This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1430

In re the Marriage of:

Anthony Linus Orner, petitioner,

Respondent,

vs.

Shauna Orner,

Appellant.

Filed May 26, 2015

Affirmed

Kirk, Judge

Otter Tail County District Court

File No. 56-FA-12-2611

Anthony Linus Orner, Fargo, North Dakota (pro se respondent)

Shauna Orner, Richville, Minnesota (pro se appellant)

Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Kirk, Judge. 

U N P U B L I S H E D O P I N I O N

KIRK, Judge

Appellant-mother argues that the district court erred in awarding physical and 

legal custody of the parties’ minor child to respondent-father. We affirm.
2

FACTS

Appellant-mother Shauna Orner and respondent-father Anthony Linus Orner were 

married in 2008 and are parents to a minor child, C.J.O. In August 2012, father 

petitioned for dissolution of the marriage. In October 2012, the parties participated in the 

Social Early Neutral Evaluation process and voluntarily agreed to share temporary joint 

physical and legal custody of the child. In April 2013, the district court granted the 

parties’ stipulation to a bifurcated judgment dissolving their marriage and reserved for 

trial all issues relating to child custody, parenting time, and spousal maintenance. 

In anticipation of a court trial on custody and parenting time issues, the parties 

hired a custody investigator. The custody investigator filed her report with the district 

court in July 2013 recommending that the parties share joint legal custody and that father 

have sole physical custody of the child. 

On October 31, father filed an ex parte motion requesting that the district court 

grant him temporary sole legal and physical custody of the child. In his affidavit, father

alleged numerous violations of the October 2012 custody agreement by mother, including 

that she withheld the child from him during his court-ordered parenting time and that she

was planning to relocate to California with the child. On November 5, Mother was 

served notice of father’s ex parte motion, affidavit, and notice of the hearing. 

On November 13, the district court held a hearing on father’s ex parte motion and

awarded father temporary sole legal and sole physical custody of the child subject to 

mother’s supervised parenting time. The district court found that there were reasonable 

grounds to believe that mother intended to flee the jurisdiction with the child. The 
3

following month, the state charged mother with felony deprivation of parental rights after

she absconded with the child to Colorado and was apprehended by federal authorities. 

The child was reunited with father. In light of mother’s conduct, the custody investigator 

amended her initial report and recommended that the district court grant father sole legal 

and sole physical custody subject to mother’s supervised parenting time. 

A two-day custody trial was held in March 2014, and both parties were 

represented by counsel. On June 25, the district court entered a detailed order including 

factual findings concerning each of the best-interest custody factors. See Minn. Stat. 

§ 518.17 (2014). The district court awarded father sole legal and sole physical custody of 

the child subject to mother’s supervised parenting time. 

Mother appeals.

D E C I S I O N

I. The district court did not err in making the child custody determination.

A district court has broad discretion to provide for the custody of the parties’ 

children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). “The guiding principle in 

all custody cases is the best interest of the child.” Pikula v. Pikula, 374 N.W.2d 705, 711 

(Minn. 1985). “Appellate review of custody determinations is limited to whether the 

[district] court abused its discretion by making findings unsupported by the evidence or 

by improperly applying the law.” Id. at 710. A district court’s findings of fact will be 

sustained unless they are clearly erroneous. Id.; see Minn. R. Civ. P. 52.01 (stating that 

findings of fact are not set aside unless clearly erroneous). The law “leaves scant if any 
4

room for an appellate court to question the [district] court’s balancing of best-interests

considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000). 

In her pro se brief, mother argues that the district court erred in awarding custody 

of the child to father because (1) the judge was unfairly biased against her; (2) the 

custody investigator was unfairly biased against her; (3) an intoxicated witness who was 

not previously disclosed on the witness list was allowed to testify on behalf of father; 

(4) she did not receive notice of father’s October 31, 2013 ex parte motion; and (5) the 

child is currently endangered by living with father.

We note that mother’s brief cites no legal authority in support of her claims. Pro 

se litigants are typically held to the same standards as attorneys. Liptak v. State, 340 

N.W.2d 366, 367 (Minn. App. 1983). If the brief does not contain an argument or 

citation to legal authority in support of the allegations waived, the allegations are deemed 

waived. State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002). However, appellate courts 

may address any matter “as the interest of justice may require.” Minn. R. Civ. App. P. 

103.04. Given the serious nature of this custody dispute, we elect to address mother’s 

arguments in turn. 

A. The district court judge was not biased.

Mother argues that the district court judge was biased against her in its custody 

determination because he overemphasized the fact that she absconded with the child out 

of state. The record does not indicate any bias by the district court judge, and mother 

offers no evidence of bias. “The mere fact that a party declares a judge partial does not in 

itself generate a reasonable question as to the judge’s impartiality.” Hooper v. State, 838 
5

N.W.2d 775, 790 (Minn. 2013) (quotation omitted). Rather, mother’s argument appears 

to reflect strong dissatisfaction with the district court judge’s ruling. 

The record supports the district court’s determination that mother posed a serious 

flight risk with the child to another state. See Pikula, 374 N.W.2d at 710. In awarding 

father physical and legal custody of the child, the district court found that the primary, 

but not exclusive factor in its custody determination was the very real risk that mother 

would flee again with the child out of state. The district court based its determination on 

its opportunity to observe and assess the credibility of mother’s testimony at trial and her 

“past disregard and disdain” in complying with the court’s custody and parenting time 

order. At trial, mother characterized the court’s temporary order as “bullcrap.” Mother

also admitted at trial that she did not inform father in advance of her decision to take the 

child out of state, that she believes the child is presently in danger while residing with 

father, and that she would do “anything to keep [her] daughter safe.” Based on mother’s 

admissions, the district court reasonably concluded that if it awarded her physical 

custody, she would likely abscond with the child again. 

B. The custody investigator was not biased.

Absent an abuse of discretion, this court will not overturn a district court’s 

decision to adopt the findings of the custody investigator. Rutanen v. Olson, 475 N.W.2d 

100, 104 (Minn. App. 1991). Mother argues that the custody investigator was unfairly 

biased against her because father paid for the investigator’s services, and that the custody 

report was flawed because it ignored evidence of father’s past violent behavior towards 

her and the mother of his oldest daughter. 
6

A district court may order a professional custody investigation and report in a 

contested custody proceeding. Minn. Stat. § 518.167, subd. 1 (2014). The custody 

investigator “must consider and evaluate” the best-interest factors that are set forth in 

Minn. Stat. § 518.17, subd. 1, and conduct “a detailed analysis of all information 

considered for each factor.” Id., subd. 2(b). The district court may receive the custody 

investigator’s report into evidence, but is not required to follow a custody investigator’s 

recommendation if it is outweighed by other evidence. Pikula, 374 N.W.2d at 712. This 

court defers to the district court’s credibility determinations. Vangsness, 607 N.W.2d at 

472. 

There is no evidence that the custody investigator was unfairly biased against 

mother. In preparation for issuing her report, the custody investigator conducted in-home

visits of both parties, interviewed numerous witnesses, including the child, and reviewed 

numerous documents. The custody investigator also investigated father’s criminal 

history and testified at trial about her conversations with him regarding a previous

domestic-assault incident involving himself and the mother of his oldest daughter. The 

custody investigator also acknowledged at trial that it was unusual that mother never 

mentioned to her during their repeated interactions that father had ever physically 

assaulted her. The district court did not make any finding that the custody investigator 

was biased, nor did it wholly adopt the custody investigator’s recommendations. We 

conclude mother’s arguments are without merit.
7

C. There was no harm in allowing a non-disclosed witness to testify.

In general, the district court is in the best position to determine what harm is 

caused by discovery violations and whether such harm can be eliminated or alleviated. 

State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). Mother argues that the district 

court erred when it allowed a previous neighbor of the parties to testify because she did 

not receive timely notice from father that the neighbor was on his witness list, and 

because the neighbor was intoxicated when she testified. The record shows that mother’s 

counsel objected to the neighbor’s testimony on the ground that she had not received 

notice that the neighbor would testify. The district court denied the motion, stating on the 

record that it had previously allowed three witnesses to testify on behalf of mother who

had not been previously disclosed, and that it preferred allowing the parties to fully 

develop their cases.

Mother has not shown any harm caused by the district court in allowing the 

neighbor to briefly testify to the fact that law enforcement made several visits to the 

parties’ residence in 2006. The district court did not reference the neighbor’s testimony 

in its custody determination, and there is also no evidence in the record presented to this 

court that the neighbor was intoxicated during her testimony. 

D. Mother received notice of the hearing on father’s ex parte motion.

Mother’s argument that she did not receive notice of father’s October 31, 2013 ex 

parte motion is without merit. The record indicates that mother received notice of the

hearing on father’s motion on November 5. Moreover, the district court acted in 

accordance with Minn. R. Gen. Pract. 303.04(f) (stating that when the district court grants 
8

a party emergency relief without notice and the relief affects custody or parenting time, 

the court shall set the matter for hearing within 14 days of the date that emergency relief 

is granted). 

E. Mother’s motion to modify custody is outside the trial record.

Mother requests that this court modify custody because the child is presently 

endangered by father because he is physically abusive and is facing criminal drug charges 

in North Dakota. We will not consider these claims because they are outside the trial 

record. The record on appeal consists only of “[t]he papers filed in the trial court, the 

exhibits, and the transcript.” Minn. R. Civ. App. P. 110.01. Generally, an appellate court 

will not consider matters not argued to and considered by the district court. Thiele v. 

Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Affirmed.