This opinion will be unpublished and

may not be cited except as provided by

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








In re the Matter of:

Kristofor T. Swarthout,





Lauri A. Siroki,

n/k/a Lauri A. Jones,



Filed July 10, 2001


Toussaint, Judge


McLeod County District Court

File No. F09850694



Daniel B. Honsey, Kraft, Walser, Hettig & Honsey, P.L.L.P., 131 South Main Street, P.O. Box 129, Hutchinson, MN  55350 (for respondent)


Thomas Robert Lehmann, Barbara S. Lutter, Lehmann & Lutter, P.A., 1380 Corporate Center Curve, Suite 214, Eagan, MN  55121 (for appellant)


            Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and G. Barry Anderson, Judge.


U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

            Appellant, whose physical custody of her child was conditioned on her continuing residence in Minnesota, filed a motion to remove the child from the state.  Because appellant’s motion sought to alter the physical custody provision of the original custody order, the district court treated the motion as one for modification of custody under Minn. Stat. § 518.18 (2000) and denied the motion as premature.  We affirm.


Late in 1996, appellant Lauri A. Jones, learned she was pregnant by respondent Kristofor T. Swarthout.  She then moved to Minnesota to live with respondent, and the parties’ daughter, S.L.S., was born on July 16, 1997.  For the next 14 months, the appellant, respondent, and S.L.S. resided in Minnesota.  

            In September 1998, the parties’ relationship ended, appellant and S.L.S.  relocated to New York to live with Stefan Jones.  On September 21, 1998, respondent petitioned for custody of S.L.S. in Minnesota.  The district court adjudicated respondent the father of S.L.S. in March 1999, and the custody proceeding came to trial nearly a year later, in February 2000.   Following a two-day trial, the district court found (1) it is in S.L.S.’s best interests to preserve her relationship with respondent’s family and have frequent contact with both of her parents; (2) “the move to [New York in September 1998] was not in the best interests of the child”; and (3) respondent “has a more extensive support system with his family in Minnesota than does [appellant].”   The district court awarded the parties joint legal custody and granted physical custody of S.L.S. to appellant

upon condition that appellant resides within the State of Minnesota. * * * If [appellant] receives sole physical custody by so electing and moving to Minnesota, such physical custody shall continue to be conditional upon her maintaining a residence in Minnesota or until further order of this Court. If [appellant] does not elect to return to Minnesota, then [respondent] shall have sole physical custody of the minor child.


Appellant did not appeal from the custody order.

            Appellant married Jones in July 2000, but elected to return to Minnesota in August 2000.  She and S.L.S. now reside in Minnesota, where appellant works as a child-care provider.  Jones continues to live in New York.  The couple had a baby in February 2001. 

            In November 2000, appellant filed a motion to modify the order for judgment and allow her to move S.L.S. to New York.  Appellant argued that her motion was simply a request for permission to remove the child from Minnesota.  The district court disagreed and treated the motion as one for modification of custody because of the conditional nature of the custody award.  The district court denied the motion as premature, explaining that, absent exceptions that did not apply in this case, motions to modify custody may not be made within one year of the original order.  This appeal follows.



Appellant first argues that the district court abused its discretion by treating her motion as one for modification of custody under Minn. Stat. § 518.18 (2000), rather than a motion to remove S.L.S. from the state under Minn. Stat § 518.175, subd. 3(2000).   Appellate review of removal and custody modification cases is limited to whether the district court abused its discretion by making findings unsupported by the record or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (1996).  Whether the district court correctly applied the law in a custody proceeding, however, is a legal question, which we review de novo.  In re A.R.M., 611 N.W.2d 43, 47 (Minn. App.  2000).  A district court’s construction of its own decree, has “great weight.”  Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987) (citation omitted), review denied (Minn. Dec. 22, 1987). 

            Custody awards conditioned on a parent’s continuing residence in Minnesota are within the district court’s authority.  See LaChapelle v. Mitten, 607 N.W.2d 151, 162-63 (Minn. App. 2000) (holding that conditional custody awards are within district court’s authority and do not violate constitutional rights), review denied (Minn. May 16, 2000).  Appellant did not challenge the district court’s finding that it is in S.L.S.’s best interests to reside in Minnesota or its conclusion that, if appellant chose to remain in New York, custody would transfer to respondent.  Instead, appellant elected to relocate to Minnesota, and the district court awarded her custody of S.L.S. only after she did so.

Appellant brought her motion to remove S.L.S under Minn. Stat. § 518.175, subd. 3, which provides that “[t]he custodial parent shall not move the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, when the noncustodial parent has been given parenting time by the decree.”  Id.  The supreme court has explained that there is a presumption that favors the custodial parent: a custodial parent’s request for permission to move a child’s residence out of the state should be granted where there is no showing that the move is against the child’s best interests.  Auge v. Auge, 334 N.W.2d 393, 398-99 (Minn. 1983); see also Gordon v. Gordon, 339 N.W.2d 269, 271-72 (Minn. 1983) (extending the holding of Auge to cases where the parties share legal custody).

The rationale for the Auge presumption is that the denial of a request to remove effects a change in custody because the custodial parent must give up physical custody and leave the child in the care of the noncustodial parent in order to move to another state.  Auge, 334 N.W.2d at 395-96.  A grant of relocation under Minn. Stat. § 518.175, subd. 3 modifies the visitation rights of the noncustodial parent, but preserves the district court’s original determination of which person is the appropriate custodial parent.

            The district court treated the motion as one for modification of custody under Minn. Stat. § 518.18(d) (2000) and determined that the Auge presumption did not apply.   The statute provides that “the court shall not modify a prior custody order” within one year of the original order unless it finds present endangerment or interference with visitation.  Id. subd. (a), (c) (2000).

Appellant’s motion did not ask for a mere alteration of the visitation provisions of the original order.  Instead, it asked the district court to remove the condition on physical custody provided by the original custody order.  If the district court granted appellant’s motion, respondent’s right to custody would terminate and she would effectively have sole physical custody.  Consequently, appellant’s motion constituted a request for a modification of the physical custody term of the original order.  Cf. Allan v. Allan, 509 N.W.2d 593, 596 (Minn. App. 1993) (changing child support obligation from formula to specific dollar amount was a modification of child support).  Motions for modification of physical custody are governed by Minn. Stat. § 518.18 (d).  Id.; Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999).  Accordingly, we conclude that the district court properly treated appellant’s motion as one for modification of custody under Minn. Stat. § 518.18(d), rather than a motion for relocation under Minn. Stat. § 518.175, subd. 3.    


            Appellant next argues that the district court abused its discretion by “summarily denying” her motion.  This court reviews the propriety of denying motions to modify custody without evidentiary hearings for abuse of discretion.  Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1987). 

Modifications of physical custody are not allowed unless the court, based on facts arising  since the prior order, finds that there has been a change in circumstances and that modification is necessary for the child’s best interests.  Minn. Stat. § 518.18(d).  Unless agreed to by the parties in writing, motions for modification are not allowed less than one year after custody ruling.  Minn. Stat. § 518.18(a) (2000).  The one-year limitation does not apply if the district court finds the child is endangered or that there has been a “persistent and willful” denial or interference with visitation.  Minn. Stat. § 518.18(c) (2000).

Appellant brought her motion within one year of the original award and, inasmuch as she is the child’s current physical custodian, presented no evidence of present endangerment or interference with visitation.  Accordingly, the district court properly denied her motion without a hearing.  See Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (affirming denial of modification motion without an evidentiary hearing where movant failed to establish justification for modification).