This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Matter of:
Michelle Gloria VandeZande,
n/k/a Michelle Zoppa, petitioner,
David Arthur Gysland,
Filed June 4, 1996
Olmsted County District Court
File No. F8-923-50408
Jill I. Frieders, O'Brien, Ehrick, Wolf, Deaner & Maus, L.L.P., 206 So. Broadway Ste. 611, P.O. Box 968, Rochester, MN 55903-0968 (for Respondent)
Carol Grant, Kurzman, Grant & Ojala, 2445 Park Avenue South, Minneapolis, MN 55404 (for Appellant)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Toussaint, Chief Judge.
U N P U B L I S H E D O P I N I O N
Appellant David Gysland claims the trial court erred by allowing respondent Michelle Zoppa to move the parties' child from Minnesota without an evidentiary hearing on his claims that respondent sought removal to deprive him of visitation and that he should be awarded custody of the child. We affirm.
In April 1993, appellant admitted parentage of a child born to respondent in October 1991. With some interruptions against his will, appellant has subsequently had visitation contact with the child. In October 1995, respondent stated that her husband had a new job in Ohio and that she wanted to move there with the child. After a hearing, the trial court found that appellant did not make a prima facie case against removal, denied his motion for an evidentiary hearing, and granted respondent's motion for permission to move the child to Ohio.
Unless the parents agree, the custodial parent needs a court order to remove a child's residence from Minnesota. Minn. Stat. 518.175, subd. 3 (1994). Removal is presumptively appropriate and may be granted without an evidentiary hearing in the absence of a prima facie showing against it by the noncustodial parent. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). To defeat the presumption favoring removal, a parent opposing it must show either that removal would endanger the child and is not in the child's best interests or that the removal is intended to interfere with visitation. Id.
A prima facie case is one that has "proceeded upon sufficient proof to that stage where it will support [a] finding if evidence to the contrary is disregarded." Benson v. Benson, 346 N.W.2d 196, 198 (Minn. App. 1984) (quoting Black's Law Dictionary 1071 (5th ed. 1979)). Whether to hold an evidentiary hearing on a requested custody modification is decided under a similar standard. See Downey v. Zwigart, 378 N.W.2d 639, 642 n.1 (Minn. App. 1985) (noting similarity of standards for motions to remove and motions to modify custody).
We will not reverse a finding that a prima facie case was not made unless the finding is clearly erroneous. Geiger v. Geiger, 470 N.W.2d 704, 708 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991).
1. Appellant claims that respondent's move to Ohio is an attempt to deprive him of visitation. If true, this claim would preclude removal. Minn. Stat. 518.175, subd. 3. To support his claim, appellant alleges that respondent (a) improperly suspended his visitation based on burns suffered by the child in 1993; (b) offered him money if he would voluntarily terminate his parental rights; (c) falsely accused him of molesting the child in 1994; (d) suspended the visitation of appellant's parents for no reason; (e) is trying to replace him in the child's life with her new husband; and (f) along with her husband, made false statements in affidavits submitted to the court. Because appellant's claims are merely conclusory and not borne out by the record, they are insufficient to require an evidentiary hearing. See Silbaugh, 543 N.W.2d at 642 (evidentiary hearing not required where claim that removal was sought to interfere with visitation was "otherwise unsupported by the record"); Geiger, 470 N.W.2d at 709 ("conclusory statements" that removal was not in children's best interests did not establish prima facie case against removal).
It is undisputed that the child suffered two burns, including a second-degree burn on the child's hand, while in appellant's care and that respondent then suspended appellant's visitation on the advice of counsel.
Although respondent attempted to get appellant to voluntarily terminate his parental rights, the law does not penalize the choice of a custodial parent to seek adoption of his or her child by the parent's new or prospective spouse. Cf. Minn. Stat. 259.24, subd. 1(c) (1994) (parent's consent to adoption not required if parent's parental rights have been terminated).
The visitation suspension related to the molestation claims was not improper. Respondent obtained not only an ex parte order suspending visitation, but also a second order, issued after a hearing and based partly on an expert's report, that continued the suspension pending an investigation.
Regarding the suspension of the child's visitation with appellant's parents, appellant's parents are the correct parties to enforce their rights. See Minn. Stat. 518.156, subd. 1(b) (1994) (addressing custody and visitation of persons "other than a parent").
Appellant's claim that respondent is trying to replace him with her new husband is inconsistent with the generous visitation allowed appellant in the modified visitation schedule and appellant's stipulation to that schedule. Finally, appellant's claim tying allegedly false statements of respondent and her husband to prior attempts to deny visitation assumes that the prior suspensions were attempts to deprive appellant of visitation.
Appellant also claims that (a) the timing of respondent's motion forced the trial court to give undue weight to the economic impact of denying her motion and (b) the trial court improperly presumed that he was an unfit parent. Under Geiger, appellant's failure to make more than a conclusory showing supporting his request for an evidentiary hearing is fatal to that request. 470 N.W.2d at 709. Therefore, any error in the trial court's use of an improper standard or presumption is harmless. See Minn. R. Civ. P. 61 (harmless error to be ignored).
2. Appellant claims that removal is not in the child's best interests because it will separate the child from appellant and the parties' extended families. But general statements about the stress, anxieties, adjustments, and difficulties of moving away from one parent and to a new locality do not require an evidentiary hearing. Silbaugh, 543 N.W.2d at 641 n.2; Geiger, 470 N.W.2d at 709.
3. Appellant claims that he is entitled to an evidentiary hearing on his claim for custody of the child because removal will emotionally endanger the child. He claims that the child is endangered because respondent is trying to subvert the father-child relationship by telling the child to tell others that appellant abused the child. A custodial parent's "course of conduct" undermining a child's relationship with a noncustodial parent allows custody to be modified. Chafin v. Rude, 391 N.W.2d 882, 887 (Minn. App. 1986). But the affidavits submitted by appellant do not show the systematic course of conduct present in Chafin.
Appellant also claims that respondent's psychological condition could require a custody modification. See Bettin v. Bettin, 404 N.W.2d 807, 808-09 (Minn. App. 1987) (custody modification in child's best interests where, among other things, mother's psychological condition required her to have a year without custody). While appellant infers respondent's condition from medical bills, the record is, at best, unclear about whether respondent was ever diagnosed with the condition, and one doctor mentioned in the bills denies having examined respondent.
4. Respondent moves to strike references in appellant's brief to certain contested evidence. See Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (appellate courts cannot base decisions on information not in the record and matters not part of the record "must be stricken").
At the hearing, when appellant tried to enter this evidence, respondent objected. The trial court "noted" respondent's objections but told appellant to continue. The trial court's order did not rule on respondent's objections or refer to the evidence. There is no indication that the trial court sustained respondent's objections. Thus, appellant has had no prior indication that the evidence had not been admitted. And we cannot create an appellate issue by assuming the trial court denied respondent's objections. Absent a trial court ruling, there is nothing for this court to review. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate courts do not address issues not presented to and decided by the trial court). We decline to strike the contested references in appellant's brief.
5. We find no merit in appellant's plea for attorney fees on appeal.