This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Pamela Diane Dyrhaug,
f/k/a Pamela Diane Krogseng,
n/k/a Pamela Diane Paige, petitioner,
Kevin John Dyrhaug,
Filed June 21, 2005
Hennepin County District Court
File No. DC 255926
Pamela Diane Paige, 1517 Winfield Avenue, Colorado Springs, CO 80906
(pro se respondent)
Mark A. Olson, Olson Law Office, 2605 East Cliff Road, Burnsville,
Considered and decided by Lansing, Presiding Judge; Peterson,
Judge; and Crippen, Judge.
U N P U B L I S H E D O P I N I O N
Dyrhaug appeals from district court orders that rejected his petition for a writ
of habeas corpus, granted Pamela Paige’s motion to change their children’s
residence from Minnesota to Colorado, and denied Dyrhaug’s remaining
motions to find Paige in contempt, modify custody, and order attorneys’ fees. Because the district court applied the proper
legal standards and did not abuse its discretion in determining the motions, we
F A C T S
A July 2000 district court
judgment dissolved Kevin Dyrhaug and Pamela Paige’s sixteen-year marriage. Two children, a daughter, now age 15, and a
son, now age 13, were born during the marriage.
The dissolution judgment provided for joint legal custody and granted
Paige sole physical custody subject to Dyrhaug’s reasonable parenting time to
be exercised on alternating weekends and during midweek visits.
Approximately three years
after the dissolution, Paige and Dyrhaug stipulated to a modification of the
judgment that granted Paige sole legal and physical custody of both children. The district court modified the judgment to
incorporate the stipulation and included the agreement that Dyrhaug would have
“no parenting time” except for periodic visits as determined by the children
and on alternating holidays. The
modified judgment included a provision that “[n]either party shall move the
residence of any minor child of the parties from the State of Minnesota except upon order of the [c]ourt
or with the consent of the other party.”
According to an affidavit
submitted by Paige, she took the children to Colorado
in May 2003 for an extended vacation during which she investigated the
possibility of moving to Colorado
Springs. While in
became engaged to be married, established a new job, and enrolled the children
in a local school. Paige alleges that
Dyrhaug initially consented to the children’s move to Colorado.
Dyrhaug denies giving consent.
The children returned to Minnesota for Dyrhaug’s
parenting time at Thanksgiving in 2003.
According to Dyrhaug’s affidavit, his daughter told him that in Colorado
she was not doing well at school, was spending time with “the wrong crowd,” was
pressured by her peers to “smoke pot,” was enduring household fights and verbal
abuse, and wanted to remain in Minnesota.
Although the son returned to Colorado
after the Thanksgiving holiday, the daughter remained in Minnesota
and began attending a Minnesota
school. In December 2003 an uncle, with Paige’s
permission, took the daughter out of school and drove her to the airport for a
prearranged flight to Colorado.
After the daughter returned
Dyrhaug petitioned for a writ of habeas corpus to compel Paige to produce the
children in court “for the purpose of transferring their custody to
[Dyrhaug].” A referee recommended against
issuance of the writ, and this recommendation was subsequently confirmed by the
district court. Following the
recommendation, Paige made a motion to change the children’s residence to Colorado. In response, Dyrhaug moved for a finding of
contempt against Paige, an order vacating Paige’s sole legal custody, an
evidentiary hearing on the transfer of physical custody, and attorneys’ fees.
Paige and Dyrhaug submitted
numerous affidavits and legal memoranda, and the court appointed a guardian ad
litem to conduct a custody study. Based
on the submitted evidence and argument, the district court denied Dyrhaug’s
motion to modify custody and to find Paige in contempt. The court granted Paige’s motion to change
the children’s residence to Colorado. The guardian ad litem’s report stated that
she met with both children in Minnesota and in
Colorado. The guardian reported that both children were
initially unhappy when they learned they were staying in Colorado,
but both had adjusted and independently stated that they preferred to reside in
Colorado. The guardian also reported that during the
interviews both children stated that Paige encourages their relationship with Dyrhaug.
Dyrhaug appeals, challenging
(1) the order allowing Paige to change the children’s residence to Colorado, (2)
the denial of his motion to modify custody, (3) the denial of his petition for
a writ of habeas corpus, and (4) the denial of his motion for attorneys’ fees.
D E C I S I O N
Under Minn. Stat.
§ 518.18(d) (2004), parents are presumptively entitled to remove from Minnesota the children
in their sole physical custody. Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983) (holding Minn. Stat. § 518.18(d) creates
an implicit presumption that removal is permitted when one parent has sole
physical and legal custody); see also
Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983) (extending Auge to instances when one parent has
sole physical custody and parents share joint legal custody). To defeat this presumption, the party
opposing removal must offer evidence that would establish that (1) removal is not
in the best interests of the child and would endanger the child’s health and
well-being or (2) removal is intended to interfere with visitation. Silbaugh v. Silbaugh, 543 N.W.2d 639,
641 (Minn. 1996). Unless the parent opposing removal “‘can make
a prima facie showing against removal, permission to remove may be granted
without a full evidentiary hearing.’” Id. (quoting Auge,
334 N.W.2d at 396).
Dyrhaug argues that residing in Colorado
endangers his daughter and that Paige’s removal of the children to Colorado was intended to
interfere with his parenting time. The
district court concluded that Dyrhaug failed to demonstrate endangerment or
intended interference. Dyrhaug contends that
he conclusively demonstrated endangerment based on his daughter’s preference to
reside in Minnesota and her failing grades and
behavioral problems in Colorado.
The guardian ad litem reported that the daughter said
she initially did not want to move to Colorado
and made a poor adjustment to the move.
At the time of the guardian ad litem’s investigation, however, the
daughter had changed her position and affirmatively wished to remain in Colorado. A progress report from her school
demonstrated a markedly improved academic performance. As recognized in Silbaugh, “[a]ny geographic change inevitably creates some anxiety
for children, but evidence of the disruption typically associated with such a
move is not sufficient to overcome the . . . presumption
that removal is in the best interests of the children.” Id. at
642. Because Dyrhaug’s assertions at
most show that his daughter initially suffered from anxiety and the effects of
disruption associated with moving to another state, the district court did not
abuse its discretion in finding that Dyrhaug failed to demonstrate
Dyrhaug also contends that he demonstrated that
Paige’s intent in removal was to frustrate his parenting time. Under the stipulated modification to the
dissolution judgment, Dyrhaug has parenting time at holidays and whenever the
children wish to see him. The guardian
ad litem reported that both children stated that “their mother encourages and supports
their relationship with their father.” Paige’s
affidavit states that her move to Colorado
was motivated by her interest in remarrying, living near extended family, and
taking a new job. Based on this record, we
cannot say that the district court abused its discretion in finding Dyrhaug
failed to demonstrate intended interference.
Dyrhaug further argues that
this court should conclude that removal of a child from Minnesota in violation of a provision in a dissolution
judgment is sufficient to overcome the statutory presumption and to require an
evidentiary hearing. After careful
review, we have found no substantive law to support this position, and Dyrhaug
has cited none. Contrary to Dyrhaug’s
assertion, the overwhelming consideration in a child-custody dispute is the
child’s best interests. Ryg v. Kerkow, 296 Minn.
265, 266, 207 N.W.2d 701, 703 (1973).
The district court found that
it was in the children’s best interests to remain in Colorado with Paige. This finding is fully supported by the
record, particularly by the report of the guardian ad litem. Dyrhaug does not challenge this finding, but
rather argues that Paige “should not be allowed to benefit from her wrongful
act” of moving the children prior to obtaining a court order. We do not condone Paige’s peremptory actions
that failed to honor her pledge to Dyrhaug to obtain his consent or obtain a
court order. But we affirm the district
court’s decision because it is based on a well-supported determination of the
children’s best interests. See State
ex rel. Doucette v. Kraskey, 496 N.W.2d 425, 428 (Minn. App. 1993) (stating
that children’s bests interests require father to pay child support even when
mother attempts to frustrate his parenting time).
In reviewing a district court’s
decision to dismiss a custody-modification petition without an evidentiary
hearing, we apply an abuse-of-discretion standard. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn.
App. 1997). The parent seeking custody
modification must submit an affidavit asserting sufficient justification for
the modification. Minn.
Stat. § 518.185 (2004). To
obtain an evidentiary hearing on a custody-modification petition, the moving
party must establish a prima facie case that: (1) a change has occurred in the
circumstances of the child or custodian, (2) a modification would serve the
best interests of the child, (3) the child’s present environment endangers his or
her physical or emotional health or emotional development, and (4) the harm to
the child that is 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 accepts the
facts in the moving party’s affidavit as true in determining whether the moving
party has established a prima facie case.
Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.
1981). If the moving party’s affidavit
does not allege facts that, if true, would provide sufficient grounds for
modification, the court need not grant an evidentiary hearing. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App.
1989), review denied (Minn. June 21, 1989).
Dyrhaug contends that he
demonstrated a prima facie case of endangerment based on his daughter’s
preference to reside with him in Minnesota and
her failing grades and behavioral problems in Colorado.
Endangerment is decided on a case-by-case
basis, Lilleboe v. Lilleboe,
453 N.W.2d 721, 724 (Minn. App. 1990), and requires
a showing of a “significant degree of danger.” Geibe, 571 N.W.2d at 778 (quotation omitted). Generally, the child’s expressed “preferences
alone do not provide sufficient evidence of endangerment
to mandate a hearing.” Id.
Dyrhaug’s affidavit alleges
that his daughter was not doing well in school, was receiving mostly “C” and
“D” grades, was enduring fights in Paige’s household, was spending time with
“the wrong crowd,” was being pressured by her peers to “smoke pot,” and was
verbally abused by Paige who did not think she was “good enough.” Dyrhaug’s affidavit described the incident
when an uncle came to his daughter’s school in Minnesota
and took her to the airport to return her to Colorado.
Dyrhaug further asserted that his daughter’s preference was to remain in
These assertions, taken as
true, demonstrate that the daughter had been affected by the move to Colorado and initially
struggled with the move, but they do not amount to a showing of a significant
degree of danger. The district court
found that the daughter’s situation was not unique for a teenager and concluded
that Dyrhaug failed to demonstrate that living with Paige endangers the
children. This conclusion is supported
by the guardian ad litem’s report.
Because a district court
need not grant an evidentiary hearing without a demonstration of endangerment, the
district court did not abuse its discretion in denying Dyrhaug’s request for
custody modification without affording him an evidentiary hearing. See id. (providing that prima facia
case on all four elements, including endangerment, must be demonstrated to
require evidentiary hearing).
A district court’s findings
in a habeas corpus proceeding must be sustained if the findings are supported
by reasonable evidence. Tureson v.
Tureson, 281 Minn. 107, 112, 160 N.W.2d
552, 556 (1968). A district court’s
conclusions of law are reviewed de novo.
See Haefele v. Haefele, 621
N.W.2d 758, 761 (Minn. App. 2001) (stating that this court reviews purely legal
issues de novo), review denied
(Minn. Feb. 21, 2001).
In evaluating a petition for
a writ of habeas corpus, courts effectuate rights of the contending parties if
those rights have been fixed by a valid child-custody judgment. State ex
rel. Pappenfus v. Kourtz, 173 Minn.
177, 181, 216 N.W. 937, 939 (1927). When
custody has not been fixed by a valid judgment, the court will consider the
best interests of the child to determine custody. Id.; see also Atwood v. Atwood,
229 Minn. 333, 336, 39 N.W.2d 103, 105 (1949)
(stating that court will place best interests of children above rights of
either parent); State ex rel. Price v. Price, 211 Minn.
565, 568, 2 N.W.2d 39, 40 (1942) (explaining best interests of children is
paramount consideration in habeas corpus proceeding).
Dyrhaug initiated these
proceedings to obtain custody of the parties’ children based on his allegations
that Paige violated the parties’ modified dissolution judgment by not
delivering the children for his Christmas parenting time, coercing the daughter
back to Colorado after she overstayed his Thanksgiving parenting time, and
removing the children from Minnesota without consent or court order. The modified dissolution judgment granted
Paige sole legal and physical custody of both minor children and provided that
Dyrhaug has “no parenting time” except for periodic visits as determined by the
children and on alternating holidays.
The modified dissolution judgment further provided that “[n]either party
shall move the residence of any minor child of the parties from the State of
Minnesota except upon order of the [c]ourt or with the consent of the other
Dyrhaug does not argue in
this appeal that the modified dissolution judgment is invalid. Although the provisions for parenting time
and provision for changing the children’s residence may have been violated,
Paige’s physical and legal custody of the children remained valid. As such, the district court did not err in
giving effect to the modified dissolution judgment by denying Dyrhaug’s petition
for habeas corpus. See Pappenfus,
173 Minn. at 181, 216 N.W. 937 at 939 (stating
that, in habeas corpus proceedings, courts give effect to valid judgment determining
custody of child).
Additionally, we find no
legal authority, and Dyrhaug has cited none, supporting the assertion that a
writ of habeas corpus is an appropriate remedy for violations of a
parenting-time order. Cf. id.
(discussing custody in habeas corpus proceeding, not visitation or parenting
time). Even if a habeas corpus
proceeding were appropriate, the paramount consideration to determine custody
is the best interests of the child. See
State ex rel. Link v. Mason, 179 Minn. 472, 474, 229 N.W. 582, 582 (1930)
(concluding, in habeas corpus proceeding, best interests of child trumped father’s
preferential right to custody); State ex rel. Neib v. Krueger, 143 Minn. 149, 150, 173 N.W. 414, 414 (1919) (concluding that,
although legal custody was vested in father, best interests were served by
permitting child to remain in custody of grandmother). The district court properly applied the law,
giving effect to the valid judgment and considering the best interests of the
children, and did not err in denying Dyrhaug’s petition for a writ of habeas
The factual findings underlying
the district court’s decision on a contempt motion are subject to reversal only
if clearly erroneous, and the contempt decision itself is subject to reversal
only if the district court abused its discretion. Mower County
Human Services v. Swancutt,
551 N.W.2d 219, 222 (Minn. 1996); Erickson
v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986).
In exercising civil contempt
power in dissolution cases, the district court’s objective is to secure
compliance with an order presumed reasonable.
Hopp v. Hopp, 279 Minn. 170, 173,
156 N.W.2d 212, 216 (1968). This power
gives the district court “inherently broad discretion to hold an individual in
contempt but only where the contemnor has acted contumaciously, in bad faith,
and out of disrespect for the judicial process.” Erickson, 385 N.W.2d at 304 (quotation
omitted). “The civil contempt power, by
definition, cannot be used to punish a person for past misconduct.” Hopp, 279 Minn. at 175, 156 N.W.2d
at 217. Rather, “the function of the
court is to make the rights of one individual as against another
meaningful.” Id. at 174, 156 N.W.2d at 216.
Dyrhaug argues that the district court erred in not
finding Paige in contempt because she clearly acted in violation of the
parties’ modified dissolution judgment. But
imposing consequences on Paige for moving the children to Colorado prior to obtaining a court order to
change their residence would amount to punishment for past misconduct. And the district court provided a full opportunity
for the parties to participate in the judicial process for determining the
merits of the underlying dispute—whether custody should remain with Paige or be
transferred to Dyrhaug. For these
reasons, we conclude that the district court did not abuse its discretion in
denying Dyrhaug’s request to find Paige in contempt.
Finally, Dyrhaug contends
that the district court erred in not ordering conduct-based attorneys’ fees. We will not disturb a determination on a
motion for conduct-based attorneys’ fees absent a clear abuse of
discretion. Sharp v. Bilbro, 614
N.W.2d 260, 264-65 (Minn. App. 2000), review denied (Minn.
Sept. 26, 2000). Under Minn.
Stat. § 518.14, subd. 1 (2004), a district court can order conduct-based attorneys’ fees against a party who
unreasonably contributes to the length or expense of the litigation. Such an allocation may only be based on conduct that occurs during the litigation process. Geske v. Marcolina, 624 N.W.2d 813,
819 (Minn. App. 2001).
Dyrhaug argues that the
district court should have ordered conduct-based attorneys’ fees because Paige
“interfered with [his] parenting time and unreasonably contributed to the
length and expense of these proceedings by removing the children to the State
of Colorado.” But the move to Colorado took place prior to litigation and
“[f]ailure to comply with a visitation order is not something that occurs as
part of court proceedings.” Sharp,
614 N.W.2d at 264. Because Dyrhaug did
not argue or demonstrate before the district court that Paige’s conduct during
litigation unreasonably contributed to the length or expense of litigation, the
district court did not err in denying Dyrhaug’s request for fees.
Dyrhaug cites Minn.
Stat. § 518.175, subd. 6(c)(3) (2004), as part of his argument for
conduct-based attorneys’ fees. This
statutory section provides a remedy of attorneys’ fees, distinct from Minn.
Stat. § 518.14 (2004), for situations in which a parenting-time order
is violated. See Sharp,
614 N.W.2d at 264–65 (treating fees under sections 518.175 and 518.14
separately). To the extent Dyrhaug is
raising the issue of attorneys’ fees for violations of ordered parenting time,
we decline to address the issue because it was not raised before the district
court. See Thiele v. Stich, 425
N.W.2d 580, 582 (Minn. 1988) (stating that
this court will generally consider only matters argued and decided in district court).