This opinion will be unpublished and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

A03-1149

 

In re Mary Frances Therese Zabinski,

n/k/a Mary Frances Therese Jackels, petitioner,

Appellant,

 

vs.

 

Patrick Lawrence Zabinski,

Respondent.

 

Filed April 13, 2004

Affirmed

Willis, Judge

Dissenting, Wright, Judge

 

Stearns County District Court

File No. F4-95-3900

 

Kay R. Snyder, Jeddeloh & Snyder, P.A., 803 West St. Germain Street, St. Cloud, MN  56301 (for appellant)

 

Brigid M. Fitzgerald, Rosenmeier, Anderson & Vogel, 210 Second Street N.E., Little Falls, MN  56345 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges the district court’s denial of an evidentiary hearing on her motion for an endangerment-based custody modification.  Because appellant did not present a prima facie case for modification, we affirm.

FACTS

The marriage of appellant Mary Frances Therese Zabinski, n/k/a Mary Frances Therese Jackels, (mother) and respondent Patrick Lawrence Zabinski (father) was dissolved in 1996.  The parties were awarded joint legal custody of their two minor children, now ages 10 and 12, and, based on a stipulation of the parties, father was awarded sole physical custody and mother was awarded parenting time. 

            On April 20, 2003, father was arrested for driving while impaired after an Intoxilyzer test indicated that he had an alcohol concentration of .23.  The parties’ children were in the vehicle when father was arrested. 

In May 2003, mother moved for an endangerment-based custody modification, seeking sole legal and physical custody.  She also moved the court to (1) grant her immediate, temporary legal and physical custody of the children, (2) require father to abstain from alcohol or any mood-altering substances during and 24 hours prior to parenting time, (3) direct that a custody investigation and evaluation be performed, and (4) appoint a guardian ad litem to represent the interests of the children during the process. 

            In support of her motions, mother submitted her own affidavit and that of a neighbor of father’s ex-girlfriend.  Mother alleged in her affidavit that father has “uncontrolled chemical dependency issues that he needs to resolve.”  She noted that, in addition to the April 2003 incident, father had had an alcohol-related motorcycle accident in 1994 and a DWI conviction in August 2000.  Mother also stated that the parties’ daughter “talks about [father] drinking and sleeping a lot” and that she had told mother on more than one occasion that she wanted to live with mother.  Mother further expressed concern that the children were doing much of their own cooking and laundry while living with father. 

            The neighbor of father’s ex-girlfriend stated in her affidavit that the parties’ daughter told her that daughter dumps out father’s alcohol when she finds it because he gets angry when he drinks and punches holes in the walls.  She also stated that the daughter told her that when father drinks, he tickles her and “sometimes he is rough and it hurts.”

            Father moved for an order denying mother’s motion in its entirety.  In support of his motion, he submitted his own affidavit as well as those of the children’s daycare provider and two relatives; each affidavit indicated that the children have a stable home environment with father.  Father’s affidavit also states that he is in a chemical-dependency treatment program and that he is actively involved in dealing with his children’s health and educational problems.  The daughter has a hearing problem, and the son has a vision problem; both have specialized educational plans at school. 

            In June 2003, the district court, in an order signed by the same judge who had presided over the parties’ dissolution and made the original custody award in 1996,denied mother’s motions to modify custody and grant her immediate custody and granted father’s motion to deny mother’s motion in its entirety.  The district court denied mother’s request for an evidentiary hearing, finding that mother had not established a prima facie case for modification of custody.  This appeal follows.

D E C I S I O N

            Whether to grant an evidentiary hearing on a motion to modify custody is within the district court’s discretion.  Geibe v. Geibe, 571 N.W.2d 774, 777-78 (Minn. App. 1997).  The parties cite Griese v. Kamp, 666 N.W.2d 404 (Minn. App. 2003), review denied (Minn. Sept. 24, 2003), for the proposition that we review de novo the district court’s decision to deny an evidentiary hearing.  But the Griese court did not apply a de novo standard of review to a district court’s determination of whether to grant an evidentiary hearing on a motion to modify custody; rather the issue that the court there reviewed de novo was the legal question of how to read the various affidavits involved in the proceeding, that is, which allegations had to be accepted as true, which allegations had to be ignored as contrary to allegations that had to be accepted as true, and which allegations could be considered as giving context to the allegations that had to be accepted as true.  See id. at 407-08.  Because here the identification of the portions of the affidavits that must be accepted and rejected is not at issue, Griese is inapplicable, and we review the district court’s decision to deny the motion to modify custody under an abuse-of-discretion standard. 

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).  Four elements are required to establish such a prima facie case for an endangerment-based modification:

(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. 

The party moving for modification must submit an affidavit containing facts that support the requested modification.  Minn. Stat. § 518.185 (2002).  The court must determine whether the petitioner has established a prima facie case by alleging facts that would provide sufficient grounds for a modification.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  The district court must accept as true allegations in the moving party’s affidavit; the allegations do not need independent substantiation.  Geibe, 571 N.W.2d at 777.  Minn. Stat. § 518.185 grants other parties to the proceeding the right to file opposing affidavits, and the court may consider evidence from sources other than the moving party’s affidavit in making its determination.  Id.  The district court must disregard any statements in the nonmoving party’s affidavit that directly contradict the movant’s affidavit but “may take note of statements in [the nonmoving party’s affidavit] that explain the circumstances surrounding the accusations.”  Id. at 779.  A district court should deny an evidentiary hearing when the movant’s affidavit does not establish a prima facie case for modification.  Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987).

Mother argues that the district court erred by refusing to grant an evidentiary hearing based on her affidavits.[1] 

Endangerment

            To establish endangerment, a moving party must allege facts that show a “significant degree of danger” to the children.  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  A single incident of borderline abuse or neglect does not constitute a sufficient degree of endangerment to satisfy this factor of the prima face case for modification.  Geibe, 571 N.W.2d at 779.  What constitutes endangerment is “based on the particular facts of each case.”  Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).  The district court here concluded that the affidavits submitted by mother, which included a copy of the complaint charging father with driving while impaired, did not sufficiently allege endangerment, especially because there was no evidence indicating that father was driving erratically or recklessly when he was stopped. 

Mother argues that she sufficiently alleged endangerment because her affidavit states that father drove while intoxicated with the children in the vehicle, thereby committing a gross misdemeanor.  See Minn. Stat. §§ 169A.25, .26 (2002).  Mother’s affidavit also states, in support of her allegation of endangerment, that when father drinks, he sometimes tickles their daughter too hard and that the children are emotionally endangered by his drinking and his “sleeping a lot.”  She further notes that there was an allegation that father punches holes in walls, which could cause the children fear and emotional distress. 

Father maintains in his affidavit that he punched a hole in a wall in 1996 and has not done it since.  He also asserts that the district court should be affirmed because mother did not allege that the children have suffered any actual adverse effects from his alcohol use.

By driving while intoxicated with the parties’ children in the vehicle, father not only committed a criminal act but also showed exquisitely bad judgment.  Although we consider it to be a very close question, and we do not in any way condone father’s action, we conclude that, on this record, the district court did not abuse its discretion by determining that a single instance of such behavior is alone not sufficient to constitute endangerment, particularly when the record shows that father was stopped because mother called the police to report him and that he was not driving recklessly or erratically when he was stopped.  Further, because father’s affidavit states that he is in treatment for chemical dependency, the district court determined that mother has not alleged that the children are currently in “a significant degree of danger.” 

Thus, we conclude that, under these particular circumstances, the district court did not abuse its discretion by determining that mother has not met her burden of alleging facts that establish that the children are endangered while in father’s care.  We could affirm the district court’s denial of an evidentiary hearing on this issue alone; but we further note that mother did not meet her burden of alleging facts that establish the other factors needed for a prima facie case for modification, and we choose to address those factors.  See Niemi v. Schachtschneider, 435 N.W.2d 117, 119 (Minn. App. 1989) (holding that lack of a showing that a child’s present environment endangers physical or emotional health or impairs emotional development is fatal to an endangerment-based motion to modify custody).

Best Interests of the Children

The district court concluded that mother did not sufficiently allege that a modification would serve the best interests of the children, noting that “[b]oth children have significant health and education problems” and that father “has taken significant steps to deal with those problems without any apparent help or involvement of [mother].”  Thus, the district court concluded that removing the children from their “present treatment programs and special school settings” would not be in their best interests. 

Father’s affidavit states that he has created a positive environment for the children.  He is actively involved in their education and attends all of their school conferences and meetings regarding their specialized educational plans.  He also sends the son for supplemental help at a learning center and takes him to therapy for his vision problems.  Because the children presently have an environment that assists them with their health and educational problems and mother did not address how she would provide a similar environment, the district court did not abuse its discretion by finding that mother did not allege facts that establish that modification would be in the children’s best interests. 

Balance of Harms 

There is a presumption in Minnesota law that stability of custody is in the child’s best interests.  Pikula v. Pikula, 374 N.W.2d 705, 711-12 (Minn. 1985).  To overcome this presumption, mother would have to allege facts that establish that the value of changing custody outweighs the disruption caused by the change.  See Minn. Stat. § 518.18(d).  The district court concluded that because of the children’s various health and educational problems, “[w]ithout further evidence of endangerment, . . . the advantage of change would not outweigh the care and treatment they are presently receiving from [father] and the treatment and school providers.”  Because the children currently receive specialized treatment for their problems and mother’s affidavits do not address how she also would provide an environment that would assist the children, we conclude that the district court did not abuse its discretion by determining that mother did not allege facts that establish that the advantage of a change in custody would outweigh the disruption caused by the change. 

Change in Circumstances

The district court determined that mother’s affidavit, which includes a copy of the complaint charging father with driving while impaired, did not sufficiently allege a change in circumstances, reasoning that “[t]he circumstances have not changed so much as they have continued” because father had been involved in alcohol-related incidents before the parties’ dissolution.  See Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989) (holding that a change of circumstances cannot be a continuation of conditions existing before the order), review denied (Minn. June 21, 1989). 

Mother argues that if the district court’s reasoning were “literally applied,” there could never be circumstances involving father’s alcohol use “that would constitute endangerment to the children.”  While mother mixes the factors to be considered by the court, we nevertheless disagree with her assertion.  If mother had alleged facts showing that the children were exposed to a “significant degree of danger,” she would have met her burden of satisfying the endangerment factor of the prima facie case for modification.  See Ross, 477 N.W.2d at 756 (holding that to obtain an evidentiary hearing, a moving party must allege that the current custodial arrangement subjects child to “significant degree of danger”).  Further, because the district court is familiar with the parties’ circumstances and knew when it awarded custody to father in 1996 that father had been involved in alcohol-related incidents, we conclude that the district court did not abuse its discretion by determining that the facts mother has alleged here do not establish a change of circumstances.

            Affirmed.

           

 

 

WRIGHT, Judge (dissenting)

I respectfully dissent.  In light of father’s history of chemical dependency and alcohol-related driving incidents, driving his two children while he had an alcohol concentration of .23 poses a significant danger to their well being and, therefore, supports a prima facie case for modification of custody.  See Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  Thus, I conclude that the district court abused its discretion in determining that an evidentiary hearing on the motion to modify custody was unwarranted.  I would reverse the district court’s denial of mother’s request for an evidentiary hearing and remand for further proceedings.

 

 

 


[1] At the end of her brief, mother states that “the Court should also order the District Court to order a custody evaluation and appoint a Guardian ad Litem” but these issues were not addressed in the body of her brief.  Issues not briefed are waived.  Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987); see Braith v. Fischer, 632 N.W.2d 716, 724 (Minn. App. 2001) (applying Balder in family-law context), review denied (Minn. Oct. 24, 2001).  Therefore, we do not address these issues.