This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In Re the Matter of: Michelle Marsh Richardson, petitioner,
Michael John Richardson,
Affirmed; motion to strike granted and motion for fees denied
Ramsey County District Court
File No. F6961342
Anthony J. Kerschbaum, 3121 South St. Croix Trail, Afton, MN 55001 (for respondent)
Mark A. Gray, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408-2656 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Minge, Judge, and Mulally, Judge.*
Appellant seeks reversal of the district court order requiring him to resort to mediation prior to seeking judicial determination of a request to change physical custody, denying his motions to change venue and to modify custody of two of his minor children, and requiring him to pay certain medical expenses, credit card debt, health insurance premiums, and attorney fees. We reverse the district court’s determination that the original decree of dissolution requires mediation of disputes over physical custody of the children. We affirm the determinations of the district court regarding change of physical custody. We grant appellant’s motion to strike new facts in respondent’s brief but deny appellant’s motion for attorney fees.
Appellant Michael John Richardson and respondent Michelle March Richardson were married in St. Paul on May 28, 1983. They had three sons who were born March 28, 1985, March 8, 1988, and February 21, 1992. Their marriage was dissolved in Ramsey County on November 6, 1997. The dissolution judgment divided the parties’ property, and the following conclusions of law relevant to this appeal were included in the dissolution judgment: (1) respondent was to have sole physical custody of the three children; (2) the parties were to have joint legal custody of the children; (3) during the school year, the children were to live with respondent and appellant was to have them every other weekend, one day during the week, and one additional day during each month; (4) the children were to live with appellant during the summer months, and respondent was to have them every other Thursday through Sunday, one day of the week for those weeks that she did not have weekend visitation, and one week during each of June, July, and August; (5) the parties agreed to cooperate and adjust the schedule based on their own schedules and the needs, schedules, and best interests of the children; and in the event of a disagreement, the foregoing schedule was to govern; and (6) disputes over the access schedule and requests for modification of the schedule were to be handled by submitting the matters to mediation.
At the time of the dissolution, the parties both lived in Ramsey County. Respondent moved to Washington County in 1997 prior to the entry of dissolution of the marriage. Appellant moved to Washington County within the next year.
On October 5, 2001, appellant filed a pro se motion requesting sole physical custody of all three children. On February 20, 2002, appellant filed an amended motion, seeking sole physical custody of only the two older children, a change in venue from Ramsey to Washington County, a custody evaluation, a change in the child support as a result of the custody change, and various adjustments in his parenting time rights. On March 1, 2001, respondent served a counter-motion requesting denial of appellant’s motion and payment of the following: one-half of unreimbursed medical expenses; one-half of health insurance premiums; the Discover card debt; and respondent’s attorney fees in connection with the motion.
The district court received affidavits and exhibits from the parties and made its decision on that record. Appellant’s supporting affidavit stated that the parties had informally agreed to expand his time under the visitation schedule. The children would spend Sunday and Wednesday nights with appellant during the school year. Appellant’s affidavit further stated that in February 2002 respondent decided to revert to the schedule in the original judgment. His affidavit also alleged: that the children were unhappy with this reversion back to the original terms; that they decided on their own to stay with appellant additional evenings; that the children lived with him 55% of the time; that he did a better job of helping the children with their homework; that when he gave respondent more control over their school responsibilities, their grades dropped and they began failing some of their classes; that he takes the children (sons) deer hunting and fears respondent will refuse to cooperate in allowing them to go hunting on her weekends. Appellant also brought up points of friction over selecting floating days and weeks of visitation and requested relief.
Respondent did not directly address all of the appellant’s allegations in either her brief or in her affidavit. However, she expressed a generalized concern that appellant was trying to avoid implementing the visitation terms of the judgment and was confusing and manipulating the children. Respondent alleged that she had been the “primary parent” since the children were born. She contended that she purchased their clothing, took them to doctor and dentist appointments, and registered and took them to their sporting activities. Respondent alleged that appellant failed to drive the children to their sporting activities when they were with him and that she had had to pick them up at appellant’s house to drive them to events. In addition, respondent expressed concern for the safety of the children because of appellant’s alleged abuse of alcohol and his driving record. She attached a report of numerous citations, including driving while intoxicated, careless driving, disorderly conduct, and illegal possession of a concealed weapon.
The motions were heard on March 6, 2002. Respondent’s counter-motions for reimbursement for insurance, health care, credit card debt, and attorney fees were served only five days prior to the hearing. At the hearing, appellant complained about the inadequate notice and violation of the rules and requested “a week or two” to respond to the counter-motion. The court granted appellant’s request, but appellant never filed any additional material.
On May 9, 2002, the district court denied appellant’s motion for change of venue, for change of physical custody, for a custody evaluation, for an evidentiary hearing, and for a change in support. The district court granted respondent’s motions and ordered appellant to pay respondent $244.81 for half of unreimbursed medical expenses, the Discover card debt, and $200 in attorney fees. In its findings of fact, the court indicated that appellant should have submitted his request for changes in access to the children to a mediator as stipulated in the original decree. The court also found that appellant had not made the prima facie showing necessary for an evidentiary hearing for a change in custody, that appellant did not believe he had an alcohol problem, and that appellant had numerous traffic convictions including three that were alcohol related. He also had a pending alcohol-related driving offense.
Appellant filed this appeal on June 13, 2002. Respondent filed her brief on September 3, 2002. In respondent’s brief, she stated there had been a change in the children’s living arrangements since the hearing in March of 2002 and that the children were spending more time with her than they did at the time of the hearing.
On September 5, 2002, appellant filed a motion with this court requesting that we strike respondent’s statement regarding the children’s then current living arrangements and award appellant $350 for attorney fees to bring his motion. This court issued an order deferring the decision on these issues to this panel to consider with the rest of the appeal.
The first issue we address is whether the district court abused its discretion by denying appellant’s request for a change in venue. In a family law case, this court reviews a district court’s denial of a motion for a change of venue under an abuse-of-discretion standard. Toughhill v. Toughhill, 609 N.W.2d 634, 642 (Minn. App. 2000). Minnesota law allows a court to change venue when “the convenience of witnesses and the ends of justice would be promoted by the change.” Minn. Stat. § 542.11(4) (2002).
Appellant argues a change of venue was appropriate because neither party had lived in Ramsey County for at least three years. Appellant argues Minnesota law requires that a district court be familiar with the child’s “present environment” when modifying custody. See Minn. Stat. § 518.18(d)(iv) (2002) (stating a custody order can be modified if the court determines the child is endangered in the child’s present environment); Hassing v. Lancaster, 570 N.W.2d 701, 703 (Minn. App. 1997) (stating that the district court must determine if the child is presently endangered when determining custody). Appellant contends that the only way the court can be familiar with the child’s present environment is to be in the same geographic area as the child.
It was not an abuse of discretion for the district court to deny the request for change of venue. A Ramsey County district court issued the original dissolution judgment including the original custody evaluation. Washington and Ramsey Counties share a boundary, and appellant did not argue it was inconvenient to come to Ramsey County for the hearing. Appellant’s argument that only a court in the same geographic area can be familiar with the child’s environment is misguided. There is no expectation that district court judges will be familiar with the homes, neighborhoods, or municipalities where children live. We affirm the court’s determination to deny a change of venue.
The next issue we address is whether the original dissolution judgment requires mediation of certain disputes. A district court’s findings will be sustained unless they are clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). This standard governs our review of the district court’s finding that the mediation requirement applied to the custody determination. After determining custody and imposing a highly detailed visitation arrangement, the district court provided that:
[s]hould the parties have a dispute regarding the access schedule or should either party request a modification of the schedule, the parties agree to resolve any such disputes between themselves by submitting such dispute to mediation. * * * The parties shall resort to Court to assist them in resolving any visitation disputes only after a sincere effort to mediate has been made and filed.
Although the district court found that appellant did not adhere to this requirement before filing and scheduling his motion, given its other findings, it is unclear how significant this mediation requirement was in the court’s decision.
The mediation provision applies to all of the adjustments and potential issues related to parenting time. Appellant’s requests regarding deer hunting, scheduling his extra day each month, and summer vacation scheduling are clearly subject to the mediation requirement. It appears from his brief that appellant concedes this. But, appellant presses the argument that the mediation clause should not apply to his request for sole physical custody. We agree. A request for sole physical custody is not a “dispute regarding the access schedule,” nor is it a request for “a modification of the schedule.” Appellant’s request is beyond the issues involving the scheduling of parenting time. We conclude that the May 9, 2002, order should be modified to exclude any requirement that the parties must pursue mediation prior to requesting a change in custody. However, the district court did not state that it denied the change in custody request based on the mediation clause. We next turn to the issue of change of custody.
Appellate review of a custody determination is limited to whether the district 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, 374 N.W.2d at 710. A district court’s findings will be sustained unless they are clearly erroneous. Pikula, 374 N.W.2d at 710. The district court’s findings are clearly erroneous
if the reviewing court is left with the definite and firm conviction that a mistake has been made. When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court’s findings.
Vangness v. Vangness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotations omitted).
A custody order shall not be modified unless, after reviewing the facts, the court finds the movant has established that a change has occurred in the circumstances of the child or the parties since the implementation of the custody order. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (citing Peterson v. Peterson, 308 Minn. 297, 308, 242 N.W.2d 88, 95 (1976)). The modification must be “necessary to serve the best interests of the child.” Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997) (quoting Minn. Stat. § 518.18(d) (1996)). The moving party must show that 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.
The moving party must clear two hurdles to be successful in a motion for change of custody. First, in an affidavit, the movant must establish a prima facie case by relating facts, which if true, would be sufficient to warrant a modification of custody. Geibe, 571 N.W.2d at 777. Second, at an evidentiary hearing, the movant must establish the truth of the facts asserted in the affidavit. Id. (citing Taflin v. Taflin, 366 N.W.2d 315, 320 (Minn. App. 1985)). When reviewing the movant’s affidavit, the court must accept the facts in the affidavit as true. Id. (citing Lilleboe v. Lilleboe, 453 N.W.2d 721, 723-24 (Minn. App. 1990)). Other parties can also submit affidavits opposing the motion. Id. In addition, the court can consider information from other sources. Id.
There are four elements necessary to establish a prima facie case for modification: (1) there is a change in the circumstances of either the child or the custodial parent; (2) a modification of the custody arrangement would serve the best interests of the child; (3) the present environment endangers the child’s physical or emotional health or development; and (4) the harm to the child as a result of the change in custody is outweighed by the advantages of the change. Geibe, 571 N.W.2d at 778 (citing Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992)).
Appellant does not specifically address the following three elements required to establish a prima facie case: whether there has been a change in the circumstances of the children or the parties, whether the children’s best interests are served by a change, or whether the advantages of a custody change outweigh any subsequent harm. Appellant apparently claims that because he contends the children are endangered and because the children want to live with him, an evidentiary hearing is required. Appellant only contends that the children are endangered. In arguing that the children are endangered, appellant relies on Ross v. Ross, 477 N.W.2d 753 (Minn. App. 1991).
Appellant has the burden of showing that his children are endangered in their present environment. Endangerment is an imprecise term. Ross, 477 N.W.2d at 756. Evidence sufficient to show endangerment can include that an older teenage child (1) has strong preferences to live with the non-custodial parent; (2) has relocated himself or herself to the non-custodial parent’s home; and (3) has evidence of distress while living with the custodial parent as shown by school problems. Id.
Here, appellant filed a motion with Ramsey County district court requesting a change in the custody of his two oldest sons, ages 17 and 14. In his affidavit, he asserts the following:
- The judgment awarded appellant midweek visitation, including one overnight stay. The parties themselves changed this schedule to include two overnight stays. When respondent tried to change back to the schedule in the decree, the children objected and refused on some occasions to return to respondent.
- Appellant helps the children with their homework. The children’s grades drop when respondent is responsible for helping them with homework, and they began to fail some of their classes.
- The children have communicated to appellant on many occasions their desire to live with him.
- The children live with appellant 55% of the time.
When presented with this affidavit, the district court was to assume the statements were true and examine whether the statements were sufficient to establish a prima facie case for modification of custody. Geibe, 571 N.W.2d at 778. Only if the statements were sufficient must appellant be granted an evidentiary hearing to establish the truth of the facts. Geibe, 571 N.W.2d at 777 (citing Taflin, 366 N.W.2d at 320).
Respondent also filed an affidavit. As held in Geibe, when the court was determining whether appellant had established a prima facie case, the court could consider the information in respondent’s affidavit, but the court had to disregard any directly contradictory statements. Id. at 777-79. The respondent’s affidavit alleged the following:
- Respondent is concerned about the safety of the children when they are in the care of appellant because of his abuse of alcohol. Respondent alleged appellant has
been charged with three driving under the influence of alcohol offenses, careless driving, possession of a concealed weapon, obstruction of legal process, disorderly conduct, two driving after revocation, five driving after suspension, and numerous other charges.
Respondent alleged that appellant was arrested and spent the night in jail for driving under the influence at a time when he was responsible for the children. Respondent admits there is no evidence that any of the children were present in the vehicle at the time of this offense.
- Respondent is the primary parent, responsible for doctor, dentist, and orthodontic appointments; purchases of clothing; registration for sporting activities; and transportation to activities.
- Appellant refuses to pay: fees for sporting activities; his share of medical expenses; for prescriptions when the children are in his care; and the Discover card bill he was charged with paying in the divorce decree.
After reviewing the affidavits and appellant’s alcohol-related driving offenses, the district court denied appellant’s requests for a modification of custody, a custody evaluation, and an evidentiary hearing.
Appellant argues that Ross supports granting appellant an evidentiary hearing. In Ross, this court reversed the trial court’s denial of an evidentiary hearing, holding that:
[a] critical factor in reaching our conclusion is the age of the child. The choice of an older teenage child is an overwhelming consideration in determining the child’s custody or in deciding whether he is endangered by preserving the custodial placement he opposes.
477 N.W.2d at 756.
Ross is not determinative in the present case. In Ross, the court received additional information concerning the child’s situation. 477 N.W2d at 754. The father presented affidavits reporting observations from a psychologist that the child was distressed by his mother’s anger. Id. The father in Ross also presented affidavits reporting that the child’s performance at school improved while the child was living with his father. Id. Here, the only evidence presented by appellant was his own affidavit stating the children’s wishes. We agree with appellant that the age of his oldest son makes his preference as to living arrangements very important. However, we note this does not necessarily extend to changing physical custody. Unlike the child in Ross, there is no evidence in this case that the oldest son is experiencing emotional problems, nor is there evidence that he is even the son with academic problems.
Appellant has a long, problematic record of traffic charges. The district court focused on the traffic charges, especially the four that are alcohol related. Although appellant does not deny the record, he argues the district court erred by determining that appellant denied or disbelieved that he had any problem with alcohol. Appellant states that there is no evidence in the record supporting the court’s determination, that there is no reference to either appellant’s or respondent’s affidavits for support of the determination, and that respondent provided no information showing alcohol had an impact on appellant’s life. In addition, appellant claims there was no evidence that his use of alcohol affected the children. Appellant challenges the use of a 1984 offense because of its age, and he challenges the use of the 2002 offense because he had not yet made a court appearance on that charge. Appellant argues the court erred because it never made any finding that any of the offenses were in the presence of the children or that his alcohol use had any effect on his life.
Appellant’s remarks regarding his traffic record are not persuasive. On the one hand, appellant neither admits nor denies that the record is serious or that it is an indication that he has a problem with alcohol use. On the other hand, he faults the district court for its conclusion that he does not believe he has a problem. Appellant cannot have it both ways. Either he agrees with the district court that he does not perceive a problem or he admits that he has a problem. Regardless, the district court would be justified in drawing an inference that this record undermines his claim that he could provide a better home environment for the children and that he should therefore have sole physical custody. Certainly the report of his recent night in jail after being arrested for driving at a high rate of speed while under the influence of alcohol did not help appellant persuade the district court. While the record is clear that none of the children were in the vehicle, the record does reflect that the children were spending the night in his home.
We agree with the district court that appellant did not present a prima facie case for a change in custody. While he alleges that the children want to live with him and that, to some extent, the children had started to live with him, under Ross and Weber those allegations alone are not enough. Weber, 653 N.W.2d at 809-10; Ross, 477 N.W.2d at 753. Appellant did not present evidence that the two older children will suffer if their preference for living with him is denied, nor did appellant present evidence that he would provide a better home for the children. Appellant did request a custody evaluation, but to be granted an evaluation, appellant must first present a prima facie case for a change in custody. Appellant’s affidavit is not sufficient. The district court was within its discretion in denying a hearing.
Appellant challenges the late claim by respondent at the district court that appellant should pay for certain credit card debt, health care, insurance, and attorney fees. Minnesota rules state that new issues raised in a motion by a responding party must be served on opposing counsel and filed with the court administrator at least ten days prior to the hearing. Minn. R. Gen. Pract. 303.03(a)(2). Respondent admits filing a response raising new issues only five days before the hearing. The district court recognized the lateness of the respondent’s counter-motion. During the hearing, appellant requested a “week or two” to respond to the counter-motion. The court agreed this was a reasonable request. Appellant argues the court should have given a specific time to reply to the counter-motion. The court did not give appellant a deadline for reply to the counter-motion. The court ruled without a response from appellant. Appellant argues this was error.
The district court has the “authority and discretion to allow the new issues to be heard” and to “take other appropriate action.” Minn. R. Gen. Pract. 303.03(b). Despite having asked for a “week or two” to reply to respondent’s counter-motion, appellant did not respond during the two-month period of time that followed his request. Based on Rule 303.03(b), we affirm the court’s exercise of its discretion to take appropriate action to grant respondent’s request for relief.
Finally, appellant challenges information respondent seeks to present to this court in her appellate brief. This information is the time the children were spending with the respondent when she filed her brief. Appellant argues that the information was not presented to the district court and is therefore not properly before this court. Absent extraordinary circumstances, we do not consider evidence outside the record before the district court. See Minn. R. Civ. App. P. 110.01 (defining record on appeal); Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (stating “[i]t is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered”); Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (stating the appellate court cannot base its decision on matters outside the record, and matters outside the record must be stricken).
Appellant contends that this court must strike the references in respondent’s brief to the children’s current living arrangements. We agree with appellant and order that this material should be stricken. But we note that this court’s decision on the custody modification is based on whether appellant established a prima facie case for modification of custody. Whether the children’s living arrangements have changed since the March 2002 hearing does not change this determination.
Appellant also requested an award of attorney fees for bringing the motion to strike. Appellant argues the award of attorney fees is not precluded under Minnesota law and thus should be awarded here. While attorney fees are not precluded in cases like the instant case, Minnesota law also states that for this court to award fees, the fees must be “necessary for a good faith assertion of a party’s rights” and “the party to whom they are awarded does not have the means to pay them.” Minn. Stat. § 518.14, subds. 1-2 (2002). Appellant argues neither, and therefore, this court will not award attorney fees.
Affirmed; motion to strike granted, motion for attorney fees denied.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 We acknowledge that the recently published In re Weber, 653 N.W.2d 804 (Minn. App. 2002) decision discusses the issues in the instant case and Ross v. Ross. In deciding the instant case, we conclude our decision is consistent with the Weber opinion.