This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In Re the Marriage of:

Ronald Scott Kilpela, petitioner,





Andrea Jean Kilpela,



Filed April 22, 2003

Reversed and remanded

Halbrooks, Judge



St. Louis County District Court

File No. F296101306


Bruce R. Williams, 409 Pierce Street, P.O. Box 705, Eveleth, MN 55734 (for respondent)


Louis J. Cianni, Cianni Law Office, 101 West Lake Street, P.O. Box 586, Chisholm, MN 55719 (for appellant)



            Considered and decided by Harten, 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 Andrea Kilpela challenges the trial court’s order denying her motion to modify the court’s 1996 child-custody order.  She challenges the court’s determinations that there had not been a change in circumstances and that K.K. was not endangered in her current environment.  Appellant also argues that the court abused its discretion in considering facts that only came to the court’s attention because respondent delayed the proceedings and that the trial court failed to set forth its findings with sufficient particularity.  Because we conclude that the trial court abused its discretion in its consideration of whether there was a change of circumstances and whether K.K. was endangered in her current environment, we reverse and remand.


            K.K. was born to appellant Andrea Kilpela and respondent Ronald Kilpela on April 14, 1994.  The parties’ marriage was dissolved pursuant to a marital-termination agreement on August 8, 1998.  In accordance with the marital-termination agreement, the trial court awarded the parties joint legal custody of K.K. and awarded respondent sole physical custody.  Both parties reported being subjected to domestic abuse during the marriage, and appellant alleged that respondent abused one of her children from a previous marriage. 

            K.K. has had psychological and behavioral problems.  She has been in therapy with Barbara Olmsted Thorne, M.A., since approximately March 2000.  In the course of her treatment of K.K., Thorne performed a psychological evaluation of her.  Thorne diagnosed K.K. with extreme oppositional-defiant disorder and attention-deficit-hyperactivity disorder.  K.K has been placed on numerous medications to try to help her with her behavioral problems.

            Because of K.K.’s psychological and behavioral problems, she has had trouble in school.  She attended Franklin Elementary School in Eveleth from August 1999 until March 2000.  On numerous occasions, respondent was asked to pick K.K. up from school because of her behavior.  Respondent was told that K.K.’s behavior was endangering other students and that she was talking graphically about violence.  In the fall of 2000, respondent transferred K.K. to Cotton Elementary School.  Again, K.K was violent with other children, and parents complained about her behavior.  K.K. was transferred to Bray Elementary School in Biwabik, where she finished the 2000-01 school year.  K.K. did well at Bray, where she received one-on-one attention.  At the time of the evidentiary hearing, she was attending and doing well at Cotton Elementary School, with much improved behavior.

            There were two incidents of alleged improper sexual conduct involving K.K.  In April 2000, appellant contacted respondent and reported that some of the people in a band with respondent had inappropriately touched K.K.  Although respondent was present when the misconduct was alleged to have occurred and believed that there was no improper conduct, because of the allegations, respondent took K.K. to Rachel Scott, M.D., for a medical examination.  The allegation was also investigated by social services.  Neither Dr. Scott nor social services found evidence of  sexual conduct.

            The second incident involved a statement by K.K. to respondent that her daycare provider had touched her inappropriately.  In response, respondent took K.K. to the emergency room for a medical examination and notified the police and social services.  No charges were ultimately filed.

            K.K. has also exhibited inappropriate sexual behavior.  Debra Hunt, appellant’s stepfather’s girlfriend, reported that K.K. took Hunt’s finger in her mouth and sucked it seductively.  Another incident was reported where K.K. was at a doctor’s office and wrapped her legs around an office chair in a sexual manner.

A.G., appellant’s daughter from a previous marriage and K.K.’s half-sister, stayed with respondent on occasional weekends in 1999 and 2000 in order to baby-sit K.K.  A.G. was then 15 or 16 years old.  A.G. testified that, while at respondent’s house, she had several parties with other underage individuals involving alcohol and drugs.  She stated that respondent supplied the alcohol and that K.K. was present on those occasions approximately 50-75% of the time.  Pictures taken at the parties by A.G. and her friends showed the alcoholic beverages at respondent’s house, but respondent denied providing any alcohol for the parties.

            In November 2000, appellant moved to modify the court’s 1996 child-custody order.  The trial court found that appellant had set forth a prima facie case for modification of the custody order under Minn. Stat. § 518.18 (2002) and ordered an evidentiary hearing.  The trial court also ordered St. Louis County to perform a full custody evaluation.  Relying largely on respondent’s January 25, 2002 psychological evaluation, social worker Robert Jokela stated that it would be in K.K.’s best interest to be in the sole physical and legal custody of appellant.  Jokela also testified that K.K. was endangered in her current environment.

            The trial court denied appellant’s motion to modify the custody order.  The trial court found that Jokela’s opinion as to K.K.’s endangerment was significantly based on Dr. Van Dusen’s psychological evaluation of respondent.  Because the same information was known at the time of the judgment and original custody determination, the court indicated that it could not consider the respondent’s diagnosis as a significant factor for determining whether or not there had been a change of circumstances leading to K.K.’s endangerment.  The court concluded that any harm to K.K. could be remedied by imposing conditions on respondent and ordered respondent to attend parenting classes, undergo a psychological evaluation to address his needs for further therapy or medication, prohibit all underage consumption of alcohol at his house, refrain from his own use of alcohol or drugs (unless prescribed), and advise appellant of any changes in K.K.’s medication, medical providers, or school placements.  Appellant’s motion for amended findings of fact and conclusions of law was denied by the trial court.  This appeal follows.


1.         Custody Modification

Appellant argues that the trial court abused its discretion in denying her motion for a modification of the court’s child-custody order.  This court will not reverse a trial court’s custody-modification ruling absent an abuse of discretion.  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  We review the trial court record in the light most favorable to the trial court’s findings.  Id.    

            Under Minnesota law, a trial court shall not modify a child-custody order unless it finds, on the basis of facts that have arisen since the child-custody order or that were unknown at the time the order was entered,

that 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.  In applying these standards the court shall retain the custody arrangement * * * that was established by the prior order unless:


            * * * *


            (iv) 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) (2002).  The “change in circumstances must be significant and must have occurred since the original custody order.”  Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997) (citation omitted).  There must have been a real change in circumstances and not just a continuation of ongoing problems.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).  Whether there has been a change in circumstances is “determined on a case-by-case basis.”  Sharp, 614 N.W.2d at 263 (quotation omitted).  Additionally, for a court to find that a child is endangered, there must be a “significant degree of danger.”  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).

The record here shows that respondent has a history of serious psychological issues.  At age 20 he was diagnosed with a borderline personality disorder and has had other psychological problems, including depression.  He was hospitalized for suicidal urges in 1993, 1995, and 1996.  Respondent was prescribed antidepressant medication, which he took from 1993 to 1998, resuming again in December 2000.  Kerry Van Dusen, Psy.D., conducted a psychological evaluation of respondent in January 2002, and concluded that respondent still suffers from a borderline personality disorder.  Dr. Van Dusen recommended that respondent (1) enter an intensive program for persons with personality disorders; (2) receive anger-management therapy if he has any recent history of violent behavior; (3) continue his medication to control his depression, anger, and mood; and (4) take parenting classes.  At trial in May 2002, respondent testified that he was not in therapy and was not taking any medications.

            The trial court held that

[r]espondent has failed to establish that a change has occurred in the circumstances of the child and the parties that makes a modification of custody necessary to serve the best interests of [K.K.].  Further, the child’s present environment does not endanger the child, as contemplated by Minn. Stat. 518.18 (d).


            In a memorandum attached to the order, the trial court explained its rationale for denying appellant’s motion.  The court explained:

Although [respondent] exercised very poor judgment involving himself with minors in the use of alcohol and possible controlled substances, and by doing so placed the minor child in “harms way”, the Court cannot find that these activities are incurable.  Therefore if [respondent] complies with the modifications as contained in the Court’s order the child’s present environment will not and should not pose a danger under the circumstances.

This is contrary to the recommendation of St. Louis County in its child custody evaluation.  As set forth in the Findings of Fact, however, the major basis of their recommendation is the psychological evaluation of Kerry Van Dusen.  Much, if not all, of the diagnosis was in existence at the time of the Judgment and Decree of 1996.  Therefore the Court is unable to determine that [respondent’s] circumstances with respect to his psychological situation and ability to capably raise the child which were in existence at the time of the Judgment and Decree result in a substantial change of circumstances. 


The court explained further:

            Thus, the Court has made the determination that although [respondent] has exercised poor judgment in his involvement with minors and unilateral changes in school and medical providers, the Court cannot determine that this was done with the intent to endanger the minor child.  The evidence in this case does not support a finding that although [respondent] may have, as previously indicated, placed the child in “harms way”, that it has resulted in a “serious” endangerment posing a “significant degree of danger” to the minor child.


            In deciding a motion to modify a child-custody order under Minn. Stat. § 518.18(d)(iv), the trial court must address whether the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development.  Here, the court made factual findings regarding the recommendations made in the custody evaluation, respondent’s conduct, and K.K.’s behavior.  But in applying the statutory language, the court did not make specific findings as to whether K.K. was endangered in her present environment.  Instead, the court found that K.K. was not endangered in her present environment so long as “[respondent] complies with the modifications as contained in the Court’s order.”  We conclude that the trial court abused its discretion by taking into account the conditions that it imposed on respondent in its consideration of whether K.K. is endangered in her present environment.  In fact, the trial court’s imposition of conditions on respondent to control his conduct, and the court’s stern warning to respondent to adhere to the conditions, suggest that respondent’s misconduct may have endangered K.K.

            We reverse and remand to the trial court to reconsider whether, in light of this decision, a modification of the original child-custody order is warranted under Minn. Stat. § 518.18(d)(iv).  The court should specifically consider whether respondent’s misconduct—underage drinking parties, failure to properly communicate regarding K.K.’s medication, schooling, and medical providers, and respondent’s failure to take his medication and follow the recommendations made in his psychological evaluation—creates an environment that endangers K.K.’s health or emotional development and whether the harm likely to be caused by a change in environment is outweighed by the advantage of a change to the child.  An additional custody evaluation based on endangerment may be in order, if the court so determines.  But we also note that the trial court is not required to adopt the recommendations of the custody evaluator.


2.         Delay of Proceedings


            Appellant argues that the trial court abused its discretion by relying on facts that only came to the court’s attention because respondent delayed the proceeding by not completing his psychological exam until six months after it was ordered by the court.  Appellant asserts that evidence showing that K.K. is now doing well in school and that she is responding well to her new medication would not have been before the court if respondent had not delayed the proceedings.  Appellant also asserts that if the trial court is allowed to rely on these facts, parties will be encouraged to delay proceedings in an effort to place additional favorable evidence before the court.

            The record shows that on June 11, 2001, the court ordered the parties to have psychological evaluations.  The court’s order stated that the parties were to contact the Human Development Center in Duluth within two weeks of the order to schedule an appointment.  The order did not state that the psychological exams had to be completed by a certain date.  Appellant’s psychological evaluation is dated September 20, 2001, and respondent’s psychological evaluation is dated January 25, 2002.  There is no evidence in the record that respondent violated the court’s order or that he intentionally delayed his psychological evaluation.  Therefore, the trial court was within its discretion in relying on the more recent evidence demonstrating K.K.’s improved behavior.

            Reversed and remanded.