This opinion will be unpublished and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

C0-03-51

 

 

In re the Marriage of:

 

Mark Steven Shinnick, petitioner,

Appellant,

 

vs.

 

Annette Marie Moris, f/k/a

Annette Marie Shinnick,

Respondent.

 

 

Filed July 8, 2003

Reversed and remanded

Robert H. Schumacher, Judge

 

Ramsey County District Court

File No. F597239

 

 

Thomas E. Lee, Law Office of Tom Lee, P.A., 2589 Hamline Avenue North, Suite B, Roseville, MN 55113 (for appellant)

 

Michael W. Bertelsen, Bell, Bertelsen & Bright, 300 Harbor Place, 500 West Highway 96, Shoreview, MN 55126 (for respondent)

 

 

Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.


UNPUBLISHED OPINION

ROBERT H. SCHUMACHER, Judge

On appeal from the denial of his motion to remove the parties' children from Minnesota, appellant-physical custodian Mark Shinnick argues the district court erred in not giving him the benefit of the presumption allowing custodial parents to remove from Minnesota children in their custody. He also argues respondent Annette Moris did not show that the children are endangered in his custody. The district court did not use the correct analysis when addressing whether to grant removal. Therefore we reverse and remand.

FACTS

The judgment dissolving the parties' marriage awarded Shinnick sole physical custody of the parties' two children. He lost his job because of a post-dissolution work-related disability and currently works part-time, earning $10 per hour. Shinnick's disability affects his ability to breathe, and a specialist recommended that Shinnick minimize his exposure to cold air and humidity. Both Shinnick's specialist and his physician opined that Shinnick's condition would improve if he moved to a warmer, less humid environment. Shinnick's health improves when visiting his childhood home in southern California but worsens when he returns to Minnesota.

Shinnick and the children visited California to see Shinnick's family and to investigate job prospects as well as schools for the children. While there, Shinnick received offers for jobs paying $12 to $15 per hour. Shinnick also determined the children could attend a private school there, and he stated that his mother agreed to pay the tuition. The nine-month school year used by the schools in question would allow the children to spend their summers with Moris.

Shinnick moved for permission to remove the children to California. His supporting papers addressed his medical condition. Moris opposed the motion, arguing that (1) Shinnick sought to interfere with her parenting access and made derogatory statements to the children about her, (2) the move would affect the children's relationship with her and her family, (3) Shinnick's job prospects were doubtful, and (4) the air quality and crime rate in California were not better than those of Minnesota.

Without holding an evidentiary hearing, the district court found that Shinnick's motion was not intended to interfere with Moris's parenting time and rejected Moris's other allegations. The court noted at the motion hearing that it need not address Shinnick's health claims, but its memorandum, (1) stated it "had reservations about the severity" of those claims, (2) questioned the extent of Shinnick's work restrictions, and (3) suggested that Shinnick find employment locally. The court found Shinnick's employment in California was uncertain and the move would interfere with the children's relationship with Moris's family; the court noted Moris's concerns about the air quality and crime rate in California. The district court denied Shinnick's motion, ruling that he produced "marginal evidence" of the purpose of the proposed move, that the move is not in the children's best interests, and that Shinnick "failed to respond effectively to the persuasive arguments of * * * Moris that relocation would lead to an unstable custody situation."

DECISION

The denial of a custodial parent's motion to remove children from Minnesota will not be altered on appeal unless 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) (quotation omitted). Under Minn. Stat.  518.18 (2002), custodial parents are presumptively entitled to remove from Minnesota the children in their custody. Id.; Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983); Meyer v. Meyer, 346 N.W.2d 369, 371 (Minn. App. 1984); see also Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983) (extending removal presumption to cases involving joint legal custody). Unless the party opposing removal makes a prima facie showing against the proposed removal, the court may, without an evidentiary hearing, grant the custodial parent permission to remove the children from Minnesota. Silbaugh, 543 N.W.2d at 641. A failure to properly apply the removal presumption is reversible error. Gordon, 339 N.W.2d at 271-72.

1. Shinnick argues the district court failed to give him the benefit of the removal presumption. While the record shows the district court did not explicitly address whether Shinnick was entitled to the presumption, it also indicates the district court did, at least implicitly, give him the benefit of that presumption.

2. To rebut the presumption, a party opposing removal must show that

removal is not in the best interests of the child and would endanger the child's health and well-being, or that the removal is intended to interfere with visitation.

 

Silbaugh, 543 N.W.2d at 641 (emphasis in original) (citations omitted); see Minn. Stat.  518.175, subd. 3 (2002) (stating removal is prohibited if its purpose is to interfere with other parent's parenting time); Meyer, 346 N.W.2d at 371 (stating burden of proving removal is not in child's best interests is on non-custodial parent). Therefore, to be entitled to an evidentiary hearing on Shinnick's removal request, Moris had to make a prima face showing that Shinnick's proposed removal was not in the children's best interests and would endanger the children or that the removal was intended to interfere with her parenting time. See Silbaugh, 543 N.W.2d at 641.

Here, the district court denied removal, ruling that Shinnick did not intend to interfere with Moris's parenting time and that Moris had rebutted the removal presumption by making a prima facie showing that removal would not be in the children's best interests. There are two problems with the district court's analysis. First, a prima facie showing against removal does not does not entitle Moris to denial of Shinnick's proposed removal. Rather, it entitles her to an evidentiary hearing on whether Shinnick should be allowed to remove the children. Seeid. (stating "unless [the party opposing removal] can make a prima facie showing against removal, permission to remove may be granted without a full evidentiary hearing" (quoting Auge, 334 N.W.2d at 396)). Second, in ruling that Moris had rebutted the removal presumption, the district court did not address the endangerment prong of the removal analysis.

While we appreciate Moris's candor in admitting the district court did not expressly address the endangerment prong of the analysis, we must reject her argument that addressing endangerment is not required unless a custodial parent plans to move regardless of whether the children could accompany that parent. Moris provides no support for her argument and ignores contrary authority. See, e.g., id., at 642 (noting denial of removal requires endangerment of child's physical or emotional health); see alsoAuge, 334 N.W.2d at 396 (noting denial of removal "was in fact a modification of custody"); Minn. Stat.  518.18(d) (2002) (stating, absent circumstances not present here, custody modification requires endangerment). We also reject Moris's argument that the district court's findings regarding the parents' history of conflict regarding the children acknowledges a prima facie showing of endangerment. Endangerment for custody purposes requires a "significant degree of danger." Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991). Therefore, mere conflict, without specificity regarding its magnitude and impact on the children, is insufficient to support a showing of endangerment.

3. Shinnick argues the district court is required to hold an evidentiary hearing before it denies his motion to move the children. See Auge, 334 N.W.2d at 396 (remanding because district court did not hold evidentiary hearing). Because the district court failed to use the proper analysis to address whether Moris made a prima facie showing to rebut the removal presumption, it abused its discretion by improperly applying the law. Silbaugh, 543 N.W.2d at 641. A failure to properly apply the removal presumption is reversible error. Gordon, 339 N.W.2d at 271-72. Therefore, we do not reach the question of whether an evidentiary hearing is necessarily required in this case. On remand, the district court should readdress whether Moris made a prima facie showing to rebut the removal presumption and, if necessary, hold an evidentiary hearing on the removal question.

Reversed and remanded.