This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




County of Ramsey,


Rosana Isabel Plaza,



Luis Alvarado, et al.,



Romaine Cohen, intervenor,


Filed June 10, 1997


Davies, Judge

Ramsey County District Court

File Nos. F587516390, F2922544

Robert C. O'Connor, O'Connor Law Office, 13363 Findlay Way, Apple Valley, MN 55124 (for Respondent)

Timothy D. Lees, Lawrence D. Olson & Associates, P.A., 2860 Snelling Ave. N., St. Paul, MN 55113 (for Appellant)

Considered and decided by Harten, Presiding Judge, Davies, Judge, Schultz, Judge.[*]



Appellant grandmother challenges the district court's denial of her petitions for custody of respondent daughter's two children and award of attorney fees to respondent. We affirm.


This appeal is from two consolidated district court cases. The first is a paternity action in which respondent Luis Alvarado was adjudged the father of respondent Rosana Plaza's child, T.J., who was born in 1986. The second is a 1995 action dissolving the marriage of Plaza and respondent Alan Read, who were married in October 1989. They had a child, R.R., in 1991. Plaza was awarded sole physical and legal custody in both cases.

In October 1996, Plaza's mother, appellant Romaine Cohen, moved for orders: (1) allowing her to intervene in both actions; and (2) granting her custody of the children or, in the alternative, for reasonable visitation with them. Cohen's motions were based primarily upon allegations in her affidavit that the children lived with her for significant periods of time and that she has been intimately involved in their care. She also alleges facts that would suggest bad parenting or an inappropriate family environment for the children.[1]

The district court, after hearing arguments by counsel, granted Cohen's motions to intervene and to have reasonable visitation but denied a change in custody of either child.[2] The district court also awarded attorney fees to Plaza, ruling that Cohen had unreasonably contributed to the length and expense of the proceeding because her motions were meritless.


I. Applicable Statutory Standard

In both of the district court's orders, the second "conclusion of law" states that Cohen "failed to present a prima facie case of endangerment for modification of the current custody order" that would entitle her to an evidentiary hearing. It goes on to rule that Cohen also failed to make prima facie showings of an integration of the child into Cohen's home or willful and persistent denial of visitation. It appears that the district court was applying Minn. Stat. § 518.18 (1996), governing modification of custody orders.

Cohen argues that the trial court applied the wrong statute in deciding the custody issue. The applicability of a statute is a question of law, which this court reviews de novo. Dabrowski v. Dabrowski, 477 N.W.2d 761, 764 (Minn. App. 1991).

Cohen argues that Minn. Stat. § 518.18 is inapplicable to the case, pointing to In Re Custody of N.M.O., 399 N.W.2d 700, 704 n.1 (Minn. App. 1987), which suggests that custody issues between biological parents should be decided under chapter 518 and those involving a biological parent and a third person should be decided under Minn. Stat. § 257.025 (1996), which details the best-interests-of-the-child standard without the requirement of a showing of endangerment, integration, or denial of visitation found in Minn. Stat. § 518.18.

We hold that the district court properly applied Minn. Stat. § 518.18. Both files before us contain prior determinations granting custody to Plaza. We are unpersuaded by Cohen's argument that, because she was not a party to the earlier custody proceedings, she does not need to seek a "modification" under Minn. Stat. § 518.18 (which requires the additional showings discussed above). Although Minn. Stat. § 257.025 details general best-interests factors that apply to "any [custody] proceeding," the nature of Cohen's motion is one for modification of custody, which is governed by Minn. Stat. § 518.18.[3]

Both district court orders, in addition to relying on Minn. Stat. § 518.18, improperly rely on Minn. Stat. § 518.158 (1996) to deny a change in custody. The district court erred in even considering Minn. Stat. § 518.158. It is entitled "Grandparent Ex Parte Temporary Custody Order" and plainly concerns emergency, ex parte proceedings instituted by a grandparent. As the proceedings here were contested and dealt with permanent custody issues, the statute simply has no relevance.

II. Evidentiary Hearing

Appellant claims there should have been an evidentiary hearing. A party is entitled to an evidentiary hearing upon making a prima facie case for change of custody. Ross v. Ross, 477 N.W.2d 753, 755 (Minn. App. 1991). Review of the denial of an evidentiary hearing on custody is de novo. Id. at 756.

To obtain a custody modification, the movant must show a change in circumstances such that a change in custody would be in the best interests of the child. Minn. Stat. § 518.18. Where contested, the moving party must demonstrate endangerment to the child, integration into the movant's family, or persistent and willful denial of visitation. Id.

Further, in custody disputes between a biological parent and a third person, the biological parent

is "entitled to custody of her children unless it clearly appears that she is unfit or has abandoned her right to custody, or unless there are some extraordinary circumstances which would require that she be deprived of custody."

N.M.O., 399 N.W.2d at 702 (quoting Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 629 (1971)). The supreme court has made it plain that, with respect to this presumption of custody by the biological parent, the best-interests evaluation is the "overriding consideration." Id. at 703.

Our review of Cohen's affidavit demonstrates that she has failed to make the necessary prima facie showing. She is obviously a concerned grandparent who has been very involved in her grandchildren's lives. Many of her allegations are entirely without evidentiary support, however, such as drug use by Plaza, and the others lack the specificity and seriousness that are required for a hearing on a potential change in custody. Particularly in light of the custodial preference for the biological parent, we hold that Cohen presented insufficient evidence to make a prima facie showing that would support an evidentiary hearing or further consideration of her motions for custody of the children.

III. Attorney Fees

The district court awarded the full amount of Plaza's attorney fees in both cases. The district court's orders both state:

The court in its discretion may award additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding. [Cohen's] motion was meritless and caused [Plaza] great expense which she could not afford. Further as to the visitation issue, [Cohen] had never been denied visitation until after August 18, 1996, and the resulting court proceedings. There is no evidence to suggest that under normal circumstances [Plaza] would have denied [Cohen] visitation after she had moved to California.

The quoted language plainly suggests that the district court was operating under Minn. Stat. § 518.14, subd. 1 (1996), which governs attorney fees in "proceeding[s] under this chapter." Cohen argues that application of Minn. Stat. § 518.14 was improper because the statute controlling the custody decision is Minn. Stat. § 257.025. Because we have held that chapter 518--not section 257.025--applies to this case, we reject Cohen's argument.

Minn. Stat. § 518.14, subd. 1, first discusses need-based awards of attorney fees, then goes on to provide:

Nothing in this section precludes the court from awarding, in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.

As Cohen argues, the district court must make specific findings on the ability of the parties to pay before making a need-based award. Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992). Ability-to-pay findings are not relevant, however, to the issue of conduct-based sanctions.

Cohen also argues that, because her motion for visitation was granted, that portion of her petition could not have "unreasonably contribute[d] to the length or expense of the proceeding" and that therefore the award of full attorney fees was in error. We review the award of attorney fees under the abuse-of-discretion standard. Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987).

There might appear to be some merit to Cohen's argument that full attorney fees are not appropriate because her motions to intervene and for visitation were granted, and therefore she should not be subject to conduct-sanctioning fees. But Plaza's attorney fees affidavit states that the work was done "to defend against [Cohen's] motion for custody." Thus, it does not purport to cover work done on the visitation issue. Even assuming for purposes of this opinion that Plaza's attorney was referring to the defense against Cohen's motions in general, it seems clear that the primary focus of the litigation was on the custody issue. Further, the visitation issue was to be decided purely by a best-interests evaluation; as a practical matter, we do not think that significant work was required for the visitation issue beyond work on the best-interests arguments related to the custody motion. Finally, even if the two portions of the work are severable, the interests of justice would not be served by a remand because the costs of further litigation would likely be greater than any reduction in the $959.46 award.

The district court was within its discretion in finding that the custody petition was "meritless" and thus an appropriate ground for awarding fees. Cohen's affidavit is insufficient to establish a prima facie case for her custody of the children.


[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 The issues on appeal appear to stem from Plaza's announced intentions to move to California with the children.

[ ]2 There was no evidentiary hearing. The district court made its decisions based on the affidavits, files, and arguments by counsel. The court issued a separate order for each child.

[ ]3 N.M.O. dealt with a situation where the biological parent with custody died and the dispute was between the noncustodial biological parent and the deceased's new husband. 399 N.W.2d at 701. Thus, the proceeding was more like an original custody determination than a modification, as we have here.