This opinion will be unpublished and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
Filed September 26, 2006
Toussaint, Chief Judge
Virginia Stark, Post Office Box 797, Lindstrom, MN 55045 (for respondent)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Juan Reyes challenges the district court’s order denying his contempt and change-of-custody motions and granting respondent Hazel Rivera’s motion for permission to move their child out of the state. Because the district court’s findings have support in the record and its determinations were within its broad discretion, we affirm.
Appellant and respondent are the parents of J.L.R., born on May 20, 1998. In a 1999 order, the court adjudicated appellant the father and awarded respondent sole physical custody, the parties joint legal custody, and appellant weekly parenting time. At a review hearing, the parties stipulated to a mediated visitation agreement, which expanded appellant’s visitation when the child reached three and one-half and five years old.
May 2005, when J.L.R. was seven years old, respondent took him to
hearing was scheduled for September 26, 2005.
At respondent’s request, it was continued for two days, until September
28, 2005. On September 27, 2005,
respondent served countermotions for modification of child support and for a
court order allowing her to move with the child out of the state to
After the hearing, the court denied appellant’s motions, granted respondent’s motion to move out of state, and modified the parenting plan to accommodate the child’s new primary residence. Appellant filed this appeal, arguing that the denial of his motions was an abuse of discretion and that he is entitled to a custody modification or, at a minimum, an evidentiary hearing on the matter.
district court has broad discretion to hold an individual in contempt. In re
Marriage of Crockarell, 631 N.W.2d
829, 833 (
that respondent was in contempt for failing to obtain a court order before
physically moving to
court found that appellant had not communicated the seriousness of his
objection to respondent until late in August when he served her with the order
to show cause. The record reflects that
respondent took the matter seriously when served: she appeared at the hearing,
sought a two-day continuance to obtain counsel, obtained counsel, filed motions,
and then appeared for the hearing with counsel.
The court concluded that respondent had legitimate reasons for being in
Appellant also argues that the court’s denial of compensatory parenting time was an abuse of discretion. The court considered but denied appellant’s request. Because appellant had been in regular phone contact with the child and had not been deprived of contact with him and because any interference with visitation was adequately explained, the court expressly stated that it favored granting generous parenting time in the new parenting plan.
On this record, the court did not abuse its discretion in denying the contempt motion.
On appeal, this
court reviews decisions respecting the custody modification and change of
residence of minor children for an abuse of discretion. Silbaugh
v. Silbaugh, 543 N.W.2d 639, 641 (
A parent who has
been awarded sole physical custody of a minor child and who proposes to change
the child’s residence to another state is presumed to be acting in the child’s
best interests in the change of residence. Dailey
v. Chermak, 709 N.W.2d 626, 633 (
noncustodial parent can make a prima facie showing that the removal of
residence is not in the child’s best interests, the custodial parent’s motion
may be granted without a full evidentiary hearing. Auge v.
Auge, 334 N.W.2d 393, 396 (
Appellant alleges that respondent should no longer be the child’s custodian because she often moves her residence and has inadequate parenting skills and because the child sleeps on the floor and has missed 24 days of school. Appellant further alleges that he should be the child’s custodian because he has created a stable environment for the child with a daily schedule, his own room, the company of step-siblings, and a step-mother working in the home.
Appellant’s allegations are insufficient to establish a prima facie showing that respondent’s change of residence is not in the child’s best interests. Appellant inconsistently alleges both that he had exercised all regular visitation plus more and that he has been deprived of visitation often. Aside from his contradictory assertions, the record contains no prior motions or actions indicating that appellant was previously concerned about parenting time. Similarly, his claim that respondent cannot provide a stable environment is based on conditions that existed previously without objection by appellant. Appellant’s mere allegations of school absences, child abuse, and respondent’s mental health are not supported by credible evidence.
do not show that respondent intended to interfere with appellant’s parenting
rights. Respondent initially left for
Absent a showing of endangerment or intentional interference with parenting time, the court properly allowed the move and adjusted the parenting schedule to accommodate appellant by increasing summer and holiday parenting time. The court’s decision to make its order without an evidentiary hearing was within its discretion.