This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In Re the Marriage of:

Mary Lee Bertram, petitioner,


Joseph Leo Bertram, Sr.,



Filed May 2, 2000


Crippen, Judge


Stearns County District Court

File No. F5972226



John T. Lund, Schmidt and Lund, Daniel Building, 11 North Seventh Avenue, St. Cloud, MN 56303 (for respondent)


Ronald R. Frauenshuh, Sr., Frauenshuh & Spooner, P.A., 113 Washburne Avenue, Paynesville, MN 56362 (for appellant)


            Considered and decided by Crippen, Presiding Judge, Shumaker, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N




            Appellant Joseph Leo Bertram, Sr., disputes the trial court’s denial of his request for a temporary suspension of his child support obligation and a change in the custody of the parties’ 16-year-old son. Since there was no abuse of the trial court’s broad discretion, either in its evaluation of the proposed suspension of child support payments or in its assessment of the need for any change in custody of the parties’ son, we affirm.



            The parties divorced in 1997, and physical custody of the parties’ three minor children was placed with respondent Mary Lee Bertram.  The younger children are presently ages 12 and 16 and the oldest child is now emancipated.  In 1998, appellant’s child support obligation was set at $700 per month.

            Appellant moved to modify custody of the parties’ 16-year-old son based on the child’s wishes and moved to temporarily suspend his child support obligation due to an injury he suffered in May 1999.  The trial court denied appellant’s motions and refused to hold an evidentiary hearing on the requested change in custody. 


1.  Custody

            Initially, it should be observed that this case is decided on a record of undisputed evidence that the child expresses love for both of his parents and wishes to have a close relationship with both of them.  The trial court was satisfied that the record as a whole showed no difficulty of the child, other than normal resentment that reflects the parenting style of the custodial parent, indicating her attempt to maintain structure, training and control in her home.  Finally, the undisputed record indicates a good relationship between the child and his 12-year-old sibling.

            Notwithstanding the affidavit of the 16-year-old son of the parties, which expressed his wish to be in the custody of his father, the trial court found appellant had not made a prima facie case for a change of custody.  The trial court has “broad discretion in its consideration and disposition” of a motion to modify custody.  In Re Welfare of H.M.S., 541 N.W.2d 301, 303 (Minn. 1995) (quotation omitted).  Under the portions of the custody modification statute relevant here, the court can permit modification only if it finds, on the basis of facts that have arisen since the prior order, that a change has occurred in the circumstances of the child or the parties, that the modification is necessary to serve the best interests of the child, that the child’s present environment endangers the child’s physical or emotional health, and that the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.  Minn. Stat. § 518.18(d) (1998). 

            As appellant observes, the choice of an older teenage child is an “overwhelming consideration” in the question of whether cause to modify a custody arrangement exists.  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  But there is no offer of evidence here that the child’s opinion is firmly held or that there are other circumstances indicating that a change of custody is warranted; significantly, the child wishes to maintain a close and loving relationship with both parents.  Cf. Id., 477 N.W.2d at 754-57 (in addition to child’s expressed wish to live with other parent, motion to modify custody supported by evidence that child experienced escalating discipline and behavioral problems in school while in custodial parent’s care, child had physically moved in with non-custodial parent, and while living with non-custodial parent the child’s school performance had improved significantly).  Under the circumstances of this case, the trial court did not abuse its discretion in concluding appellant had not presented a prima facie case for modification of custody.

2.         Child Support

            The trial court denied the motion for a temporary suspension of appellant’s child support obligation, pointing to appellant’s resources and his success in continuing to meet his personal expenses, including a cable television subscription, entertainment budget and a car payment of $523.28 per month.  This court reviews the trial court’s decision on whether to modify a child support order for an abuse of discretion.  Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. Jun. 22, 1993).  The terms of a child support order may be modified upon a showing of a substantial change in circumstances, which makes the existing terms of the child support order “unreasonable and unfair.”  Id., 499 N.W.2d at 53; Minn. Stat. § 518.64, subd. 2(a) (1998).  A parent’s obligation “to support his progeny must take precedence over every consideration for himself not arising from the absolute necessities of self-sustenance.”  Kuronen, 499 N.W.2d at 54 (quotation omitted­). Given the nature of the motion, being for temporary relief, the trial court did not abuse its broad discretion in determining that it presently was not unreasonable and unfair to expect continued performance of appellant’s support obligation, either through use of assets or other sources of income from which appellant was able to maintain his own lifestyle.



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