This opinion will be unpublished and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

A03-2059

 

In re Shawn James Hoffman, petitioner,

Respondent,

 

vs.

 

Kimberlee Jean LaMar, n/k/a Kimberlee Jean Rountree,

Appellant.

 

Filed July 13, 2004

Reversed and remanded

Gordon W. Shumaker, Judge

 

Anoka County District Court

File No. F8-98-51521

 

 

Mark A. Olson, 2605 East Cliff Road, Burnsville, MN 55337 (for respondent)

 

Thomas L. Steffens, Elizabeth C. Henry, 300 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge; Peterson Judge; and Anderson, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER,Judge

 

On appeal from the district court’s denial of her motion to modify custody, appellant argues that the district court erred in ruling that she had not established a prima facie case warranting an evidentiary hearing in support of her custody-modification motion.  Because the record shows that appellant established a prima facie case, we reverse and remand.

FACTS

 

            Appellant Kimberlee Jean LaMar, now known as Kimberlee Rountree, and respondent Shawn James Hoffman are the parents of C.J.H., born November 16, 1995, and S.B.H., born June 6, 1997.  Respondent was awarded sole physical and legal custody of both children on June 13, 2002. 

            Appellant filed a change-of-custody motion, which was accompanied by her own affidavit and affidavits of others supporting the custody change.  In her motion, appellant alleged, among other things, that the children displayed increasing emotional difficulties; that there were unexplained bruises on the older child; that respondent engaged in inappropriate name-calling of the children; and that the older child had reported viewing adult films.  

After the Brainerd women’s shelter interviewed the older child, shelter personnel filed a report of suspected abuse with the Blaine Police Department, and Anoka County Community Social Services Department investigated the report.  A social worker from Anoka County Community Social Services Department concluded that physical abuse could not be proven by a preponderance of evidence.  In her report, the social worker noted an emergency-room examination report that documented (1) bruising on the older child, (2) that the bruising “was very faint and a diffuse yellow color,” (3) and that the “child states father hits him with a hand or a belt for ‘not listening’.”  The social worker stated that the child initially denied getting spankings with a hand or belt and then admitted that his father spanks him.  The social worker also stated that she believed one or both of the parents were coaching the child on what to say.  Respondent provided affidavits contradicting appellant’s allegations. 

On October 30, 2003, the district court, relying on the social worker’s report, concluded that appellant had failed to establish a prima facie case warranting an evidentiary hearing and denied appellant’s change-of-custody motion.  This appeal followed.

D E C I S I O N

 

            Appellant argues that the district court abused its discretion because it denied her motion to modify custody without an evidentiary hearing when her affidavit establishes a prima facie case for an evidentiary hearing and supports a modification.  An appellate court’s review of a district court’s decision to deny a custody-modification motion without an evidentiary hearing is limited to whether the district court abused its discretion.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).  A party seeking modification must submit an affidavit asserting facts to support the requested modification.  Minn. Stat. § 518.185 (2002); In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002).  To establish a prima facie case and to obtain an evidentiary hearing, a party moving for an endangerment-based custody modification 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; see Minn. Stat. § 518.18 (2002) (providing relevant factors when considering motions for an endangerment-based custody modification).  The movant’s affidavits must show the present endangerment of the child.  See Minn. Stat. § 518.18 (d)(iv) (requiring analysis of the child’s “present environment”).  A showing of endangerment is a threshold issue.  Nieme v Schachtschneider, 435 N.W.2d 117, 119 (Minn. App. 1989).

            When evaluating the relevant factors, a district court must accept the moving party’s affidavits as true.  Geibe, 571 N.W.2d at 777.  “Allegations need not be corroborated with additional independent evidence.”  Griese v. Kamp, 666 N.W.2d 404, 408 (Minn. App. 2003).  If the movant’s affidavits do not provide sufficient grounds for modification, the district court should deny an evidentiary hearing.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).  Conversely, where some factual dispute exists regarding whether the present environment endangers the child, the district court shall schedule an evidentiary hearing.  Harkema v. Harkema, 474 N.W.2d 10, 13 (Minn. App. 1991).  Evidentiary hearings “are strongly encouraged where allegations are made of present endangerment to a child’s health or emotional well being.”  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  When affidavits provide factual disputes regarding endangerment an evidentiary hearing is even more appropriate.  Harkema, 474 N.W.2d at 14.  A court must disregard any directly contrary affidavits and may only use an opposing party’s contrary affidavits to “explain the circumstances surrounding the accusations.”  Geibe, 571 N.W.2d. at 779. 

Here, the district court had before it appellant’s affidavit, which alleged that (1) she “discovered a large bruise on [C.J.H.’s] back”; (2) C.J.H. “reported that his father hit him and that his father told [C.J.H.] that if he told anyone about the bruise [C.J.H.] would be ‘in trouble’”; (3) she had “seen hand marks and belt marks on [C.J.H.’s] body from being hit by [respondent]”; (4) C.J.H. told her that respondent “watches adult x-rated films with [C.J.H.]”; (5) C.J.H. told appellant that respondent called him names such as “ignorant,” “smartass,” “stupid,” and “bad boy”; and (6) C.J.H. told appellant S.B.H. would have to watch adult x-rated movies to “learn things.”  Taken as true, the allegations in appellant’s affidavit alone are sufficient to establish a prima facie case to warrant an evidentiary hearing. 

In addition to appellant’s affidavit, the district court also had before it a social worker’s report that corroborated appellant’s affidavit.  Specifically, the social worker’s report identified the evidence considered in making Anoka County’s physical-abuse determination, which included: (1) a Polaroid picture that “did not clearly portray bruising to [C.J.H.]”; (2) the emergency-room report documenting bruising that was “very faint and a diffuse yellow color” and the child’s statement to medical personnel that respondent hits him with “a hand or belt” for “not listening”; (3) the interview with [C.J.H.], when he “initially denied getting spankings with a hand or belt, then admitted he gets spanked by his dad with a belt or hand”; and (4) the observation that C.J.H. “is very confused and conflicted” and the appearance “that one or both of his parents are telling [C.J.H.] what to tell others.”   

Relying on the report made for Anoka County and its conclusion that there was a “lack of preponderance of evidence” to establish physical abuse occurred, the district court found that the “claims of child abuse are unsubstantiated and that the child is being coached.”  Thus, the district court erroneously applied the “preponderance-of-evidence” standard required to establish physical abuse for the purposes of social-services investigations when it determined whether appellant had established a prima facie case requiring an evidentiary hearing.  But to establish a prima facie case to warrant an evidentiary hearing for a change-of-custody motion, there is no such standard.  Rather, the only requirement is that the movant’s affidavit, taken as true, provides sufficient grounds for modification. 

Appellant’s affidavit taken as true establishes a prima facie case in support of a modification because it shows (1) a change in the circumstances of the child or the custodian, (2) a modification would serve the best interests of the child when the child is living with an abusive parent, (3) a physically abusive environment endangers the child, and (4) the harm to the child likely to be caused by changing the environment is outweighed by the advantage of the change. 

The district court’s reliance on the social worker’s conclusion is directly contrary to the rule that the court must accept as true the movant’s affidavit and may only use those contrary affidavits to explain the circumstances surrounding the accusations for the purposes of establishing that a prima facie case for an evidentiary hearing is required.  But, here, the social worker’s report is not contrary to appellant’s affidavits; rather it supports appellant’s allegations, even though the conclusion of the report appears to be in conflict.  A social worker’s analysis of the evidence used for a determination of the occurrence of physical abuse is different from the analysis required for an evidentiary hearing because there is not a preponderance-of-evidence standard required to establish a prima facie case for an evidentiary hearing.  Even though allegations need not be corroborated with additional independent evidence, the social worker’s report corroborates the allegations in appellant’s affidavit and shows that a dispute exists regarding whether the present environment endangers the child, and, thus, an evidentiary hearing is required.  The district court abused its discretion when it concluded that appellant had failed to establish a prima facie case to warrant an evidentiary hearing and denied appellant’s change-of-custody motion. 

            Reversed and remanded.