This opinion will be unpublished and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

C0-03-230

 

Margaret M. Garman,

n/k/a Margaret Rustand, petitioner,

Respondent,

 

vs.


Patrick Allen Garman,

Appellant.

 

Filed September 23, 2003

Affirmed
Klaphake, Judge

 

Ramsey County District Court

File No. F9902178

 

Margaret Rustand, 81 West Stevens Street, St. Paul, MN  55107 (pro se respondent)

 

Beau D. McGraw, 600 Inwood Avenue North, Suite 200, Oakdale, MN  55128 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Patrick Garman appeals from an order denying his motion for custody of his two children based on his allegations that the older child told him that her stepfather, respondent Margaret Rustand’s current husband, had been sexually abusing her since she was six years old.  Following an evidentiary hearing, the district court found that appellant had “threatened both children and required [the 13-year-old] to fabricate the identity of [her stepfather] as [her] alleged violator.”  The court also acted sua sponte and placed restrictions on appellant’s parenting time by limiting him to weekly two-hour supervised visits, “so as not to expose the children to retaliation for failing to support their father’s fabrications of sexual abuse.”

            On appeal, appellant does not challenge the restrictions placed on his parenting time.[1]  Rather, he focuses on whether the district court “abused its discretion and clearly erred by not ordering a modification of custody based upon the appropriate legal standard” under Minn. Stat. § 518.18 (2002).  Respondent is pro se and has not filed a brief on appeal.

            Because we cannot conclude that the district court clearly erred in rejecting appellant’s allegations of abuse by the stepfather or in finding that appellant encouraged the child to lie and threatened both children if they revealed his actions, we affirm the district court’s denial of appellant’s motion to modify custody.

D E C I S I O N

            A district court has broad discretion on issues relating to child custody and its decision will not be reversed unless arbitrary or a clear abuse of discretion.  Johnson v. Lundell, 361 N.W.2d 125, 127 (Minn. App. 1985).  Modification of custody is governed by Minn. Stat. § 518.18(d) (2002), which provides in pertinent part that a court

shall not modify a prior custody order * * * unless it finds, upon the basis of facts * * * that have arisen since the prior order * * * 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.

 

Once an evidentiary hearing is granted, the burden remains on the party seeking the change in custody to present evidence on these factors.  Murray v. Antell, 361 N.W.2d 466, 469 (Minn. App. 1985).  Where that party fails to make a showing on any of these factors, either by affidavit or by evidence presented at an evidentiary hearing, his or her motion to modify custody is properly denied.  Englund v. Englund, 352 N.W.2d 800, 802 (Minn. App. 1984).

            Here, the district court found that the stepfather did not sexually abuse the older child and that appellant had “threatened both children and required [the older one] to fabricate the identity of [her stepfather] as her alleged violator.”  These findings are reasonably supported by the report and testimony of the child protection worker, who found that no maltreatment had occurred, and who stated that in her opinion the child’s allegations were not credible, given the “lack of physical evidence, [her] suggestible nature . . ., the fact that this divorced couple has been locked in an acrimonious custody battle for several years, and the timing of the report which occurred at the end of [appellant’s] summer long visitation.”  The district court’s findings are further supported by the testimony of witnesses called by respondent who stated that the child had recanted and told them that appellant had threatened her if she told the truth.

            Appellant complains that the district court clearly erred in finding that he forced the child to fabricate the allegations against her stepfather.  He criticizes the court’s failure to give any credence to the report and testimony of the nurse who interviewed the child soon after her revelation to appellant that her stepfather was abusing her and who testified that she found the child’s story credible, or to other evidence in the record indicating that the child has exhibited inappropriate behavior for several years that suggests she is a sexual abuse victim.  Appellant further criticizes the court’s acceptance of the testimony of respondent’s witnesses, who were members of the stepfather’s family and who had an obvious interest in protecting him.

            While the district court uses strong language in it’s findings when it condemns appellant and his actions, we cannot conclude that those findings are clearly erroneous.  “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  If reasonable evidence in the record supports the district court’s findings, we will not disturb them.  Id.  Here, the district court was free to disbelieve appellant and his allegations and to accept the testimony of respondent’s witnesses as credible.  See Minn. R. Civ. P. 52.01; Murray, 361 N.W.2d at 469 (stating that findings of fact “shall not be set aside unless clearly erroneous” and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses”).

            Appellant also complains that the district court’s findings failed to consider all of the factors set out in Minn. Stat. § 518.18(d).  Given the district court’s rejection of the underlying basis for the custody change, however, we do not believe that the district court was required to continue with the analysis and address the other factors necessary to modify custody.  In addition, the burden was on appellant as the moving party to present evidence on these factors, including the best interests of the children and whether a change in their environment outweighed any harm by leaving them with respondent.  Appellant’s failure to do so undermines his current criticism of the district court’s findings and decision.

            We therefore affirm the district court’s denial of appellant’s motion to modify custody.

            Affirmed.

 



[1]  Our decision here should not be construed as an endorsement of the restrictions placed on appellant’s parenting time by the district court.  A court can place restrictions on parenting time only after an evidentiary hearing on the need for restrictions and the child’s best interests.  See, e.g.,Minn. Stat. § 518.175, subd. 5 (2002) (governing modification of parenting time); Matson v. Matson, 638 N.W.2d 462, 468 (Minn. App. 2002) (holding that evidentiary hearing is required when modification of parenting time is substantial); Courey v. Courey, 524 N.W.2d 469, 472 (Minn. App. 1994) (holding that district court abused its discretion by restricting visitation without evidentiary hearing).