This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-1381

 

In Re the Marriage of:

Glenn Mark Kubly,

Appellant,

 

vs.

 

Sherry Kay Kubly, petitioner,

Respondent.

 

Filed February 27, 2001

Affirmed

Willis, Judge

 

Watonwan County District Court

File No. F996162

 

 

LaMar Piper, Piper Law Firm, 615 Second Avenue South, P.O. Box 109, Saint James, MN  56081 (for appellant)

 

Gary G. Wollschlager, Michael V. Tow, Wollschlager, Tow & Welder, P.A., 105 South State Street, Fairmont, MN  56031 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant father challenges the district court’s denial without an evidentiary hearing of his motion to modify child custody.  Because appellant failed to allege significant endangerment to the child, we affirm.

FACTS

A stipulated judgment dissolved the marriage of appellant Glenn M. Kubly and respondent Sherry K. Kubly.  The judgment awarded respondent sole physical custody of their children, A.K. and B.K.  Appellant was granted liberal visitation.  The children currently live with respondent and her husband. 

            In March 1998, appellant moved to have custody of B.K. awarded to him and requested an evidentiary hearing.  In a supporting affidavit, appellant asserted that (1) B.K. would prefer to live with appellant; (2) B.K. is unhappy living with respondent; (3) B.K.’s brother and sister have distanced themselves from appellant; (4) B.K.’s brother, his girlfriend, and their baby sometimes reside with respondent; (5) B.K. has become “the odd-man-out” at respondent’s home; (6) B.K. is criticized by respondent and A.K. for speaking to appellant on the telephone; (7) B.K. has become “progressively unhappier” since the divorce; and (8) B.K.’s current situation is not emotionally healthy.  B.K., respondent, and appellant’s live-in girlfriend also submitted affidavits.

            After considering the affidavits, the district court denied the motion to modify custody and the request for an evidentiary hearing.   This appeal followed.

D E C I S I O N

This court applies an abuse-of-discretion standard to a district court’s decision to dismiss a petition for modification of custody without holding an evidentiary hearing.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).  The party seeking modification of a custody order must submit an affidavit asserting facts supporting the requested modification.  Minn. Stat. § 518.185 (2000).  In deciding whether to hold an evidentiary hearing on a motion to modify custody, the district court must accept the facts in the moving party’s affidavit as true.  Geibe, 571 N.W.2d at 777.  But the district court may also consider the affidavits of other parties to the proceedings and evidence from sources other than the moving party.  Id. (citing Minn. Stat. § 518.185).  If the moving party’s affidavit does not allege facts establishing a change of circumstances and endangerment that, if true, would provide sufficient grounds for a modification, the court need not grant an evidentiary hearing.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).

To be granted an evidentiary hearing on a motion for modification of custody, the moving party must establish:

(1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child’s present environment endangers her physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change. 

 

Geibe, 571 N.W.2d at 778 (citation omitted).  In denying appellant’s motion, the district court concluded that appellant had

failed to make a prima facie showing that the child’s emotional or physical health was endangered by the child’s present environment and that the advantage of the change of custody outweighed the harm of the change of environment to the child * * * .

 

  We agree.

In his affidavit, appellant alleged that B.K.’s circumstances have changed “dramatically” since the divorce and, as a result, B.K. has become “progressively unhappier.”  He also asserted that B.K.’s “current situation is not emotionally healthy, and a continuation in that situation will certainly impede, impair, or adversely affect his emotional development.”  But such conclusory allegations are insufficient to require an evidentiary hearing and, therefore, are not a basis for reversal of the district court’s denial of an evidentiary hearing.  Compare Smith v. Smith, 508 N.W.2d 222, 227 (Minn. App. 1993) (affirming district court’s denial of custody modification without evidentiary hearing because noncustodial parent failed to allege significant endangerment and because his statements were too vague to support finding of endangerment), and Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987) (affirming district court’s denial of evidentiary hearing where affidavit supporting motion “was devoid of allegations supported by any specific, credible evidence”), with Harkema v. Harkema, 474 N.W.2d 10, 13-14 (Minn. App. 1991) (reversing district court’s denial of evidentiary hearing where affidavits supporting motion alleged that the children feared their custodial parent’s new spouse because he was “emotionally abusive,” yelled, threw things, and hit walls).  

This court has held that an evidentiary hearing is justified where an allegation of emotional abuse suggests endangerment.  Id. at 14.  But to establish endangerment to a child’s emotional health or emotional development, there must be a showing of an actual adverse effect on the child.  Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994).  Appellant does not allege any emotional abuse of B.K., nor does he allege any actual adverse effect on B.K.’s emotional health or emotional development.  Further, B.K. states in his affidavit that (1) he likes his mother, (2) he gets along adequately with his stepfather, and (3) he has no serious school problems.  While both B.K. and appellant maintain that B.K. would prefer to live with appellant and appellant’s live-in girlfriend, a child’s “preferences alone do not provide sufficient evidence of endangerment to mandate a hearing.”  Geibe, 571 N.W.2d at 779.  In addition, B.K. currently spends every Thursday through Sunday with appellant.

Because appellant did not make any allegation supporting the conclusion that the existing custodial arrangement has had any actual adverse effect on B.K.’s emotional health or emotional development, the district court did not abuse its discretion in denying appellant an evidentiary hearing.

            Because appellant failed to show that B.K. is endangered, we need not consider whether or not appellant showed that the advantage of the proposed change of custody would outweigh the harm caused by the change of environment.

            Affirmed. 

           



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