In Re the Marriage of:

Wendy Rose Kunze f/k/a

Wendy Rose Steele n/k/a

Wendy Rose Morgan, petitioner,



Johnny Dean Kunze,


No. C6-97-593

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Foley, Judge.[*]



1. Our unpublished opinion was filed on July 29, 1997.

2. The opinion indicated that respondent had failed to file a notice of review. We have learned that respondent did file a notice of review, but that notice was not recorded properly by the Clerk of the Appellate Courts.

3. The opinion has been modified, to address the issues raised by respondent's notice of review.

IT IS HEREBY ORDERED the opinion filed July 29, 1997, is withdrawn and the attached opinion is substituted.

Dated: August 19, 1997


/s/ Harriet Lansing

Harriet Lansing

Opinion Judge

This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Marriage of:

Wendy Rose Kunze f/k/a

Wendy Rose Steele n/k/a

Wendy Rose Morgan, petitioner,



Johnny Dean Kunze,


Filed August 19, 1997


Lansing, Judge

Pine County District Court

File No. F289111

Virginia Stark, P.O. Box 797, Lindstrom, MN 55045 (for Appellant)

Michael L. Bjerke, 539 Sixth Street, Pine City, MN 55063 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Foley, Judge.[*]



This appeal challenges district court rulings denying a mother's request to modify custody. Because the district court did not err in its findings or conclusions, we affirm.


The four district court orders at issue relate to the custody of three children ages 12, 10, and 9. The children's parents, Johnny Kunze and Wendy Morgan, dissolved their marriage in 1990, and Morgan received custody of the children. Kunze obtained temporary custody in 1992, and Morgan and Kunze stipulated that the custody arrangement would become permanent if recommended by an evaluator. The court evaluator recommended that Kunze receive sole legal and physical custody of the three children. The district court adopted the recommendation and also gave Kunze full authority over visitation.

Morgan moved to vacate the stipulated agreement and order in 1994, alleging that she was misled by an incompetent attorney. That motion was denied by the district court, and the denial was affirmed by this court. Steele v. Kunze, No. C8-94-869 (Minn. App. Aug. 16, 1994), review denied (Minn. Sept. 16, 1994).

Morgan then moved to modify custody. The district court bifurcated the modification hearing to consider first, evidence of "endangerment," and, if the evidence demonstrated that the children were endangered, then to consider the remaining statutory requirements. After five days of hearing, the district court, in an October 12, 1995 order, ruled that Morgan had failed to demonstrate that the children were endangered and denied her motion. In the same order the court scheduled Morgan's visitation for every other weekend, six weeks during the summer, and alternating holidays. Morgan moved for a new hearing, which the district court denied by order dated December 11, 1995.

In July 1996 the district court heard evidence on Kunze's motion to restrict visitation with the children's maternal grandfather and Morgan's motion for an immediate change in custody and custody modification. While the decision on these motions was still pending, Morgan failed to return the children to Kunze after their six-week summer visitation. Kunze pursued criminal proceedings (kidnapping) against Morgan, and Morgan applied to this court for a writ of prohibition to stay execution of the kidnapping arrest warrant. The writ was denied after the district court issued a detailed opinion rejecting the motion for immediate change of custody. Morgan v. Kunze, No. C6-96-163 (Minn. App. Feb. 27, 1996) (order op.).

In an October 3, 1996 order the district court denied Morgan's motion for a change in custody and denied Kunze's motion to restrict visitation. Thereafter Morgan brought a contempt motion for Kunze's failure to bring the children to court-ordered counselling and for denial of a weekend visitation. That motion was denied by order dated February 18, 1997.


Morgan appeals four specific district court rulings: (1) bifurcating the custody modification hearing; (2) allowing Kunze to retain custody even though his mother has provided primary care; (3) declining to find interference with visitation that would justify a change in custody; and (4) rejecting Morgan's custody modification motion in the October 3, 1996 order. Kunze requests review of (5) the award of attorneys' fees, (6) Morgan's in forma pauperis status, and (7) the district court's denial of his motion to restrict visitation between the children and their maternal grandfather.

The district court has broad discretion to provide for the custody of children upon dissolution of marriage. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not reverse a custody determination unless the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). The district court's findings are sustained unless clearly erroneous. Id.


The trial court must grant an evidentiary hearing on a motion for custody modification if the accompanying affidavits make out a prima facie case based on the statutory requirements for modification. Minn. Stat. § 518.18(d) (1996) (requiring movant to demonstrate change in child's or custodian's circumstances that endanger child's health or development and to show modification will serve child's best interests). The district court found that the affidavits submitted with Morgan's motion established a prima facie case based on the statutory requirements.

Minn. Stat. § 518.18(d)(iii) provides that the court may not modify a prior custody order unless "the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development * * * ." In other words, a showing of endangerment to physical or emotional health or impairment of emotional development is required before custody may be modified. The district court, applying the statute, treated endangerment/impairment as the "threshold issue," bifurcated the evidentiary hearing, and limited the scope of the initial phase to evidence and testimony relevant to those issues. After a five-day hearing, the court found that Morgan had failed to establish the endangerment or impairment required by the statute.

We find no error in the court's decision to bifurcate the hearing. Although Morgan asserts on appeal that the bifurcation violated her due process rights, she has failed to point to any constitutional requirement that a hearing to determine custody modification necessarily take a particular form. She relies on Abbott v. Abbott, 481 N.W.2d 864, 870 (Minn. App. 1992), in which the court stated that the question whether to modify custody in that case "should be decided * * * at an evidentiary hearing where the trial court can weigh all the evidence and all the statutory factors and make detailed, specific findings as to the best interests of [the children]." Id. (emphasis added). But the holding in Abbott is not inconsistent with the bifurcation procedure.

Morgan's challenge suggests that important evidence was excluded from the hearing because of the bifurcation. She has, however, failed to point to or challenge any specific evidentiary rulings. If evidence relevant to the endangerment or impairment of the children's health and development was excluded, those specific adverse rulings could have been raised on appeal.

The district court bifurcated the hearing because "it was an efficient use of time and resources to first determine whether the party seeking modification of custody could meet the threshold showing of endangerment." December 11, 1995 Order. Public policy favors the efficient use of judicial resources. See Karon v. Karon, 435 N.W.2d 501, 504 (Minn. 1989) (citing judicial economy as one basis for enforcing a stipulation in dissolution action). For these reasons and because the statute requires a showing of endangerment or impairment before custody modification is allowed, the district court did not err in bifurcating the evidentiary hearing.


Morgan argues that the district court's October 12, 1995 order awarded de facto custody to Patricia Kunze, the children's grandparent, because the court found that Patricia Kunze had cared for the children during the week while their father worked out of town at a seasonal construction job. As between Morgan, the children's mother, and Patricia Kunze, Morgan would be entitled to custody as a matter of law. See Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn. 1989) (parent is entitled to custody unless she or he is deemed unfit).

We do not agree that the court's October 12, 1995 order awarded de facto custody to Patricia Kunze. The court's finding summarized Patricia Kunze's past care; it did not provide for Patricia Kunze's prospective care. In its December 11, 1995 order denying a rehearing the court noted that Kunze had found a job closer to home and was at home most evenings and that Patricia Kunze essentially provided daycare for the children. The record supports that finding. Morgan's assertion that the district court erred by awarding de facto custody to Patricia Kunze is unsupported.


Minn. Stat. § 518.18(d) identifies denial of or interference with "a duly established visitation schedule" as a basis for finding changed circumstances allowing modification. The district court found in its October 12, 1995 order that while Kunze had shown a lack of "insight" and "compassion" in allowing Morgan visitation, his restrictions on visitation could not "be found to endanger the child where the limitations on visitation are consistent with and authorized by a valid court order." Because Kunze had been given full authority over visitation when he was awarded custody of the children in 1993, the court reasoned his exercise of that authority could not be deemed interference with visitation for purposes of endangerment.

We need not reach the issue of whether, as a matter of law, a court order granting full authority over visitation to the custodial parent would bar consideration of interference with visitation as a factor contributing to the endangerment or impairment of a child's health and development. Interference with visitation alone normally does not meet the statutory requirement for proof of endangerment or impairment of the child's emotional development. Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994). There must be evidence of "actual adverse effects." Id. at 596; see also Grein v. Grein 364 N.W.2d 383, 386 (Minn. 1985) ("In and of itself an unwarranted denial of or interference with visitation is not controlling [of the decision to modify custody].").

The provision allowing Kunze to determine visitation is unusual and may have been ill-considered in light of the parents' complete inability to cooperate. But Morgan's remedy was to appeal or petition for a change in visitation. The evidence in the record does not establish that the emotional endangerment to the children resulted from restrictions Kunze placed on Morgan's visitation. Rather, as noted in nearly every district court order, it is the parents' prolonged intransigence, animosity, and failure to cooperate that continue to endanger these children. The 1995 court-ordered evaluation stated: "All three of the children are emotionally wrought over the animosity which they are feeling and the pressure of being caught in the middle of this dispute. * * * [It] is by far the most serious current source of emotional damage to the children." The record is replete with evidence that both parties have been disrespectful and contemptuous of the rights of the other. Responsibility for the damage to the emotional health and development of the three children must be borne by both their parents.

To the extent that Kunze could have "interfered" with Morgan's visitation during the period Kunze had full authority over the visitation schedule, that interference was not a demonstrated basis for the children's emotional troubles, and therefore the district court did not err in finding that the visitation restrictions did not endanger the children.


Because Morgan had petitioned the court for custody modification within two years previous to bringing her 1996 motions for immediate change of custody and custody modification, those motions were governed by Minn. Stat. § 518.18(c). Pursuant to that statute her motion is prohibited unless "the court finds that there is persistent and willful denial or interference with visitation, or has reason to believe that the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development." Id.

The district court found that Morgan's affidavits failed to establish a prima facie showing of endangerment. The district court meticulously set out the allegations Morgan had made prior to the 1995 hearing to distinguish them from allegations describing the children's "present environment." Minn. Stat. § 518.18(c) (emphasis added). The court found that the affidavits filed after the June 1995 hearing generally restated the prior allegations and that the supplemental psychological evaluations did not describe the children's emotional problems as new developments.

Our review of the evidence supports the district court's conclusion. The supplemental affidavits are insufficient to establish a prima facie case that the children are endangered by their present environment. See Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (accompanying affidavits, assumed true, must set forth sufficient justification for modification).


It is within the discretion of the district court to impose attorneys' fees under Minn. Stat. § 549.21 (1996). Radloff v. First Am. Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991), review denied (Minn. July 24, 1991). Likewise, the decision to impose either statutory or Rule 11 sanctions is within the discretion of the district court. State Bank of Young Am. v. Fabel, 530 N.W.2d 858, 863 (Minn. App. 1995), review denied (Minn. June 29, 1995).

In 1995 the district court found that Morgan's motions were not frivolous and that Morgan did not have the ability to pay Kunze's attorneys' fees. The evidence establishes that Kunze has severely limited and interfered with Morgan's visitation in the past, that the children's emotional development has suffered, that allegations of abuse have been made, and that the children have expressed a preference to live with Morgan. Based on that evidence it was within the district court's discretion to find that Morgan's motions were not frivolous and decline to award attorneys' fees.


The district court determined that Kunze lacked standing to challenge Morgan's right to proceed in forma pauperis. We agree.

"Upon motion, the court may rescind its permission to proceed in forma pauperis if it finds the allegations of poverty contained in the affidavit are untrue, or if, following commencement of the action, the party becomes able to pay the fees, costs and security for the costs." Minn. Stat. § 563.01, subd. 9 (1996). Kunze asserts that the "motion" referred to in the statute may be brought by anyone, but we find that his argument is unpersuasive.

"Upon motion" simply instructs a party that has standing what procedure to use to assert its claim. To have standing a party must have a sufficient stake in a justiciable controversy to seek relief from the court. Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S. Ct. 1361, 1364-65 (1972). "Standing is acquired in two ways: either the plaintiff has suffered some 'injury-in-fact' or the plaintiff is the beneficiary of some legislative enactment granting standing." State by Humphrey v. Philip Morris, Inc., 551 N.W.2d 490, 493 (Minn. 1996) (citation omitted).

Kunze has failed to show any injury-in-fact from the court's allowing Morgan to proceed in forma pauperis. Likewise he has failed to show that any statute grants him standing to challenge her in forma pauperis status. Therefore, the district court properly denied his motion to evaluate Morgan's indigence status.


Kunze moved the district court to restrict contact between the children and their maternal grandfather during visitation with Morgan and alleged that the grandfather posed a threat to the children because of prior sex crime convictions. The court found that there was insufficient evidence that the visitation arrangement, which includes limited contact with the maternal grandfather, endangers the children's physical or emotional health or impairs their emotional development.

Minn. Stat. § 518.175, subd. 5 (1996), which governs modification of visitation, states that the "court shall modify an order granting or denying visitation rights whenever modification would serve the best interest of the child." The court may not restrict visitation rights without a finding of endangerment. Minn. Stat. § 518.175, subd. 5 (1). Our review of the record supports the district court's determination that the limited and supervised contact the children have with their maternal grandfather does not endanger them. The district court has broad discretion in deciding visitation questions, Manthei v. Manthei, 268 N.W.2d 45 (Minn. 1978), and the court did not abuse that discretion in denying Kunze's motion to restrict contact between the children and their maternal grandfather.


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

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