This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-99-2180

 

 

In Re the Matter of:

Katherine Marie Reihsen,

Appellant,

 

vs.

 

Michael Joseph Seeber,

Respondent.

 

 

Filed August 22, 2000

Affirmed

Schumacher, Judge

 

Ramsey County District Court

File No. PF19350093

 

 

Kathleen M. Picotte Newman, M. Shane Swanson, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431-1194 (for appellant)

 

Ronald B. Sieloff, Sieloff and Associates, P.A., 214 Yankee Square Office III, 3460 Washington Drive, Eagan, MN 55122 (for respondent)

 

 

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Davies, Judge.


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

SCHUMACHER, Judge

Appellant Katherine Marie Reihsen (mother) seeks reversal of the trial court's judgment modifying custody, claiming (1) a finding of endangerment is not supported by the evidence, (2) school attendance is a physical custody, not legal custody, issue, (3) neither party requested joint legal custody, and (4) there is a history of domestic abuse between the parties.

Mother also seeks reversal of the trial court's denial of her motion to remove the child from Minnesota, arguing the court failed to hold an evidentiary hearing on her motion and there is no evidence that the purpose of the move is to interfere with visitation. We affirm.

FACTS

Mother and respondent Michael Joseph Seeber (father) are the parents of a girl, N.S., born April 30, 1990. The parties have never been married. Father was adjudicated N.S.'s father in a Parentage Act proceeding in 1993. Mother was awarded sole legal and physical custody, and father was awarded visitation.

In 1997, father brought the present motion to modify custody. The trial court ordered a custody evaluation and appointed a guardian ad litem. When the final custody report recommended that sole legal and physical custody of N.S. remain with mother, father demanded an evidentiary hearing. After the hearing had commenced, mother brought a motion to move with N.S. to Iowa, asking that the issue be heard as a part of the evidentiary hearing. Father opposed the motion.

The hearing spanned 13 months. The main issue at the hearing was whether N.S. was endangered in mother's custody. Father testified that mother's house was unclean and unsafe, that mother ignored N.S.'s medical and dental needs, and that N.S. was often late to or absent from school. Mother testified that her house may be cluttered but is not unclean or unsafe, and she testified about N.S.'s medical and dental care. She also testified that she does not consider N.S.'s school attendance to be a problem because N.S. was absent from school because of illnesses and was tardy because of weather, traffic, and construction, over which she has no control.

The trial court also heard evidence from the guardian ad litem and the custody evaluator who interviewed mother, father, and N.S. Both also visited mother's and father's homes. The custody evaluator recommended that mother retain sole legal and physical custody. The guardian ad litem, expressing concern over mother's inability to get N.S. to school on time or at all, nevertheless recommended that mother retain sole legal and physical custody.

The trial court found no evidence that N.S. is endangered in the physical custody of mother, but did find that her educational and emotional development are jeopardized by mother's inability to get her to school. Based on these findings, the court concluded: (1) N.S.'s circumstances have changed because she is now in an elementary school setting that requires regular and timely attendance; (2) N.S.'s present environment endangers her educational and emotional development; (3) the harm likely to be caused by changing legal custody is outweighed by the advantage of ensuring that she has regular, consistent, and timely school attendance; (4) removal of N.S. from Minnesota would not be in her best interests; and (5) it is in N.S.'s best interests to modify custody. The trial court awarded the parties joint legal custody and denied mother's request to remove N.S. from Minnesota.

D E C I S I O N

1. Appellate review of removal and custody modification decisions "is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (citing Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985)). Minn. Stat. 518.18(d) (1998) provides:

If the court has jurisdiction to determine child custody matters, the court shall not modify a prior custody order unless it finds, upon the basis of facts, including unwarranted denial of, or interference with, a duly established visitation schedule, that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement established by the prior order unless:

 

* * * *

 

(iii) the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

 

Mother argues that the evidence does not support a finding of endangerment. We disagree. What constitutes endangerment required to allow a modification of custody is "based on the particular facts of each case." Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990). The danger may be purely to a child's emotional development. Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997). The trial court found that N.S.'s failure to attend school on a regular basis endangers her educational and emotional development by retarding her educational and emotional growth, and that mother is unable to get N.S. to school on time and with regularity. It is clear from a review of the record that the court's finding of endangerment is firmly grounded in the evidence.

Mother next argues that the court abused its discretion by awarding the parties joint legal custody to solve a physical custody issue. She argues that school attendance is a part of physical custody because it is part of "the routine daily care and control" of the child. See Minn. Stat. 518.003, subd. 3(c) (1998) (defining physical custody). But the statutory definition of "legal custody" includes education. See Minn. Stat.  518.003, subd. 3(a) (1998) (legal custody defined as "the right to determine the child's upbringing, including education, health care, and religious training"); see also Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983) (joint legal custody gives both parents "equal rights and responsibilities in making major decisions involving the education, religion and health care of the children"). We find no abuse of discretion.

Mother next argues that the court abused its discretion in awarding joint legal custody when neither party requested it. Both parties sought sole legal and physical custody of N.S. Neither party requested joint legal custody. On this record we cannot say that the trial court abused its discretion in ordering a custody arrangement neither party requested. See Petersen v. Petersen, 296 Minn. 147, 148, 206 N.W.2d 658, 659 (1973) (paramount issue in custody decisions is best interests of child). In addition, there was evidence in the record that father, though seeking sole physical and legal custody, would accept joint legal custody. We find no abuse of discretion.

Finally, mother argues that the court abused its discretion in awarding joint legal custody because there is a history of domestic abuse between the parties.

Minn. Stat. 518.17, subd. 2 (1998) provides:

[W]here either joint legal or joint physical custody is contemplated or sought, the court shall consider the following relevant factors:

 

* * * *

 

(d) Whether domestic abuse, as defined in section 518B.01, has occurred between the parents.

 

The court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents.

 

(Emphasis added.) An order for protection was issued on behalf of mother in 1991, but the court concluded that "this single incident which occurred eight years ago ought not to rule out establishing joint legal custody in the best interest of the child." The court found that the parties have experienced difficulties in their interpersonal relationship but that there was no evidence that those difficulties would impact the educational formation of N.S. It was within the trial court's discretion to evaluate the record and conclude that father's past domestic abuse was stale and did not disqualify him from joint legal custody. We find no abuse of that discretion.

2. Mother also argues that the trial court abused its discretion by denying her motion to remove N.S. from Minnesota. A custodial parent is presumptively entitled to remove a child to another state. Auge v. Auge, 334 N.W.2d 393, 397 (Minn. 1983); see also Gordon, 339 N.W.2d at 271 (presumption also applies when parents share joint legal custody). To defeat the presumption, the party opposing the move must offer evidence that removal is not in the best interests of the child and would endanger the child's health and well-being, or that the move is intended to interfere with visitation. Silbaugh, 543 N.W.2d at 641.

Mother first argues that the trial court denied her motion without affording her an evidentiary hearing. "Motions for removal brought by the custodial parent may not be denied without an evidentiary hearing, where denial would effect a modification of custody." Auge, 334 N.W.2d at 399. When she brought her motion, however, mother requested that the trial court consider it and the modification motion at the same time, because "essentially the same evidence will be applicable to both matters." The court reserved judgment on mother's motion until the completion of the hearing and then considered the evidence presented in making both the modification and removal decisions. Specifically, the court said,

The evidence submitted during the trial on custody and visitation is considered fully in making this decision regarding removing the child from the State of Minnesota.

 

Thus, we find mother was not denied an evidentiary hearing on her motion to remove.

Mother also argues that the court abused its discretion in denying her motion because no evidence was introduced that the purpose of her request was to interfere with father's visitation. But interference with visitation is not the only reason a court can deny a motion to remove. The motion may also be denied if removal is not in the best interests of the child and would endanger the child's health and well-being. Silbaugh, 543 N.W.2d at 641. When removal is opposed for educational reasons, as here, the court shall defer to the custodial parent's decision unless it determines, after an evidentiary hearing, that failure to limit the custodial parent's authority will endanger the child's health or development. Auge, 334 N.W.2d at 399-400. Here, the court found, after the requisite evidentiary hearing, that N.S.'s educational and emotional development are endangered by mother's failure to get her to school on a regular basis. Specifically, the court stated:

A continuation of [mother's] exclusive control over the child's educational formation is not in the child's best interest. It would be detrimental to the child if [mother] were to continue to have sole legal authority over the child's upbringing, especially in the area concerning educational formation.

 

Allowing mother to move with N.S. to Iowa would, in effect, give mother exclusive control over N.S.'s education once again and prevent father from exercising any control over N.S.'s school attendance. The district court did not abuse its discretion in denying removal.

Affirmed.