This opinion will be unpublished and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:
Blanca Margarita Zaldivar, petitioner,
Luis Roberto Rodríguez Zaldivar,
Filed December 5, 2006
Watonwan County District Court
File No. F0-03-426
Janet C. Werness, Southern Minnesota Regional Legal
Services, 166 East Fourth Street, Suite 200, St. Paul,
Luis Roberto Zaldivar, 205-1/2
Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Luis Zaldivar appeals the district court’s denial of his motions to modify child custody and to reopen his dissolution judgment. We affirm the denial of the modification motion without a hearing because the affidavits and supplemental material do not establish prima facie evidence of a change in circumstances that endangers the child’s physical or emotional health. We do not reach Zaldivar’s challenge to the dissolution judgment because he failed to address it in the text of his appellate brief and, on the face of the record, we perceive no error in the district court’s determination.
F A C T S
Parada, formerly Blanca Zaldivar, and Luis Zaldivar are the parents of a
ten-year-old child who was born on July 17, 1996. Parada and Zaldivar were married in 1993 in
Parada obtained an order for protection based on acts of domestic violence and filed a marital-dissolution petition in September 2003. Zaldivar and Parada agreed to a decree of dissolution and ultimately resolved the property-division and child-custody issues. Based on Zaldivar and Parada’s agreement, the district court issued an order granting Parada sole legal and physical custody; granting Zaldivar unsupervised parenting time; ordering phone and e-mail contact between the child and Zaldivar; and ordering that Parada would retain ownership of the family home conditioned on payment of one-half the value of the property to Zaldivar at the time of sale. The district court reserved the issue of child support and denied spousal maintenance.
After entry of the final dissolution judgment, Zaldivar made a number of motions relating to parenting time. In conjunction with one of Zaldivar’s motions, the district court appointed a guardian ad litem for the child. The guardian ad litem issued a report in May 2006, one week before the district court heard arguments on the motions that are the subject of this appeal.
first of Zaldivar’s motions raised in this appeal requested a change in
custody. In two affidavits submitted in
support of the motion, Zaldivar alleged that Parada and the child had moved to the
The district court heard arguments on both motions and reviewed the guardian ad litem’s report. The report refuted parts of Zaldivar’s affidavits and recommended that Parada retain sole legal and physical custody of the child. The district court denied Zaldivar’s motions without an evidentiary hearing and Zaldivar appeals.
D E C I S I O N
We review the denial of a motion to
modify custody for abuse of discretion. Nice-Petersen v. Nice-Petersen, 310 N.W.2d
471, 472 (
Physical custody may be modified if
the child is “endangered.”
The district court, in denying Zaldivar’s motion to modify custody without an evidentiary hearing, concluded that Zaldivar’s affidavits failed to provide prima facie evidence of a change in circumstances. The court stated: “[T]he Court finds that Mr. Zaldivar has not presented any new evidence not already considered by the Court.” This finding is supported by the record.
Zaldivar has failed to allege facts that would establish a significant change in circumstances. Although he provides a long list of allegations, most of these allegations have already been raised and considered either before the order establishing custody or in intervening motions that have been rejected by the district court.
We note that some of the allegations
purport to demonstrate a change in circumstances, but these allegations conflict
with supplemental evidence that Zaldivar has provided that negates the
occurrence of the alleged change. For
instance, Zaldivar alleges that Parada has moved to
Because the district court appropriately found that Zaldivar had failed to establish a prima facie case of a change in circumstances, we need not address the district court’s evaluation of the evidence on the child’s best interests or whether the advantages of a modification would outweigh any harm likely caused by it. We note, however, that the district court properly relied on the recent guardian-ad-litem report in evaluating Zaldivar’s motions. See Valentine, 512 N.W.2d at 871-72 (relying on report of social worker and therapist in determining whether to hold evidentiary hearing); Nice-Petersen, 310 N.W.2d at 472 (considering guardian ad litem’s report in determining whether to hold evidentiary hearing); Geibe v. Geibe, 571 N.W.2d 774, 777, 779 (Minn. App. 1997) (stating that while district court accepts facts in moving party’s affidavits as true, district court may consider other evidence that explains circumstances surrounding accusations). The guardian ad litem’s report reviewed and investigated Zaldivar’s accusations and concluded that there were no reasonable grounds to consider either a modification in custody or the parenting time schedule.
initially indicated that he was appealing the order denying his motion to
reopen his dissolution judgment. In his
brief, however, he does not refer to this order and makes no argument on this
issue. Although Zaldivar refers to the
order in his reply brief, he does so only in response to Parada’s brief, and he
does not explain why his motion to reopen should have been granted. Issues not argued in briefs are waived on
appeal. McKenzie v. State, 583 N.W.2d 744, 746 n.1 (
addition, we note that a party cannot move to reopen a dissolution judgment
under Minn. R. Civ. P. 60.02. After
judgment has been entered, the sole relief from judgment lies in meeting the
requirements of Minn. Stat. § 518.145, subd. 2 (2004). Shirk
v. Shirk, 561 N.W.2d 519, 522 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art, VI, § 10.