This opinion will be unpublished and

may not be cited except as provided by

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






In Re the Marriage of:

Phillip Lee Burgess, petitioner,





Diana Jo Burgess (n/k/a Taylor),



Filed March 26, 2002


Halbrooks, Judge



Martin County District Court

File No. F589747


Terry W. Viesselman, Viesselman & Barke, P.A., 923 North State Street, Suite 130, Fairmont, MN 56031 (for respondent)


Troy G. Timmerman, Wendland Timmerman, P.A., 825 East Second Street, P.O. Box 247, Blue Earth, MN 56013 (for appellant)



            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant alleges that the district court erred in denying her motion to modify custody of one of the parties’ children without an evidentiary hearing because appellant’s affidavit established a prima facie showing of a change in the child’s circumstances such that the child is endangered in the current custodial arrangement.  Appellant also alleges that the district court’s award of attorney fees to respondent is not supported by adequate findings.  Because appellant has not demonstrated a change in circumstances resulting in endangerment to the child and because the record indicates that the district court had an adequate basis for awarding respondent attorney fees, we affirm.


            Appellant Diana Jo Taylor and respondent Phillip Burgess were married on September 17, 1982.  They had two children, a daughter, M.L.B., born April 15, 1987, and a son, J.L.B., born March 31, 1989.  The parties’ marriage was dissolved on November 17, 1989.  Each party received physical custody of each child for six months per year until each child reached kindergarten age, at which time respondent received physical custody for nine months per year and appellant received physical custody for three months per year.  The parties agreed that these three months would fall during the summer. 

On June 29, 2000, 13-year-old M.L.B. went to appellant’s home in Oregon for summer visitation.  She did not return to Minnesota on August 6, 2000, as scheduled.  On August 17, 2000, appellant moved for temporary custody of M.L.B., an evidentiary hearing to determine M.L.B.’s best interests, and sole physical custody of M.L.B.  Appellant’s motion contained an affidavit from M.L.B. stating that she preferred to live with appellant.  Respondent moved to have M.L.B. returned to him and submitted an affidavit supported by letters from members of his community stating that he was a good parent and that M.L.B. was doing well in his home.  The district court denied appellant’s motion without an evidentiary hearing on the ground that the affidavits and the record did not contain sufficient facts to warrant a hearing and because there was no factual support for the claim of child endangerment.  The court ordered appellant to return M.L.B. to respondent’s residence.

Appellant brought a second motion for modification of custody of M.L.B. on January 17, 2001.  Appellant submitted multiple affidavits detailing circumstances in respondent’s home that she felt warranted a modification.  Respondent moved for attorney fees and submitted affidavits explaining the circumstances surrounding appellant’s allegations in greater detail.  On March 19, 2001, the district court postponed a hearing on the motion and ordered the parties to participate in counseling and mediation.  Mediation efforts failed, and the district court subsequently denied appellant’s motion in its entirety, finding that M.L.B.’s behavior was a factor in the tension in respondent’s home and that appellant failed to demonstrate that a significant change in circumstances that endangered M.L.B.’s physical or emotional health had occurred.  The district court also granted respondent’s motion for attorney fees.  This appeal follows.      


            Minnesota law allows repeated petitions for custody modification only in limited circumstances.  Under Minnesota law

[i]f a motion for modification has been heard, whether or not it was granted, * * * no subsequent motion may be filed within two years after disposition of the prior motion on its merits * * * .


Minn. Stat. § 518.18(b) (Supp. 2001).  An exceptions exists, however, when

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.


Minn. Stat. § 518.18(d) (Supp. 2001).  The court hearing the modification motion must

uphold the current custody agreement unless 

            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. 


Minn. Stat. § 518.18(d)(iv).  We review a district court’s denial of an evidentiary hearing in a child custody matter under an abuse-of-discretion standard.  Geibe v. Geibe, 571 N.W.2d 774, 777-78 (Minn. App. 1997).  The party moving for modification of custody must establish a prima facie case of changed circumstances since the most recent custody order.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  An adequate prima facie case must demonstrate that:

(1) a change has occurred in the circumstances of the child or [custodian]; (2) that a modification of custody is necessary to serve the best interests of the child; (3) that the child’s present environment endangers his physical or emotional health or emotional development; and (4) that the harm likely to be caused by the change of environment is outweighed by the advantage of change to the child.


Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992) (quoting Itasca Cty. Social Servs. ex. rel. Hall v. David, 379 N.W.2d 700, 703 (Minn. App. 1986)).  The moving party establishes a prima facie case by presenting affidavits stating specific facts in support of the motion for modification.  Minn. Stat. § 518.185 (2000).  Other parties may file opposing affidavits.  Id.  The district court should allow an evidentiary hearing if the affidavits “taken as true, make out a prima facie case for the modification.”  Abbott, 481 N.W.2d at 868 (emphasis in original) (citation omitted).  In the case of contradictory affidavits, the district court must accept the facts in the moving party’s affidavit.  Giebe, 571 N.W.2d at 777.  Nevertheless, the court may still consider the opposing side’s affidavits and “may take note of statements in [the nonmoving party’s affidavits] that explain the circumstances surrounding the accusations.”  Id. at 779. 

A child’s preference to live with a different parent may constitute a change in circumstances sufficient to warrant an evidentiary hearing.  Id. at 778.  Stated preferences in and of themselves, however, do not mandate a hearing.  Id.  The district court is within its discretion in denying an evidentiary hearing “where it is obvious from the record that a child’s stated preference results from manipulation by the moving party.”  Id. (citing Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690-91 (Minn. App. 1989), review denied (Minn. June 21, 1989)).  Furthermore, Minnesota law presumes that stability in custody arrangements is in a child’s best interests.  Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn. App. 1990).

            Appellant presents affidavits arguing that circumstances have changed since August 2000 such that M.L.B. is in emotional and physical danger in respondent’s home.  Respondent argues that the affidavits do not establish a prima facie case of changed circumstances or danger to M.L.B.  Even though we accept appellant’s affidavits as true, respondent is able to explain the circumstances surrounding many of the allegations. 

            Appellant claims that M.L.B. was so unhappy in respondent’s home that she called her multiple times per day, resulting in November and December 2000 phone bills totaling approximately $1,000 and $1,200, respectively.  Respondent explains that he allowed M.L.B. to call appellant frequently because he wanted to support her efforts to have a relationship with appellant.  Respondent also notes that he allowed M.L.B. to visit appellant from December 22, 2000 through January 1, 2001. 

On February 2, 2001, M.L.B. told appellant on the telephone that she began an argument with respondent by telling him that she was not afraid to stand up to him and that respondent told her that “pretty soon [she] will know what standing up to [him] means.”  Appellant claims that M.L.B. interpreted respondent’s statement as a threat of physical harm and that, as M.L.B. related this story, respondent came on the phone and began yelling. 

Appellant also alleges that an argument between M.L.B. and respondent resulted in the police being called to the home.  Respondent states that he called the police so that they could verify that M.L.B. had instigated the dispute. 

After the unsuccessful mediation on March 16, 2001, appellant alleges that while she was saying good-bye to M.L.B. in the street outside respondent’s home, respondent’s “incredible anger” prompted him to call the police to have her removed from the premises.  Appellant fears that respondent might direct this “anger” at M.L.B.  Respondent explains that he found appellant and her current husband inside his residence when he arrived home and that he asked them to leave his premises.  Appellant and her husband went outdoors but remained on respondent’s property for 25 minutes.  Respondent called his attorney, who advised him to call the police.  Respondent told appellant and her husband that they had five minutes to leave his property before he called the police.  Respondent waited five minutes before placing the call.  The police arrived and told appellant that she could have five more minutes to say good-bye to M.L.B.

The next day, respondent and M.L.B. had an argument in which M.L.B. told respondent to sign the custody papers and let her move to Oregon.  Appellant alleges that respondent yelled, “Kill me, kill me!” during the argument and that the police came to respondent’s house as a result of the fight. 

Appellant claims that respondent berated a social worker who made a March 22, 2001 visit to respondent’s home.  Respondent explains that he was the one who contacted the social worker and that he, M.L.B., and the social worker met periodically throughout the year.  But M.L.B. did not cooperate with the social worker.  When M.L.B. continued to be uncooperative during the March 22 meeting, respondent suggested that the social worker leave, as they were not making progress. 

According to appellant, M.L.B.’s brother acts in a threatening manner toward M.L.B. in that he killed her pet rat, threatened to kill her with a knife, and threatened to break a guitar over her head.  Respondent claims that M.L.B.’s brother does not threaten her and that although the two argue sometimes, the arguments stem from J.L.B.’s dislike of her behavior. 

Appellant also claims that M.L.B. is not eating and that she has lost at least ten pounds.  Respondent states that M.L.B. refuses to eat the healthy and generous meals that he prepares.  As a result, he says she prepares her own dinners. 

Appellant states that M.L.B. has red marks on her arms due to alleged abuse, has threatened to run away, has threatened to hurt or kill herself, fears that she will get sick and die if she remains with respondent, does not leave her room except to shower or to go to school, and has suffered a drop in her grade-point average.  Appellant also claims that respondent and M.L.B. have pushed each other. 

Respondent claims that M.L.B.’s troubles stem from stress resulting from appellant’s telling her that she will be able to move to Oregon.  Respondent claims that appellant and M.L.B. are engaging in a “campaign” to create circumstances to warrant a custody modification and notes that appellant paid for M.L.B. to ship her personal possessions to Oregon in December 2000 because “it would look best.” 

Although circumstances in respondent’s home became more difficult after appellant’s first change-of-custody motion in August 2000, the district court properly attributed the tension to M.L.B. and appellant’s efforts to prevail on a second motion.  As the court stated at the April 3, 2001 hearing: 

I would instruct that the [appellant] should cease from encouraging the idea [that the court] is going to change its mind some four months later when I had all the facts in front of me in October.  I’m extremely concerned that personal property was transferred out of my Court’s ruling, I can’t imagine any other message that would be given to the girl that you can continue to cause trouble and the judge will change his mind, that is not how the Court operates and it should not be some sort of precedent that anyone should take as to how we’re going to decide this case in the future.


The district court noted in its May 11, 2001 order that it is free to disregard the child’s preference when it stems from manipulation by the moving party.  Geibe, 571 N.W.2d at 778.  As the district court is in a unique position to observe the parties and weigh their conflicting claims, we will not disturb its finding that manipulation was a factor in this case. 

            Additionally, the alleged unfavorable circumstances in respondent’s home do not rise to the level necessary to warrant a change in custody.  To obtain an evidentiary hearing, appellant must demonstrate that the current custodial arrangement subjects M.L.B. to a “significant degree of danger,” either emotionally or physically.  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  For example, this court ordered an evidentiary hearing when a father’s affidavits indicated that his sons’ stepfather scared them by “yelling, throwing things, hitting walls, and driving the car like a maniac.”  Harkema v. Harkema,474 N.W.2d 10, 14 (Minn. App. 1991).  An evidentiary hearing was also appropriate when a parent voluntarily relinquished the children and had only minimal contact with them for two years, borrowed a large sum of money from them without repayment, and abused child support payments.  Taflin v. Taflin, 366 N.W.2d 315, 320-21 (Minn. App. 1985).  The record indicates that the circumstances in this case are not similarly severe.  Furthermore, court-appointed psychologist, Joseph E. Switras, Ph.D., opined that respondent does not pose a danger to M.L.B.  Dr. Switras’s report explains that M.L.B. need not live with appellant for the sake of her physical and emotional health:

I do not see [respondent] as a danger to his daughter.  If the word “danger” is defined as a hazard or peril, at this time I do not see [respondent] as a hazard or peril for his daughter.


                                    * * * *


If we define the word “need” as a necessity, then there is not a need for a Court Order to move the child out to [appellant]. 


The record indicates that, although tension in respondent’s home has increased, the tension is the product of the actions of M.L.B. and appellant.  We conclude that it was not an abuse of discretion for the district court to deny an evidentiary hearing to determine M.L.B.’s best interests.

Appellant also argues that the court abused its discretion in granting respondent’s request for attorney fees.  District courts have broad discretion to grant attorney fees when one party “unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1 (2000).  We review district court awards of attorney fees under an abuse-of-discretion standard.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  A review of the record indicates that the award of attorney fees was proper.  Although the district court did not include any specific findings relating to the award of attorney fees, it noted that appellant and M.L.B. attempted to manufacture discord in respondent’s home to effect a change in custody and that this artificial discord served to protract the litigation.