This opinion will be unpublished and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:

Elizabeth Marie Engen,



James Gregory Peters, II,





Joan Peters, et al.,



Filed August 14, 2001


Toussaint, Chief Judge


Ramsey County District Court

File No. F79451159


Frank Abramson, Elizabeth Ann Olney Arms, Mulligan & Bjornnes, PLLP, 401 Groveland Avenue, Minneapolis, MN 55403  (for respondent Elizabeth Marie Engen)


James Gregory Peters, II, 9145 Olson Memorial Highway, Golden Valley, MN 55427 (pro se respondent)


Wright S. Walling, Jody Marie Alholinna, 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402; and


Brian K. Flakne, Flakne Law Office, P.A., 9304 Lyndale Avenue South, Bloomington, MN 55420 (for appellant Joan Peters)


            Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Without an evidentiary hearing, the district court denied the motion of appellant-grandparents Joan and James Peters to modify custody of their granddaughter from respondent-mother Elizabeth Engen to themselves.  See Minn. Stat. § 518.156, subd. 1(b) (2000) (allowing non-parents to seek custody of child).  Grandparents allege: (1) they were entitled to an evidentiary hearing because they made prima facie cases of endangerment and integration; and (2) the district court improperly struck portions of their affidavits and exhibits, failed to appoint a guardian ad litem, and, when considering their alternative request for visitation, failed to consider the amount of time the child spent with them.  Mother seeks review of the denial of her request for attorney fees.  Because the record supports the district court’s determinations on all issues, we affirm.



            Grandparents allege they are entitled to an evidentiary hearing because they made prima facie cases to modify custody on the bases of integration and endangerment.  See Minn. Stat. § 518.18(d)(iii), (iv) (2000) (listing requirements for modifying custody based on integration and endangerment).  Under Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471 (Minn. 1981) and its progeny, a party is entitled to an evidentiary hearing on a custody-modification motion only upon making a prima facie case (PFC) for modification.  Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992).  Failure to make a PFC precludes modification of custody.  E.g., Niemi v. Schachtschneider, 435 N.W.2d 117, 119 (Minn. App. 1989) (concluding lack of endangerment fatal to custody modification).  A PFC requires the moving party to show, among other things, that circumstances have changed and that (1) the child has been integrated into the moving party’s home with the custodial parent’s consent; or (2) the child’s present environment endangers the child and any detriment to the child of modifying custody is outweighed by the benefits of modification.  Minn. Stat. § 518.18 (d)(iii), (iv); see Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992) (describing modification procedure).

When determining whether a PFC has been made, the district court must take the moving party’s factual allegations as true.  Nice-Petersen, 310 N.W.2d at 472.  It must also disregard any directly contrary statements in the non-moving party’s submissions but “may take note of statements in [the non-moving party’s submissions] that explain the circumstances surrounding the accusations.”  Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997).  Ultimately, whether to deny a motion to modify custody without an evidentiary hearing is discretionary with the district court.  See id at 778.

            The district court first ruled that grandparents failed to show that the child had been integrated into their home with mother’s consent.  A lack of intent to allow integration does not preclude the existence of “consent” for integration purposes.  Gibson v. Gibson, 471 N.W.2d 384, 386 (Minn. App. 1991), review denied, (Minn. Aug. 24, 1991).  Here, grandparents argue that they are “co-primary caretakers” of the child because the child spent half “or more” of her time with them before mother limited their access to the child.  Implicit in this allegation is an admission that mother is a primary caretaker.  Additionally, the cases grandparents cite to support this integration argument  are distinguishable.  See Downey v. Zwigart, 378 N.W.2d 639, 642-43 (Minn. App. 1985) (reversing refusal to find PFC for integration where five-year-old spent all but seven months of her life in custody of party seeking custody); Pfeiffer v. Pfeiffer, 364 N.W.2d 866, 868-69 (Minn. App. 1985) (affirming custody modification ordered after evidentiary hearing as “a recognition of the status quo” where mother was awarded physical custody in dissolution but parties lived together for a year after dissolution and, after separation, child spent a “considerable amount of time” with father)[1].  The district court did not err in ruling that grandparents failed to make a PFC for integration.

            The district court also ruled grandparents failed to make a PFC for endangerment.  The endangerment required for a custody modification is a “significant degree of danger.”  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  The “present environment” which must endanger a child is the “judicially approved environment;” the environment set out in the last custody order.  Taflin v. Taflin, 366 N.W.2d 315, 320-21 (Minn. App. 1985).  Here, that environment is sole physical custody in mother.  Grandparents allege that “disrupting” the child’s relationship with them “denies” the child’s right to continue their relationship and emotionally endangers the child.  This argument, however, seeks to preserve an extra-judicially created environment rather than address the judicially approved environment. 

The district court allowed grandparents’ visitation every other week.  In addition, mother admits grandparents love the child and does not intend to prevent the child from seeing grandparents.  She further states she may allow grandparents to see the child at times in addition to those specified by the district court.  Thus, denial of this modification motion will not terminate the child’s relationship with grandparents.  Nor can we conclude that mother’s single slap of the child is sufficient to show that the child is endangered in mother’s custody.  See Geibe, 571 N.W.2d at 779 (noting that “alleged single incident of borderline abuse or neglect” has been held not sufficient endangerment to warrant modification) (citing Smith v. Smith, 508 N.W.2d 222, 227 (Minn. App. 1993). 

            Because grandparents have not shown a PFC for integration or endangerment, we affirm the district court’s denial of their modification motion and do not address the parties’ arguments regarding whether circumstances have changed.


            Grandparents’ affidavit included attached exhibits that supported their allegations about the parenting of the child by mother and by grandparents.  The district court struck the exhibits as unsworn and struck the associated portions of the affidavit as hearsay.  Grandparents allege that (1) under Minn. R. Civ. P. 10.03, an exhibit to a pleading is deemed part of the pleading; (2) under Minn. R. Gen. Pract. 303.03(a)(1)(iii), motions are to be accompanied by relevant affidavits; and (3) while affidavits must be sworn, there is no separate requirement that exhibits be sworn.  We question grandparents’ underlying assumption that a motion is a pleading.  See Minn. R. Civ. P. 7.01 (listing documents that are pleadings, but not mentioning motions); Minn. R. Civ. P. 7.02(b) (stating various rules regarding pleadings apply to motions). 

            Grandparents argue that the exhibits should not have been stricken citing Berens v. Berens, 443 N.W.2d 558 (Minn. App. 1989), review denied (Minn. Sept. 27, 1989). We find Berens distinguishable and not controlling.  In Berens this court rejected an argument that exhibits to a memorandum were not properly before district court where, unlike here, the authenticity of the exhibits was not challenged and the exhibits were otherwise admissible under Minn. R. Evid. 408.  Berens, 443 N.W.2d at 561. Additionally, while Berens treats the memorandum as a pleading, the opinion does not refer to rule 7.01’s list of pleadings.  See Nadeau v. Melin, 260 Minn. 369, 375, 110 N.W.2d 29, 34 (1961) (stating “[a] decision must be construed in the light of the issue before the court”).[2]

            Grandparents argue that “reliable” hearsay should be considered when determining whether a PFC has been established, because not doing so will preclude consideration of statements by children and because determining whether a PFC exists requires assuming that the moving party’s statements are true.  Grandparents are functionally arguing that certain aspects of the hearsay rule should not apply to custody proceedings.  We decline to adopt that position.  Affidavits must be based on the affiant’s personal knowledge.  See State ex rel Sime v. Pennebaker, 215 Minn. 75, 77, 9 N.W.2d 257, 258 (1943) (disregarding affidavit as containing “nothing of evidentiary worth” where it was “founded upon hearsay”).  Exceptions to the hearsay rule are set out in Minn. R. Evid. 803, 804.  Additionally, a district court may interview a child in a custody proceeding.  Minn. Stat. § 518.166 (2000).  The district court did not err by striking the exhibits to the affidavit and the associated parts of the affidavits.  Thus, grandparents are arguing that certain aspects of the hearsay rule should not apply to custody proceedings.  We decline to adopt that position.


            The district court denied grandparents’ motion to appoint a guardian ad litem (GAL) for the child, finding that (1) mother’s single slap of the child in 1999, combined with grandparents’ other evidence, did not show “risk of emotional or physical harm”; and (2) mother and the child “have a normal parent-child relationship and there is no basis for altering the current custody arrangement.”  Grandparents allege this ruling is contrary to the portion of Minn. Stat. § 518.165, subd. 2 (2000), requiring appointment of a GAL if the district court “has reason to believe” that a child “is a victim of domestic child abuse or neglect.” 

            “Domestic child abuse” includes non-accidental physical injury to a minor family member inflicted by an adult family member.  Minn. Stat. § 260C.007, subd. 2(1) (2000).  Mother does not dispute that she slapped the child.  The only physical injury alleged is that mother’s handprint was temporarily left on the child’s face.  Grandparents allege that their investigator learned that the slapping produced a determination of mistreatment by the county, but that the child-protection file was not released because of the “ongoing investigation.”  The district court’s refusal to use this incident as a basis for appointing a GAL is consistent with the facts that immediately after the incident, grandparents took the child to the hospital where it was determined that the child did not need medical attention.  Additionally, mother and the child have been in therapy; the child has been diagnosed with a disorder which explains why she is difficult to parent, mother learned discipline techniques for the child during therapy; the slapping incident was the only time mother failed to use those techniques; and the incident occurred 14 months before grandparents sought to modify custody.  See Anderson v. Archer, 510 N.W.2d 1, 5 (Minn. App. 1993) (stating district court did not err by not appointing GAL where party presented “sufficient evidence” to rebut unsubstantiated allegation of physical abuse); Baum v. Baum, 465 N.W.2d 598, 599-600 (Minn.App.1991) (stating appointment of GAL not required where insufficient evidence of abuse or neglect presented), review denied (Minn. Apr. 18, 1991). 

            “Neglect” includes a failure to provide for a child in a manner that “imminently and seriously endanger[s] the child” as well as a failure to provide necessary supervision for the child.  Minn. Stat. § 626.556, subd. 2(c)(1)-(3) (2000).  Grandparents allege the child is neglected because (1) mother told the child that the child’s failure to behave would mean the child would have to live with another family; (2) the child “drifts around the neighborhood” looking for companionship when mother is sleeping; (3) the child is not dressed properly; and (4) mother removed the child from therapy prematurely.  The district court apparently accepted the statements by mother and her witnesses explaining these allegations.  We cannot conclude that the district court clearly erred in doing so.  See Minn. R. Civ. P. 52.01 (findings of fact not altered on appeal unless clearly erroneous); cf. Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (appellate courts defer to district court resolution of fact issues presented by conflicting affidavits).  The district court did not err by not appointing a GAL.


            The district court awarded grandparents six hours of visitation on alternating Saturdays.  Grandparents allege this award fails to consider the amount of time the child spent with them.  The record shows (1) mother admitted the child spent large amounts of time with grandparents; (2) the district court found mother initially “allowed [grandparents] substantial visitation,” but later limited visitation “due to [grandparents’] interference with the parent-child relationship”; and (3) on appeal, mother continues to admit grandparents spent substantial time with the child.  Given the undisputed fact that grandparents spent substantial time with the child, we cannot conclude that the visitation award is defective and must assume that the district court properly took this fact into consideration.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating appellate courts cannot assume district court error). 


            Mother alleges the district court abused its discretion in denying her request for need-based attorney fees under Minn. Stat. § 518.14, subd. 1 (2000).  Grandparents, however, correctly note that mother’s request for fees failed to satisfy the requirements of the general rules.  See Minn. R. Gen. Pract. 119.01, 119.02 (requiring requests for fees exceeding $1,000 to include certain documentation to allow evaluation of request).  Additionally, our review of the record shows that this case does not fit the exception to rule 119, described in Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999).  Therefore, we decline to  reverse the district court’s denial of attorney fees. 


[1] Grandparents also cite an unpublished opinion to support their integration argument.  Unpublished opinions are of limited value in deciding an appeal.  See Minn. Stat. § 480A.08, subd. 3(c) (2000) (“[u]npublished opinions of the court of appeals are not precedential”) (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and noting that while persuasive, “[t]he legislature has unequivocally provided that unpublished opinions are not precedential”).  Also, the case cited by grandparents, is distinguishable. 

[2] Grandparents again cite an unpublished opinion to support their argument.  See Minn. Stat. § 480A.08, subd. 3(c) (addressing non-precedential nature of unpublished opinions); Dynamic , 502 N.W.2d at 801(same).  And, again, the case cited by grandparents is distinguishable.