This opinion will be unpublished and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:
June Marie Rick, n/k/a June Marie Thompson, petitioner,
Timothy Donald Rick,
Reversed and remanded; motion denied
Minge, Judge, concurring specially
Wright County District Court
File No. F9-02-1722
Timothy D. Rick,
Mary L. Sawatzke, Mary L. Sawatzke Law Office, 601 Soo Lane, Suite B2, P.O. Box 116, Buffalo, MN 55313 (for respondent)
Considered and decided by Wright, Presiding Judge; Randall, Judge; and Minge, Judge.
Appellant challenges the district court’s denial of his motion to modify custody of the parties’ children without an evidentiary hearing. The district court determined that appellant failed to make a prima facie case that (1) the children are endangered in their present environment or (2) the benefits of custody modification outweigh the harm. Appellant argues that the district court erred by denying an evidentiary hearing on his motion because his affidavits establish prima facie evidence of these elements. We reverse and remand.
Appellant Timothy Rick and respondent June Thompson had three children during their marriage: P.D., born September 8, 1995; R.L., born April 16, 1997; and T.D., born May 8, 1999. Prior to the parties’ separation, Rick was twice convicted of fifth-degree assault of his oldest child, P.D., for incidents occurring in September 1998 and April 2001. Thompson petitioned for dissolution of the marriage in May 2002.
The parties entered into a preliminary
agreement on child custody, which was subsequently incorporated in a district
court order. By the terms of this
agreement, Thompson received sole physical custody of the parties’ children and
was permitted to move with the children to
Proceeding on a theory of endangerment, Rick moved to modify custody on July 28, 2004, seeking joint legal and sole physical custody. Based on his personal observations, Rick claimed that Thompson was abusive and failed to provide a sanitary home or adequate care for the children. Rick also produced a partial record of an investigation of allegations of sexual abuse conducted by the Arkansas Department of Human Services (ADHS).
Following a referral in August 2003, ADHS found evidence that P.D. had engaged in sexual contact with R.L. An ADHS official developed a plan requiring Thompson to keep the children under constant supervision. Following another referral in April 2004, ADHS found additional evidence that the children had sexual contact with each other. An ADHS official concluded that Thompson had not taken adequate steps to prevent this sexual contact.
Regarding his fitness as a parent, Rick offered documentation of his success with anger management. Only two of these records postdate his most recent domestic-abuse conviction in May 2001. These records do not establish whether Rick has sufficient parenting skills or whether he can provide a suitable home for the children.
In its order dated August 16, 2004, the district court found that Rick had failed to make a prima facie case that (1) the children are endangered in their present environment or (2) the benefits from a modification of custody outweigh the harm. Based on this determination, the district court denied the motion without an evidentiary hearing. This appeal followed.
Rick argues that, because he presented prima facie evidence in support of custody modification, the district court erred in denying the motion without an evidentiary hearing. As an initial matter, the parties dispute the applicable standard of review for the district court’s decision.
proceed with a motion to modify custody, the movant must submit affidavits that
establish a prima facie case in support of modification. Axford v. Axford, 402 N.W.2d 143, 145
The burden of the movant to establish prima
facie evidence was originally set out by the Minnesota Supreme Court in Nice-Petersen
v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). The Nice-Petersen court concluded,
“[T]he trial court did not abuse its discretion in denying the motion on
affidavits and in refusing to schedule an evidentiary hearing.” 310 N.W.2d at 472. The Minnesota Supreme Court reiterated this
standard in Valentine v. Lutz, 512 N.W.2d 868, 871-72 (
We have, on occasion, called into question the abuse-of-discretion standard. See, e.g.,Griese v. Kamp, 666 N.W.2d 404, 407 (Minn. App. 2003), review denied (Sept. 24, 2003); Ross v. Ross, 477 N.W.2d 753, 755-56 (Minn. App. 1991). But as an error-correcting court, we lack legal authority to adopt a standard of review that is contrary to that utilized in custody-modification decisions of the Minnesota Supreme Court. St. Aubin v. Burke, 434 N.W.2d 282, 284 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989). In accordance with Nice-Petersen and the preponderance of our decisions in this area, we conclude that the correct standard of review is for an abuse of discretion. See, e.g.,Geibe v. Geibe, 571 N.W.2d 774, 777-78 (Minn. App. 1997); Smith v. Smith, 508 N.W.2d 222, 226-27 (Minn. App. 1993); Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).
Modification of custody is governed by Minn. Stat. § 518.18(d) (2004), which provides in relevant part:
[T]he court shall not modify a prior custody order or a parenting plan provision which specifies the child’s primary residence unless it finds, upon the basis of facts . . . that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement . . . unless: . . .
(iv) 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.
This statute is often characterized as requiring the movant to establish the following four elements: (1) a change in circumstances prior to modification; (2) that modification serves the best interests of the child; (3) that the child is presently endangered; and (4) that the balance of harms favors modification. See e.g., In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002); Geibe, 571 N.W.2d at 778. If a district court concludes that the movant has not provided prima facie evidence of these elements, it is not required to hold a hearing or make particularized findings. Axford, 402 N.W.2d at 145.
To determine whether a child is
presently endangered, considerations include the physical and emotional
well-being of the child. Harkema,
474 N.W.2d at 13-14. Endangerment is not
precisely defined and varies according to the circumstances of each case. Sharp v. Bilbro, 614 N.W.2d 260, 263
(Minn. App. 2000), review denied (
Endangerment may be based on circumstances
in which, due to the inaction of the custodial parent, a child faces a
heightened risk of sexual abuse. Bettin
v. Bettin, 404 N.W.2d 807, 810 (
When viewed in the light most favorable to Rick, the record demonstrates that, as of September 2003, Thompson knew of sexual contact between her children. An investigation by ADHS produced additional evidence of sexual contact between the children in April 2004, leading ADHS to conclude that Thompson did not take adequate measures to protect the children from sexual contact. On this record, we conclude that the district court erred when it determined that Rick had not made a prima facie case of endangerment.
Having concluded that the record establishes a prima facie case that the children are endangered in Thompson’s custody, we must balance this alleged harm against Rick’s uncontroverted history of physical abuse of his oldest child. To determine whether the balance of harms favors modification, the primary consideration is whether the children would benefit from placement with the noncustodial parent. The district court shall presume that stability is in the best interests of the child. Weber, 653 N.W.2d at 811.
The district court held that a prima facie case that the balance of harms favored modification had not been made. Because the district court did not address the serious allegations against Thompson or Rick’s history of violence against P.D., we are unable to discern a rationale for its decision.
Although the district court is not required to state particularized findings, it is nevertheless required to make sufficient findings to permit meaningful appellate review. Otherwise, we cannot determine whether the denial of an evidentiary hearing constitutes a sound exercise of the district court’s discretion. Accordingly, we reverse and remand to the district court for findings to support its conclusion with respect to the balance of harms or an evidentiary hearing on the motion.
Reversed and remanded; motion denied.
MINGE, Judge (concurring specially)
I concur in the result and opinion
of the majority except that part of the opinion that discusses the standard by
which we review district court decisions denying evidentiary hearings. I would not reject this court’s opinion in Griese v. Kamp, 666 N.W.2d 404, 407-08
(Minn. App. 2003), review denied (
 Rick has an outstanding
motion to expedite the release of this opinion.
Because we accord high priority to the speedy resolution of
child-custody cases on appeal, we deny this motion as moot.