may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Custody of K.W.R.
Julie Lynn Springer, et al., petitioners,
Marcy Marie Raveling,
Filed August 5, 1997
Kandiyohi County District Court
File No. F2-96-223
Thomas A. Jones, Ferro & Jones, P.A., 200 SW Fourth Street, P.O. Box 1051, Willmar, MN 56201 (for respondent)
Rodney C. Hanson, Anderson Larson Hanson & Saunders, P.L.L.P., 331 Professional Plaza, 331 SW Third Street, P.O. Box 130, Willmar, MN 56201 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Holtan, Judge.
Appellant challenges the district court's denial of an evidentiary hearing on her motion for custody modification. We affirm.
On October 14, 1996, Raveling moved for an order reopening the custody order, an evidentiary hearing on the custody of K.W.R., and other relief not relevant to this appeal. Raveling submitted an affidavit with her motion. The Springers responded on November 1, 1996, by moving the court to dismiss Raveling's motion and appoint a visitation expediter to establish a visitation schedule. On November 20, 1996, Raveling submitted a second, unsolicited affidavit in support of her motion. On December 3, 1996, the district court denied Raveling's motion and appointed a visitation expediter to establish a specific and reasonable visitation schedule including alternating weekends and holidays.
In her first affidavit, Raveling alleged that the Springers denied Raveling visitation "many times," often after having told Raveling that she could see K.W.R. Raveling's first affidavit did not, however, describe any specific instances of Raveling being denied visitation. The one visitation incident Raveling did describe in detail in her first affidavit involved the Springers requiring Raveling to return K.W.R. on Sunday night instead of on Monday, after Raveling had picked up K.W.R. on or about the preceding Thursday.
In her second affidavit, Raveling described ten instances in which the Springers allegedly denied or interfered with Raveling's visitation in the time between the court's April 9, 1996 order granting physical custody to the Springers and the December 3, 1996 order denying Raveling's motion.
In Julie Springer's affidavit in support of the Springers's motion, Julie Springer did not deny that Raveling had been unable to visit K.W.R. on the occasions alleged. Instead, she stated that "[t]he problems we have had with visitation are not related to our denying Marcy any visits they are related to her total inability to commit to times for the visits to start or conclude."
Raveling appealed the district court's order on January 8, 1997. On appeal, Raveling argues that the district court erred by not granting Raveling an evidentiary hearing and by failing to find explicitly that Raveling did not make out a prima facie case for modification.
Generally, a party may not obtain modification of a custody order within one year of its entry. Minn. Stat. § 518.18(a) (1996). A court may modify a custody order within one year from the date of entry, however, if the court finds, among other things, a persistent and willful denial of, or interference with, visitation. Minn. Stat. § 518.18(c) (1996).
A party is entitled to an evidentiary hearing on a motion for modification only if the party establishes a prima facie case for modification. Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992). In deciding whether to hold an evidentiary hearing on a motion to modify, the court must take the factual allegations of the moving party as true. Nice-Petersen, 310 N.W.2d at 472. A party does not establish a prima face case for modification by merely alleging "numerous" denials of visitation supported by reference to only a few specific incidents. See Sina v. Sina, 402 N.W.2d 573, 575 (Minn. App. 1987) (affirming denial of evidentiary hearing on custody modification where moving party alleged numerous denials of visitation, but cited only two specific instances of interference in particular).
Here, Raveling stated in her first affidavit that the Springers had denied her visitation many times, but cited only one instance of interference with visitation and did not cite to any particular instances of being completely denied visitation. In her second affidavit, Raveling again alleged that the Springers had denied her visitation numerous times. In addition, however, Raveling's second affidavit detailed ten specific instances of denial or interference with visitation over the course of eight months. Taking as true the allegations contained in both of the affidavits, Raveling made out a prima facie case of willful and persistent denial of visitation.
The district court, however, denied Raveling's request for an evidentiary hearing. The court did not expressly decline to consider Raveling's second affidavit, but simply stated that it based its decision on its "review of the file." In light of the district court's denial of an evidentiary hearing, we must assume that the court did not consider the second affidavit. To do otherwise would be to presume error, see Custom Farm Servs., Inc. v. Collins, 306 Minn. 571, 572, 238 N.W.2d 608, 609 (1976) ("Error cannot be presumed.") (citing Noltimier v. Noltimier, 280 Minn. 28, 157 N.W.2d 530, 531 (1968), because the second affidavit easily met the threshold requirement for an evidentiary hearing.
Because Raveling's first affidavit alleged only one instance of interference with visitation and did not cite with particularity to any instances of being completely denied visitation, Raveling failed to make out a prima facie case for modification. As a result, the district court did not err by denying Raveling an evidentiary hearing.
Raveling further argues that the district court erred by failing to find specifically that Raveling did not make out a prima facie case for modification. Raveling argues that under Abbott v. Abbott, 481 N.W.2d 864 (Minn. App. 1992), a court that denies an evidentiary hearing on a custody modification motion "must make findings that the moving party has failed to make a prima facie case for modification." In Abbott, this court stated:
If the trial court determines that the affidavit evidence submitted by the moving party fails to make out a prima facie case for modification according to the statutory factors, the trial court need only state that such is the case * * *.
481 N.W.2d at 868. The Abbott court further commented that in order for the district court to show that it has applied the appropriate test, "the court should at least state that the moving party has failed to make its prima facie case." 481 N.W.2d at 868 n.2 (emphasis added). We conclude that these statements, when read together, recommend, rather than require, that a district court denying an evidentiary hearing state that the moving party has failed to make out a prima facie case. As a result, the district court's failure to make such a finding did not constitute error.
Even if the district court had erred by failing to state explicitly that Raveling did not make out a prima facie case, such omission would have constituted harmless error. A reviewing court will not reverse the district court for error the reviewing court can see did not change the outcome of the case. Minn. R. Civ. P. 61; see, e.g., Korf v. Korf, 553 N.W.2d 706, 711 n.3 (Minn. App. 1996) (disregarding error as harmless). Here, the district court's failure to find explicitly that Raveling did not make out a prima facie case for modification did not change the court's conclusion to the same effect. Even if the court had stated this conclusion, Raveling would not have received an evidentiary hearing.
Because Raveling did not make out a prima facie case for modification in her first affidavit, the district court did not abuse its discretion by denying her an evidentiary hearing. Nor did the court commit reversible error by failing to find explicitly that Raveling did not make out a prima facie case for modification.
[ ]* 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 We note in passing that Raveling's post-hearing history of visitation with K.W.R. confirms the wisdom of the district court's order. Although as a general rule we may not consider evidence outside the district court record, Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988), we may properly review such information under certain circumstances. See, e.g., Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583-84 (Minn. 1977) (permitting consideration of evidence outside record where evidence is conclusive, uncontroverted, and offered for purpose of affirming judgment). Here, the report of K.W.R.'s visitation expediter shows that visitation has proceeded smoothly since the court's December 3, 1996 order. A reversal and remand for an evidentiary hearing would unnecessarily prolong the instability in K.W.R.'s life.