This opinion will be unpublished and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

C7-00-789

 

In Re the Marriage of:

Jeffrey Peura, petitioner,

Appellant,

 

vs.

 

Kimberly Aeja Linder,

f/k/a Kimberly Aeja Peura,

Respondent.

 

Filed October 31, 2000

Affirmed

Toussaint, Chief Judge

 

 

Beltrami County District Court

File No. F795899

 

George L. Duranske, III, Duranske Law Firm, 1435 Anne Street Northwest, Post Office Box 1383, Bemidji, MN 56619-1383 (for appellant)

 

Andrew V. Moran, Moran Law Office, 1305 Berry Ridge Road, Eagan, MN 55123 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge, Schumacher, 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

            Appellant Jeffrey Peura moved for joint physical custody of two children previously placed in the physical custody of respondent Kimberly Linder.  The district court denied Peura’s motion without an evidentiary hearing.  Peura alleges he was entitled to an evidentiary hearing because he made a prima facie case to modify custody under Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 471-72 (Minn. 1981) and because of language in the stipulated dissolution judgment.  We reject Peura’s allegations and affirm. 

D E C I S I O N

            We will not reverse a custody determination unless the district court abused its discretion by making findings unsupported by the record or by incorrectly applying the law.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).[1] 

            1.         Peura alleges that he is entitled to an evidentiary hearing because he made a prima facie case for endangerment under Nice-Petersen.  Because it is unclear whether this issue was properly raised in the district court, we assume the issue is properly before this court.  But see Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating party may not raise new issue on appeal “[n]or may a party obtain review by raising the same general issue litigated below but under a different theory.”) 

            Under Nice-Petersen and its progeny, a party is entitled to an evidentiary hearing on an endangerment-based motion to modify custody only if the party makes a prima facie case for modification.  Lutzi v. Lutzi, 485 N.W.2d 311, 315-16 (Minn. App. 1992).  To make a prima facie case for modification, the moving party must show, among other things, that the child’s present environment endangers the child.  Minn. Stat. § 518.18 (d)(iii)(1998); Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).  This standard requires a “significant degree of danger.”  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  The “present environment,” which must be alleged to endanger the child, is the “judicially approved environment[;]” the environment as set out in the last custody or visitation order.  Taflin v. Taflin, 366 N.W.2d 315, 320-21 (Minn. App. 1985).

            When determining whether a moving party has made a prima facie case, the district court assumes that factual allegations set forth in the moving party’s affidavit are true.  Nice-Petersen, 310 N.W.2d at 472.  While the district court must disregard any directly contrary statements in the non-moving party’s submissions, it “may take note of statements in [the non-moving party’s submissions] that explain the circumstances surrounding the [moving party’s] accusations.”  Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997).  Ultimately, whether to deny a motion to modify custody without an evidentiary hearing is discretionary with the district court.  Id, 571 N.W.2d at 778.

            Here, Peura’s second affidavit stated “[t]his is not about endangerment[.]”  In this court, however, Peura alleges that depriving the children of joint physical custody “can be proved to endanger their emotional health and development.”  This assertion lacks any indication that the alleged endangerment meets the “significant degree of endangerment” required by Ross.  Also, the allegation is conclusory; exactly what it is about Linder’s continued physical custody that would significantly endanger the children is not specified.  Conclusory allegations of endangerment do not require an evidentiary hearing.  See Smith v. Smith, 508 N.W.2d 222, 227-28 (Minn. App. 1993) (affirming denial of custody modification without evidentiary hearing stating, among other things, moving party’s “report of [custodial parent’s] alleged statements is too vague to support a finding of endangerment”); Axford v. Axford, 402 N.W.2d 143, 144-45 (Minn. App. 1987) (affirming denial of custody modification motion without evidentiary hearing where affidavit submitted to support motion before hearing “was devoid of allegations supported by any specific, credible evidence”).  Nor can we say Peura’s allegations that the children spend a significant amount of time with him require an inference that their time with Linder endangers them.  Cf. Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989) (indicating missing explicit finding could be inferred on appeal where record mandated it).  Failure to make a prima facie showing of endangerment precludes modification of custody under Minn. Stat. § 518.18(d)(iii).  Niemi v. Schachtschneider, 435 N.W.2d 117, 119 (Minn. App. 1989); see Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994) (describing endangerment as “threshold” for modifying custody).  The district court did not abuse its discretion by not ordering an evidentiary hearing under Nice-Petersen.

            2.         Peura also alleges that he is entitled to an evidentiary hearing based on language in the stipulated judgment stating:

Should either party desire to change physical custody of a child for the sole reason of a child’s preference, the party desiring a change shall be entitled to schedule an evidentiary hearing on the proposed custody change, without the necessity of a preliminary hearing. 

 

Peura’s second affidavit generally alleges that the children in question want joint physical custody.  Like the allegation of endangerment, however, Peura’s allegation is conclusory and lacks the specificity that would require an evidentiary hearing.  Axford, 402 N.W.2d at 144-45 (affirming denial of hearing where allegations were unsubstantiated); cf. Lilleboe v. Lilleboe, 453 N.W.2d 721, 723-24 (Minn. App. 1990) (reversing denial of custody-modification motion without evidentiary hearing where affidavits supporting motion alleged endangerment and referred to children’s fear of custodial parent’s new spouse, excessive physical discipline, children’s dissatisfaction with home life, and observations by experts that children had become insecure and withdrawn).  Because Peura’s allegations regarding the children’s preferences are generic and conclusory, the district court did not abuse its discretion by ruling refusing to grant an evidentiary hearing on this basis. 

            Affirmed.



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

[1] Both parties cite Frauenshuh for the proposition that the custody modification standard

of Minn. Stat. § 518.18 applies even if the parties stipulated to a different standard.  See Frauenshuh, 599 N.W.2d at 159 (stating “the requirements of Minn. Stat. § 518.18 for modification of sole physical custody apply even when the parties have stipulated to a different standard in their dissolution decree”).  The relevant part of Frauenshuh, however, has been legislatively overruled, in part.  See 2000 Minn. Laws ch. 444, art. 1, § 5 (amending Minn. Stat. § 518.18 to include provision allowing parties to stipulate to use the best-interests as standard for modifying custody.)