This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-242

 

In re the Matter of:

 

Christine Louise Bolander,

n/k/a Christine Bolander-Moreland, petitioner,

Appellant,

 

vs.

 

Joel Blake DeForrest,

Respondent.

 

Filed August 21, 2007

Affirmed

Parker, Judge*

 

Mille Lacs County District Court

File No. 48-F5-97-050207

 

 

John P. Guzik, Guzik Law Office, P.A., 2332 Lexington Avenue North, Roseville, MN 55113 (for appellant)

 

Doug Clark, Law Offices of St. Cloud Area Legal Services, 830 West St. Germain, Suite 300, P.O. Box 886, St. cloud, MN 56302 (for respondent)

 

 

††††††††††† Considered and decided by Ross, Presiding Judge; Toussaint, Chief Judge; and Parker, Judge.

 

U N P U B L I S H E D†† O P I N I O N

PARKER, Judge

††††††††††† Appellant-mother Christine Bolander-Moreland challenges the district courtís denial of her motion to modify custody without an evidentiary hearing, arguing that the district courtís finding that she did not show a change in circumstances is clearly erroneous and that she presented a prima facie case requiring an evidentiary hearing.† Because the district courtís finding is not clearly erroneous and it was not an abuse of discretion to deny motherís motion without an evidentiary hearing, we affirm.

D E C I S I O N

††††††††††† We review a district courtís decision to deny a motion to modify custody without an evidentiary hearing for an abuse of discretion, In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002), and a district courtís findings of fact will not be set aside unless clearly erroneous. †Minn. R. Civ. P. 52.01.†

The party seeking custody modification must submit an affidavit in support of his or her motion.† Minn. Stat. ß 518.185 (2006).† To obtain an evidentiary hearing on a motion to modify based on endangerment, the moving partyís affidavit must allege the following four elements to establish a prima facie case for modification: (1) a change in the circumstances of the child or custodial parent; (2) the modification would serve the childís best interests; (3) the childís present environment endangers his or her physical or emotional health or development; and (4) the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.† Minn. Stat. ß 518.18(d)(iv) (2006); Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999).†

††††††††††† In deciding whether a party makes a prima facie case to modify custody, ďthe court must accept the facts in the moving partyís affidavits as true, and the allegations do not need independent substantiation.Ē† Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).† The district court may also consider allegations by others that are not contrary to the allegations of the moving party and which may put the moving partyís allegations in the appropriate context.† Id. at 777, 779.† Whether a party makes a prima facie case to modify custody is dispositive of whether an evidentiary hearing will occur on the motion.† Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (stating if moving party fails to make a prima facie case, the district court ď[is] require[d] . . . to deny [the] motionĒ).

Mother argues that she made a prima facie case for modification due to endangerment and that the district courtís finding that she presented no change in circumstances is clearly erroneous.† Mother contends that J.L.B.ís poor performance in school, fatherís allegedly unsafe home, and fatherís alleged interference with her parenting time are changed circumstances that justify modification.

††††††††††† What constitutes changed circumstances for custody-modification purposes is ďdetermined on a case-by-case basis.Ē† Lilleboe v. Lilleboe, 453 N.W.2d 721, 723 (Minn. App. 1990).† The changed circumstances ďmust be a real change and not a continuation of ongoing problems.Ē† Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).† To warrant modification, the change in circumstances must be significant, must have occurred since the original custody order, and must endanger the childís physical or emotional health or development.† Weber, 653 N.W.2d at 809.† Similarly, the existence of endangerment must be determined based on the facts of each case and demands ďa showing of a significant degree of danger.Ē† Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).†

††††††††††† †First, J.L.B.ís poor performance at school is not a changed circumstance since the date of the prior order.† Although motherís affidavits detail J.L.B.ís recent poor performance at school, the district court previously found that J.L.B. struggled academically, had difficulty focusing, and displayed behavioral problems at school.† Motherís affidavits, along with nonconflicting portions of fatherís affidavit, show that J.L.B.ís academic problems continue.† The affidavits also show that father took steps to help J.L.B. perform in school and that the child attended summer school.† The evidence also shows that J.L.B. may perform poorly intentionally due to ďproblems he experience[s] in his family life,Ē namely his parentsí obvious distain for each other.† J.L.B.ís absences from school also do not show that father is not providing for J.L.B., given the childís medical issues.† Therefore we conclude that J.L.B.ís recent performance in school is not a ďreal changeĒ but is part of a continuing problem resulting from his parentsí antagonistic relationship.† Roehrdanz, 438 N.W.2d at 690.

††††††††††† Next, the fact that fatherís home is not safe does not rise to a significant change in circumstances that endangers the child.† Mother cites a notation in a police report, filed after she requested a ďwelfare checkĒ on J.L.B., that fatherís home was dirty and that J.L.B. was not properly supervised in the home.† Mother also argues, without support from any specific source, that the child contracted scabies due to the homeís condition.† See Weber, 653 N.W.2d at 811 (stating that an evidentiary hearing may be denied when the moving partyís affidavit is ďdevoid of allegations supported by any specific, credible evidenceĒ (quotation omitted)).† We hold that the single notation about fatherís dirty home, and that he was asleep while J.L.B. was awake and otherwise unsupervised in the home, does not constitute evidence of a significant change in circumstances that endangers the child.† The isolated description of fatherís home on one evening, even if true, is not sufficient to prove a prima facie case of endangerment requiring an evidentiary hearing.

††††††††††† Aside from the notation in the police report regarding the homeís condition, there is no specific evidence to show that J.L.B.ís current home is unsuitable for the child or that father failed to provide for J.L.Bís physical or emotional needs.† J.L.B.ís alleged crying and making statements to his mother that he wants to be with her also do not show a change in circumstances.† J.L.B. continues to be stuck in the middle of his parentsí contentious relationship, and he ďtries to keep them happy by telling them only what he thinks they want to hear.Ē

††††††††††† Finally, fatherís alleged interference with motherís parenting time is insufficient to show a substantial change in circumstances warranting an evidentiary hearing.† ďA denial or interference with visitation is not controlling in a custody-modification proceeding, but such events are to be considered along with the custody-modification standard . . . .Ē† Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).

††††††††††† Considering motherís argument in the context of her other allegations, fatherís alleged parenting-time interference is insufficient to constitute a prima facie case for modification.† Mother alleges that father interferes with her telephone contact with J.L.B. by limiting his telephone access.† But even assuming motherís allegations are true, fatherís alleged conduct does not completely deprive her of telephone contact with J.L.B., and she continues to enjoy substantial parenting time, including all but two weeks of the summer, every-other weekend, one weekday afternoon, and every-other school break.† Mother also raises a July 2005 incident in which father allegedly refused to return J.L.B. to mother during her summer parenting time.† But that dispute arose because of an ambiguity in the district courtís parenting-time order and required the district courtís clarification.† Therefore the record shows that fatherís alleged parenting-time interference is not a significant change in circumstance that endangers J.L.B. and it is insufficient to warrant an evidentiary hearing.

††††††††††† We hold that it was not an abuse of discretion for the district court to deny motherís motion to modify custody because she failed to present a prima facie case of endangerment.† The district courtís finding that mother failed to show changed circumstances is fully supported by the record and not clearly erroneous.† Moreover, the district court carefully considered the evidence and the partiesí long and difficult relationship, and neither challenges the district courtís conclusion that mother and fatherís antagonism and distrust of each other continue to ďprevent the parties from working together to address [J.L.B.ís] needs.Ē† On this record, the district court properly denied motherís motion to modify custody, and she failed to make a prima facie case requiring an evidentiary hearing.† ††

††††††††††† Affirmed.



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