This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Brian L. Oja, petitioner,
Kari A. Oja,
Affirmed in part, Reversed in part, and Remanded
Dissenting, Poritsky, Judge*
Washington County District Court
File No. F8953079
Mark H. Gardner, 328 Bremer Bank Building, 8800 West Highway 7, St. Louis Park, MN 55426 (for respondent)
Joan H. Lucas, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Hudson, Judge, and Poritsky, Judge.
U N P U B L I S H E D O P I N I O N
Appellant-mother sought to modify joint physical and legal custody of the parties’ two children following respondent-father’s announcement that he planned to move his residence to Wisconsin. The district court granted respondent permission to move his residence and denied appellant’s motion without an evidentiary hearing. Appellant contends that the district court (1) improperly determined that she failed to establish a prima facie case to modify custody and erred by denying her motion without holding an evidentiary hearing; (2) erred by denying her motion and granting respondent’s motion without addressing the children’s best interests; and (3) exceeded its authority in appointing a parenting-time expeditor to address the parties’ disputes regarding custody. We affirm the district court’s rulings on the parties’ motions but reverse and remand the court’s appointment of the parenting-time expeditor.
Appellant Kari Oja and respondent Brian Oja were married in 1987. Their marriage was dissolved in 1995. At the time of the dissolution, the couple’s two daughters were ages two and three. The parties were awarded joint legal and physical custody. The original custody order provided that respondent would have parenting time with the girls in the daytime, and appellant would be with them in the evening. When respondent’s shift schedule changed in 1998, he brought a motion to change the schedule. The schedule was then modified to grant respondent parenting time every Thursday and every other weekend.
In February or March of 2002, respondent informed appellant that he intended to move to Hammond, Wisconsin. Appellant opposed the move. In April 2002, appellant moved for a change in custody, requesting temporary legal and physical custody and temporary parenting time for respondent during every other weekend while an evidentiary hearing was conducted. In her affidavit, appellant contended that respondent (1) did not provide for the mental or physical needs of the children; (2) subjected them to dangerous situations; and (3) refused to cooperate in joint parenting time.
Respondent opposed appellant’s motion and requested the court’s permission to transfer the children to Hammond every Thursday and every other weekend. To support his request, respondent stated that because Hammond was a “bedroom community” to the Twin Cities (1) the parties could maintain the current schooling and parenting time arrangement; and (2) appellant would not have to provide additional transportation to and from his home because the parties could meet at a halfway point.
In support of her motion for a change in custody, appellant alleged that: (1) respondent’s new wife had “placed the children in harmful situations”; (2) respondent had failed to provide physical care by refusing to administer a prescription medication to the oldest child and by refusing to purchase special bedding for the youngest child, who suffered from allergies; (3) respondent refused to give her a correct insurance card, telephone numbers, and addresses for work and his new home; (4) respondent limited the girls’ phone time, did not relay messages to the girls from appellant, and did not allow the girls to participate in school activities; and (5) respondent failed to provide adequate transportation for the girls, resulting in tardiness at school.
By opposing affidavit, respondent asserted that he had given appellant all necessary information, that he properly handled his daughter’s bedwetting situation, and also purchased the necessary bedding. He further argued that he had changed his routine with the girls and was no longer late in getting them to school. In addition, he challenged appellant’s accusations concerning his new wife.
Based on the parties’ affidavits and supporting documents, the district court, in an order signed by the same judge who had presided over the parties’ dissolution and subsequent modification proceeding, granted respondent permission to move his residence to Hammond, Wisconsin, and denied appellant’s request to modify custody. The court determined that appellant would not have to drive any farther than she does now to facilitate respondent’s parenting time. The court also ordered respondent to ensure that the children were on time for school and that they attend all school-related activities during his parenting time. In addition, the court appointed a parenting-time expeditor to assist the parties with issues that they could not resolve on their own.
D E C I S I O N
District courts have broad discretion in custody determinations. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). This court finds abuse of that discretion if the district court’s findings are unsupported by the evidence or if the district court improperly applied the law to the findings. Id. This court will sustain the district court’s findings unless they are clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). “[B]ut we need not defer to the trial court in reviewing questions of law.” Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). Determining the proper statutory standard to apply presents a question of law, which we review de novo. Dabrowski v. Dabrowski, 477 N.W.2d 761, 764 (Minn. App. 1991).
Appellant argues that in denying an evidentiary hearing for custody modification, the district court failed to apply the proper standard and disregarded the endangerment to the children. To determine whether the moving party has established a prima facie case for custody modification, the district court must accept the facts in the moving party’s affidavit as true. Lilleboe v. Lilleboe, 453 N.W.2d 721, 723-24 (Minn. App. 1990). But if the moving party’s affidavit “does not allege facts that, if true, would provide sufficient grounds for modification, the court need not grant an evidentiary hearing.” In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002).
The party seeking custody modification must make a prima facie case justifying the modification to obtain an evidentiary hearing on the issue. A prima facie case justifying custody modification has four elements: (1) a change in circumstances of the child or the parties since the last custody order; (2) the modification serves the best interests of the child; (3) the present environment endangers the child; and (4) the advantages of modification outweigh the harm caused by the change in custody. Minn. Stat. § 518.18 (d) (2002); In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002) (stating that burden is on the moving party to establish the factors).
Under the custody-modification statute, a district court determines whether to modify a prior joint-custody order using an endangerment standard by applying the elements above unless the parties agree in writing to a different standard, or the “party seeking the modification is asking the court for permission to move the residence of the child to another state.” Minn. Stat. § 518.18 (e) (2002) (emphasis added). While this standard includes a best-interests analysis, the party moving for custody modification under section 518.18 (d) must make a threshold prima facie showing of endangerment arising from the child’s present custodial placement. Silbaugh, 543 N.W.2d at 642 (noting the legislature’s preference for closure on custody matters, except where changed circumstances endanger the child’s physical or emotional health); Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (requiring “a significant degree of danger” for custody modification).
Appellant argues that changes have occurred since the current joint-custody order was set and that these changes endanger the children. One of these changes is respondent’s proposed move to Hammond, Wisconsin. Appellant argues that respondent has failed to provide adequate transportation to and from his house when the parties lived closer and that respondent’s move, which would make the distance between their homes 40 miles, would exacerbate this problem. But the change in circumstances must be significant for a custody modification and must have occurred since the original custody order. Weber, 653 N.W.2d at 809. Moreover, the change in circumstances must significantly endanger the child’s physical or emotional health or development. Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981).
Here, the parties’ divorce decree requires that either party who wishes to remove the children from Minnesota must have either the written consent of the other party or an order of the court. In compliance with the judgment, respondent requested the district court’s permission to remove the children to Hammond, Wisconsin. Respondent’s move would still allow him to maintain parenting time with his daughters on Thursdays after school and every other weekend. Because respondent’s move to Hammond, Wisconsin, does not interfere with the present custody order, we cannot say the district court erred in determining that the move does not constitute a significant change in circumstances. Furthermore, in granting respondent permission to move, the court stipulated that the parties would equally divide transportation so that appellant would not have to drive any farther than she does under the present order. We thus conclude that respondent’s move did not represent a significant change and that the district court properly addressed problems that may arise from the move.
Appellant argues that in addition to respondent’s proposed move, other changes have occurred since the original custody order. She argues that her daughters have gotten older and now have changed medical and educational needs that respondent does not meet. Again, the moving party must show that a significant change in circumstances endangers a child’s physical or emotional health or development. Id. We therefore address appellant’s arguments below in our discussion of the endangerment element.
Appellant argues that the district court abused its discretion by not addressing the best-interests factors. We disagree. After reviewing the facts in appellant’s affidavit and taking the facts as true, the district court denied an evidentiary hearing and concluded that appellant failed to make a prima facie showing for custody modification. The district court was therefore not required to make findings on all best-interests factors. Id. Thus, we conclude the court did not abuse its discretion.
The parties’ affidavits show a substantial unwillingness to work together. But this lack of communication and cooperation alone is insufficient for a prima facie case supporting modification of joint custody. The moving party must show endangerment to the children as a result of this lack of communication. Andros v. Andros, 396 N.W.2d 917, 922 (Minn. App. 1986) (concluding that termination of joint legal custody supported by evidence that parents’ inability to agree endangered children’s emotional health); Anderson v. Anderson, 360 N.W.2d 644, 646 (Minn. App. 1985) (affirming termination of joint physical and legal custody where continued exposure to parents’ disagreement endangered child’s health and development).
Here, appellant accused respondent of endangering their oldest child by taking her off of an antidepressant that was prescribed by a family doctor when appellant brought her to the doctor for bedwetting. But in response, respondent’s affidavit explains that he took this child off the antidepressant at the advice of a urologist who told respondent that he did not advise the use of antidepressants in younger children because of the possible side effects. Moreover, the 1998 amended custody order stipulates that respondent is to choose the children’s physician. Thus, we cannot say the district court erred in finding that respondent’s actions did not constitute endangerment.
Appellant also alleges that when respondent took the child off the antidepressant the child’s bedwetting resumed, and the child’s school performance suffered. Indications of endangerment to a child’s physical and emotional health can include behavioral problems and poor school performance. Kimmel v. Kimmel, 392 N.W. 2d 904, 908 (Minn. App. 1986), review denied (Minn. Oct. 29, 1986). But there must be a causal nexus between these indications and the existing custody situation. For example, in Kimmel, a school psychologist stated that the parties’ child was having problems in school because of his stepfather’s abuse. Id. at 906. Here,appellant failed to establish that the older child’s pre-existing problems involving bedwetting and poor school performance rose to the level of significant endangerment. Moreover, appellant failed to establish that the child’s problems were a result of respondent’s actions.
Appellant states that respondent has not purchased the special sheets and pillowcases the doctor recommended to help alleviate their younger daughter’s allergies. But respondent states that the required bedding is fully installed at his current home. And in response to appellant’s accusation that respondent’s new wife once sent the younger child to bed without supper, contrary to a doctor’s recommendation that the child have frequent meals because she is hypoglycemic, respondent denies the occurrence and further explains that when he called the child’s doctor he was told the child did not have hypoglycemia.
Appellant makes a number of additional accusations regarding the danger posed by respondent’s new wife, including that she once threatened suicide in front of the children before marrying their father; that she once slept in the car, leaving the girls in the home alone; and that the girls distrust her. A district court may properly deny an evidentiary hearing where the affidavit submitted in support of a modification of custody “was devoid of allegations supported by any specific, credible evidence.” Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987). “Importantly, in order to establish danger to a child’s welfare, a parent’s conduct must be shown to result in an actual adverse effect on the child.” Weber, 653 N.W.2d at 811. Here, none of appellant’s allegations regarding respondent’s new wife are supported by firsthand knowledge. Moreover, the district court did not err in determining that none of the allegations, even in combination with the parties’ lack of communication, rose to the level of significant danger required to satisfy the endangerment standard.
D. Balance of Harm
To obtain an evidentiary hearing for child-custody modification, the moving party must show that the advantage of modifying custody outweighs the harm likely to be caused by the change. Id. at 811. “Minnesota law presumes that stability in custody is in a child’s best interests.” Id. Here, the district court, in an order from the same judge who had presided over the parties’ dissolution, found that (1) respondent’s move to Hammond, Wisconsin, did not interfere with the present custody order; and (2) appellant’s affidavit failed to establish endangerment to the children as a result of respondent’s exercise of joint legal and physical custody. These findings are supported by the evidence and do not constitute an abuse of discretion.
Appellant argues that the district court erred in directing the parties to submit nonparenting-time issues to a parenting-time expeditor. A parenting-time expeditor is a court appointed neutral “authorized to use a mediation-arbitration process to resolve parenting time disputes.” Minn. Stat. § 518.1751, subd. 1b(c) (2002). The statute defines a parenting-time dispute as “a disagreement among parties about parenting time including a dispute about an anticipated denial of future scheduled parenting time.” Minn. Stat. § 518.1751, subd. 1b(b) (2002). Here, the district court found that the parties have had some difficulty in cooperating with the children’s medical needs, transportation, and participation of the children in school and extracurricular activities. The court appointed a parenting-time expeditor to aid the parties in resolving conflicts on these issues. While we commend the court for attempting to address the parties’ need to overcome dysfunction, we agree with appellant that some of these issues exceed a parenting-time expeditor’s authority. Accordingly, we reverse the district court’s appointment of a parenting-time expeditor and remand to the district court to determine an appropriate means for the parties to resolve conflicts that may arise in addition to parenting-time disputes. Finally, because the district court failed to provide any findings or explanation for denying appellant’s request that a guardian ad litem be appointed, we request that on remand the district court address this issue.
Affirmed in part, reversed in part, and remanded.
I respectfully dissent.
I concur with the majority opinion insofar as it reverses the district court’s order appointing a parenting-time expeditor and remands the matter for consideration of an appropriate means for the parties to resolve their conflicts. I also concur with the majority’s direction to the district court to provide findings for denying the mother’s request for a guardian ad litem. Finally, I concur with the majority opinion insofar as it affirms the district court’s decision allowing the children to spend the father’s parenting time with him in Hammond, Wisconsin. But because I conclude that the mother has made the necessary prima facie showing on her motion for a change of custody, I dissent from the majority’s decision affirming the trial court’s denial of the mother’s motion without an evidentiary hearing.
The question of whether to grant an evidentiary hearing rests in the discretion of the trial court. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). In determining whether to grant a hearing: (1) the trial court is to assume that the statements of the moving party are true; (2) the court may consider the responses of the opposing party to the extent those responses explain or elaborate on the statements of the moving party; but (3) to the extent the opposing party denies those statements, the court is to disregard them and assume that the version of the moving party is true. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).
I agree with the majority that a party seeking modification must establish the following four elements of a prima facie case: (1) there was been a change in circumstances of the child or the parties since the last custody order; (2) the modification would serve the best interests of the child; (3) the present environment endangers the child; and (4) the harm likely to be caused by a change in custody is outweighed by the advantages of modification. Minn. Stat. § 518.18 (d) (2002); In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002) (stating that the burden is on the moving party to establish the elements). It is my conclusion that the mother has made the necessary showing with respect to all four elements.
I start with the fact that the parties cannot communicate and cannot work together on matters involving the children. The majority correctly states that the parties show a substantial unwillingness to work together. The majority describes their conduct as showing a lack of communication and cooperation. But contrary to the majority, I conclude that the lack of cooperation and communication has resulted in actual adverse effects on the older child, B.A.O.
The parties agree that B.A.O. has a bed-wetting problem. The mother says that the problem prevents the child from sleeping through the night. The parties agree that the mother took the child to the family doctor, who prescribed a medication. The mother says that as a result of the medication, B.A.O. stopped wetting the bed and began to sleep through the night. Also, her performance in school improved. The parties agree that the father, without telling the mother, took B.A.O. to a urologist, who said the child should not be on the medication because of possible side effects. The mother states that when the father took B.A.O. off the medication, the following adverse effects occurred: The child’s bed-wetting problem returned, she had trouble sleeping through the night, and her performance in school suffered.
The manner in which the parties handled B.A.O.’s bed-wetting problem, specifically use of a bed alarm, epitomizes their lack of cooperation on a matter involving B.A.O.’s physical and emotional development. The parties agree that the urologist advised getting a bed alarm. The father bought a bed alarm, but the mother says he won’t allow the child to bring it to the mother’s house. The father takes the position that he doesn’t have to let the alarm out of his house, and faults the mother for not buying an alarm of her own. Regardless of which party is right, the parties are batting the bed-alarm issue back and forth, and the child, who is 12 years old, still has a bed-wetting problem.
The mother makes a further showing that B.A.O has a learning disability. The mother states that after the family doctor prescribed the medication for bed-wetting, which was a low-dose antidepressant, B.A.O’s performance in school, specifically her reading ability, improved markedly. The mother states that the father is opposed to treating the child with an antidepressant, because he says that the child is not depressed. As I have noted, when the father took B.A.O. off the medication, her school performance was adversely affected.
The father does not deny the mother’s claim that he is opposed to treating B.A.O. with the anti-depressant. What he does say in response to the mother’s claim is, “I have not heard any new[s] from any teachers about [B.A.O.’s] alleged brief jump from the 42nd to the 74th percentile. I go to all her parent-teacher conferences, I review her report cards. I keep in touch with her special-ed teacher.” He then faults the mother for failing to keep him informed about the “short-term ripple” in B.A.O.’s performance.
The mother states that the younger child, P.A.O., was diagnosed as hypoglycemic in December 2001. According to the mother, the child needs to eat every few hours to keep her blood-sugar levels up. The mother informed the father of the condition. The father says he called the child’s doctor and was told that the child was tested for hypoglycemia, but that she never had it. On this point, at least, the parents did communicate: The father says that he confronted the mother and told her he was informed that the child did not have hypoglycemia, but that the mother said she was right and the father was wrong. Regardless of which party is right on this issue, the parties cannot agree on whether the child has a condition that might need a special diet.
In assessing whether or not the mother has met her burden, it is well to bear in mind that to establish a prima facie case, a party need not make a compelling showing or even one by a preponderance of the evidence; “[a] prima facie case simply means one that prevails in the absence of evidence invalidating it.” Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn. 2000).
I conclude that the mother has made a prima facie showing of all four of the elements required by Weber. Weber, 653 N.W.2d at 809. (1) There has been a significant change since the custody modification in 1998. The parties’ children are now older and have different medical and educational needs. B.A.O., now 12 years old, has as bed-wetting problem and has been evaluated for special services due to her learning disability. In 2001, the younger child, P.A.O., was diagnosed with hypoglycemia. In reaching the conclusion that there has been a significant change since the last custody order, however, I agree with the majority that the father’s move to Hammond, Wisconsin, does not represent any part of a significant change, because the parties will still be able to maintain the existing parenting schedule.
(2) The mother has made a showing that a custody modification from joint custody to sole custody would serve the best interests of the children because having one parent make decisions would eliminate the dual approaches and disagreements over how medical situations are handled.
(3) As to the element of endangerment, the mother has made a showing that although the parties agree that B.A.O. has a bed-wetting problem, they cannot agree on the proper treatment of the problem; and as a result, the child has suffered the adverse physical and emotional effect of being a 12-year-old with a bed-wetting problem. Moreover, the parties cannot agree on whether B.A.O. should continue to receive anti-depressant medication to aid her learning disability; and as a result, the child’s school performance has been adversely affected.
(4) As long as the parenting-time arrangement of the parties is not changed, I see no harm to the children if the mother were to get sole custody. The advantage of having one parent make decisions about the children’s medical and other matters outweighs any harm that would be caused by a change in custody.
Finally, I point out that the district court, the majority opinion of this court, and I all agree on one matter: The parties’ present arrangement of joint custody will not work without outside help. My views are set out in this dissent. The district court, noting that “[t]he parties have had some difficulty in cooperating with the children’s medical needs,” appointed a parenting-time expeditor to help “in the event of an unresolved conflict between the parties with regard to the minor children, specifically including * * * medical issues.” The majority commends the district court (as do I) for recognizing the parties’ need to overcome dysfunction and directs the district court to determine an appropriate means for the parties to resolve conflicts that may arise in addition to parenting disputes. All of this, I submit, suggests that a change in the current custody arrangement is needed.
I conclude that the mother has made the necessary prima facie showing. I would reverse the trial court’s denial of the mother’s motion for a change in custody and would remand the case for an evidentiary hearing on that motion.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
The following footnote is from the dissenting opinion.
 The mother does not claim that the parties’ lack of cooperation concerning P.A.O.’s hypoglycemia has adversely affected the child, and the majority correctly notes that Weber requires there be “an actual adverse effect on the child” before a party is entitled to a hearing on a motion to change custody. Weber, 653 N.W.2d at 811. But I note that the language of Minn. Stat. 518.18, does not require a showing that the present environment have an actual adverse effect on the child. The statute reads, “the child’s present environment endangers the child’s physical or emotional health;” and the word endanger means “to expose to danger or harm.” Minn. Stat. § 518.18(d)(iv) (emphasis added); American Heritage College Dictionary 453 (3d ed. 2000).