Opinion
No. C7-02-344
Filed September 10, 2002.
Appeal from the District Court, Ramsey County, File No. F302300104.
Joel B. Wilson, (for respondent)
Lateesa T. Ward, Cassandra K. Ward Brown, (for appellant)
Considered and decided by Harten, Presiding Judge, Willis, Judge, and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
On appeal from an order for protection in this domestic-abuse proceeding, appellant-father, who lives in Michigan, challenges the referee's determination that Minnesota has jurisdiction. He also challenges the referee's exercise of jurisdiction, alleging both that the referee failed to determine whether Minnesota was an inconvenient forum and that exercising jurisdiction was improper because custody-related proceedings were pending in Michigan. Father further challenges the referee's evidentiary rulings. The record shows that Minnesota has jurisdiction and that the question of whether Minnesota is an inconvenient forum is not properly before this court. The record, however, is inadequate to allow us to address the impact, if any, of the Michigan proceedings on this case. Also, the referee's evidentiary rulings deprived father of a full hearing. We therefore affirm the referee's ruling that Minnesota has jurisdiction, do not address the inconvenient-forum issue, reverse the evidentiary rulings, and remand for a full hearing.
FACTS
The Minnesota judgment dissolving the marriage of appellant-father Brian Olson and respondent-mother Elizabeth Olson awarded the parties joint physical custody of their son and daughter, set a parenting-time schedule, and allowed each parent to spend time with the children while the children were in the other parent's care. With the court's permission, father and the children subsequently moved to Michigan.
Based on allegations that father abused the children, mother, on behalf of herself and the children, petitioned a Minnesota court for an order for protection that would, among other things, award her custody of the children and preclude father from having contact with her and the children. On the day mother filed her petition, the district court issued an ex parte order for protection awarding mother temporary custody, precluding father from having contact with mother and the children, and setting a hearing to address whether to continue the relief awarded in the ex parte order. The ex parte order was served on father when he and the children visited mother in Minnesota.
The referee opened the hearing on the order for protection by stating that his court reporter had "just" given the referee a notice of motion and motion to dismiss prepared by father's attorney. Mother's attorney stated that father's attorney had handed him the motion and attachments "about half an hour ago." Mother's attorney argued that the motion was untimely and the referee stated that "jurisdiction is always an open question. * * * But beyond that, I don't consider the document to be timely." The motion was not made a part of the district court file but it apparently is included in the appendix to father's brief to this court. It alleges that Minnesota should not exercise any jurisdiction it has because Minnesota is an inconvenient forum because most of the evidence and witnesses relating to the children and the alleged abuse are in Michigan.
While counsel for the parties agreed that proceedings involving father and at least the parties' son were pending in Michigan, they disagreed about what impact, if any, these proceedings had on a Minnesota court's ability to address custody. The referee then recessed the hearing and tried unsuccessfully, through no fault of his own, to contact the judge of the Michigan court where those proceedings were pending.
From the bench, the referee ruled that he was "satisfied" that Minnesota "probably" had emergency jurisdiction in this case under Minn. Stat. § 518D.204 (2000) and stated that he would exercise that jurisdiction. The referee did not address father's allegation that Minnesota was an inconvenient forum for litigating mother's claims. The referee's proposed order both granted mother's request for an order for protection and awarded mother temporary custody of the parties' children for one year. The district court confirmed the proposed order. Father appeals.
DECISION I.
Included in the appendix to father's brief to this court are copies of (1) an unsigned notice of motion and motion to dismiss the domestic-abuse proceeding, (2) a memorandum supporting the motion, (3) an affidavit of father, (4) three exhibits to father's affidavit addressing proceedings in Michigan, (5) a custody study predating the dissolution of the parties' marriage, with attachments, and (6) certain medical records of the parties' son. Other than two of the exhibits to father's affidavit, which were also offered through testimony as exhibits at the hearing before the referee, none of the documents is part of the district court file. A reviewing court "cannot base its decision on matters outside the record on appeal and any matters not part of the record must be stricken." Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn.App. 1987). The record on appeal is "the papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any * * *." Minn.R.Civ.App.P. 110.01. Therefore, we cannot consider the portions of father's appendix that are not part of the district court file and strike those portions of the appendix to his brief.
II.
This matter was heard by a district court referee in the Second Judicial District where a pilot project currently in effect suspends a party's right to seek district court review of the findings and orders recommended by a referee. In re Second Judicial Dist. Combined Family, Civil Harassment, Juvenile Probate Jurisdiction Pilot Project, No. CX-89-1863 (Minn. Apr. 10, 1996) (order), modified, No. CX-89-1863 (Minn. June 18, 1998) (order), modified, No. CX-89-1863 (Minn. May 23, 2000) (order), modified, No. CX-89-1863 (Minn. June 3, 2002) (order). Because the referee's recommended findings and order were confirmed by the district court, they became the findings and order of the district court. Minn. Stat. § 484.70, subd. 7(c) (2000); see also Griffis v. Luban, 601 N.W.2d 712, 715 (Minn.App. 1999) (explaining pilot project). We therefore review the referee's rulings as if they were made by the district court.
III.
We review jurisdictional determinations de novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002). Section 518D.201 (2000) sets out the jurisdictional requirements for a court to make an "initial child custody determination." Neither party disputes that the Minnesota judgment dissolving the parties' marriage and awarding custody of the children was the initial child-custody determination for the parties' children. It is also undisputed that, when the Minnesota court issued the dissolution judgment, it had jurisdiction under Minn. Stat. § 518D.201.
Once a Minnesota court makes an initial child-custody determination, it has exclusive, continuing jurisdiction over the determination until:
(1) a court of this state determines that the child, the child's parents, and any person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.
Minn. Stat. § 518D.202(a) (2000). Here, mother lives in Minnesota, the children visit her in Minnesota, and there is no court determination in the record that either statutory condition exists that would terminate Minnesota's exclusive, continuing jurisdiction.
The only exception to exclusive, continuing jurisdiction is for temporary emergency jurisdiction. See id. §§ 518D.202, .204. The comments to the portion of the UCCJEA addressing temporary emergency jurisdiction, however, make clear that temporary emergency jurisdiction exists only for courts of states lacking, among other things, exclusive, continuing jurisdiction. Unif. Child Custody Jurisdiction Enforcement Act § 204 cmt., 9 U.L.A. 676 (1999) (noting that custody determinations made under the emergency-jurisdiction provision are temporary and that their purpose is to protect a child until an order is entered by a court with exclusive, continuing jurisdiction or jurisdiction under either of two other provisions allowing a permanent custody determination). Because, on the record before us, Minnesota has exclusive, continuing jurisdiction, we affirm the referee's determination that Minnesota has jurisdiction and any error by the referee in determining the basis for jurisdiction is harmless. Minn.R.Civ.P. 61.
IV.
Father also challenges the referee's exercise of jurisdiction, alleging that Minnesota is an inconvenient forum. See Minn. Stat. § 518D.207 (2000) (addressing inconvenient forum considerations). The referee ruled that father's motion claiming that Minnesota is an inconvenient forum was untimely. Also, whether Minnesota is an inconvenient forum was not addressed orally by the referee at the hearing or in his findings and order confirmed by the district court. Absent a ruling on the question, it is not properly before this court, and we will not address it. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
On appeal, mother notes that oral argument was received on the inconvenient-forum question and therefore that the district court did address, and implicitly reject, father's inconvenient-forum argument. This assertion, however, is inconsistent with the referee's statement that the issue was not timely raised.
Father also argues that because custody proceedings are pending in Michigan, Minn. Stat. § 518D.206(a) (2000) precluded the referee from exercising jurisdiction. Under that provision, except for temporary emergency jurisdiction, a Minnesota court may not exercise jurisdiction
if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under section 518D.207.
Minn. Stat. § 518D.206(a). Michigan has adopted the UCCJEA. Mich. Comp. Laws Ann. §§ 722.1101-.1406 (West 2002). Also, on this record, Minnesota has exclusive, continuing jurisdiction. Therefore, on this record, it is unclear how Michigan could exercise jurisdiction in conformity with the UCCJEA. See Unif. Child Custody Jurisdiction Enforcement Act § 206 cmt., 9 U.L.A. 680 (1999) (noting that under the UCCJEA, simultaneous proceedings in different states will arise "only" when, among other things, there is no state with "exclusive, continuing jurisdiction"). The information in this record regarding the Michigan proceedings is insufficient to conclude that Minn. Stat. § 518D.206(a) precludes Minnesota from exercising exclusive, continuing jurisdiction.
V.
At the hearing, the referee terminated father's examination of mother and of the social worker to whom the parties' son had made claims of abuse, believing that father's questions were not relevant to the issues before the court. Father challenges the referee's preclusion of father's attempts to elicit testimony regarding whether (1) his spanking of the son was discipline or abuse, (2) mother's conduct was motivated by a desire to obtain custody and to continue the parties' marital disputes, (3) mother coached the son regarding his conversations with the social worker, and (4) the son's claims to the social worker regarding father's allegedly abusive conduct were fabricated or exaggerated. We reject mother's argument that father's failure to seek a new trial means that father's challenges to the referee's evidentiary rulings are not properly before this court. New-trial motions are not authorized in domestic-abuse proceedings. Steeves v. Campbell, 508 N.W.2d 817, 818 (Minn.App. 1993).
As part of the Second Judicial District pilot project, a referee's evidentiary rulings will not be altered on appeal unless the referee abused his discretion in making his ruling or made his ruling based on an erroneous interpretation of the law. See Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-6 (Minn. 1997) (noting that this standard is used to review a district court's evidentiary rulings). When, as here, an ex parte order for protection is issued and a request for a hearing is made, a "full hearing" is required. Minn. Stat. § 518B.01, subd. 7(c) (2000). For domestic-abuse purposes, a full hearing "includes the right to present and cross-examine witnesses, to produce documents, and to have the case decided on the merits." El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn.App. 1995) (citing In re Enger's Will, 225 Minn. 229, 237-38, 30 N.W.2d 694, 700 (1948)).
The object of all witness examination, both direct and cross, is to elicit facts to show the truth. Cross-examination of a witness should not be restricted so long as it serves that purpose.
Anderson v. Lake, 536 N.W.2d 909, 911 (Minn.App. 1995) (citing Mattfeld v. Nester, 226 Minn. 106, 126, 32 N.W.2d 291, 305 (1948)) (noting similarities between domestic-abuse proceedings and harassment proceedings and adopting El Nashaar's definition of a "full hearing" for purposes of harassment proceedings).
Determining whether father abused the son required the referee to ascertain what father did and the circumstances under which he did it. See Minn. Stat. § 518B.01, subd. 2(a) (2000) (defining "domestic abuse"). Here, because the referee did not allow the children to testify, determining what father did was greatly dependant on the testimony of mother and the social worker regarding what the son told them. For this reason, the subjects on which the referee terminated father's cross-examination of mother and the social worker were critical, and the termination of father's inquiry into those subjects deprived him of the full hearing described in El Nashaar and Anderson.
Because the case must be remanded for a full hearing, we need not address the parties' disputes regarding whether the current record supports a finding of abuse or whether the order for protection should have referred to both children.
If on remand the court is provided with information about the Michigan proceedings sufficient to allow it to address the question of whether to exercise its jurisdiction, we encourage it to review its decision on that issue, although we express no opinion on how to resolve that issue.