This opinion will be unpublished and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

C0-00-1749

 

 

In Re the Marriage of:

Russell Harlan Underdahl, Jr., petitioner,

Appellant,

 

vs.

 

Penny Sue Underdahl,

Respondent.

 

Filed March 20, 2001

Affirmed

Poritsky, Judge*

 

 

Anoka County District Court

File No. F896788

 

 

Terry L. Mitchell, Mitchell & Bruder, 919 Old Highway 8, New Brighton, MN 55112 (for appellant)

 

Jennifer R. Wellner, Wellner & Isaacson, PLLP, 2E South Pine Drive, Glen Oaks Center, Circle Pines, MN 55014 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            Appellant Russell Harlan Underdahl, Jr. argues that the district court abused its discretion in refusing to hold an evidentiary hearing on his motion for modification of custody.  Because appellant failed to present a prima facie case for modification, we affirm.

FACTS

Pursuant to a stipulated termination agreement, the parties dissolved their marriage by judgment and decree entered on October 31, 1996.  The decree awarded legal custody of the parties’ two children jointly to the parties and physical custody solely to respondent Penney Sue Underdahl (mother). The decree granted appellant Russell Harlan Underdahl, Jr. (father) “reasonable and liberal visitation,” including every other weekend, Wednesday evenings, a second mid-week evening to be determined by the parties, and every other holiday.

As a result of the parties’ negotiations, father’s custody of the children has increased to include one or two mid-week overnights.  He has also remarried, purchased a home, enrolled the children in religious training, and switched the children’s medical and dental providers closer to his home.  Mother did not affirmatively consent to the children’s enrollment in religious training or to their change of medical and dental providers, but she has not formally protested these changes. 

In May 2000, father moved the district court for modification of physical custody, requesting the court award him either sole physical custody or joint physical custody.  Father asserted two grounds for modification: integration into his family and endangerment in the present environment.

Father alleged that mother’s fiancé had physically abused the children, mother’s babysitter had discussed sexually explicit material with the children, mother had shown the children pornographic videos, mother had left the children alone without supervision, and mother did not attend to the younger son’s hygiene needs.  Mother responded to these allegations in her affidavit.  She explained that the incident between her fiancé and the children involved him separating the boys when they were fighting.  Mother explained that the babysitter had watched an episode of South Park, which had some sexually explicit material that he had attempted to explain to the boys, and she directed him not to watch that show with the children.  Mother explained that the boys had watched a possibly sexually explicit movie with a friend’s brother at his house, and that the friend’s family had since moved away.  Finally, mother explained that the younger boy was having problems using the bathroom, but that she was working with him on it.

The district court denied the modification motion without an evidentiary hearing, because father had failed to establish a prima facie case for modification of custody.  Father appeals.


D E C I S I O N

            Father argues the district court abused its discretion in failing to grant an evidentiary hearing.  A district court’s decision to deny a motion to modify a custody award without first holding an evidentiary hearing is discretionary.  See Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).  This court reviews a district court’s denial of a motion to modify custody without an evidentiary hearing under an abuse-of-discretion standard.  See Valentine v. Lutz, 512 N.W.2d 868, 872 (Minn. 1994) (applying abuse-of-discretion standard).

            Minnesota law states:

[T]he court shall not modify a prior custody order unless it finds * * * 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:

 

* * * *

 

(ii) the child has been integrated into the family of the petitioner with the consent of the other party; or

 

(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.

Minn. Stat. § 518.18(d) (1998).[1]  The party seeking a modification of custody must submit an affidavit asserting the facts on which the motion is based.  Minn. Stat.              § 518.185 (1998).  The district court should grant an evidentiary hearing if the affidavits submitted by the moving party, taken as true, would provide sufficient grounds for modification.  Geibe, 571 N.W.2d at 777.  Although the district court must disregard any directly contrary statements by the other party, it may consider statements that explain the circumstances surrounding the accusations.  Id. at 779.

            To obtain an evidentiary hearing on a motion for modification of custody, the moving party must establish four elements of a prima facie case: (1) a change in the circumstances of the child or custodian; (2) a modification would serve the best interests of the child; (3) the child’s present environment endangers her physical or emotional health or emotional development or integration into the family of the petitioner with the consent of the custodial parent; and (4) the harm to the child likely to be caused by the change of environment is outweighed by the advantage of a change.  See Geibe, 571 N.W.2d at 778 (citing Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992)).

            The moving party has the burden to show a significant change in circumstances.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).   Father argues that his remarriage is a significant change in circumstances.  Remarriage by itself is insufficient to constitute a substantial change in circumstances.  Leyh v. Stelzer, 398 N.W.2d 63, 66 (Minn. App. 1986).

            Father argues that he established a prima facie case for modification based on the children’s integration into his home, with Mother’s consent, because the visitation schedule has resulted in him caring for the children more than 50% of the time.  The dissolution decree awards Father “reasonable and liberal visitation” and anticipates that visitation may include “other days and times as may be agreed between the parties.”  Mother indicates, and Father does not contradict, that this arrangement — every other weekend and two overnights during the week — has been their most common visitation arrangement.  This schedule essentially adds one overnight a week to the agreed-upon visitation in the decree.  By adding this additional overnight, the parties have essentially formulated a liberal visitation schedule. 

If the parents are cooperating and agree on liberal visitation, such an arrangement would presumptively be in the best interests of the children.  See Ozenna v. Parmelee, 377 N.W.2d 483, 488 (Minn. App. 1985) (acknowledging liberal visitation arrangement may serve the best interests of the children).  Moreover, we believe that a custodial parent who allows liberal visitation should not have to be concerned about giving the other parent grounds for a motion to change the custody arrangement.  Cf. Rumney v. Rumney, 611 N.W.2d 71, 73-74 (Minn. App. 2000) (acknowledging parents with physical custody will be reluctant to agree to liberal visitation if they losechild-support funds with each additional day of visitation). 

            Father also argues that the children are endangered in the present situation, because the children were allegedly exposed to sexually explicit language and movies, abused by mother’s fiancé, and suffered from hygiene problems.  A district court must disregard directly contrary statements by the nonmoving party but may consider explanations of circumstances surrounding the accusations.  Geibe, 571 N.W.2d at 779. In her affidavit, mother explained each of these accusations.  Mother explained that her fiancé once picked up and set down one of the children when they were roughhousing, that the babysitter had watched an inappropriate television show once, that the boys had seen a sexually explicit movie at a friend’s house once, and that the youngest boy had gone through a stage when he would have bowel movements in his pants, which father’s new wife corroborated.  The district court accepted mother’s explanations and ruled that father did not establish endangerment.  The trial court found that father “greatly exaggerated” the incidents.  In any case, a single incident of borderline abuse or neglect is insufficient to satisfy the element of endangerment.  Id. at 779.

            Father must also show the harm to the children likely caused by a change of custody is outweighed by the advantage of the change.  See id. at 778.  In light of the lack of persuasiveness of the above three elements, we conclude that father has failed to show any advantage of a change in custody and thus, has failed to show the fourth element.

            Father has not made a prima facie case for modification, and the district court did not abuse its discretion in denying his motion without an evidentiary hearing.

            Affirmed.

           



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

 

[1] In 2000, the legislature eliminated the term “visitation” in favor of “parenting time.”  See 2000 Minn. Laws ch. 444, art. 1, §§ 1, 3, 5 (providing for parenting plans and parenting time), art. 2, §§ 26-31 (conforming terminology).  Because the changes to the statutes became effective January 1, 2001, we review the district court’s decision under the former statute.  See 2000 Minn. Laws ch. 444, art. 1, § 8, art. 2 § 50; see also McClelland v. McClelland, 393 N.W.2d 224, 226 (Minn. App. 1986) (explaining that former law is to be applied where applying the law in effect at the time of the decision would alter matured rights), review denied (Minn. Nov. 17, 1986).