H.T.S. v. R.B.L., No. A07-0561 (Minn. App. 12/11/2007)
| Decision Date | 11 December 2007 |
| Docket Number | No. A07-0561.,A07-0561. |
| Parties | H.T.S., Appellant, v. R.B.L., Respondent. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Hennepin County, File No. 27-PA-FA-000051034.
Douglas F. McGuire, Smith & Fisher, (for appellant)
Douglas G. Sauter, Careen H. Martin, Barna, Guzy & Steffen, (for respondent)
Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.
UNPUBLISHED OPINION
In this appeal from the district court's order awarding custody to respondent-father, appellant-mother argues that (1) the district court abused its discretion by denying her motion to reopen the record under Minn. Stat. § 518.145, subd. 2 (2006); (2) the denial of the motion violated the right to procedural due process; and (3) the district court abused its discretion when performing the best-interests analysis. We affirm.
Appellant-mother gave birth to the parties' child, B.A.S., on March 14, 2004. Mother and respondent-father were never married, and mother commenced a paternity action against father in August 2004. The parties stipulated to joint legal custody, temporary sole physical custody with mother, and temporary child support paid by father. The district court ordered a custody evaluation, which was conducted by Dr. Michelle Millenacker, and completed on August 31, 2005. Dr. Millenacker recommended that the parties share joint legal and physical custody of B.A.S. In her evaluation, Dr. Millenacker expressed concern that, if granted sole physical custody, mother would interfere with father's contact with B.A.S.
A trial was held in April 2006 before a family-court referee on the issues of physical custody, parenting time, and child support. Before trial, father submitted a witness list that included mother's therapist, Dr. Martha Cohen. Although father subpoenaed Dr. Cohen, she was unable to appear for trial. The parties, therefore, stipulated to admit in evidence Dr. Cohen's records from therapy sessions with mother, along with records from mother's other psychological treatment. Consequently, when father called Dr. Millenacker as a witness, she was permitted to review Dr. Cohen's records as she testified.
During Dr. Millenacker's testimony, father's counsel asked Dr. Millenacker to review a letter dated May 24, 2005, from mother to Dr. Cohen, which was in Dr. Cohen's records. In this letter, written the day after a custody-evaluation meeting with Dr. Millenacker and father, mother alleged that B.A.S. was conceived when father raped her. Dr. Millenacker testified that, during her meeting with mother, mother did not accuse father of rape. Dr. Millenacker also testified that this new information from Dr. Cohen's records increased her concern that mother would interfere with father's parenting time. In response to questions posed by mother's counsel during cross-examination, Dr. Millenacker changed her recommendation from joint physical custody to sole physical custody with father.
At the close of trial, the district court granted father's motion to leave the record open to permit father to depose Dr. Cohen. Shortly thereafter, father decided to forego the deposition, and the district court closed the record. In response, mother moved to reopen the record based on a claim of surprise, Minn. Stat. § 518.145, subd. 2 (2006), seeking an opportunity to introduce Dr. Cohen's testimony and the preparation of a new custody evaluation. The district court denied the motion.
In its findings of fact, conclusions of law, and order for judgment, the district court awarded father sole physical custody of B.A.S. with parenting time for mother. Thereafter, mother moved the district court for amended findings or a new trial. After a hearing on the motion, the district court denied the requested relief. This appeal followed.
Mother challenges the denial of her motion to reopen the record. The decision whether to reopen the record based on a claim of surprise rests within the district court's discretion. Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996). As such, we will not disturb the district court's denial absent an abuse of discretion. Id. When there is evidence to support the district court's decision, an abuse of discretion will not be found. Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001).
Relief from "a judgment and decree, order, or proceeding" is permitted on the grounds of "mistake, inadvertence, surprise, or excusable neglect."1 Minn. Stat. § 518.145, subd. 2(1) (2006). With scant caselaw specifically addressing the ground of surprise under section 518.145, caselaw governing rules 60 and 59 of the Minnesota Rules of Civil Procedure, which permit similar relief to be granted, informs our analysis here.2 Using language virtually identical to section 518.145, subdivision 2(1), rule 60 provides relief from a judgment or order by means of a new trial. Minn. R. Civ. P. 60.02(a). Similarly, rule 59, which specifically governs motions for a new trial, permits a district court, when acting without a jury, to "open the judgment if one has been entered [and to] take additional testimony" on the grounds of "[a]ccident or surprise which could not have been prevented by ordinary prudence." Minn. R. Civ. P. 59.01(c).
Mother maintains that the custody evaluator's testimony at trial constituted surprise. In rejecting this argument, the district court defined the term "surprise" as "without warning and unexpected." Although section 518.145, subdivision 2(1), does not define the term, the definition employed by the district court is consistent with the term's plain and ordinary meaning. See Minn. Stat. § 645.08(1) (2006) (); State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996) (). For example, Black's Law Dictionary defines "surprise" as "[a]n occurrence for which there is no adequate warning or that affects someone in an unexpected way." Black's Law Dictionary 1457 (7th ed. 1999). And the Minnesota Supreme Court defined "surprise" warranting a new trial as that which "ordinary prudence could not have guarded against." Wingen v. May, 92 Minn. 255, 257, 99 N.W. 809, 809 (1904). Similarly, surprise warranting the exclusion of expert testimony may occur when the nature of the testimony was not disclosed in discovery. Zorgdrager v. State Wide Sales, Inc., 489 N.W.2d 281, 284-85 (Minn. App. 1992). Thus, to establish surprise as a basis for relief under section 518.145, subdivision 2(1), a party must demonstrate the absence of warning that the evidence or testimony could be offered.
Mother failed to meet this standard. Both parties stipulated to the admission of Dr. Cohen's records, which included mother's rape claim, into evidence. Both parties had equal access to the custody evaluator's report. And both parties knew that Dr. Millenacker had not reviewed Dr. Cohen's records before trial. Consequently, Dr. Millenacker's change of opinion, while perhaps "unusual and noteworthy," as the district court characterized it, did not constitute surprise. Mother's counsel elicited the testimony on cross-examination when counsel asked, "[H]ave you heard anything new today that would cause you to change your recommendation in this case?" Indeed, the purpose of cross-examination is to test the basis of an expert's opinion and to determine whether there are circumstances that might undermine or change that opinion. Moreover, mother had the opportunity to introduce rebuttal testimony but chose not to do so.
Applying a legally sound definition of "surprise," the district court concluded that, under the circumstances presented, the custody evaluator's change in recommendation did not constitute surprise. Because the district court's decision is well supported by record evidence, the district court did not abuse its discretion when it denied mother's motion.
Moreover, to prevail on a motion to reopen the record, the movant must demonstrate a strong probability that the proffered evidence will render a different result. Gunderson v. Olson, 399 N.W.2d 166, 168 (Minn. App. 1987), review denied (Minn. Mar. 18, 1987). Our review of the record indicates that mother failed to meet this burden.
Dr. Cohen's testimony would have been cumulative because the proffered affidavit of her testimony addressed the same issues raised in her therapy notes, which, having been admitted in evidence, were relied on by the district court in its detailed findings. It is well within the district court's discretion to exclude proffered evidence that is cumulative. Wingen, 92 Minn. at 257, 99 N.W. at 810. By its nature, this cumulative evidence did not establish a strong probability that it would render a different result.
In addition, the district court was free to accept the custody evaluator's written or oral recommendation. Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991). Mother established neither that a new custody evaluation was necessary for the district court's custody determination nor that the district court's credibility assessment of the evaluator's testimony would have been different if another custody evaluation were performed.
Thus, mother failed to demonstrate both surprise and a strong probability that reopening the record to accept additional evidence would render a different result.
Mother next argues that denial of her motion to reopen the record to permit the testimony of Dr. Cohen and to submit a new custody evaluation violated her right to procedural due process. The United States and Minnesota constitutions proscribe state deprivation "of life, liberty, or property, without due process of law." U.S. Const. amend. XIV; Minn. Const. art. I, § 7. When...
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