This opinion will be unpublished and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:

Diana Lynn Yohn,

n/k/a Diana Lynn Plante, petitioner,





Alan Lynn Yohn,



Filed August 6, 2002

Reversed and remanded

Willis, Judge


Dakota County District Court

File No. FX9613636


John T. Burns, Jr., Sheridan & Burns, 115 Midway Bank Building, 14300 Nicollet Court, Burnsville, MN  55306 (for appellant)


M. Thomas Lenway, 201 West Travelers Trail, Suite 11, Burnsville, MN  55337 (for respondent)


            Considered and decided by Willis, Presiding Judge, Harten, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant-mother challenges the district court’s denial of her motion to modify the parties’ dissolution judgment to award sole legal and physical custody of the parties’ child to her.  Because we conclude that the district court abused its discretion by not granting her an evidentiary hearing, we reverse and remand.     


Appellant-mother Diana Lynn Plante and respondent-father Alan Lynn Yohn married in October 1992.  In October 1996, the district court ordered judgment dissolving the parties’ marriage and, among other things, awarding them joint legal and physical custody of their child, then age 3.    

In February 2001, based on the child’s report to her that Yohn had abused him, Plante brought the child to a family therapist for evaluation.  After interviewing the child, the therapist reported that he believed the child’s allegations of abuse, that the child’s “fears and worries about going back to his father’s home [were] accurate and genuinely self protective,” and that the child was in “serious danger of long term emotional and mental health impairment” if contact with Yohn continued.  Based on the therapist’s recommendation, Plante petitioned the district court for an order for protection (OFP) against Yohn, alleging that he had abused or threatened to abuse the child; she requested that the district court award sole physical custody of the child to her. 

The district court granted Plante an emergency OFP that awarded sole physical custody to her, pending a hearing.  Yohn then stipulated to an OFP granting sole physical custody of the child to Plante for one year, until April 2002.  Yohn did not admit, nor did the district court find, that he had abused the child.  But he agreed to no visitation during the term of the OFP and to seek counseling before attempting any further contact with the child.

Five months later, Plante moved the district court to modify the dissolution judgment to, among other things, grant sole legal and physical custody of the child to her permanently.  Without conducting an evidentiary hearing, the district court denied the motion on the ground that Yohn “did not admit, nor were there any findings that abuse had occurred.”  Plante requested that the district court grant her leave to move for reconsideration, and the district court denied that request.  This appeal follows.      


This court applies an abuse-of-discretion standard to a district court’s decision to deny a motion for modification of custody without holding an evidentiary hearing.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).  But when the district court “weighs statutory criteria in light of assumed or determined facts,” this court will correct erroneous applications of the law.   Ross v. Ross, 477 N.W.2d 753, 755 (Minn. App. 1991).  

Minn. Stat. § 518.18(d) (2000) provides that the district court shall not modify a prior custody order unless it finds that the child’s or parties’ circumstances have changed and that modification would serve the child’s best interests.  Changed circumstances include circumstances under which the child’s present environment endangers his emotional or physical health or under which the child has been integrated into a moving party’s family with the nonmoving party’s consent.  Id.  A change in circumstances means a significant change, determined on a case-by-case basis.  Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).  The moving party bears the burden to establish that a significant change of circumstances has occurred.  Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981).    

A party seeking a * * * modification of a custody order shall submit together with moving papers an affidavit setting forth facts supporting the requested  order or modification.


Minn. Stat. § 518.185 (2000); see also Abbott, 481 N.W.2d at 867.  The district court may deny a party’s motion to modify custody without holding an evidentiary hearing if the party fails to demonstrate a prima facie case for modification, that is, if the facts in the accompanying affidavit, assuming that they are true, do not show sufficient justification for modification.  Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992); Ross, 477 N.W.2d at 755. 

To demonstrate a prima facie case for modification, a party must show that a significant change in the child’s or parties’ circumstances has occurred since a prior order establishing custody, that modification serves the child’s best interests, and that the benefits of modifying custody outweigh any harm.  Minn. Stat. § 518.18(d); Downey v. Zwigart, 378 N.W.2d 639, 642 (Minn. App. 1985).  Because a district court must assume that the factual allegations in the affidavits are true, the facts are not disputed for the purposes of the motion.  Abbott, 481 N.W.2d at 867-68.  

Change in circumstances

Plante contends that a significant change in circumstances has occurred here because Yohn stipulated to an OFP that prohibits him from contacting the child for one year.  This court has previously found that the deterioration of a parent-child relationship, or a child’s stress and anxiety over that relationship, may be considered a sufficient change in circumstances to warrant an evidentiary hearing.  Id. at 867-68.  The change in circumstances here appears, then, to be those events that precipitated the OFP, that is, the child’s reports that Yohn abused him and that he fears that Yohn will retaliate against him for making those reports. 

This court strongly encourages evidentiary hearings when a moving party alleges that a custody order endangers a child’s physical or emotional well-being.  Ross, 477 N.W.2d at 756.  Signs of endangerment include allegations of physical or emotional abuse and fear of the custodial parent.  Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).  Plante’s affidavit alleges that, in February 2001, Yohn physically abused the child “by kicking him and hitting his head against the wall at least 3 times.”  She claims that the child fears that Yohn will retaliate against him for reporting the abuse.  And although Plante attached to her affidavit a letter from a family therapist that corroborates her allegations, those allegations do not need independent corroboration for Plante to establish a prima facie case. Geibe, 571 N.W.2d at 777. 

Minn. Stat. § 518.185 permits other parties to a custody-modification proceeding to file opposing affidavits, and Yohn filed one here.  When considering whether a moving party has established a prima facie case for custody modification, a district court must disregard directly contradictory allegations in an opposing affidavit.  Geibe, 571 N.W.2d at 779.  But a district court may “make note of statements [in an opposing] affidavit that explain the circumstances surrounding the accusations.”  Id. (citation omitted). 

Yohn contends in his affidavit that Plante “is intentionally making these false allegations of abuse solely to deprive me of my rights to contact with my son,” but he offers no explanation regarding why he believes that she would do that.  He maintains that he has not abused the child and that he stipulated to the OFP because his attorney “extremely poorly advised and represented” him.  He claims that the county social- services department investigated similar allegations against him on at least two other occasions, in 1997 and 2000, and found them to be without merit. 

But to the extent that the district court based its decision not to conduct an evidentiary hearing on the fact that previous allegations against Yohn of child abuse proved unfounded, that fact has no bearing on the allegations Plante makes here; the district court must assume that the factual allegations in Plante’s affidavit are true.   See Minn. Stat. § 518.18(d); Harkema v. Harkema, 474 N.W.2d 10, 13-14 (Minn. App. 1991) (holding that district court abused its discretion by denying evidentiary hearing when affidavit in support of motion to modify custody alleged emotional abuse that, if true, justified modification).  And assuming that her allegations are true, Plante established a prima facie case that the original custody order endangers the child’s physical and emotional well-being.  She has therefore demonstrated that a significant change in circumstances has occurred since the prior order establishing custody.

Child’s best interests   

            Once a moving party has shown that a significant change of circumstances has occurred, the moving party must show, preliminarily, that modification of child custody serves the child’s best interests.  Downey v. Zwigart, 378 N.W.2d 639, 642 (Minn. App. 1985); Minn. Stat. § 518.18(d).  Minn. Stat. § 518.17, subd. 1(a) (2000), provides the factors that a court must consider when determining whether modification of a custody order is in a child’s best interests.  For example, a court must consider the parties’ wishes regarding custody, the child’s reasonable preference, the intimacy of the relationship between the child and his parents, who is the child’s primary caretaker, the length of time that the child has lived in a stable environment, the desire to maintain continuity of care, and the mental and physical health of everyone involved.  See id.  Here, assuming that the allegations in Plante’s affidavit are true, nearly all relevant statutory factors weigh in favor of modification.  Plante has therefore established a prima facie case that modifying custody would be in the child’s best interests.   

Benefit versus harm

Finally, Plante must preliminarily show that the benefit to the child of modifying custody outweighs the harm.  See Minn. Stat. 518.18(d).  Assuming that no change in custody or visitation has occurred since the OFP expired in April 2002, the child has lived with Plante for more than a year; he has had no contact with Yohn during that time.  A custody modification would maintain the status quo, providing the child with a stable environment and continuity of care.  Plante has made a prima facie showing that the benefits of modifying custody outweigh any harm. 

It is clear from the district court’s order that its analysis of whether Plante established a prima facie case for modifying child custody focused on the OFP.  The analysis should have focused on the allegations in Plante’s affidavit and whether those allegations, if true, established a prima facie case.  See Lutzi, 485 N.W.2d at 316; Ross, 477 N.W.2d at 755.  Based on the allegations, Plante established a prima facie case for modifying child custody; she is entitled to an evidentiary hearing.  We take no position on what the outcome of that hearing should be.  Because Plante established her case based on child endangerment, we do not reach her arguments that Yohn consented to the child’s integration into Plante’s family or that the OFP alone established a prima facie case.                 

            Reversed and remanded.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.