This opinion will be unpublished and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:


Michael C. Hummer, petitioner,





Jacqueline M. Hummer,



Filed January 20, 2004


Harten, Judge


Blue Earth County District Court

File No. F2-00-450


Jon G. Sarff, Sarff & Sarff, 100 Walnut Street, Mankato, MN 56001 (for appellant)


Michael H. Kennedy, Kennedy & Kennedy, 99 Navaho Avenue, Suite 104, P.O. Box 3223, Mankato, MN 56002-3223 (for respondent)


            Considered and decided by Hudson, Presiding Judge, Peterson, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges the district court’s summary denial of her motion to modify child custody without an evidentiary hearing.  Because the district court did not abuse its discretion in finding no prima facie case of endangerment, we affirm.


Appellant Jacqueline M. Hummer and respondent Michael C. Hummer were married on 20 June 1992.  They have one son, J.R.H., now 6 years old, who was born on 7 February 1997.  The parties filed for marriage dissolution in March 2000; the district court dissolved the marriage by judgment dated 12 January 2001, when J.R.H. was almost 4 years old.

            The district court ordered joint legal and physical custody of J.R.H.  The parties stipulated to a parenting-time arrangement that was based upon respondent’s work schedule, which included rotating day and night shifts.  The parties agreed that respondent would have custody of J.R.H. during three of his four days off from work.  J.R.H. spent three consecutive nights each week with respondent, but the nights varied.

            In June 2001, the parties stipulated to amend the judgment to accommodate a change in respondent’s work schedule.  The custody arrangement remained the same, but the schedule of which nights J.R.H. spent with respondent was amended.

            In April 2003, respondent moved to modify his child support obligation based on the parties’ joint physical custody arrangement.  After a hearing, the child support magistrate determined that respondent’s guideline monthly support obligation for 50% custody was $264, and that appellant’s guideline monthly support obligation for 50% custody was $104, resulting in a net monthly payment of $160 per month to be paid by respondent.  The magistrate also granted respondent’s motion to stop the imposition of a COLA (cost of living adjustment).

In July 2003, appellant moved for sole physical custody and for corresponding modification of child support.  In support of her motion, appellant submitted three affidavits, one from herself, one from J.R.H.’s teacher, and one from her neighbor.  In her own affidavit, appellant stated that respondent does not speak with her regarding matters or decisions concerning J.R.H., will not attend parent-teacher conferences with her, and will not return her phone calls to discuss their son.  She also noted that J.R.H. had told her that he was unhappy with the arrangement, that he does not like leaving his friends who live near appellant’s home, and that he does not like the frequent moves between homes. 

J.R.H.’s teacher stated that respondent requested separate parent-teacher conferences during the previous school year.  She also stated that both parents reported to her that J.R.H. was unhappy and having difficulty adjusting to the custody arrangement and that she noticed that J.R.H. was quiet and not as sociable on mornings after exchanges between the parties.

Appellant’s neighbor stated that J.R.H. seemed unhappy with the current custody arrangement and that she believed that he did not have enough stability because of the frequent moves between his parents’ homes.

Respondent moved for an order denying appellant’s motion to modify custody and for attorney fees.  He submitted five affidavits in support of his motion, each saying that J.R.H. was well adjusted and had a stable home environment with respondent and his current wife.

The district court denied appellant’s motion to modify custody, finding that, while the affidavits establish that J.R.H. is having difficulty adjusting to the joint custody arrangement, J.R.H.’s age and grade in school preclude any meaningful comparison with how he performed prior to the joint custody arrangement.  The district court suggested that the parties come to an agreement as to how parenting time will be adjusted, bearing in mind that, as J.R.H. gets older, he will become more involved in school and other activities, thereby making problematic the frequent exchanges between the parties’ homes.

Appellant challenges the district court’s denial of her request for an evidentiary hearing, arguing that the affidavits submitted with her motion established a prima facie case of endangerment.


            The parties agree that the standard of review is abuse of discretion.  We assume, without deciding, that this is the correct standard.  See Giebe v. Giebe, 571 N.W.2d 774, 777 (Minn. App. 1997) (reviewing for abuse of discretion); but see Griese v. Kamp, 666 N.W.2d 404, 407 (Minn. App. 2003) (reviewing de novo where the appellate court interprets the same affidavits available to the district court, without evidence beyond the affidavits), review denied (Minn. 24 Sept. 2003).[1]

            A district court may not modify a prior custody order unless it finds a change in circumstances of either the child or the parties that makes modification necessary in the best interests of the child.  Minn. Stat. § 518.18 (d) (2002).  The district court must retain
the existing custody arrangement unless, among other things, “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)(iv) (2002).

            A party is entitled to an evidentiary hearing on a custody-modification motion only if the party makes a prima facie case for modification.  Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992).  The party moving for modification must submit an affidavit containing facts that support the requested modification.  Minn. Stat. § 518.185 (2002).  Four elements are required to establish a prima facie case for a modification based on endangerment:

(1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child’s present environment endangers her physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.

Geibe, 571 N.W.2d at 778; see Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (the moving party bears the burden to establish a prima facie case justifying modification).  The district court must accept allegations in the moving party’s affidavits as true; the allegations do not need independent substantiation.  Geibe, 571 N.W.2d at 777.  But evidence from other sources may be considered to “explain the circumstances surrounding the accusations.”  Id. at 779.  A district court may deny an evidentiary hearing where the moving party’s affidavits do not provide sufficient grounds for a prima facie case for modification.  Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987).

The district court found that the affidavits submitted by appellant established that J.R.H. is unhappy and having difficulty adjusting to transitions between the parties’ households, but that there was no endangerment requiring an evidentiary hearing.  See Griese, 666 N.W.2d at 407 (“[A] showing of endangerment is a threshold issue.”).

Endangerment is decided on a case-by-case basis.  Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).  A showing of endangerment requires a “significant degree of danger,” which includes danger purely to emotional development.  Geibe, 571 N.W.2d at 778 (quotation omitted).  Appellant’s neighbor’s affidavit states that J.R.H. is “very confused, timid, and unsure of himself.”  Appellant’s affidavit established that J.R.H. does not like leaving his friends who live near appellant’s home and is frustrated with the different daily routines in the parties’ households.  But a child’s unhappiness has not been held to establish endangerment to emotional development.

Endangerment indicators may include behavioral problems and poor school performance.  In re Weber, 653 N.W.2d 804, 811 (Minn. App. 2002).  J.R.H.’s teacher’s affidavit stated that J.R.H. was quiet and less sociable with other children on mornings after exchanges between the parties.   But, as the district court found, J.R.H.’s age prevents any meaningful comparison of his present school performance with his past performance.  Although J.R.H.’s circumstances are unfortunate and bear watching, they are typical of similarly situated children.

Viewing the allegations in the affidavits submitted by appellant as true, we agree with the district court that appellant did not establish a requisite prima facie case of endangerment to modify child custody.  Accordingly, the district court correctly denied appellant an evidentiary hearing.


[1] We note that de novo review would lead to the same result in this matter.