This opinion will be unpublished and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
Filed June 21, 2005
Hennepin County District Court
File No. DC 274 882
A. Larry Katz,
Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd.,
Nancy Zalusky Berg, William D. Casey, Katherine A. Godden, Walling, Berg & Debele, P.A., 121 south Eighth Street, Suite 1100, Minneapolis, MN 55402 (for respondent)
Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Crippen, Judge.
Because the district court’s findings question whether appellant’s move was designed to interfere with respondent’s parenting time and because the evidence reasonably supports those findings, respondent has made a prima facie case entitling him to an evidentiary hearing. We therefore affirm the court’s plan for an evidentiary hearing but modify the scope of that hearing, limiting it to consideration of the issue of whether appellant proposed her move in order to interfere with respondent’s parenting time.
The parties’ 12-year marriage was dissolved in December 2003, when the district court entered its judgment incorporating the parties’ marital termination agreement, which was executed several weeks earlier. The judgment established joint legal custody of the three children, who are now 12, 10, and 7 years old, and provided that appellant would have sole physical custody, subject to respondent’s reasonable parenting time. The visitation schedule allowed respondent one day per week with the children, alternate weekends, monthly time alone with each child, and alternating vacations and holidays.
Appellant acknowledged in her deposition that during the
parties’ negotiation of the agreement, she verbally assured respondent that she
would not remove the children from
In March 2004, respondent moved to restrain appellant
from removing the children from the state and for an evidentiary hearing on the
issue of modifying custody; in the
alternative, he moved to reopen the judgment due to mistake, fraud, and
misrepresentation under Minn. Stat. § 518.145, subd. 2 (2004). Appellant countered with a motion to deny all
of respondent’s motions and for permission to remove the children to
Many of the referee’s findings, which were confirmed in
their entirety by the district court, focus on appellant’s actions in the weeks
and months prior to and immediately following entry of the divorce
judgment. The court found that
“[t]hroughout these proceedings [appellant] has claimed that she is not taking
steps to move the children out of State,” despite steps taken by her to the
contrary. The court noted appellant’s
decision to apply to a Florida college in January 2004, even though course work
was available to her in Minnesota and she was just credits short of completing
that coursework here; the sale of the Minnesota house owned by appellant’s
parents and occupied by appellant and the children; the purchase of a house in
Florida with her parents’ assistance; and the withdrawal of the children from
school in Minnesota and their enrollment in Florida schools. Most of these activities occurred prior to
appellant’s April 2004 request to remove the children to
The district court then discussed
The district court made a number of findings in which it refused to characterize appellant’s actions as fraudulent but stated that appellant “held critical information during the negotiation stage which she had the obligation to disclose; namely, her intention to move to Florida”; that her “claim that she made this decision after [the parties] were divorced is not supported by her behavior, including her application for school”; that she “has not acted in good faith in her actions”; and that her “move will interfere with [respondent’s] access to the children.” The court further found that “[w]hether [the interference with respondent’s access to the children] is a result of [appellant’s] actions or [is] an intent formed by her” is an issue that should be heard by a court.
on its findings, the district court denied appellant’s request to remove the
decisions are reviewed to determine whether the district court abused its
discretion by making findings unsupported by the evidence or by improperly
applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (
argues that the district court misapplied the law when it placed the burden on
her to prove that her proposed move to
Under the presumption set forth in Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983), when a custodial parent petitions for permission to move the residence of children from the state, the court presumes that removal is in the children’s best interests and will grant permission to remove the children without an evidentiary hearing “[u]nless the party opposing the motion for removal makes a prima facie case against removal.” A noncustodial parent may obtain a hearing by showing that removal is not in the children’s best interests and would endanger the children’s health or well-being or by showing that removal is intended to interfere with visitation or parenting time. Silbaugh, 543 N.W.2d at 641 (citing Minn. Stat. §§ 518.18, .175, subd. 3 (1994)). A prima facie case is established only if the party opposing the move submits specific evidence; bare allegations are insufficient. Silbaugh, 543 N.W.2d at 642. Once the noncustodial parent establishes a prima facie case, the burden remains on that parent to rebut the presumption in favor of removal by a preponderance of the evidence. Auge, 334 N.W.2d at 399.
Here, the district court found that respondent established a prima facie case to show that appellant’s removal of the children may have been intended to interfere with his visitation or parenting time. The court found that appellant had an obligation to disclose her intention to move during negotiation of the parties’ marital termination agreement, that she withheld critical information from respondent regarding her intention to move, that her behavior contradicted her claim that she made this decision after the divorce was finalized, that she has not acted in good faith, and that her move would interfere with respondent’s access to the children. From these findings, which are not clearly erroneous and are reasonably based on the evidence, one could surmise that the purpose of appellant’s move was based, at least in part, on her desire to interfere or limit respondent’s exercise of his parenting time. We therefore conclude that, at this point, it was proper for the court to order an evidentiary hearing.
The focus of this evidentiary hearing must be to consider whether the purpose of the move was to interfere with respondent’s parenting time. And contrary to the district court’s findings, the burden of proof is borne by respondent, not appellant. Although we affirm the court’s decision to grant an evidentiary hearing, we clarify that the burden remains on respondent to show that appellant’s proposed move was intended to interfere with his parenting time. See, e.g., Rutz, 644 N.W.2d at 493-94 (affirming denial of mother’s request to remove children to Hawaii based on finding that mother’s purpose in seeking removal was to interfere with father’s parenting time, where mother had no firm job offer in Hawaii, made only minimal efforts to find employment in Minnesota, had obstructed father’s ability to communicate with children and arrange visitation, and failed to consult with father about proposed move); Otava v. Otava, 374 N.W.2d 509, 511-12 (Minn. App. 1985) (affirming denial of motion for permission to move child to Finland where move would seriously impair child’s visitation with noncustodial parent and siblings and where evidence failed to show that move will improve child’s financial circumstances); Meyer v. Meyer, 346 N.W.2d 369, 371-72 (Minn. App. 1984) (reversing district court’s denial of mother’s request to move and approving mother’s move where she was pursuing job opportunity and father could exercise visitation at summer and Christmas vacations, rather than every other weekend as had been the case).
also argues that appellant’s actions constitute endangerment so as to entitle
him to an evidentiary hearing on custody.
Affirmed as modified.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant argues that the district court erred in ordering the decree reopened under Minn. Stat. § 518.145 (2004). But the court specifically found that it was “unwilling to require the decree to be set aside or reopened on the basis of fraud.” And although respondent’s alternative motion sought relief under Minn. Stat. § 518.145, respondent denies that the district court reopened the judgment and asserts that the court did not reach his alternative motion. Thus, the application of section 518.145 is not an issue on appeal.
 Respondent urges this court to overrule or
overturn Auge. This court is not in a position to disregard
established supreme court precedent.