This opinion will be unpublished and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:
Dorene Marjorie Blooflat, petitioner,
Bennett David Blooflat,
Filed August 30, 2005
Hennepin County District Court
File No. DC 238481
Kristy A. K. Rodd, Fredrikson & Byron, P.A., 4000 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402-4125 (for respondent)
Bennett D. Blooflat,
Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Bennett Blooflat appeals from a district court order that denied, without an evidentiary hearing, his motion to modify Dorene Blooflat’s primary physical custody of their three children and to grant him sole physical custody. Because the district court did not abuse its discretion in determining that the affidavit in support of the motion, taken as true, failed to establish a prima facie case for modification, we affirm the summary denial of the motion.
F A C T S
In the June 1998 marital-dissolution judgment, the district court provided for the custody of Bennett and Dorene Blooflat’s three children by adopting the custody provisions of the Blooflats’ marital-termination agreement. The Blooflats retained joint legal custody of their children, now ages 16, 12, and 8, and Dorene Blooflat received “primary physical custody,” subject to Bennett Blooflat’s scheduled parenting time. Dorene Blooflat was represented by counsel during the dissolution proceedings; Bennett Blooflat was not.
Five years after the
dissolution, in June 2003, Dorene Blooflat brought a motion to change the
children’s residence to
In September 2004 Bennett Blooflat moved to modify custody to obtain sole physical custody of the three children. His affidavit in support of the motion stated several bases for the modification: Dorene Blooflat’s instability as demonstrated by her move to Michigan and her return to Minnesota when the engagement failed; her overriding interest in money; the Blooflats’ unsuccessful attempt to reconcile; the children’s condition when left for visitation, including the state of their clothing and the absence of either backpacks or schoolwork; inappropriate reprimands about food; and improper involvement of the children in her attempts to avoid creditors. The affidavit also asserted that Dorene Blooflat tells the children to hide information from him and provides a poor example by not seeking employment. Bennett Blooflat maintains that he can provide a more appropriate living environment for the children in his new home.
The district court concluded that Bennett Blooflat’s affidavit failed to demonstrate that the current custodial arrangement endangered the children or that the children’s circumstances had changed materially from the time of the dissolution judgment that established the custody arrangement. In this appeal from the denial of his motion, Bennett Blooflat (1) challenges the denial of an evidentiary hearing, (2) asserts that the district court was impermissibly biased against him, and (3) raises constitutional objections, including his lack of representation in the marital-dissolution proceedings.
D E C I S I O N
To obtain an evidentiary hearing on a custody-modification
motion, the petitioning party must establish four elements for a prima facie
case, including a change in the circumstances of the child or custodian and
evidence that the child’s present environment endangers the child’s physical or
emotional health or emotional development.
Bennett Blooflat contends that the district court erred by relying on only one consideration—that the Blooflats’ son “does not wish to have visitation with [Bennett Blooflat]”—to deny him a hearing and a modification of custody. The record does not support this interpretation of the district court’s reasons for denial.
The district court’s written order includes a reference to the son’s expressed desire not to have visitation with his father, but this preference is not the basis for the court’s denial of Bennett Blooflat’s motion. The written order clearly states that the foundation for the district court’s denial of the custody-modification motion is its determination that the allegations in Bennett Blooflat’s affidavit, even if true, did not demonstrate a prima facie showing on the requisite changed-circumstances and endangerment factors.
The record supports the determination that the factual
allegations are insufficient. On the
changed-circumstances factor, the petitioner must show that a significant
change in circumstances has occurred since the original custody order.
In his affidavit, Bennett Blooflat alleged that Dorene
Blooflat is “unstable” as shown by her failed engagement and related moves
Bennett Blooflat’s affidavit also relies on the Blooflats’
failed reconciliation as a basis for claiming changed circumstances. As this court has previously noted, however, a
change in circumstances possibly caused by the petitioner’s own actions is
unlikely to trigger a change in custody.
See Lundell v. Lundell,
387 N.W.2d 654, 658 (Minn. App. 1986) (questioning whether parent should be
permitted to use her own noncompliance with court decision to establish change
of circumstances). Furthermore, because
the focus of the changed-circumstances factor is on the child and the custodial
parent, the portion of Bennett Blooflat’s affidavit discussing his current
marriage and residence is not of primary relevance. See Frauenshuh v. Giese, 599 N.W.2d 153, 157 (
The endangerment factor “requires a showing of a significant
degree of danger.” Geibe, 571 N.W.2d at 778 (quotation
omitted). “[T]o establish danger to a
child’s welfare, a parent’s conduct must be shown to result in an actual
adverse effect on the child.” Weber
v. W.P.W., 653 N.W.2d 804,
In his affidavit, Bennett Blooflat
asserts that Dorene Blooflat is “unstable” and “only interested in money” and
that the children arrive for his parenting time with clothing that does not fit
and without socks, their schoolwork, or their backpacks. He further alleged, based on his
conversations with Dorene Blooflat’s former fiancé, that she inappropriately reprimanded the
children about food preparation, conditioned the distribution of food on the
children’s saying that she is the “[b]est [m]ommy in the world,” and involved
the children in her efforts to avoid having to answer phone calls from
creditors. But these assertions are not
accompanied with any specific allegations of actual adverse effects on the
children. The affidavit does not claim
that the children are performing poorly in school, that they have health or
nourishment problems, or that they have behavioral or psychological problems
caused by Dorene Blooflat’s parenting.
“Bare allegations . . . [do not] rise to the level of
establishing endangerment.” Silbaugh v. Silbaugh, 543 N.W.2d 639,
Because the allegations raised in Bennett Blooflat’s affidavit, even if true, do not demonstrate a prima facie showing on the requisite changed-circumstances and endangerment factors, the district court did not abuse its discretion in summarily denying the motion to modify custody.
Bennett Blooflat next argues that the November 2004 order
denying his custody-modification motion should be reversed on the grounds of
judicial bias. A party may remove a
judge by filing a notice to remove within ten days after receiving notice of
which judge will preside at the hearing.
Even if we were to extend review, the claim of judicial bias
would fail on its merits. Judicial bias
that results in reversal generally must arise from an extrajudicial source, In
re Estate of Lange, 398
N.W.2d 569, 573 (Minn. App. 1986), or must amount to pervasive bias, which exists
when conduct is “so extreme as to display [a] clear inability to render fair
judgment.” Liteky v.
Bennett Blooflat raises two final claims in his pro se appellate brief: (1) that the district court’s failure to modify custody deprives him of a constitutionally protected liberty interest, and (2) that the ex parte nature of the June 1998 dissolution renders its provisions for custody unenforceable.
The constitutional challenge
was not raised in the district court proceedings. Issues not argued in the district court are
generally waived on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (
Bennett Blooflat also neglected to object in the district court to his lack of representation in the proceedings that resulted in the June 1998 dissolution judgment and therefore waived the issue. Thiele, 425 N.W.2d at 582. Furthermore the time to appeal from the dissolution judgment has long since expired. See Minn. R. Civ. App. P. 104.01, subd. 1 (providing that appeal generally may be taken from judgment within sixty days after service by any party of written notice of its filing). Bennett Blooflat has not brought a motion to reopen the dissolution under Minn. Stat. § 518.145, subd. 2 (2004), and thus the issue may not be raised in this appeal.