This opinion will be unpublished and

may not be cited except as provided by

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







Brett J. Stewart, petitioner,





Connie J. Stewart,



Filed August 27, 2002

Affirmed in part and remanded.

Hudson, Judge


Washington County District Court

File No. F8993169


Denis E. Grande, Joanne H. Turner, Mackall, Crounse & Moore, PLC, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, Minnesota 55402 (for appellant)


R. Gordon Nesvig, Box 255, Cottage Grove, Minnesota 55016 (for respondent)


            Considered and decided by Anderson, Presiding Judge, Klaphake, Judge, and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

HUDSON, Judge      

In this visitation dispute, father argues that the district court erred by:  (a) granting mother’s motion to remove the parties’ minor children out of state without holding an evidentiary hearing; (b) failing to modify father’s visitation schedule to reflect its grant of mother’s motion to remove the children out of state; and (c) allowing removal without modifying father’s visitation improperly restricted father’s visitation without the findings required by Minn. Stat. § 518.175, subd. 5.  We affirm in part and remand.


Respondent Connie Stewart (mother) and appellant Brett Stewart (father) were married on May 15, 1993 and divorced on August 25, 2000.  They have two children, twin girls born on December 31, 1993.  The district court, in its original judgment and decree, awarded the parties joint legal custody, with sole physical custody awarded to mother and reasonable and liberal visitation to father.  Two days after the judgment and decree was filed, mother moved with the children to Gaylord, Minnesota. 

After posttrial motions by father, the court issued an order amending the judgment and decree to incorporate a revised visitation schedule consistent with the children’s change of residence to Gaylord.  Essentially, the district court eliminated father’s visitation during the week, as well as four unrestricted weeks during the year.  The district court, however, granted father additional visitation during the summer months.

            On October 22, 2001, mother moved the court for permission to relocate with the children to Alpena, Michigan.  Alpena is a town in the northeastern part of Michigan, roughly 75 miles southeast of the Straits of Mackinac and about 600 miles from the Twin Cities.  Mother stated that she wished to be closer to her family, in particular her father, who had been diagnosed with cancer.  She also stated that she could return to college in Alpena and obtain her degree, and that her parents would be able to help her with daycare while she was attending college one night a week. 

In her motion, mother also requested “[t]hat appropriate visitation times be established.”  In response, father moved for an order requiring a custody study and a change in physical custody of the minor children to him.  He made no request for amendment of the visitation provision of the judgment and decree. 

The district court heard arguments on the cross-motions on October 30, 2001.  Counsel for both parties presented arguments about the possible relocation, but neither party argued for amendment of the visitation schedule.

On November 16, 2001, the district court issued its order granting mother permission to move the children to Michigan, but did not address the issue of visitation.  This appeal followed.



“Appellate review of removal and custody modification cases is limited in nature” 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) (quotation and citation omitted).  Whether the district court applied the law correctly is a legal question, which this court reviews de novo.  In re A.R.M., 611 N.W.2d 43, 47 (Minn. App. 2000). 

Minn. Stat. § 518.175, subd. 3 (Supp. 2001) states:


The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree.  If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child’s residence to be moved to another state. 


In removal cases, there is an implicit statutory presumption favoring the custodial parent:  in other words, that the custodial parent’s request to move the child to another state should be granted when 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).  The presumption recognized in Auge extends to cover a situation where one party has sole physical custody but both parties share joint legal custody.  Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983).   

            In Silbaugh, 543 N.W.2d 639 (Minn. 1996), the supreme court extended the reasoning in Auge to require that a party opposing another parent’s removal to another jurisdiction must not only show that the change is not in the child’s best interests, but also that the move will “endanger the child’s health and well-being” or that the removal was intended to interfere with visitation.  Silbaugh, 543 N.W.2d at 641 (citations omitted).  Compare Auge, 334 N.W.2d at 399 (holding that “[m]otions by the custodial parent to permit removal to another state shall be granted unless the party opposing the motion establishes by a preponderance of the evidence that the move is not in the best interests of the child.”) (citation omitted) with Silbaugh, 543 N.W.2d at 641 (holding that “[t]o defeat [the Auge removal presumption] the party opposing removal must offer evidence which would establish that the removal is not in the best interests of the child and would endanger the child’s health and well-being.”) (citations omitted).

            The focus under the rationale of both Auge and Silbaugh remains the best interests of the child.  This concern reflects the primary aim of child custody law in Minnesota, which has always been to protect the child’s best interests.  See, e.g., Manthei v. Manthei, 268 N.W.2d 45 (Minn. 1978) (noting the paramount nature of the child’s best interests in visitation cases); Olson v. Olson, 534 N.W.2d 547 (Minn. 1995) (tracing the history of the paramount nature of the child’s best interests).

Unless a noncustodial parent can make a prima facie showing against removal, the court may grant permission to remove without a full evidentiary hearing.  Auge, 334 N.W.2d at 396.  A prima facie case is “[a] case which has proceeded upon sufficient proof to that stage where it will support [a] finding if evidence to the contrary is disregarded.”  Benson v. Benson, 346 N.W.2d 196, 198 (Minn. App. 1984) (quotation omitted).  This court “will not overturn the [district] court’s finding that appellant failed to establish a prima facie case unless the finding is clearly erroneous.”  Geiger v. Geiger, 470 N.W.2d 704, 708 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991) (quotations omitted).

Father claims that because he made a prima facie case against removal, the district court erred in allowing mother to move to Michigan with the children without an evidentiary hearing.  Father, however, never requested an evidentiary hearing at the district court level.  This court will generally not consider matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

Even if we were to consider this argument, however, the evidence presented by father does not establish a prima facie case against removal.  Father argues that mother’s personal desire to be near her family in Michigan does not take into account whether such a move is in the best interests of the children.  Indeed, father argues mother presented no evidence regarding how the move would improve the financial condition of the children or otherwise benefit them.  In addition, father maintains that if the move were allowed, it would disrupt his relationship with the children.  While we agree that mother’s evidence in support of removal is weak, we do not think she was required to show much given the implicit statutory presumption favoring a custodial parent’s request for removal.  Auge, 334 N.W.2d at 398-99.  Moreover, there is no evidence—and father does not argue—that the move would endanger the children’s health and well-being, a finding required under Silbaugh.  As the supreme court observed in Silbaugh, we are mindful of the “worry experienced by noncustodial parents who face the prospect that their children may move to another state and that their visitation arrangements may be significantly altered.”  Silbaugh, 543 N.W.2d at 641-42.  However, we also recognize, as the Auge court noted, that:

[t]he custodial parent, who bears the essential burden and responsibility for the children, is clearly entitled to the same option to seek a better life for herself and the children, particularly where the exercise of that option appears to be truly advantageous to their interests and provided that the parental interest can continue to be accommodated, even if by a different visitation arrangement than theretofore.


Auge, 334 N.W.2d at 398 (quotation omitted).  

Appellant relies on the case of Otava v. Otava, 374 N.W.2d 509, 512 (Minn. App. 1985) in which this court affirmed the district court’s finding that removal of a child to Finland with the custodial parent would not serve the child’s best interests.  But this court in Otava noted that the supreme court in Auge had specifically declined to decide the appropriate rule in cases of removal to a foreign country.  Id. at 511.  Father also raises the issue of the effect of frequent moves and the possibility of mother having a relationship with another man as detrimental effects on the children’s well-being.  However, this argument is speculative at best.  In fact, father also moved and remarried.  We therefore hold that the district court did not err in granting permission, without an evidentiary hearing, for mother to move the children to Michigan

            We caution that this holding does not mean that, in every case, the district court must grant the removal request of a custodial parent.  The guiding standard for removal should remain the best interests of the child, not merely the wishes of the custodial parent.  We note here that, while the record reflected mother’s strong desire to be near her family during her father’s illness, she should have presented more substantive evidence regarding the positive effect of her move on the children’s well-being.  In view of the presumption articulated in Auge, however, we are reluctant to interfere with the decision of the district court.


            Father also contends that the district court erred by granting mother’s request to remove the children to Michigan without modifying the visitation schedule.  Father failed to raise this issue at the district court level, and the district court did not rule on this issue.  Generally, this court will not address issues that the district court did not decide.  Thiele,425 N.W.2d at 582 .

However, an appellate court has an obligation to decide cases in accordance with existing law when there is nothing “novel or questionable” about the relevant law.  See Greenbush State Bank v. Stephens, 463 N.W.2d 303, 306 n.1 (Minn. App. 1990) (quotation omitted), review denied (Minn. Feb. 4, 1991).  The supreme court in Auge stated:

[W]hen removal is permitted, the court shall make such modifications of visitation as are reasonable and necessary to maintain a good relationship between the noncustodial parent and child.


Auge, 334 N.W.2d at 400 (emphasis added).  This was not done here.  Therefore we remand the visitation issue to the district court to fashion an alternative schedule that would best preserve the children’s relationship with both parents and that specifically takes into account the significant distance father must now drive in order to see his children.[1]  See, e.g., Geiger, 470 N.W.2d at 708 (noting that district court created alternative visitation schedule to accommodate children’s move to North Dakota); Gordon, 339 N.W.2d at 271-72 (holding that there was “no evidence * * * that satisfactory visitation cannot be worked out,” in approving children’s relocation to Illinois).


Finally, father argues that the district court’s order allowing the move to Michigan effectively restricted his parenting time under Minn. Stat. § 518.175, subd. 5 (Supp. 2001).[2]  Under this statute, a substantial alteration of parenting time that amounts to a “restriction” of such time requires findings that the existing arrangement “is likely to endanger the child’s physical or emotional health.”  Id.; Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn. App. 1992).  “Less substantial changes in parenting time are governed by the best interests standard.”  Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993) (citation omitted).  

Since we are remanding the visitation issue to the district court, we need not consider whether the existing visitation schedule constitutes a restriction of visitation.  However, we note that a modification of visitation required by the removal of the children to another state, has been held not to be a restriction of visitation, even though the total visitation time was reduced.  Danielson v. Danielson, 393 N.W.2d 405, 406-08 (Minn. App. 1986), see also Meyer v. Meyer, 346 N.W.2d 369, 372 (Minn. App. 1984) (stating that scheduled phone calls on a regular basis and extended summer and holiday times were a reasonable alternative to previous schedule of every other weekend visitation); but see Clark v. Clark, 346 N.W.2d 383, 385-86 (Minn. App. 1984) (stating that a gradual reduction of visitation from “reasonable and liberal visitation” to five and one-half weeks over a four‑year period after removal of child from Minnesota constituted restriction of visitation rights), review denied (Minn. June 12, 1984).  On remand, we direct the district court to fashion a reasonable visitation schedule that comports with the best interests of the children.

Affirmed in part and remanded.


[1] Plainly, mother’s move to Michigan necessitates a modification of the parties’ parenting schedule.  In fact, mother’s motion papers requested an appropriate visitation schedule, and, at oral argument before this court, mother’s counsel acknowledged that modification to the visitation schedule would be appropriate.


[2] Father used the term “visitation time,” which was incorporated in the prior Minnesota Statutes; the current version of the statute refers to “parenting time.”  See Minn. Stat. § 518.175, subd. 5.