This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Robert Eugene Anderson II, petitioner,





Kristin Elaine Munning,




Filed May 11, 2004

Reversed and remanded

Halbrooks, Judge



Cottonwood County District Court

File No. F1-97-301



Daniel A. Birkholz, Monica S. Rye, Birkholz & Rye, 101 South 7th Street, P.O. Box 461, St. James, MN 56081 (for appellant)


Peter J. Gleekel, Thomas H. Boyd, Winthrop & Weinstine, P.A., 225 South 6th Street, Suite 3500, Minneapolis, MN 55402; and


Margaret K. Erickson, Southern Minnesota Regional Legal Services, 421 10th Street, Worthington, MN 56187 (for respondent)




            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Without holding an evidentiary hearing, the district court denied appellant’s motion to modify custody.  Appellant challenges the court’s order, arguing that the record does not support the district court’s determination that he failed to make a prima facie case for an endangerment-based custody modification.  Because we conclude that the district court abused its discretion, we reverse and remand for an evidentiary hearing.


            Appellant Robert Eugene Anderson II and respondent Kristin Elaine Munning are the parents of a minor child, B.S.M., born November 11, 1992.  The parties were never married, and respondent sought to formally establish B.S.M.’s custody in July 1997.  Approximately one month later, the parties stipulated that respondent would have sole legal and physical custody of B.S.M., subject to liberal visitation by appellant.  The district court incorporated the parties’ stipulation into its subsequent custody order.

In May 2003, appellant moved the district court to (1) grant him sole physical custody of B.S.M., (2) terminate his child-support obligation, (3) order respondent to pay child support, (4) appoint a guardian ad litem, (5) order a custody study, and (6) order a new parenting-time schedule.  In support of his motion, appellant attached an 11-page affidavit alleging that B.S.M. was endangered in his present environment and would be better served living with him.  In response, respondent moved to dismiss appellant’s motion for failure to establish a prima facie case of endangerment under Minn. Stat. § 518.18 (2002) or, in the alternative, for appointment of a guardian ad litem.  In support of her motion, respondent submitted affidavits from herself and her attorney, denying the allegations contained in appellant’s affidavit.

Without an evidentiary hearing, the district court issued an order denying appellant’s modification request.  The court stated that it had reviewed the pleadings and appellant’s affidavit, accepting them as true, but had nevertheless concluded that appellant had failed to make “a prima facie showing that [B.S.M.’s] present environment endangers [his] physical or emotional health or impairs [his] emotional development.”  This appeal follows.



At the outset, the parties dispute whether a de novo or an abuse-of-discretion standard of review applies.  The Minnesota Supreme Court has applied an abuse-of-discretion standard in reviewing the denial of a custody-modification motion without an evidentiary hearing.  See Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981); see also Valentine v. Lutz, 512 N.W.2d 868, 872 (Minn. 1994).  This court has also applied an abuse-of-discretion standard, relying on the district court’s broad discretion in custody matters.  See, e.g., In re Weber, 653 N.W.2d 804, 809-11 (Minn. App. 2002); Smith v. Smith, 508 N.W.2d 222, 226 (Minn. App. 1993); Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992); Itasca Cty. Soc. Servs. ex rel. Hall v. David, 379 N.W.2d 700, 703 (Minn. App. 1986).  Although this court applied a de novo standard in Ross v. Ross, 477 N.W.2d 753, 755-56 (Minn. App. 1991), we later criticized that decision for failing to follow Nice-Petersen and ValentineSee Geibe v. Geibe, 571 N.W.2d 774, 777-78 (Minn. App. 1997).

Nonetheless, appellant argues that our decision in Griese v. Kamp, 666 N.W.2d 404, 407 (Minn. App. 2003), review denied (Minn. Sept. 24, 2003), stands for the proposition that a de novo standard of review should apply.  We disagree.  In Griese, a father supported his custody-modification motion with affidavits from the child’s grandparents alleging endangerment.  Id. at 405.  Several weeks later, the grandparents filed additional affidavits that “qualified and directly contradicted portions of their prior affidavits.”  Id. at 406.  The district court, concluding that it could not take the initial affidavits as true, denied the father’s motion for custody modification without an evidentiary hearing.  Id. at 406-07.

On appeal in Griese, we examined whether the district court applied the correct legal standard in determining the meaning of an affiant’s affidavit that was contradicted by a later affidavit by the same affiant.  Identifying the proper legal standard to apply is a legal question reviewed de novo.  See Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993) (stating that “[d]etermining the proper standard to be applied presents a question of law”).  Therefore, we reviewed de novo the district court’s selection of the standard to use when determining the meaning of contradictory affidavits made by the same affiant.  But here, there is no dispute that the district court applied the correct legal standard.  Instead, appellant challenges the district court’s determination that, taking the affidavits as true, he failed to set forth a prima facie case of endangerment.  We therefore follow Nice-Petersen and Valentine and apply an abuse-of-discretion standard of review to the question of whether an evidentiary hearing should have occurred here.


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).

            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 seeking modification must submit an affidavit containing facts that support the requested modification.  Minn. Stat. § 518.185 (2002).  In order to establish a prima facie case for modification based on endangerment, the moving party must establish four elements:

(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 district court must accept allegations in the moving party’s affidavits as true; the allegations do not need independent substantiation.  Id. at 777; but see Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987) (affirming district court’s denial of evidentiary hearing where affidavit was “devoid of allegations supported by any specific, credible evidence”).  Evidence from other sources may be considered to “explain the circumstances surrounding the accusations.”  Geibe, 571 N.W.2d 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.  Axford, 402 N.W.2d at 145.

Here, appellant submitted his own 11-page affidavit to support his modification motion.  The district court stated that it “reviewed the pleadings and affidavit of [appellant], accepting same as true when applying the modification standard as set forth in [Minn. Stat. § 518.18(d)(iv)],” but concluded that “[appellant] has not made a prima facie showing that the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development.”  The district court did not address whether appellant had established a change in circumstances, whether a change in custody was in B.S.M.’s best interests, or whether the benefit of a change outweighed the harm.  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).  Allegations of abuse, physical or emotional, have been held to endanger a child’s well-being.  Id.  Endangerment indicators may also include “behavioral problems and poor school performance.”  In re Weber, 653 N.W.2d 804, 811 (Minn. App. 2002).

While appellant’s affidavit contains numerous vague allegations, it also includes several specific allegations.  Taking the allegations as true, appellant’s affidavit establishes that (1) three maltreatment reports have been filed against respondent, the most recent in 2003, and that the county assessed a risk level for abuse and neglect at “moderate”; (2) B.S.M.’s schoolwork is suffering; (3) respondent has used marijuana and alcohol in her children’s presence; (4) respondent suffers from depression and has threatened to slit her wrists in B.S.M.’s presence; (5) respondent’s significant other has a multiple-personality disorder and admitted that “he worried that the more aggressive personality would do something to harm [B.S.M.]”; and (6) respondent made bizarre statements to appellant about burying her children alive in the backyard.  Therefore, we conclude that the district court abused its discretion in determining that appellant failed to establish a prima facie case of endangerment.  Because “evidentiary hearings are strongly encouraged where allegations are made of present endangerment to a child’s health or emotional well being,” Griese, 666 N.W.2d at 408 (quotation omitted), we remand to the district court for an evidentiary hearing. 

            Reversed and remanded.