This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-600

 

In Re the Marriage of:
Kathe Katayoun Vafaei Makhsoos,
n/k/a Kathe Katayoun Laftavi, petitioner,
Respondent,

vs.

Enayat Vafaei Makhsoos,
Appellant.

 

 

Filed October 9, 2001

Affirmed

Peterson, Judge

 

 

Dakota County District Court

File No. F293009212

 

 

Jori L. Whitehead, Whitehead Law Office, 2500 West County Road 42, Suite 100, Burnsville, MN† 55337 (for respondent)

 

Kathryn A. Graves, Katz & Manka, Ltd., 4150 U.S. Bank Place, 601 Second Avenue South, Minneapolis, MN† 55402 (for appellant)

 

Joyce M. Grannis, 412 Southview Boulevard, Suite 100, South St. Paul, MN† 55075 (guardian ad litem)

 

 

††††††††††† Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Anderson, Judge.

U N P U B L I S H E D† O P I N I O N

PETERSON, Judge

In this custody modification proceeding, appellant father argues that (a) he made a prima facie showing of endangerment and therefore was entitled to an evidentiary hearing on his motion; (b) the district court should not have approved respondent motherís moving the child out of state when mother did not request that relief; and (c) the district court should not have considered motherís untimely responsive motion or her untimely affidavit.† We affirm.

FACTS

††††††††††† The marriage of appellant-father Enayat Vafaei Makhsoos and respondent-mother Kathe Katayoun Vafaei Makhsoos was dissolved by a judgment and decree entered August 15, 1994.† The parties are the parents of two emancipated children and one minor daughter, born May 15, 1990.† The dissolution judgment and decree awarded mother primary physical custody of daughter, subject to reasonable parenting time[1] by father.† Following the dissolution, the parties attempted to reconcile and lived together until February 1996.

††††††††††† In July 1996, father filed a motion to modify custody.† The following month, the district court appointed a guardian ad litem (GAL) to make custody and parenting time recommendations.

††††††††††† In November 1996, mother remarried.† In May 1997, father renewed his motion to modify custody, alleging that motherís husband had sexually abused daughter.† In June 1997, the GAL recommended that custody remain with mother.† The GAL was unable to substantiate fatherís complaints regarding daughterís allegedly poor hygiene, lack of energy, and feeling sick to her stomach.† The GAL had spoken to daughterís teacher, who reported that daughter was well-behaved, always appropriately dressed and clean, did not appear tired or sleepy, and had not complained about feeling sick to her stomach.† Greg Hanson, Ph.D., a licensed psychologist who conducted a custody evaluation, also recommended that custody remain with mother.† He expressed concerns about fatherís ability to put daughterís emotional needs above his own in the custody dispute and about fatherís ability to facilitate a healthy relationship between daughter and mother.

††††††††††† In July 1997, mother filed a motion to remove daughter to Chicago, Illinois, where motherís husband had accepted a position as a transplant-surgeon fellow.† In August 1997, the parties stipulated to an order allowing mother to remove daughter to Chicago temporarily, pending a final recommendation by the GAL and pending an evidentiary hearing or further court proceedings, if necessary.

††††††††††† In October 1997, the GAL issued a report recommending that mother be allowed to remove the daughter and that father be granted parenting time every other weekend and extended parenting time during summer vacation and other school holidays.† The GAL noted her concern about fatherís hostility towards mother and her family.† The GAL found that daughter was adjusting well to the move to Chicago, making new friends and enjoying her new school.

Father then filed a motion requesting a trial on the issue of daughterís custody and parenting time.† In July 1998, the district court issued an order denying fatherís motions to conduct an evidentiary hearing and modify custody and providing for the custody arrangement set forth in the stipulated order to remain in effect.† The stipulated order provided for parenting time as stipulated to by the parties or as modified by the GAL.† In 1999, father filed three motions to modify custody.

††††††††††† In June 2000, mother moved the childís residence to Philadelphia, Pennsylvania, where motherís husband had accepted a position as a transplant surgeon.† In August 2000, father filed a motion to modify custody.† The GAL interviewed daughter, who complained that she was sad about moving again, felt like she was ďlosing her mind,Ē did not have any friends, was frequently left alone, and wanted to remain in Minnesota.† The GAL recommended that daughter be assessed by a child psychologist or interviewed by the district court.† After interviewing daughter, the district court denied fatherís motion to modify custody and approved the move from Chicago to Philadelphia.

D E C I S I O N

1.† Father argues that the district court erred in denying his motion to modify custody without conducting an evidentiary hearing. A party is entitled to an evidentiary hearing on a custody modification motion only if the party makes a prima facie case for modification.† Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992).† To make a prima facie case on an endangerment-based custody modification motion, the moving party must show that, since the prior custody ruling, (a) circumstances have changed; (b) modification is required to serve the childís best interests; (c) the childís present environment endangers the child; and (d) the detriment to the child of modifying custody is outweighed by the benefit to the child of the modification.† Minn. Stat. ß 518.18(d)(iii) (2000); see Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992) (describing modification procedure).† The endangerment required by this standard is a ďsignificant degree of danger.Ē† Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).

††††††††††† When viewing the partiesí submissions, the district court must take the moving partyís factual allegations as true.† Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).† The district court must also disregard any directly contrary statements in the nonmoving partyís submissions but ďmay take note of statements in [the nonmoving partyís submissions] that explain the circumstances surrounding the accusations.Ē† 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.† Id. at 778.

††††††††††† Changed circumstances

††††††††††† The change in circumstances is the move from Chicago to Philadelphia.[2]This court must presume that allowing the custodial parent to move a childís residence to another state is in the best interests of the child.† Minn. Stat. ß 518.18(d); see also Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (noting that implicit presumption that removal will be permitted applies to cases where parents share legal custody).† Unless the opposing party can make a prima facie case against moving the childís residence to another state, permission will be granted without an evidentiary hearing.† Id.

The travel time between Philadelphia and Minneapolis is slightly longer than between Chicago and Minneapolis, and the availability of flights between Philadelphia and Minneapolis is slightly less than between Chicago and Minneapolis.† Those differences, however, are not significant and will not affect fatherís parenting-time schedule with daughter.† Father will continue to have parenting time every other weekend and extended parenting time during summer vacation and other school holidays.

Daughterís best interests

Father cites the fact that daughter has no friends in Philadelphia.† The normal disruption in a childís life that results from a geographical move does not overcome the presumption that the move is in the childís best interest.† See Silbaugh, 543 N.W.2d at 642 (holding normal anxiety caused a child by moving residence is not sufficient to overcome presumption that removal is in childís best interest); Geiger v. Geiger, 470 N.W.2d 704, 709 (Minn. App. 1991) (affirming grant of permission to remove children because, besides normal adjustments to moving, appellant did not cite any specific facts to show move would be against childrenís best interest), review denied (Minn. Aug. 1, 1991).

††††††††††† Father argues that awarding him custody would be in daughterís best interests because it would promote stability and allow her to be close to extended family members, including her older siblings and maternal grandparents.† This issue was addressed in connection with the move to Chicago.† The GAL concluded that daughter could maintain a relationship with her siblings, in person and by telephone, during fatherís parenting time.† Regarding the maternal grandparents, the GAL concluded that father was very hostile towards them and would not do anything to foster the relationship between them and daughter.† Father does not allege any facts relevant to this issue that have arisen since the move to Chicago.† See Geibe, 571 N.W.2d at 779 (a change in circumstances must have occurred since the current custody order; it cannot be a continuation of conditions existing prior to the current order).

Citing the fact that motherís husband moved three times in three years, father argues that it is likely that daughterís life will be disrupted by future moves if custody remains with mother.† Mother submitted an affidavit explaining that her husbandís moves were connected with his training as a transplant surgeon.† He accepted a two-year fellowship and spent one year at a medical school in Chicago and one year at a hospital in New York.† While he was in New York, mother remained in Chicago with daughter because they knew that he would be in New York for only one year.† The record contains no evidence that mother and her husband are planning any future moves.† Fatherís concerns about a possible, future move are speculative and not appropriately addressed by the court at this time.

Endangerment

Father contends that he made a prima facie showing that daughterís emotional health is endangered.† In a July 2000 interview with the GAL, daughter reported that she was sad about moving to Philadelphia, felt as though she was ďlosing her mind,Ē did not have any friends, was frequently left alone, and wanted to stay in Minnesota.† At the GALís recommendation, the district court interviewed daughter and found that she was very bright and mature and did not exhibit any signs of mental illness or physical or mental abuse.† The court found that daughter wanted her parents reunited or her mother to move back to Minnesota but otherwise did not have a preference as to which parent she lived with.† When considered in light of the district courtís findings following its interview of daughter, fatherís concerns about daughterís emotional health do not weigh in favor of modifying custody.

Father also alleges that daughter develops stomachaches and diarrhea when it is time for her to return to mother.† Father made the same allegations in connection with a previous custody motion, and they were unsubstantiated.† See Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn. App. 1985) (affirming granting of motion to move children because the appellant did not provide any evidence to support his opinion that the children were depressed about the move).

††††††††††† Whether benefit of modifying custody outweighs detriment

In the June 1998 order, the district court found that the harm likely to be caused by a change of environment and custody was that father would sever daughterís relationship with mother and that that harm far outweighed any benefits that might derive from even an experimental change of custody.† The court specifically cited Dr. Hanson, the psychologist appointed to evaluate the family.† Hansonís findings noted that father was willing to involve daughter in the custody dispute without appropriate concern for the damage it would cause to her relationship with mother and that father encouraged daughter to complain about mother and portray herself as a victim even though data available to Hanson did not indicate that the complaints about mother were valid.† Nothing in the record indicates that fatherís attitude or behavior has changed.

Father has failed to make a prima facie showing on any of the elements required to support a custody modification.† The district court did not abuse its discretion in denying fatherís motion to modify custody without conducting an evidentiary hearing.

††††††††††† 2.† Father contends that the district court erred in considering motherís untimely responsive motion and supporting affidavits.† Minn. R. Gen. Pract. 303.03(a)(2) requires that a responsive motion be served at least ten days before a hearing if new issues are raised and at least five days before if no new issues are raised.† Minn. R. Gen. Pract. 303.03(b) states:

If responsive papers are not properly served and filed, the court may deem the initial motion * * * unopposed and may issue an order without hearing.† The court, in its discretion, may refuse to permit oral argument by the party not filing the required documents, may consider the matter unopposed, may allow reasonable attorneys fees, or may take other appropriate action.

 

See also Minn. R. Gen. Pract. 1.02 (ďa judge may modify the application of these rules in any case to prevent manifest injusticeĒ).

††††††††††† Mother did not serve her responsive papers until September 14, 2000, four days before the hearing.† Mother stated in her affidavit that she did not receive fatherís motion papers until September 12, 2000.† After receiving the papers, she had to obtain new counsel because her former attorney had died.

††††††††††† Father contends the district court should not have allowed mother to move daughter to Philadelphia because the issue was not raised until mother filed her responsive papers.† But fatherís motion to modify custody was based in part on daughterís move to Philadelphia. Father also claims he was prejudiced by receiving motherís motion papers only four days before the hearing, contending that he did not have adequate time to respond to parenting-time and attorney-fee issues raised in motherís responsive papers.† But he does not explain how additional time would have allowed him to better respond.

††††††††††† In the absence of evidence substantiating fatherís prejudice claim and in light of the evidence that mother did not receive fatherís motion papers until September 12, the district court did not abuse its discretion in considering motherís responsive motion and supporting affidavits.

††††††††††† Affirmed.



[1] Effective January 1, 2001, the legislature changed the term ďvisitationĒ to ďparenting time.Ē

[2] Because the daughterís residence was previously moved from Minnesota to Chicago, there is a question whether Minn. Stat. ß 518.175, subd. 3 (2000), which addresses moving a childís residence to another state, applies to this case.† We need not decide that question.† Because the change in circumstances alleged by father is the move to Philadelphia, the same analysis applies whether we characterize the issue as a motion to modify custody or a request by the custodial parent to move the childís residence to another state.† Downey v. Zwigart, 378 N.W.2d 639, 642 n.1 (Minn. App. 1985).