This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Harvey Everett McMahon, III, petitioner,
Hillary Anne McMahon (nee Horner),
Filed April 19, 2005
Crow Wing County District Court
File No. F8-04-261
Robert O. Blatti, Esq., Pemberton Sorlie, Rufer & Kershner, P.L.L.P., 110 North Mill Street, P.O. Box 866, Fergus Falls, MN 56538-0866 (for appellant)
Patricia A. Aanes, Esq., Erickson, Pearson & Aanes, 319 South Sixth Street, P.O. Box 525, Brainerd, MN 56401 (for respondent)
Considered and decided by Minge, Presiding Judge, Wright, Judge, and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the order of the district court granting the motion of respondent to move the residence of the minor children and alter the visitation schedule accordingly, and denying, without an evidentiary hearing, the motion of appellant to modify physical custody. Because the district court failed to adequately address certain assertions of appellant and failed to demonstrate that those assertions were considered as true in determining whether a prima facie showing had been made that moving the residence of the minor children would not be in their best interests and would endanger their health and well-being, we reverse and remand for an evidentiary hearing.
Harvey McMahon and respondent Hillary McMahon were divorced in
after the divorce, appellant moved from
Appellant, in a responsive motion, sought denial of respondent’s motion in its entirety, and sought also to have the physical custody of the children granted solely to him, subject to reasonable parenting time by respondent. Appellant requested an evidentiary hearing on the issues of custody and parenting time, and sought appointment of a custody evaluator and guardian ad litem (GAL) to evaluate the best interests of the children. In a supporting affidavit, appellant alleged, in part, that (1) the parties’ two sons wanted to live with appellant, (2) the parties’ children are very close to appellant’s family in the North Dakota/Minnesota area, (3) the parties’ sons are afraid of respondent’s fiancé, and (4) respondent and her fiancé acted in a sexually inappropriate manner in the presence of the children.
The district court granted respondent’s motion to move the residence of the children, modified the parenting-time schedule to provide for reasonable parenting time for appellant, addressed the logistics of transportation, and ordered the parents to utilize an on-line service to facilitate communications. All other motions were denied.
D E C I S I O N
The parties initially
dispute whether a de novo or an abuse-of-discretion standard of review
applies. In general, this court applies an abuse-of-discretion standard in
reviewing a district court’s decision to deny a custody-modification petition
without an evidentiary hearing. Geibe
v. Geibe, 571 N.W.2d 774, 777 (
In Griese, a father supported
his custody-modification motion with affidavits from the child’s grandparents
Appellant argues that under Griese, a de novo standard of review should apply because the district court failed to accept as true the allegations appellant made in his supporting affidavit. We disagree. Griese is factually unique and should not be extended to apply here. Unlike Griese, there are no contradictory affidavits from the same affiant in this case. Rather, the question here is the extent to which the district court accepted appellant’s allegations as true. Accordingly, we apply the usual abuse-of-discretion standard of review. And we are mindful that a reviewing court “will not overturn the trial court’s finding that appellant failed to establish a prima facie case unless the finding is ‘clearly erroneous.’” Geiger v. Geiger, 470 N.W.2d 704, 708 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991) (quotation omitted).
deferential standard of review, however, this court is concerned that the
district court failed to address several of the allegations raised by appellant
in support of his request for an evidentiary hearing. We recognize that under
To obtain an evidentiary hearing,
the party seeking modification of custody has the burden to establish a prima
facie case by alleging facts that, if proven, would show that respondent’s
removal was not in the best interests of the children. Geiger, 470 N.W.2d at 708. Importantly, the district court must accept
the allegations in the moving party’s affidavits as true. Geibe, 571 N.W.2d at 777. Here, appellant submitted a 12-page affidavit
containing allegations that: (1)
appellant has continued to be an involved and dedicated parent to his children;
(2) the children are very close to appellant’s family in the North
Dakota/Minnesota area, but respondent’s family in the State of Washington would
be several hours away from an Oregon home; (3) respondent interfered with and
monitored appellant’s phone calls with the children; (4) the parties’ sons are
afraid of respondent’s fiancé, who frequently swore at the children; (5)
respondent used inappropriate judgment with respect to her engaging in sexual
activity with her fiancé; (6) respondent hit one of the parties’ sons in the
face, and threatened the boys with foster care or a juvenile delinquency
facility; and (7) respondent uses questionable judgment in her relationships with
men, including her current fiancé whom she met on the Internet in December
2003, became engaged to in February 2004, and planned to marry in July
2004. Appellant also noted that the
parties’ sons wrote letters to the district court asking to remain in
While district court findings addressed the issue of the preferences of the parties’ sons (indicating that “neither of their letters to the Court articulated a strong basis or specific and appropriate reasons for their preference”), other concerns raised by appellant were left unresolved or were not addressed. Taking appellant’s allegations as true, as we must (despite the categorical denial of respondent as to several of the allegations), and having before us a record on which the district court denied an evidentiary hearing without adequately addressing the allegations raised, we conclude that a reversal and remand for an evidentiary hearing is necessary.
In remanding this matter for an
evidentiary hearing, we note that nothing in the record before us indicates
that the May 28, 2004 order of the district court was stayed. Therefore, we assume that the residence of
the minor children is presently in
Consistent with the best interests
standard, the district court must take new evidence on remand in a custody case
where new information could show changed circumstances sufficient to constitute
a prima facia case for modifying custody.
See Sefkow v. Sefkow, 427 N.W.2d 203, 212 (
Although the issue of allocation of parenting time between the parties will be addressed if an evidentiary hearing is necessary upon remand, we address briefly here appellant’s argument that the district court improperly reduced his parenting time without making the findings necessary to support the reduction. The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of that discretion. Olson, 534 N.W.2d at 550.
Under the original divorce decree, appellant had very liberal visitation, including alternating weekends, five alternating major holidays with attached weekends, not including Christmas, six weeks in the summer, one-half of the school Christmas vacation, and one evening each week. In granting respondent permission to move to Oregon, the district court amended the visitation schedule to provide appellant with an amended visitation schedule that included: (1) six consecutive weeks each summer; (2) one week during Christmas vacation; (3) alternating major holidays (Christmas, Easter, Memorial Day, and Thanksgiving); (4) such other times including weekends that appellant and the children’s schedule will allow; and (5) reasonable, unmonitored telephone visitation.
Appellant asserts that the order
amending the visitation effectively restricted his parenting time because with
the children in
“When removal is permitted, the [district] court shall make such modifications of visitation as are reasonable and necessary to maintain a good relationship between the noncustodial parent and child.” Auge, 334 N.W.2d at 400. Although both the decree provision and the May 2004 order provide appellant with approximately the same amount of parenting time, as a practical matter, it would be almost impossible for appellant to see his children as much under the modified order as under the decree provision. Therefore, on remand, the district court shall assure, if the parties are unable to do so themselves, that an alternative parenting schedule is fashioned to best preserve the children’s relationship with both parents and to specifically take into account the significant distance between the parties.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 At the time the motion was brought, the parties’ three children were ages 13, 10, and 9, respectively.
 The court found that “it is alleged that the boys do not like Respondent’s fiancé and that he swore and yelled at them” and “the moving issue and the general status of the parties’ relationship has had an adverse effect upon the children . . . there have been discipline and behavior issues and school problems.” No further reference was made to these findings; the conclusion of the court was that appellant had “failed to establish a prima facie showing.” Allegations upon which the district court was totally silent include those of sexual activity being overheard by the children or occurring in the same room with them, and interference with phone calls to the children.
Despite the emotional and financial toll exacted from parents and minor
children when custody issues are litigated, we note the strong encouragement in
caselaw that district courts conduct evidentiary hearings in cases involving
allegations of present endangerment. Harkema
v. Harkema, 474 N.W.2d 10, 14 (
 After respondent moved to Brainerd, appellant was unable to exercise the scheduled weeknight parenting time because of the distance between the parties.