This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Jill Ann Kenline,






Jeffrey Michael Kenline,




Filed June 21, 2005

Affirmed as modified
Crippen, Judge


Hennepin County District Court

File No. DC 274 882



A. Larry Katz, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN  55402 (for appellant)


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.

U N P U B L I S H E D   O P I N I O N


            Appellant Jill Kenline challenges an order issued by a referee and confirmed by the district court that denies her motion to remove her three children to Florida.  She argues that the district court erred by placing the burden on her to establish that removal was in the children’s best interests and by reopening the custody provisions of the dissolution judgment for review in further proceedings.

            Respondent Jeffrey Kenline counters that the district court did not reopen the judgment but merely granted him an evidentiary hearing because he made a prima facie case against removal.  Respondent further urges this court to overturn the presumption favoring the custodial parent in removal cases.

            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 Minnesota.  Within one month after the divorce, respondent learned that appellant was planning to move to Florida with the children.

            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 Florida.

            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 Florida.

            The district court then discussed Minnesota law as it relates to removal of children from the state by a custodial parent.  The court stated that once respondent made a prima facie case against removal, the burden shifted to appellant to show that the move is in the children’s best interests.  The court further found that Auge v. Auge, 334 N.W.2d 393 (Minn. 1983), “which stood for the unrestrained right of a custodial [parent] to move without the consent of the non-custodial parent has long been diminished in case law and statute in Minnesota.”

            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.

            Based on its findings, the district court denied appellant’s request to remove the children from Minnesota and ordered that they be returned to Minnesota immediately.  The court further ordered a hearing on the issue of custody after completion of a custody evaluation.  The court finally denied respondent’s “request that the decree be opened for fraud,” but then “opened [the provisions of the decree affecting custody] for the purposes of the study and determination as to their further custody.”[1]


            Removal 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 (Minn. 1996); see Rutz v. Rutz, 644 N.W.2d 489, 492-93 (Minn. App. 2002) (reciting this standard in context of removal decision not involving a parenting plan), review denied (Minn. July 16, 2002).  Even if the court improperly applies the law, we may affirm if possible on another basis.  See Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (stating that appellate court “will not reverse a correct decision simply because it is based on incorrect reasons”).

            Appellant argues that the district court misapplied the law when it placed the burden on her to prove that her proposed move to Florida was in the children’s best interests.  Although appellant is correct, that does not necessarily entitle her to reversal in this case.  Close examination of the district court’s findings and a correct application of the law leads, at least in part, to the same result reached by the district court.

            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.”[2]  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).

            Respondent also argues that appellant’s actions constitute endangerment so as to entitle him to an evidentiary hearing on custody.  See Minn. Stat. § 518.18(b), (c), (d)(iv) (2004).  In particular, he points to evidence that shows:  (1) appellant failed to disclose her plans to move to Florida; (2) the maternal grandparents, who are the proposed caregivers in Florida, are in poor health and often unavailable; (3) the proposed move will deprive the children of contact with the paternal grandparents in Minnesota; and (4) the proposed move will deprive the children of contact with respondent.  The district court did not make any findings on endangerment and did not address this issue.  Nevertheless, given the evidentiary hearing on the issue of interference, respondent is entitled in that setting to present evidence and argument to support his allegations of endangerment.

            Affirmed as modified.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  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.

[2]  Respondent urges this court to overrule or overturn Auge.  This court is not in a position to disregard established supreme court precedent.  See State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998).  And there is no existing authority for respondent’s assertion that a “new culture” has emerged since Auge or, in any case, that an enlarged appreciation for a child’s relationship with both parents would prompt rejection of the Auge rationale that diminished the judicial role in questioning a caretaker’s family plans.  In other words, Auge dealt with the manner of dealing with move proposals, not the merits for or against moves.  Contrary to the district court’s statement, Auge has not been diminished by subsequent case law and remains the law of the case.