This opinion will be unpublished and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

A03-271

 

In re the Marriage of:

Christina Dawn Alfredson

f/k/a Christina Dawn Koep, petitioner,

Respondent,

 

vs.

 

Anthony Jon Koep,

Appellant,

 

and

 

In re the Custody of:

S.A.H. and L.K.H., Minor Children.

 

Filed December 9, 2003

Affirmed in part, reversed in part, and remanded

Hudson, Judge

 

Otter Tail County District Court

File Nos. F1-91-650 and F2-92-1512

 

 

Timothy H. Dodd, 611 Summit Avenue, Suite 110, Detroit Lakes, Minnesota 56501 (for appellant)

 

Jamison W. Cichosz, Nycklemoe, Ellig & Nycklemoe, 106 East Washington, Fergus Falls, Minnesota 56537 (for respondent grandparents Jerry and Ruby Hanson)

 

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Peterson, Judge.

 

U N P U B L I S H E D  O P I N I O N

HUDSON, Judge

            This is an appeal from a district court’s decision to both uphold a forged custody stipulation and deny appellant an evidentiary hearing on his motion to modify the custody of his minor children.  First, appellant challenges the district court’s decision to uphold the 1992 forged custody stipulation, which awarded custody of appellant’s minor children to their grandparents.  Next, appellant argues that because the courts have established a presumption favoring natural parents, the district court erred by denying him an evidentiary hearing.  Because appellant adopted and ratified the forged custody stipulation, we affirm the district court’s decision upholding the custody stipulation.  The record, however, demonstrates that appellant established a prima facie case for endangerment.  Therefore, we reverse the district court’s decision denying appellant an evidentiary hearing and remand for the district court to hold an evidentiary hearing on appellant’s motion to modify custody.

FACTS

Appellant Anthony Jon Koep married respondent Christina Dawn Alfredson, f/k/a Christina Dawn Koep,[1] in 1990.  S.A.H., the parties’ first child, was born on June 27, 1990.  Koep and Christina divorced in 1991.  At that time, Christina was granted sole legal and physical custody of their daughter S.A.H.  Koep and Christina reconciled in 1992 and moved to South Dakota, leaving S.A.H. to live with her grandparents, respondents Jerry and Ruby Hanson.  In September 1992, Koep and Christina requested custody of S.A.H. and respondents immediately filed a petition for custody of S.A.H.  On October 7, 1992, B.A.K., Koep and Christina’s second child, was born.  Koep and Christina separated again in December 1992. 

            On December 21, 1992, a stipulation was filed and incorporated into the judgment awarding custody of S.A.H. and B.A.K. to respondents.[2]  In its 2003 order denying Koep’s motion to vacate and modify custody, the district court found that Koep did not actually sign this stipulation and that his signature was forged.  In an affidavit filed with the district court on October 11, 2002, Koep claimed that he first learned of the forged stipulation in 1994.  Koep stated that he was “totally astonished” when respondents produced a copy of the court order.  But respondents provided the district court with an affidavit that Koep signed and filed in a domestic-abuse-order-for-protection proceeding in 1993, in which he raised the issue of the forged signature.  The district court took judicial notice of the district court file containing this affidavit.  In the final order for protection, Koep was awarded visitation subject to the 1992 custody stipulation.  In Koep’s affidavit, filed in the order-for-protection proceeding, Koep acknowledged that the children were in respondents’ custody.  Koep spoke with the police after he discovered the forgery, and he was told that the forgery was a civil matter and there was nothing the police could do for him. 

            The district court held that, while the December 21, 1992, custody stipulation was fraudulent, Koep, in effect, approved of the stipulation in the 1993 order-for-protection proceeding.  Moreover, the district court stated that the stability and best interests of the children must be the controlling factors in this case, and those factors support leaving the children with respondents with whom they have lived for the past ten years.  The court did not reach respondents’ claims regarding the statute of limitations or laches. 

            Because the district court denied Koep’s motion to vacate, it reviewed his request for permanent sole legal custody of his minor children as a motion to modify custody.  In support of the motion, Koep alleged that respondents currently have the children in an unsanitary home, in the presence of heavy smoking and drinking, and that respondent, Jerry Hanson, was seen driving one of the children when he was intoxicated. 

The district court found that Koep failed to establish a prima facie case for endangerment of the minor children.  Therefore, the district court denied Koep’s motion for an order granting him sole custody; the district court did award Koep visitation every other weekend.  This appeal follows.

D E C I S I O N

I

Koep argues that because respondents committed fraud on the court, it was error to fail to vacate the 1992 custody stipulation, pursuant to Minn. Stat. § 518.145, subd. 2 (2002).

            Once a stipulation is merged into a judgment, the sole relief lies in Minn. Stat. § 518.145, subd. 2.  Haefele v. Haefele, 621 N.W.2d 758, 762 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001).  This statute allows the court to relieve a party from a judgment and decree, order, or proceeding for fraud.  Minn. Stat. § 518.145, subd. 2.  Further, the statute allows a court to set aside a judgment for fraud upon the court.  Id.

Here, the district court found that respondents committed fraud on the court by forging the custody stipulation, but the court did not vacate the custody order.  Rather, the district court upheld the stipulation finding that Koep adopted the stipulation at the 1993 order-for-protection proceeding.  Further, the district court found that the stability and the best interests of the children support upholding the current custody arrangement.

We will sustain the district court’s decision whether to reopen a judgment unless the court abused its discretion.  Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998).  “In the event the court finds circumstances that might permit vacating the judgment, its decision on the question of whether vacation is an appropriate remedy must be upheld in the absence of an abuse of the trial court’s discretion.”  Id.

            Here, we are persuaded that the district court did not abuse its discretion by upholding the custody stipulation.  We agree that Koep adopted and ratified the forged custody stipulation at the 1993 order-for-protection proceeding, and that the best interests and stability of the children support upholding the forged stipulation.

Koep was represented by counsel at the 1993 proceedings.  Koep acknowledged that the stipulation was a forgery and that he knew about the forgery in time to prevent respondents from gaining custody of the minor children.  The district court awarded Koep visitation in accordance with the stipulation and he abided by this order.  Although the forgery committed by respondents was egregious, Koep had an opportunity to vacate the custody stipulation within the one-year statute of limitations set forth in Minn. Stat. § 518.145 (2002).  Nevertheless, Koep made no effort to vacate the forged custody stipulation either during the subsequent court appearance or at any other time.

Further, we conclude the district court was correct in finding that the policies of stability and the best interests of the children ultimately support its order refusing to vacate the custody stipulation.  S.A.H. and B.A.K. have lived with respondents for their entire lives, while they have only intermittently had visitation with their father.  Thus, because Koep acquiesced to the custody arrangement for eleven years, the district court correctly determined that the best interests of the children support upholding the child custody stipulation. 

Our decision here is in no way an endorsement of respondents’ behavior.  But because Koep knowingly ratified respondents’ reprehensible behavior and abided by the forged stipulation for many years, the district court did not abuse its discretion in determining that the best interests of the children support upholding the custody stipulation.  As a result of this conclusion, we need not address respondents’ claims regarding the statute of limitations or laches.

II

Next, we address whether it was error for the district court to deny Koep an evidentiary hearing on his motion to modify custody.  Because we are affirming the district court’s order to uphold the initial custody stipulation, we must determine whether Koep was entitled to an evidentiary hearing pursuant to Minn. Stat. § 518.18 (2002). 

Under Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981), and its progeny, a party is entitled to an evidentiary hearing on a custody-modification motion only if the moving party makes a prima facie case for modification.  Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992).  Failure to make a prima facie showing precludes modification of custody.  See Dabill v. Dabill, 514 N.W.2d 590, 595 (Minn. App. 1994) (describing endangerment as “threshold” for modifying custody).  To make a prima faciecase for modification under the relevant portions of Minn. Stat. § 518.18, the moving party must show that, since the prior custody ruling, circumstances have changed and modification is required to serve the child’s best interests and either that (a) the child has been integrated into the moving party’s home with the custodial parent’s permission; or (b) the child’s present environment endangers the child and the detriment to the child of modifying custody is outweighed by the benefit to the child of the modification.  Minn. Stat. § 518.18(d)(iii), (iv).

            When viewing the parties’ submissions to determine whether the moving party made a prima faciecase, the district court must take the moving party’s factual allegations as true.  Nice-Petersen, 310 N.W.2d at 472.  It must also disregard any directly contrary statements in the non-moving party’s submissions but “may take note of statements in [the non-moving party’s submissions] that explain the circumstances surrounding the accusations.”  Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997).

Koep argues that the statutory Nice-Petersen standard is inapplicable here because Nice-Petersen and its progeny involved custody disputes between natural parents.  Koep contends that because the supreme court in Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 629 (1971), established a presumption favoring the natural parent in custody disputes between natural parents and third parties, he is not required to establish a prima faciecase of endangerment in order to secure an evidentiary hearing.  We disagree.

In an effort to synthesize the law in this area, we held in Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn. App. 1990), that Minn. Stat. § 518.18, governing modifications of custody arrangements, applies to all motions to modify custody, including disputes between natural parents and third parties.  We explained that the standard set forth in section 518.18 is appropriate because it incorporates the Wallin strands of analysis.  Id.  Therefore, the district court was correct in concluding that to receive an evidentiary hearing on his motion to modify custody, Koep needed to establish a prima faciecase of endangerment pursuant to Minn. Stat. § 518.18(d)(iii), (iv).

            But contrary to the district court, we are persuaded that Koep met this burden.[3]  We are well aware that in custody determinations considerable deference should be given to the trial court and we do not make this decision lightly.  See Geibe, 571 N.W.2d at 779.  But on the record before us, we believe Koep established a prima facie case of endangerment and that the district court erred in denying Koep an evidentiary hearing.

A.        Changed Circumstances

First, while Koep could not show that the children’s circumstances have changed,[4] he has established that his circumstances have changed.  Minn. Stat. § 518.18 requires that there be a change in the parties’ circumstances; Koep is a party to this case.  Minn. Stat. § 518.18 (emphasis added); see also Scuto v. Gutz, 286 Minn. 524, 525, 174 N.W.2d 324, 324-25 (1970) (considering change in mother’s circumstances for modification of custody).  Thus, while the district court did not consider the changes in Koep’s circumstances, we believe a significant change in a parent’s circumstances can satisfy Minn. Stat. §  518.18.

Eleven years ago, Koep was a young man not prepared for the responsibilities of parenthood.  Since that time, Koep has matured and gained stability in his life.  Respondents’ counsel did not refute these claims.  Thus, taking Koep’s allegations as true, we are persuaded that Koep established the first prong of the Nice-Petersen test, changed circumstances.

B.        Endangerment

Next, in support of his argument that the children are endangered in their current environment, Koep submitted affidavits stating that respondent Jerry Hanson often stops at the bar after work.  In addition, a third party filed an affidavit stating that she saw Jerry Hanson at a store with one of the children, and that he appeared intoxicated and was about to drive the child home.  Further, Koep cited one instance of excessive punishment of S.A.H. by respondent Ruby Hanson.  Specifically, Koep provided an affidavit from an individual who claimed she witnessed Ruby Hanson restraining S.A.H. on the ground because S.A.H. “smarted off.”  Koep also claimed that respondents engaged in excessive smoking and maintained an unsanitary living environment.

            The district court found that Koep’s allegations were too general and that the one incident of drinking and driving with the child was not enough to prove endangerment.  We disagree.  Assuming Koep’s allegations are true, as we must, we are persuaded that Koep established endangerment of the children.

First, while the drinking and driving incident was isolated, even one instance of drinking and driving with a child in the car could cause death or serious injury.  Furthermore, a third party reported this incident, making the allegation even more reliable.  We need not wait until the child is injured to find endangerment.  Moreover, the best interests of the child is the overarching concern in all custody cases.  It cannot be in a child’s best interests to be transported by someone under the influence of alcohol. 

Next, Koep did not cite just this one incident in support of his allegation of endangerment.  Koep also alleged that respondents have the children in unsanitary conditions in the presence of excessive drinking and smoking.  Further, Koep alleged one instance of excessive punishment by Ruby Hanson.  Taking these allegations as true, we are satisfied that the totality of Koep’s allegations established a prima facie case of endangerment and he is accordingly entitled to an evidentiary hearing where these allegations can be more fully explored.  Unquestionably, Koep has a difficult road ahead of him; but on these facts, he is entitled to attempt the journey.

Our holding today is supported and guided by the presumption favoring the natural parent.  Wallin makes clear that a parent is entitled to custody “unless it clearly appears that [the parent] is unfit or has abandoned [the] right to custody, or unless there are some extraordinary circumstances which would require that [the parent] be deprived of custody.”  Wallin, 290 Minn. at 264, 187 N.W.2d at 629.  To overcome this presumption, the non-parent must show “grave” reasons to separate a child from a natural parent.  Id. at 266, 187 N.W.2d at 630.  Respondents have made no such showing.  Therefore, we remand this case to the district court to hold an evidentiary hearing on Koep’s motion to modify custody.

Affirmed in part, reversed in part, and remanded.

 



[1] Because Christina Alfredson and her parents are both respondents, for clarity this opinion will refer to Christina by name and refer to her parents as respondents.

[2] The case caption requires clarification.  It mentions S.A.H. and L.K.H. but does not refer to B.A.K.  It appears B.A.K. is not mentioned because she was not born at the time of the initial petition.  In addition, L.K.H.’s custody is not in dispute here because, while she is Christina Alfredson’s child, Koep is not her father.  The forged custody stipulation has the same caption, but the parties only stipulated to the custody of S.A.H. and B.A.K.

[3] Recently, in In re N.A.K., 649 N.W.2d 166, 177 n.10 (Minn. 2002), the supreme court applied a Wallin analysis to a deceased-parent case, and in a footnote, questioned whether chapter 518 applies to third-party custody cases that involve a deceased parent.  While this case does not involve a deceased parent, and is not directly governed by N.A.K., we believe that even if Wallin’s presumption in favor of the natural parent does articulate a different modification standard, Koep satisfied the Wallin test as well because respondents have never alleged that Koep is unfit or incompetent and nothing in the record would support such a claim. 

[4] Given the fraudulent circumstances surrounding the initial custody stipulation, the district court did not require Koep to prove that the children’s circumstances had changed.  We agree with that determination.  Moreover, the court’s discovery of the forged stipulation was arguably a “changed circumstance” in and of itself.