This opinion will be unpublished and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

C9-00-1961

 

In Re the Marriage of:

 

Kris Ann Petroski,

n/k/a Kris Ann Moeller, petitioner,

Appellant,

 

vs.

 

Jerome Joseph Petroski,

Respondent.

 

Filed April 24, 2001

Affirmed in part, reversed in part, and remanded

Harten, Judge

 

Washington County District Court

File No. F9-97-2088

 

Kevin K. Shoeberg, P.A., Woodbury Business Center, Suite 600, 1890 Wooddale Drive, Woodbury, MN 55125 (for appellant)

 

Susan Danner Olson, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge, Harten, Judge, and Poritsky, Judge.*

 

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

On appeal from the district court’s order denying appellant-mother’s motion for modification of physical custody of the parties’ minor children, appellant alleges that the district court (1) abused its discretion in summarily denying her motion without an evidentiary hearing; (2) abused its discretion in ordering her to pay attorney and guardian ad litem fees; and (3) should have re-appointed a visitation expeditor.  Respondent-father notices review of the district court’s summary denial of his motion to modify legal custody without an evidentiary hearing and the district court’s order prohibiting the cost of living adjustment.  We affirm in part, reverse in part, and remand.

FACTS

 

In 1985, appellant Kris Ann Petroski and respondent Jerome Joseph Petroski were married.  In October 1988, the parties’ first child, S.P., was born, and in April 1995, the parties’ second child, R.P., was born.  On July 1, 1998, the parties’ marriage was dissolved, the parties were awarded joint legal custody, and respondent was awarded sole physical custody, subject to appellant’s right to reasonable visitation.  Appellant was ordered to pay respondent $365 per month child support.

On November 20, 1998, the district court denied both appellant’s motion for a new trial and her motion to reopen the judgment for mistake and excusable neglect.  This court affirmed.  See Petroski v. Petroski, No. C5-98-2412 (Minn. App. June 1, 1999).  On August 14, 1999, appellant moved the district court to hold respondent in contempt of court for interfering with her visitation.  Appellant also requested an order appointing a guardian ad litem and a visitation expeditor.

The district court subsequently denied appellant’s contempt motion, appointed both a guardian ad litem and a visitation expeditor, and reserved all other issues raised in the motion.  On March 26, 2000, appellant was served with a notice of cost of living adjustment, and a month later appellant requested a hearing to prohibit the application of the cost of living adjustment. 

On June 5, 2000, appellant moved to modify physical custody, requesting an evidentiary hearing and the removal and replacement of the visitation expeditor.  Respondent filed a countermotion to modify joint legal custody, to establish supervised visitation, and to award attorney fees.  The district court agreed to combine appellant’s pro se motion to prohibit the cost of living adjustment with her other motions.  On June 23, a hearing was held.

On September 11, the district court denied appellant’s motion to modify physical custody, granted appellant’s motions to prohibit the cost of living adjustment and to remove the visitation expeditor, denied respondent’s motion to modify joint legal custody, and awarded respondent $750 attorney fees.    By separate order, the district court ordered appellant to pay $2,000 and respondent to pay $362.50 of the $2,362.50 guardian ad litem fees.  This appeal followed; respondent filed a notice of review.


D E C I S I O N

1.                  Summary Denial of Appellant’s Motion to Modify Physical Custody

[D]ecisions by this court have applied an abuse of discretion standard to a district court’s dismissal of a modification petition without an evidentiary hearing, relying on the court’s general broad discretion in custody matters.

 

Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).

Minn. Stat. § 518.18(d) (1998)[1], provides:

[T]he 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:

 

(i)                both parties agree to the modification;

 

(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.

 

Pursuant to Minn. Stat. § 518.185 (2000), the party seeking a modification of custody must submit an affidavit “setting forth facts supporting the requested order or modification.”

The court must determine whether the petitioner has established a prima facie case by alleging facts that, if true, would provide sufficient grounds for a modification. * * *

 

If the moving party asserts facts sufficient to support a modification of custody, the court must hold an evidentiary hearing to determine the truth of the allegations.

 

Geibe, 571 N.W.2d at 777.

Appellant first argues that the district court applied the wrong legal standard to her motion for modification of physical custody.  Appellant moved the court

            [f]or an Order of the Court awarding custody of the minor children to [appellant] based upon [respondent’s] willful and intentional deprivation of parental rights, denial of visitation and the dangerous and neglectful environment the children are experiencing under the care of [respondent].

 

In its findings of fact and order dated September 11, 2000, the district court’s first finding of fact stated:

The Court has reviewed the report of the guardian ad litem.  It has also reviewed the psychological reports of [respondent], [appellant], and [S.P. and R.P.] * * *.  After reviewing this information along with the information contained within this file, the Court finds [appellant] has not established that there has been a persistent and willful denial or interference with visitation or that the children’s present environment endangers their physical or emotional health or impairs their emotional development.  An Evidentiary Hearing on the issue of custody would prove to be very detrimental to the children.

 

The mere fact that the district court used language common to both (c) and (d) of section 518.18 does not mean that the district court applied an incorrect standard.  The district court specifically addressed the visitation and endangerment issues, finding that appellant did not meet her burden to establish a prima facie case for modification.  In finding that appellant failed to establish that “the children’s present environment endangers their physical or emotional health or impairs their emotional development,” the district court found that appellant failed to meet the standard under section 518.18 (d)(iii) for modification of custody.  Appellant’s argument that the district court applied the wrong legal standard for modification of physical custody is without merit.

To obtain a custody modification evidentiary hearing, the moving party must establish four elements for a prima facie case: (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 (citing Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992)).

Appellant contends that substantial changes in circumstances have occurred since entry of judgment, necessitating a change in physical custody.

A change in circumstances must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order.

 

Geibe, 571 N.W.2d at 778 (citing Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989)).  Appellant alleges in her brief: (1) that respondent denied and interfered with her visitation rights; (2) that respondent neglected to care for the physical and emotional needs of the children; (3) that the children prefer to live with her; and (4) that respondent has interfered with her legal custody rights.

a.                  Interference with Visitation

Appellant contends that respondent has interfered with her visitation rights.  Appellant states in her affidavit that, in addition to the scheduled visitation, she was “to have liberal access with the children at any other time as we could agree,” and that since “entry of the Judgment * * * [she has] not had liberal visitation * * * .”  In October 1999, the district court denied appellant’s motion to hold respondent in contempt for interfering with her visitation rights.  The record indicates that appellant actually received greater visitation than was ordered by the judgment.  However, even if appellant’s allegation were true,

unwarranted denial of or interference with visitation, in and of itself, is not controlling.  Rather, it is only one factor that must be considered along with the standards set forth in Minn. Stat. § 518.18(d).

 

Dabill v. Dabill, 514 N.W.2d 590, 595 (Minn. App. 1994) (citation omitted).

b.                  Child Neglect

Appellant alleges that respondent’s emotional and physical neglect of the children is evidenced by their developing warts and tooth cavities, R.P.’s bladder infection, S.P.’s stomach problems, and respondent’s failure to inform appellant that R.P. asked for her at a dental appointment.  Appellant alleges that respondent “has endangered our children’s well being as he has failed to protect our children from warts.”  Appellant acknowledges in her brief that the children “only had a rare case of warts” while in her care and custody.  Appellant also alleges that respondent “refused to acknowledge or cooperate on treatment” of S.P.’s learning disability.  The guardian ad litem reported that the differing positions of the parties “can both be supported as legitimate parenting practices.”  “Endangerment requires a showing of a significant degree of danger, but the danger may be purely to emotional development.”  Geibe, 571 N.W.2d at 778 (quotation and citation omitted).  We agree with the district court that these allegations do not establish endangerment.

            c.         Preference of Children

Respondent does not dispute that S.P. has begun to express a preference to live with his mother.  The guardian ad litem reported:

[Appellant] has drawn the children, most markedly [S.P.], directly into her own discontent.  It is the opinion of this writer that she has fostered in [S.P.] an attitude of disrespect for his father and an opinion that it is somehow “not normal” for a father to have received primary custody of the children.

 

[S.P.] presents numerous complaints about living with his father.  It is the assessment of this writer that those complaints continue to be of the nature of complaints one would expect from an adolescent boy who is testing the limits of parental authority.

 

Unfortunately, [appellant] has chosen to embrace [S.P.’s] complaints as a foundation for her crusade for a change in custody rather than reinforcing rules and offering any support to what this writer views to be the reasonable limits and consequences [respondent] has put in place.  At best, [appellant] has chosen to exploit [S.P.’s] complaints for her own purposes; at worst, she may be instigating them.

 

[S.P.] consistently portrays life at his mother’s home as one with very few rules or responsibilities.

 

While Minnesota courts have considered teenager preferences in determining emotional endangerment, S.P. is only eleven years old.  Geibe, 571 N.W.2d at 778.  A child’s preference alone does not necessarily provide sufficient evidence of endangerment to mandate a hearing.  Id.

d.                  Interference with Legal Custody

Appellant claims that respondent has refused to acknowledge her status as a joint legal custodian.  The guardian ad litem advised the court:

These parents have established absolutely no effective co-parenting skills in the past two years.  They have very different parenting styles and differing opinions and philosophies on matters which have led to recent conflicts regarding such things as the following:

 

1.)               Disagreement as to the school environment which best meets the needs of their son;

2.)               When and where the children should receive immunizations and whether they should be given according to the “standard” immunization schedule;

3.)               How much access and control their 11 year old son should have over a bank account established by his parents for his benefit;

4.)               Whether their children benefit from having transitions from parent to parent occur at a neutral place such as day care or an after school program;

5.)               Choice of [p]hysician and medical clinic for the children;

6.)               The proper course of action to assist their son with his difficulties in reading comprehension.

 

It is the opinion of this writer that the parties each have positions on these matters which can both be supported as legitimate parenting practices.  The difficulty lies in their absolute lack of the ability or willingness to communicate and negotiate or compromise with each other. 

 

* * * *

 

* * * A change of custody at this time would only enable [appellant] to continue to alienate the children from [respondent] in a manner which would be extremely detrimental to the children.

 

A district court must disregard directly contrary statements by the nonmoving party but may consider explanations of circumstances surrounding the accusations.  See Geibe, 571 N.W.2d at 779.  “If the affidavits do not establish a change of circumstances and endangerment sufficient to warrant modification, a 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).  The district court weighed appellant’s allegations and found that they did not warrant a change in physical custody, or even an evidentiary hearing.  We conclude that it was within the district court’s discretion to find that appellant did not establish a prima facie case for modification of physical custody and did not abuse its discretion in summarily denying an evidentiary hearing.

2.                  Summary Denial of Respondent’s Motion to Modify Legal Custody

Respondent contends that the district court abused its discretion in denying his motion to modify legal custody and failing to grant him an evidentiary hearing.  “The trial court’s findings on custody will be sustained unless clearly erroneous.”  Andros v. Andros, 396 N.W.2d 917, 921 (Minn. App. 1986) (citing Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985)).  Here, however, the district court neither made findings on the issue of modification of legal custody, nor did it give any explanation for its denial of modification of legal custody without an evidentiary hearing.  Section 518.18 governs modification of legal custody.  In re Welfare of V.H., 412 N.W.2d 389, 391 (Minn. App. 1987).  “A court considering modification of joint custody must also review the factors of Minn. Stat. 518.17, subd.2 [(1998)].”  Andros, 396 N.W.2d at 921.

 “Joint legal custody is presumed to be in a child’s best interests.”  Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995) (citing Minn. Stat. § 518.17, subd. 2 (1992)).  “But ‘joint legal custody should be granted only where the parents can cooperatively deal with parenting decisions.’”  Id. (quoting Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App.1993)).  “Joint legal custody, to be successful, relies on the parents’ ability to cooperate and resolve their disputes.”  Andros, 396 N.W.2d at 922 (termination of joint legal custody supported by evidence that parents’ inability to agree and resulting conflict endangered children’s emotional health).  See also Andersen v. Andersen, 360 N.W.2d 644, 646 (Minn. App. 1985) (post-decree termination of joint physical and legal custody based on parties’ lack of cooperation; continued exposure to parents’ disagreement endangered child’s health and development resulting in “tug-of-war”). 

The first recommendation the guardian ad litem made in her report dated June 16, 2000, was: “That legal custody be modified to sole legal custody to the Respondent."  The guardian ad litem reported:

[A]ny danger to [S.P.’s] emotional development at this time stems from the attitudes of discontent which have been fostered and supported by his mother.  The children have been unnecessarily placed in the middle of parental conflict on numerous occasions and this conflict is amplified by the present status of joint legal custody.  While a change to sole legal custody is not likely, in itself, to alleviate the conflict and tension between these parents, it will eliminate some of the opportunity for a forum for disputes and will allow the parent with primary physical placement to exercise decision making with less interference from the other party.

 

Respondent alleges:  (1) that appellant’s on-going struggle for control over the children’s major decisions and day-to-day issues amounts to endangerment; (2) that appellant’s interference with the children’s medical care rises to the level of endangerment; (3) that appellant’s actions with respect to the children’s schooling rise to the level of endangerment; and (4) that appellant’s actions constitute a change in circumstances and that it would be in the best interests of the children to modify legal custody. 

The district court failed to make any specific findings supporting its summary denial of respondent’s motion for a change of legal custody.  We conclude that the evidence presented by respondent and the guardian ad litem provided a prima facie case for an evidentiary hearing.  Accordingly, we remand to the district court with instructions that the district court hold an evidentiary hearing on this issue.

3.                  Cost of Living Adjustment

The district court’s decision to grant or deny a cost of living adjustment is reviewed on an abuse of discretion standard.  Braatz v. Braatz, 489 N.W.2d 262, 264-65 (Minn. App. 1992), review denied (Minn. Oct. 28, 1992).  On March 26, 2000, appellant was served with a Notice of Cost of Living Adjustment (COLA) that informed her that her “child and/or spousal support will increase to $383.00 per month effective 05/01/2000.”

The COLA notice also stated:

 

If you can prove your income did not increase, you may file a motion before a Child Support Magistrate asking that the COLA increase not take effect.  You must do this before 05/01/2000.  Contact the Court Administrator or your county Child Support agency for the documents necessary to file a motion to stay the COLA.  * * *

 

If you do nothing, the increase will take effect on May 1, 2000.

On April 28 appellant requested a hearing to prohibit the application of the cost of living adjustment and a hearing was scheduled for June 26.  The district court agreed to combine appellant’s pro se motion to contest the cost of living adjustment with her other motions and the expedited hearing was canceled. 

Respondent contends that because appellant failed to serve or file her motion before the effective date (May 1), the district court lacked jurisdiction to prohibit the cost of living adjustment.  But Minn. Stat. § 518.641, subd. 2 (2000), is silent on whether a motion to contest a cost of living adjustment must be filed and/or served before the effective day of the adjustment; it merely provides that an obligor must “request” a hearing before the effective day of the adjustment.  Appellant’s motion bears a date stamp of April 28, 2000, and it was notarized on April 28, 2000.  The record indicates that appellant requested a hearing on April 28, 2000, which was before the effective day of the adjustment. 

Minn. Stat. § 518.641, subd.3 (2000), provides:

If, at a hearing pursuant to this section, the obligor establishes an insufficient cost of living or other increase in income that prevents fulfillment of the adjusted maintenance or child support obligation, the court may direct that all or part of the adjustment not take effect.  If, at the hearing, the obligor does not establish this insufficient increase in income, the adjustment shall take effect as of the date it would have become effective had no hearing been requested.

 

Based on its finding that “[appellant] has not had a sufficient cost of living or increase in income to warrant the implementation of a cost of living adjustment,” the district court did not abuse its discretion in granting appellant’s motion to prohibit the cost of living adjustment.  

4.                  Attorney Fees

The district court found that “[a]n award of attorney[ ] fees to Respondent is warranted due to [appellant’s] continued unsubstantiated attempts to change custody,” and ordered appellant to pay respondent’s attorney $750 attorney fees.

Contending that “[t]here is no authority based upon the facts or the law to award attorney fees,” appellant argues that the district court erred in awarding attorney fees to respondent because it did not make specific findings regarding the necessity of awarding attorney fees and the relative financial resources of the parties.  But, in addition to the award of need-based attorney fees that must be accompanied by appropriate findings, Minn. Stat. § 518.14, subd. 1 (2000), also provides for the award of conduct-based attorney fees.  A court, “in its discretion,” may award “additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1. 

Fee awards under Minn. Stat. § 518.14 may be based on the impact a party’s behavior has had on the costs of the litigation regardless of the relative financial resources of the parties.  Holder v. Holder, 403 N.W.2d 269, 271 (Minn. App. 1987). * * * [A]n award of attorney fees is discretionary and will not be disturbed absent a clear abuse of discretion.  Smolecki v. Smolecki, 386 N.W.2d 846, 849 (Minn. App. 1986), review denied (Minn. July 16, 1986).

 

Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991).  The district court found that an award of attorney fees to respondent was “warranted due to [appellant’s] continued unsubstantiated attempts to change custody.” That finding adequately supported the award of attorney fees to respondent.

5.         Guardian Ad Litem Fees

The district court ordered appellant to pay $2,000 and respondent to pay $362.50 of the $2,362.50 guardian ad litem fees.  The district court made no specific findings regarding appellant’s income to support this order.  Minn. Stat. § 518.165, subd. 1 (2000), provides for the permissive appointment of a guardian ad litem.  Minn. Stat. § 518.165, subd. 3(a) (2000), provides:

* * * If a guardian ad litem is appointed on a fee basis, the court shall enter an order for costs, fees, and disbursements in favor of the child’s guardian ad litem.  The order may be made against either or both parties, except that any part of the costs, fees, or disbursements which the court finds the parties are incapable of paying shall be borne by the state courts. * * * In no event may the court order that costs, fees, or disbursements be paid by a party receiving public assistance or legal assistance or by a party whose annual income falls below the poverty line as established under United States Code, title 42, section 9902(2).

 

Appellant contends that the district court’s order that she pay the greater share of the guardian ad litem fees was “contrary to the express language of the statute” because she was earning $60 per month, which placed her below the poverty line. 

Respondent cites LaChapelle v. Mitten, 607 N.W.2d 151, 165 (Minn. App. 2000), cert. denied, 121 S. Ct. 565 (2000), for the proposition that the “trial court is not required to consider a party’s ability to pay before allocating trial costs and the fees of the Guardian Ad Litem.”  LaChapelle holds that because Minn. Stat. § 257.69, subd. 2, does not require consideration of parties’ financial status in apportioning litigation-related costs, the district court did not abuse its discretion in equally apportioning costs where all contributing parties received equal benefits from the expenditures.  Id. at 165.  But section 257.69 applies to paternity actions, not dissolution or modification of custody.  Respondent’s reliance on LaChapelle is misplaced. 

Because section 518.165, subd. 3(a), provides that a court may not “order that costs, fees, or disbursements be paid by a party * * * whose annual income falls below the poverty line,” and because the district court made no findings regarding appellant’s income, we reverse and remand this issue for appropriate findings of fact.  

6.         Visitation Expeditor

Upon request of either party, the parties’ stipulation, or upon the court’s own motion, the court may appoint a visitation expeditor to resolve visitation disputes that occur under a visitation order * * *.

 

Minn. Stat. § 518.1751, subd. 1 (1998) (emphasis added).  Appointment of a visitation expeditor is permissive, not mandatory.  The district court granted appellant’s motion to remove the visitation expeditor.  It was within the discretion of the district court to deny appellant’s motion to appoint a successor expeditor.

            Affirmed in part, reversed in part, and remanded.



* 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] Because the legislature made changes to the statute in 2000 that became effective January 1, 2001, we review the district court’s decision under the former statute.  See Minn. Laws ch. 444, art. 1, §§  5, 8; see also McClelland v. McClelland, 393 N.W.2d 224, 226-27 (former law is applied where applying law in effect at time of decision would alter matured rights), review denied (Minn. Nov. 17, 1986).