This opinion will be unpublished and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

C3-00-1647

 

 

In Re the Marriage of:

Laurel Anne Bormann,

petitioner,

Appellant,

 

vs.

 

Jon Bernard Bormann,

Respondent.

 

 

Filed March 6, 2001

Reversed and remanded
Klaphake, Judge

 

Hennepin County District Court

File No. DC168600

 

Martin L. Swaden, Swaden Law Offices, 7301 Ohms Lane, Suite 550, Edina, MN  55439 (for appellant)

 

Daniel J. Goldberg, Messerli & Kramer, 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN  55402 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Amundson, Judge, and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N

ROGER M. KLAPHAKE, Judge

Laurel Anne Spence, f/k/a Laurel Anne Bormann, appeals from an order denying her request, without an evidentiary hearing, to change the residence of her 12-year-old daughter to the state of Arizona for the duration of the school year. Respondent Jon Bormann argues that the district court’s decision was within its discretion because appellant failed to establish a prima facie case that the proposed move was in the child’s best interests.  Because both parties agree that the schedule they have been following for the past three years, during which the child split her school attendance between Minnesota and Arizona, is no longer in the child’s best interests and because the child has expressed a preference to reside in Arizona during the school year, we reverse and remand for an evidentiary hearing on the matter.

D E C I S I O N

            When the parties divorced in 1992, they stipulated that they would have joint legal and physical custody of the child, that appellant would provide the child’s primary residence, and that respondent would have “parental time” with the child according to a detailed schedule.  Although the amount of time the child spent with each parent was not exactly equal, with respondent having her approximately 39 percent of the time, the parties labeled their arrangement as joint physical custody.  Thus, appellant’s request to move the child to Arizona during the school year constitutes a request to modify the parties’ joint custody arrangement and requires that she prove such a move is in the child’s best interests.  See Ayers v. Ayers, 508 N.W.2d 515, 517 (Minn. 1993) (trial court properly applied best interests standard in deciding request to move children’s residence to another state, where parties stipulated to joint physical custody); Minn. Stat. § 518.18(e) (2000) (“In deciding whether to modify a prior joint custody order, the Court shall apply the [endangerment] standard[s] * * * unless:  * * * (2) the party seeking the modification is asking the court for permission to move the residence of the child to another state.”).

            The party seeking modification of custody has the burden to establish a prima facie case by alleging facts that, if proven, would provide sufficient grounds for modification.  Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981).  An evidentiary hearing is not required unless the moving party meets that burden.  Id.  In determining whether a moving party has met its burden, a court must accept the facts in the party’s affidavits as true and may consider other evidence presented in the opposing party’s affidavits that explain the circumstances surrounding the moving party’s allegations.  Geibe v. Geibe, 571 N.W.2d 774, 777-79 (Minn. App. 1997).

To make her prima facie case that the move is in the child’s best interests, appellant alleged:  (1) the child has expressed a preference to reside in Arizona with her mother during the school year; (2) appellant provides the child’s primary home; (3) appellant is more intimately involved with the child as the child enters adolescence, due to their mother/daughter relationship; (4) the child is close to her younger sister; (5) the child has become very involved in her school and activities in Arizona; and (6) appellant is better able to provide a stable home during the school year.

Respondent rebutted these allegations and offered explanations of his own to support the child’s remaining in Minnesota.  While respondent concedes that the child has expressed a preference, he believes that her preference to go to school in Arizona is based on “superficial outside influences,” including the more affluent lifestyle that appellant and her new husband can provide.  A child’s “reasonable” preference, “if the court deems the child to be of sufficient age to express a preference,” is a factor to consider in determining the child’s best interests.  Minn. Stat. § 518.17, subd. 1(a)(2) (2000).  “In general, * * * a child’s motives for an expression of preference are to be considered at the evidentiary hearing stage rather than in determining whether a prima facie case has been made.”  Geibe, 571 N.W.2d at 778-79 (citation omitted).

Moreover, both parties agree that it is no longer in the child’s best interests to spend half of the school year in Minnesota and half in Arizona.  Because the parties agree that a modification of custody is necessary and inevitable, an evidentiary hearing is warranted.  Cf. Auge v. Auge, 334 N.W.2d 393, 396 (Minn. 1983) (where denial of sole custodial parent’s request to move child to Hawaii for part of school year effects transfer of custody to noncustodial parent, court may not do so absent evidentiary hearing).  We therefore reverse and remand the district court’s order denying appellant’s motion to change the child’s residence.  On remand, the court is directed to hold an evidentiary hearing and make findings on the child’s best interests; we express no opinion on the outcome of the hearing.  The court may also consider whether modification of child support is warranted, given that any decision likely will result in a substantial change in circumstances.  See Minn. Stat. § 518.64 (2000).

            Reversed and remanded.

 



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