This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-99-1541

In Re the Marriage of:
Carol B. Schaefer, petitioner,
Respondent,

vs.

Ronald E. Schaefer,
Appellant.

Filed February 15, 2000
Affirmed
Toussaint, Chief Judge

Stearns County District Court
File No. F496263

Gerald W. Von Korff, Rinke-Noonam, Suite 700, Norwest Center, P.O. Box 1497, St. Cloud, MN 56302 (for respondent)

Kim A. Pennington, JoAnn W. Evenson, Pennington & Lies, P.A., 1111 First Street North, P.O. Box 1756, St. Cloud, MN 56302 (for appellant)

 

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge[*].

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

In this post-dissolution proceeding, appellant Ronald E. Schaefer alleges he made a prima facie case against allowing respondent Carol B. Schaefer to remove the partiesí children to Texas and therefore, the district court abused its discretion in allowing the removal without an evidentiary hearing. Because the district court did not err in denying appellantís request for an evidentiary hearing, we affirm.

D E C I S I O N

Appellate review of custody modification decisions is limited. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). The decision whether to grant an evidentiary hearing on a custody modification motion is within the trial courtís discretion, and we will not reverse unless the trial court clearly abused its discretion. Id.; Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981).

This court presumes a custodial parentís request for permission to move a childís residence out of state is in the best interests of the child and will be granted without an evidentiary hearing. See Silbaugh, 543 N.W.2d at 641 (noting presumption that removal will be permitted applies to cases where parents share legal custody); Sefkow v. Sefkow, 427 N.W.2d 203, 214 (Minn. 1988) (reasoning because denial of removal would equal custody modification, court presumes removal permitted); Auge v. Auge, 334 N.W.2d 393, 396 (Minn. 1983) (instructing trial court on remand that permission to remove may be granted without full evidentiary hearing unless respondent makes prima facie showing against removal).

To defeat this presumption, the party opposing removal must present evidence establishing "removal is not in the best interests of the child and would endanger the childís health and well-being." Silbaugh, 543 N.W.2d at 641; see also Sefkow, 427 N.W.2d at 214 (holding the party opposing removal bears the burden of proof). Unless the opposing party makes a prima facie case against removal, the trial court appropriately grants permission to remove without an evidentiary hearing. Silbaugh, 543 N.W.2d at 641.

Appellant based his prima facie showing against removal on an affidavit presenting his concerns about issues such as: (1) visitation; (2) his older sonís problems with depression; and (3) the childrenís connection to his extended family. But appellant did not present specific facts or submit affidavits from psychologists, doctors, or teachers to establish that his older son is depressed and that the problem would be exacerbated by the move to Texas or could not be treated effectively in Texas. Geiger v. Geiger, 470 N.W.2d 704, 709 (Minn. App. 1991) (denying evidentiary hearing because appellant failed to cite any specific facts to show move would be against childrenís best interests), review denied (Minn. Aug. 1, 1991); Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn. App. 1985) (requiring parent opposing removal to present specific evidence, such as reports from psychologists or teachers, to support broad generalizations that children were depressed about move).

Appellantís affidavit does not present evidence showing removal of the children to Texas would not be in the childrenís best interest and would endanger their health or well-being. See Silbaugh, 543 N.W.2d at 642 (holding normal anxiety caused by moving residence is not sufficient to overcome presumption that removal is in childís best interest); see also Gordon v. Gordon, 339 N.W.2d 269, 270 (Minn. 1983) (noting custodial parentís petition for removal may not be denied simply because move requires adjustment in visitation); Geiger, 470 N.W.2d at 709 (affirming grant of permission to remove children because, besides normal adjustments to moving, appellant did not cite any specific facts to show move would be against childrenís best interest). Moreover, appellantís reliance on Otava v. Otava, 374 N.W.2d 509 (Minn. App. 1985) is misplaced because Otava is a pre-Silbaugh case involving removal to a foreign country. Compare Silbaugh, 543 N.W.2d at 641 (requiring party opposing removal to establish prima facie case that removal is not in best interests of child and would endanger childís health and well-being), with Otava, 374 N.W.2d at 511 (requiring party opposing removal to show removal is not in the best interests of child).

Because appellant did not establish a prima facie case against removal, the trial court did not abuse its discretion by refusing appellantís request for an evidentiary hearing and granting motherís motion for removal. See Nice-Peterson, 310 N.W.2d at 472 (holding trial court did not abuse its discretion in denying custody modification without an evidentiary hearing).

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.