
showing the existence of an error by the district court is on the party asserting the existence
of that error. See Waters v. Fiebelkorn, 13 N.W.2d 461, 464- 65 (Minn. 1944) (“[O] n
appeal error is never presumed. It must be made to appear affirmatively before there can
be reversal. . . . [T]he burden of showing error rests upon the one who relies upon it.”);
Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949) (quoting this aspect of Waters in a
family-law appeal); Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn. App. 1999) (applying
this aspect of Loth ). Here, the record does not identify the factors the district court
considered in appointing the GAL, and it does not include a description of the GAL’s work
experience. Thus, the record does not show that the district court failed to consider relevant
factors when it appointed the GAL or that the GAL lacked a background in working with
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disabled children. Because neither mother’s brief nor the record presented to this court
convinces us that the district court abused its discretion in its appointment of the GAL in
this case, relief would not be appropriate even if we considered that argument. 2
Mother next argues that the district court ignored her evidence and accepted hearsay
from the GAL as fact and that the GAL committed perjury by falsifying oral testimony at
the review hearing and written testimony in the GAL’s report. Mother requests that this
court “review this case as a whole considering the best interests” of the child and “review
[mother’s] affidavits and supporting documents . . . and reverse the lower court’s
decision.” She also requests that this court “strik[e] former GAL [B.W.]’s testimony,
report and recommendations from the record, or remand to amend findings of the facts.”
The record does not indicate that mother moved to strike the GAL’s testimony, report, and
recommendations in the district court; she raised this issue for the first time on appeal.
Because we may not consider an issue that an appellant raises for the first time on appeal,
we conclude that mother forfeited this issue. Thiele, 425 N.W.2d at 582.

2 Alternatively, we could construe mother’s argument to be that the district court should
have removed the GAL from this matter because, after the district court filed its challenged
parenting-time order, mother filed a motion to “Allow Formal Complaint Finding pursuant
to Rule 904 to be admissible as evidence.” But the district court denied mother’s motion
because it had no pending motions or evidentiary hearings scheduled in the matter, and it
therefore found that mother’s rule 904 motion was not properly before the district court at
that time. Thus, an argument that the district court erred by not removing the GAL is not
properly before this court on appeal because that issue was not presented to or considered
by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing
court must generally consider only those issues that the record shows were presented and
considered by the [district] court in deciding the matter before it.” (quotation omitted)).
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Finally, we note that mother failed to provide transcripts of the district court
proceedings. It is the appellant’s duty to provide a transcript for the appellate record.
Bender v. Bender, 671 N.W.2d 602, 605 (Minn. App. 2003). “While the lack of a transcript
does not automatically require dismissal of an entire appeal, lack of a transcript does limit
the scope of appellate review to whether the district court’s conclusions of law are
supported by its findings of fact.” Id.
Here, the district court included detailed findings of fact in its parenting-time order
that supported its conclusions of law. We discern no error in the district court’s
parenting-time order within our limited scope of review.
Affirmed.