                        This opinion will be unpublished and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
                                   A15-0655

                                In re the Marriage of:
                             Carol Lee D’Costa, petitioner,
                                     Respondent,

                                          vs.

                               Joseph Francis D’Costa,
                                     Appellant.

                               Filed February 1, 2016
                                      Affirmed
                                     Kirk, Judge

                           Hennepin County District Court
                              File No. 27-FA-13-2583

Shannon M. Fitzpatrick, Fitzpatrick Family Law, Minneapolis, Minnesota (for respondent)

Michelle L. MacDonald, MacDonald Law Firm, LLC, West St. Paul, Minnesota (for
appellant)

      Considered and decided by Kirk, Presiding Judge; Stauber, Judge; and Kalitowski,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

KIRK, Judge

      Appellant-father challenges the district court’s grant of sole legal and sole physical

custody to respondent-mother, arguing that chapter 518 of Minnesota Statutes

unconstitutionally infringes on his fundamental right to parent his children. Minn. Stat.

§§ 518.001-.68 (2014 & Supp. 2015). He also contests the district court’s admission of

various reports into evidence, the valuation and division of wife’s investment and

retirement accounts, his retroactive child-support obligation, and wife’s award of attorney

fees. We affirm.

                                     DECISION

      In 2013, after 13 years of marriage, respondent-mother Carol Lee D’Costa

petitioned for marital dissolution from appellant-father Joseph D’Costa. After a nine-day

trial, the district court granted mother sole legal and sole physical custody, subject to

husband’s supervised parenting time with the parties’ two minor children. On appeal,

father raises numerous arguments attacking the district court’s detailed and thorough 40-

page memorandum, which we address in turn.

      The constitutionality of a statute is a question of law that we review de novo. Rew

v. Bergstrom, 845 N.W.2d 764, 776 (Minn. 2014) (citing Schatz v. Interfaith Care Ctr.,

811 N.W.2d 643, 653 (Minn. 2012)). “Minnesota statutes are presumed constitutional and,

as we have said in the past, our power to declare a statute unconstitutional must be

exercised with extreme caution and only when absolutely necessary.” Hamilton v. Comm’r

of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). “The challenger of the constitutional


                                            2
validity of a statute must meet the very heavy burden of demonstrating beyond a reasonable

doubt that the statute is unconstitutional.” Associated Builders & Contractors v. Ventura,

610 N.W.2d 293, 299 (Minn. 2000).

       Father challenges the constitutionality of various provisions of chapter 518 relating

to custody as both written and as applied to him. Father argues that, as a fit parent, “Minn.

Stat. § 518” impermissibly infringes on his fundamental right to parent his children. He

contends that the state does not have a compelling interest in second-guessing the parenting

decisions of a fit parent as to the best interests of his children. Father principally relies on

Troxel v. Granville, 530 U.S. 57, 72, 120 S. Ct. 2054, 2063 (2000), in which a four Justice

plurality of the United States Supreme Court struck down a Washington State visitation

statute allowing any third party to petition for visitation rights at any time so long as it was

in the best interests of the child. The Court declared that a parent’s decisions concerning

the care, custody, and control of his or her children is a protected fundamental right. Id. at

65, 120 S. Ct. at 2060.

       Father’s appeal is saddled with numerous procedural deficiencies that are fatal to

his argument. First, father has no standing to argue that his fundamental right to parent is

being violated. Before a court can exercise jurisdiction, a party must have standing. In re

Custody of D.T.R., 796 N.W.2d 509, 512 (Minn. 2011). The fundamental right to parent

without state interference is reserved for fit parents. See Troxel, 530 U.S. at 68-69, 120

S. Ct. at 2061 (“[S]o long as a parent adequately cares for his or her children (i.e., is fit),

there will normally be no reason for the [s]tate to inject itself into the private realm of the

family” and further question the parent’s ability to make the best decisions concerning the


                                               3
child’s rearing). Here, the district court ruled that father was not a “fit parent.”1 Because

father never challenged the district court’s finding that he is an unfit parent, he does not

belong to the class of parents who are afforded this fundamental right, and therefore does

not have standing. Second, father did not comply with the notice requirements of Minn.

R. Civ. P. 5A when he filed notice of his challenge to the Minnesota Attorney General

because he did not include a timely pleading, written motion, or other paper challenging

the constitutionality of chapter 518. Third, father’s constitutional challenge is vague and

unclear. It is not the function of the court of appeals to establish new causes of action.

Stubbs v. N. Mem’l Med. Ctr., 448 N.W.2d 78, 81 (Minn. App. 1989), review denied (Minn.

Jan. 12, 1990). Chapter 518 is a complex scheme detailing the procedures for numerous

issues, including marital dissolution, custody determinations, and third-party visitation.

Father does not specify which particular statutes he is challenging; instead, he leaves to the

district court, and this court, the task of determining the scope of constitutional relief that

he is seeking.

       Turning to father’s substantive claim, father has failed to establish that the act is

unconstitutional, and his argument is therefore unavailing. The state has a compelling

interest in protecting the general welfare of a child during a marital dissolution, and the

custody provisions of chapter 518 are narrowly tailored to serve a compelling state interest.

See Minn. Stat. §§ 518.17-.185 (outlining law on custody determinations and parenting


1
 The district court equated “unfitness” to the legal standard for supervised parenting time
as enunciated in Minn. Stat. § 518.175, subd. 1(b) (stating that the court shall restrict
parenting time if it finds that it “is likely to endanger the child’s physical or emotional
health or impair the child’s emotional development”).

                                              4
time). Generally, a biological parent such as father is presumed to be fit and suitable to

care for his child, and the courts presume that the child’s best interests are met by remaining

in that parent’s care. In re P.T., 657 N.W.2d 577, 583 (Minn. App. 2003), review denied

(Minn. Apr. 15, 2003).

              [But] [p]arental rights [] are not absolute and [should] not [] be
              unduly exalted and enforced to the detriment of the child’s
              welfare and happiness. The right of parentage . . . is in the
              nature of a trust . . . and is subject to [parents’] correlative duty
              to protect and care for the child.

In re Adoption of Anderson, 235 Minn. 192, 200, 50 N.W.2d 278, 284 (1951). The child’s

best interests are the paramount consideration in a custody determination. Minn. Stat.

§ 518.17, subd. 1. The state also has a compelling interest in shielding children from

parental abuse. R.S. v. State, 459 N.W.2d 680, 689 (Minn. 1990). The power of a parent

may be subject to limitation if it appears that “parental decisions will jeopardize the health

or safety of the child, or have a potential for significant social burdens.” Wisconsin v.

Yoder, 406 U.S. 205, 233-34, 92 S. Ct. 1526, 1542 (1972); see SooHoo v. Johnson, 731

N.W.2d 815, 822 (Minn. 2007) (holding that the state “may intrude on parental rights in

order to protect the general interest in the youth’s well being”) (quotation omitted)). The

state has a compelling interest in protecting the general welfare of a child in a marital

dissolution custody case.

       Minn. Stat. §§ 518.17-.185 are narrowly tailored to serve the compelling

governmental interest of protecting a child’s best interest in light of a fit parent’s right to

parent the child. There is a rebuttable presumption, upon either parent’s request, that joint

legal custody is in the best interest of the child. Minn. Stat. § 518.17, subd. 1(b)(9). There


                                               5
is no presumption for or against joint physical custody absent evidence of domestic abuse.

Id., subd. 1(b)(7). The district court “shall consider” both parents as having the capacity

to develop and sustain nurturing relationships with the children. Id., subd. 1(b)(3). The

court must consider “the benefit to the child in maximizing parenting time with both

parents and the detriment to the child in limiting parenting time with either parent.” Id.,

subd. 11(9)(10).

       Father attacks the district court’s issuance of a no-contact order limiting his

parenting time. He argues that the no-contact order not only violated his fundamental right

to parent before any findings were made regarding his fitness as a parent, but it also was

overly broad in scope as it gave mother exclusive control of the children. “The failure to

grant a parent an opportunity to be heard on custody issues is a denial of equal protection

and due process.” Halverson ex rel. Halverson v. Taflin, 617 N.W.2d 448, 451 (Minn.

App. 2000) (citing Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S. Ct. 1208, 1215-16

(1972)).

       We are not persuaded by father’s arguments as he ignores the crucial fact that father

agreed to the no-contact order. The record demonstrates that a few weeks after mother

petitioned for marital dissolution, she filed an ex parte petition for an order for protection.

In lieu of a hearing on mother’s ex parte petition, the parties mutually agreed to a no-contact

order under which father agreed to not contact mother, to not visit the children’s school or

church while they were in attendance, and to supervised parenting time. Father was also

represented by counsel when he agreed to the no-contact order.




                                              6
       Father next challenges the admissibility of reports compiled by a financial expert

and a custody evaluator during trial, arguing that both reports are inadmissible hearsay.

See Minn. R. Evid. 801. But father did not move for a new trial following the trial.

Generally, evidentiary rulings “‘are subject to appellate review only if there has been a

motion for a new trial in which such matters have been assigned error.’” In re Welfare of

D.N., 523 N.W.2d 11, 13 (Minn. App. 1994) (quoting Sauter v. Wasemiller, 389 N.W.2d

200, 201 (Minn. 1986)), review denied (Minn. Nov. 29, 1994). Because father did not

move for a new trial based on the district court’s hearsay rulings, his evidentiary challenges

are not properly before this court. See id.

       Next, father disputes the district court’s valuation and division of some of wife’s

retirement accounts, arguing that it failed to make findings regarding accrued interest and

the reinvestment of dividends, which are marital property. Because father did not move

for a new trial or amended findings, we review only whether the evidence supports the

district court’s findings and whether the findings support its conclusions of law. Alpha

Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310 (Minn.

2003). Whether property is marital or nonmarital is a legal question, which this court

reviews de novo. Gottsacker v. Gottsacker, 664 N.W.2d 848, 852 (Minn. 2003).

       The record reflects that before marriage, mother owned an AG Edwards IRA. After

she married, she rolled four separate retirement accounts into her AG Edwards IRA.

Through a series of bank mergers, the AG Edwards IRA was transferred over to Wells

Fargo, which eventually became two rollover IRA accounts. As of July 1998, the value of

the rollover IRA was $69,567. At trial, mother’s financial expert testified how he traced


                                              7
the growth of these rollover IRA accounts from 1998-2013 in order to determine what

portion of each account was marital and nonmarital. He determined that the marital value

of the two rollover IRAs was $43,253. The district court adopted the expert’s valuation

and awarded each party half of the marital value of the rollover IRAs.

       Here, the controlling issue is whether the parties actively managed the rollover IRAs

during the marriage. Any increase in the value of a nonmarital asset due to “marital effort”

is “active appreciation” and therefore marital property, but passive appreciation of a

nonmarital asset is considered to be nonmarital property. Id. at 854. The record supports

the district court’s conclusion that the IRA was nonmarital because neither party actively

managed the rollover IRAs, received a distribution, withdrew monies, or did anything to

influence the value of the stock in the IRA. “‘[A]n increase in the value of nonmarital

property attributable to inflation or to market forces or conditions[] retains its nonmarital

character.’” Baker v. Baker, 753 N.W.2d 644, 650 (Minn. 2008) (quoting Nardini v.

Nardini, 414 N.W.2d 184, 192 (Minn. 1987)).

       Father disputes the district court’s valuation of mother’s Wells Fargo investment

and annuity accounts, arguing that it failed to distinguish whether the accounts’

appreciation was due to interest or dividend reinvestment. But the district court specifically

determined that while the investment account was nonmarital at the time the parties

married, the earnings from interest and dividends were deemed marital. Likewise, the

district court did not err, as father contends, in holding that increases in mother’s annuity

account to be nonmarital. The annuity was funded with a regular monthly transfer from

mother’s investment account, a nonmarital asset, and any increase in the value of the


                                              8
annuity was attributed solely to passive reinvestment of income and dividends. Gottsacker,

664 N.W.2d at 854.

       Father also claims, without citing any authority, that mother’s withdrawals from the

investment account were used for nonmarital purposes. Again, the record clearly supports

the district court’s finding that mother shouldered numerous family-related expenses

including paying $15,000 annually for child care alone, and father contributed relatively

little to the family expenses.

       For the first time on appeal, father argues that the district court denied his right to

procedural due process before it found that he owed mother past child support. He asserts

that he has a property interest in the money that he pays for child support, and before the

district court can deprive him of that interest, he must have an opportunity to be heard and

present his case. But father never raised a due-process argument concerning his child-

support obligation to the district court, and therefore, it is not properly before us on appeal.

“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.” Thiele v.

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

       Finally, father argues that the district court abused its discretion in ordering him to

pay mother’s attorney fees by foregoing an $18,000 property equalizer. The record amply

supports the district court’s finding that “[b]ut for the conduct of [father] and his counsel

(including disorganization, noncompliance with trial scheduling orders, nonresponsive and

argumentative and narrative testimony, and poor trial preparation and presentation of

[father’s] case),” the length of the trial could have been considerably shorter. See Minn.


                                               9
Stat. § 518.14, subd. 1 (allowing conduct-based attorney fees to be awarded against a party

contributing to the length or expense of a proceeding).

       Mother requests an award of conduct-based attorney fees to cover the costs incurred

on appeal.   Conduct-based fees are appropriate to award on appeal.         Roehrdanz v.

Roehrdanz, 438 N.W.2d 687, 691-92 (Minn. App. 1989), review denied (Minn. June 21,

1989). Based on numerous arguments procedurally barred by father that mother was forced

to defend on appeal, we conclude that mother is entitled to an award of costs and attorney

fees. She may file her motion for fees following the procedures outlined in Minn. R. Civ.

P. 139.06.

       Affirmed.




                                            10
