Diver v. Diver, No. A03-1837 (MN 9/14/2004)

• Decision Date: 14 September 2004
• Docket Number: No. A03-1837.,A03-1837.
• Parties: Jennifer Lynn Diver, petitioner, Appellant, v. Daryl Lee Diver, Respondent.
• Court: Minnesota Supreme Court

Page 1

Unpublished Opinion

Jennifer Lynn Diver, petitioner, Appellant, v. Daryl Lee Diver, Respondent.

No. A03-1837.

Court of Appeals of Minnesota.

Filed September 14, 2004.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).

Appeal from the District Court, St. Louis County, File No. F2-01-600896.

Arthur M. Albertson, (for appellant).

Mary E. Lockwood, (for respondent).

Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.

UNPUBLISHED OPINION

LANSING, Judge.

This appeal from judgment and the denial of an alternative motion for amended findings or a new trial in a marital-dissolution proceeding challenges the admissibility of a paragraph in a prosecutorial-review memorandum, the determination of child custody, and the denial of attorneys' fees. Because the district court did not misapply the law, abuse its discretion, or make a decision against logic and the facts of record, we affirm.

FACTS

Jennifer Diver and Daryl Diver were married from September 1995 to September 2003 and are the parents of four children. Following a two-day contested dissolution hearing, the district court divided the marital property, ordered twenty-four months of spousal maintenance for Jennifer Diver, determined that the Divers would have joint legal custody and that Daryl Diver would have sole physical custody of the four children, and provided that each of the Divers "shall pay his or her own attorney's fees."

The primary issue litigated at the contested hearing was the custody of the Divers' four children. While the dissolution proceeding was pending, the Duluth Police Department investigated allegations that Daryl Diver had sexually abused one of the children. The police department twice used a First Witness protocol to interview the Divers' child. The First Witness protocol involves a multidisciplinary team that conducts interviews of children who may have been sexually or physically abused. The district court, in its findings, stated "[t]he evidence to support the allegations was insufficient to satisfy the experienced First Witness interviewers, the prosecutors who monitored and reviewed those interviews, and the [s]ocial [s]ervices investigator." The district court found that "[n]o evidence was offered at trial" from which it "could conclude that there was any improper conduct."

Jennifer Diver moved for amended findings or a new trial and for attorneys' fees. The memorandum accompanying the motion requested amendments to twelve findings and six conclusions, directed primarily at child custody. The district court denied Jennifer Diver's motion, stating that it did "not find that any individual claimed error or all of the claimed errors in their totality would change this Court's exercise of its discretion in awarding the physical custody of the children to their father." Jennifer Diver appeals, challenging (1) the admissibility of a paragraph in a county attorney's prosecutorial-review memorandum, (2) the custody determination, and (3) the denial of her request for attorneys' fees.

DECISION

I

Jennifer Diver disputes the admissibility of a paragraph in a county attorney's prosecutorial-review memorandum. This memorandum was written by an assistant county attorney and directed to a lieutenant in the Duluth Police Department. It essentially explains why the county attorney's office agrees with the police department's conclusion that the investigation provided insufficient support for criminal-sexual-conduct charges against Daryl Diver.

The assistant county attorney who wrote the memorandum was called as a witness at the hearing. He provided foundation for the memorandum, and Daryl Diver's attorney offered it into evidence. Jennifer Diver's attorney did not object to the first page of the two-page memorandum, but objected to the second page. The second page consists of a paragraph explaining that the child's statements about improper physical contact appeared to be coached or contrived, demonstrated a bias against Daryl Diver, and that the bias may have been created by Jennifer Diver. The court ruled that the statements about coaching or creating bias were speculative and would require additional foundation, but admitted, without objection, the first page of the memorandum. The first page summarized the content of the videotaped interviews of the child and incorporated the conclusion of two police officers who monitored the interviews that the videotapes provide no reliable disclosures of criminal sexual conduct and that the videotapes and the files provide insufficient evidence of sexual misconduct to support a criminal charge.

The paragraph on the second page of the memorandum was admitted at the conclusion of the evidentiary hearing after the guardian ad litem testified to the child's statements to her that had triggered the First Witness investigation. Jennifer Diver's attorney elicited testimony from the guardian ad litem about her conversation with the child and whether the child's disclosure appeared to be spontaneous. When the guardian testified to her belief that the statements were natural and spontaneous, Daryl Diver's attorney moved to admit, as rebuttal evidence, the second-page paragraph in the county attorney's memorandum that concluded that the child's statements were coached or contrived and explained the reasons for that conclusion.

Over objection, the district court admitted the paragraph as rebuttal evidence. The court stated that the guardian's testimony on the spontaneity of the child's statements was hearsay and therefore the hearsay of the county attorney's observations should also be admitted, "limited to his reasoning in agreeing that there should not be a charge against [Daryl] Diver."

Jennifer Diver raises three specific objections to the admissibility of the paragraph: (1) lack of foundation, (2) lack of qualifications to provide an expert opinion, and (3) improper testimony on the credibility of the child. These objections appear to be more directly aimed at the first page of the memorandum, which was admitted without objection. Applying these objections to the disputed paragraph on the memorandum's second page, we discern no error.

First, the assistant county attorney who prepared the memorandum testified that he had worked for the St. Louis County Attorney's Office for more than thirty years, that one of his primary jobs as an assistant county attorney is to "review law enforcement reports to make decisions whether there's enough evidence to charge people with crimes," that he is familiar with the Duluth police department's procedures for interviewing children who may have been sexually abused, that he monitors the interviews and suggests what types of questions should be asked, and that he recommends whether to charge a suspect with sexually abusing a child. This testimony provides ample foundation for a memorandum explaining why he did not believe that the file or the videotaped interviews would support a charge of sexual misconduct.

Furthermore, the memorandum is admissible as a public document. A public document is defined as a document "bearing a seal purporting to be that of . . . any State . . . or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution." Minn. R. Evid. 902(1). The memorandum was written by the assistant county attorney and directed to the Duluth police department. The letter is on the St. Louis County Attorney's official letterhead, contains the county attorney's seal, and is signed by the assistant county attorney. Public documents under seal are self-authenticating and additional foundation is not required. The district court did not abuse its discretion by admitting the paragraph into evidence.

Second, Jennifer Diver's objection to the assistant county attorney's qualifications is the same as her objection to foundation. The inquiry that established foundation for the memorandum also establishes that the assistant county attorney has the training and experience to provide an expert opinion on why a case has not been charged. The objection that Jennifer Diver raises on the qualifications of the other assistant county attorneys was not raised at trial and relates to comments on page one, which...