This opinion will be unpublished and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

C2-01-662

 

In Re the Matter of:
Brenda Lea Hanenberger (f/k/a Brenda Lea Ryder), petitioner,
Respondent,


vs.


James Douglas Ryder,
Appellant.

 

Filed November 27, 2001

Affirmed; motions denied

Crippen, Judge

 

Olmsted County District Court

File No. F3973263

 

 

Gail D. Baker, 1530 Greenview Drive S.W. Suite 210, Rochester, MN 55902 (for respondent)

 

James D. Ryder, P.O. Box 8444, Rochester, MN 55903 (pro se appellant)

 

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

 

CRIPPEN, Judge

 

Disputing the trial court’s refusal, after an evidentiary hearing, to modify its earlier child custody placement, appellant James Ryder challenges the court’s finding that the child is not endangered in her present placement.  Because the trial court record contains sufficient evidence that the child is not endangered, we affirm.  We deny appellant’s other claims for relief and respondent’s motions.

FACTS

 

Consistent with their agreement, the judgment divorcing the parties placed sole physical custody of their five-year-old daughter with respondent Brenda Ryder (now Brenda Hanenberger), subject to appellant’s right of visitation.  Due to concerns for her daughter’s well-being during visitation, respondent filed a motion to restrict appellant’s visitation.  Appellant opposed the motion and moved for sole physical and legal custody of their daughter and for compensatory visitation.  The trial court granted an evidentiary hearing on appellant’s motion to modify custody.  After finding that appellant’s allegations did not meet the statutory endangerment standard, the trial court denied appellant’s motion but awarded him four compensatory visits. 

D E C I S I O N

Appellant contends that the trial court abused its discretion by declining to place with him the sole physical custody of his daughter.  Appellate court review of a custody determination is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh,543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  The court’s findings will be sustained unless they are clearly erroneous.  Pikula, 374 N.W.2d at 710. 

1.         Custody Modification

Custody modifications will be permitted if, among other requirements, the child’s physical or emotional health is endangered in the child’s current environment and the harm caused by changing the child’s environment is outweighed by the advantage of the change.  Minn. Stat. § 518.18 (d) (iv) (2000).  The existence of present endangerment must be “based on the particular facts of each case.”  Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).  Although “[t]he concept of ‘endangerment’ is unusually imprecise[,] * * * in the context of child custody, the legislature likely intended to demand a showing of a significant degree of danger.”  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).

At the evidentiary hearing, appellant asserted that respondent limited their daughter’s contact with appellant, she did not support or encourage the child’s activities, and she did not properly care for the child’s hygiene. Appellant alleges that their daughter’s emotional health and well-being are endangered by respondent’s conduct, which he believes demonstrates that respondent has limited ability to care properly for their daughter and practices a low level of involvement in their daughter’s activities.  Although appellant’s allegations may suggest poor parenting skills on respondent’s part, they do not demonstrate that their daughter is in a “significant degree of danger.”  See id.  Because appellant failed to establish that his daughter was in danger of physical or emotional harm in her present environment, the record sustains the trial court findings of no endangerment. 

2.                  Visitation

Appellant also disputes the trial court’s refusal to expand visitation based on the child’s best interests.  The evidence is sufficient to sustain the trial court’s ultimate findings that expanded visitation is not in the child’s best interests.  See Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995) (holding that the trial court has broad discretion in determining the best interests of a child with regard to visitation and the reviewing court will not reverse absent abuse of discretion).  Appellant has not articulated why the best interests of this child call for expanded visitation.  Likewise, although disputing the trial court’s denial of other relief, appellant has not sufficiently articulated the nature of the relief he is entitled to have or the error of the court in denying it.

3.         Respondent’s Motions

Respondent moved this court to correct a clerical error and to strike references in appellant’s brief to a matter that is allegedly not part of the record.  Because appellant has not demonstrated error with or without reference to these exhibits, it is no longer necessary to determine whether each of these exhibits is part of the record, and we deny respondent’s motion.  We have disregarded, as respondent proposes, an unpublished opinion cited in appellant’s brief.  See Minn. Stat. § 480A.08, subd. 3(c) (2000) (“[u]npublished opinions of the court of appeals are not precedential”); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of miscitation and unfairness associated with use of unpublished opinions and that while persuasive, “[t]he legislature has unequivocally provided that unpublished opinions are not precedential”).  Because respondent has not complied with the procedural requirements for a motion for an award of attorney fees on appeal and has not articulated a basis for this relief, we deny her motion for that relief.  See Illinois Farmers Ins. Co. v. Neumann,596 N.W.2d 685, 689 (Minn. App. 1999) (denying motion for attorney fees because motion did not comply with Minn. R. Civ. App. P. 139.06), review denied (Minn. Sept. 14, 1999).

Affirmed; motions denied.