This opinion will be unpublished and

may not be cited except as provided by

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




Vicki Lynn Frederiksen, et al.,



Kenneth Brian Lang,


Filed January 27, 1998


Harten, Judge

Anoka County District Court

File No. F28354104

Randall J. Fuller, Felix A. Mannella, Babcock, Lochner, Neilson & Mannella, 118 East Main Street, Anoka, MN 55303 (for appellant father)

Kurt Robinson, 206 Jefferson Center, 607 Northeast Highway 10, Blaine MN 55434 (for respondent mother)

Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and Klaphake, Judge.



Appellant-father Kenneth Brian Lang challenges the district court's denial of his motion to modify custody without an evidentiary hearing and the use of evidence from other proceedings to justify the denial. Because the district court did not abuse its discretion, we affirm.


Respondent-mother Vicki Lynn Frederiksen (n/k/a Vicki Lynn Wilber) has custody of the parties' 16-year-old son, R.F. She and her husband sought an order for protection (OFP) on behalf of themselves and their children against mother's mother (grandmother). The next day, father sought an OFP on R.F.'s behalf against mother and her husband. Later, father moved to modify custody of R.F. The district court continued all proceedings pending the county's chemical dependency evaluation of R.F. After receiving the evaluation, the district court conducted both OFP hearings and (a) granted an OFP against grandmother; (b) denied father's request for an OFP against mother and her husband; (c) found that R.F. abused chemicals; (d) denied father's request for an evidentiary hearing on his motion to modify custody; and (e) denied father's motion to modify custody. Father appeals.


Child custody may be modified if there has been a change in circumstances since custody was established, provided modification is in the child's best interests, the child is endangered in his current environment, and the harm likely to be caused by a change of custody is outweighed by the advantage to the child. Minn. Stat. § 518.18(d)(iii) (1996). Generally, a party is entitled to an evidentiary hearing on a motion to modify custody 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, the district court must consider the moving party's factual allegations to be true. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). The district court, however, "may" also consider evidence from other sources. Geibe v. Geibe, ___ N.W.2d ___, ___, 1997 WL 738497, at *2 (Minn. App. Dec. 2, 1997).[1] Whether to deny a motion to modify custody without an evidentiary hearing is discretionary with the district court. Id. at *3.

Father, whose affidavits state that R.F. does not need in-patient chemical dependency treatment and that R.F. was abused by mother and husband, claims that the district court erred in considering evidence from the OFP hearings in addressing his motion to modify custody. While the district court must "disregard" statements that are "directly contrary" to those in the moving party's affidavit(s), it may "take note of statements * * * that explain the circumstances surrounding the accusations [in the moving party's affidavit(s).]" Id. at *5. Here, the witnesses at the OFP hearings were subject to cross-examination. Because of the interrelationship of the events prompting the two OFP requests, some witnesses were cross-examined twice on what was essentially the same testimony. Even if the district court disregarded statements from the OFP hearings that were contrary to the claims in father's affidavit, the district court nonetheless could consider its OFP findings that R.F. has a problem with chemicals, needs treatment, and was not a victim of "maltreatment" because mother and husband made an "appropriate" use of "reasonable force" to make him "address [his] problem[.]" See Minn. R. Civ. P. 52.01 (findings may be stated orally). The evidence underlying these OFP findings was subject to considerably more scrutiny than the statements in the respondent's affidavits that were considered in Geibe.2

It is undisputed that R.F. prefers to live with father. Father claims that the district court erred in disregarding this preference because an older teenager's custodial choice is "an overwhelming consideration" in addressing a child's custody and "whether [a child] is endangered by preserving the custodial placement he opposes." Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991). The district court noted that Minn. Stat. § 518.17, subd. 1(a)(2) (1996) requires consideration of "the reasonable preferences of the child" and ruled that R.F.'s unresolved chemical problem rendered unreasonable his desire to live with the parent who did not believe he needed in-patient chemical dependency treatment. (Emphasis added). The district court's analysis is consistent with both the statutory requirements that the district court consider R.F.'s reasonable preference and his apparent need for treatment.[3]

Father alleges that the affidavits supporting his motion constitute a prima facie case for changed circumstances. Except for mother being absent from the house and R.F. having to baby-sit the children of mother and husband, the changes to which father refers are apparently related to R.F.'s chemical use. We cannot say that the district court abused its discretion by declining to find such facts a basis for changing custody, particularly where custody would be awarded to a person who might limit the options for treating R.F.'s chemical problem; R.F.'s chemical problem may be the root of what father alleges are the circumstances justifying a modification of custody. A similar analysis applies to father's claim that the affidavits supporting his motion made out a prima facie case of endangerment.

Father also claims the district court ignored the emotional impact of certain events in which mother and husband allegedly abused R.F. Not only did the district court deny father's request for an OFP against mother and husband, it also found that mother and her husband used "reasonable force" attempting to make R.F. address his chemical problem. Further, the district court acknowledged R.F.'s preference to live with father but rejected it, stating that it was not "reasonable" given R.F.'s unresolved chemical problem. Finally, the district court stated, "Come back when he's addressed that issue, and I'll listen to the reasonable preference." (Emphasis added). This statement is of great significance. The district court will reconsider R.F.'s preference, and hence the endangerment issue, after R.F. successfully completes treatment. With that assurance, we conclude that the district court's effort to establish priorities affecting the life of this child is manifestly reasonable and within its broad discretion.


[1] Geibe was released after the parties filed their briefs in this appeal.

2 We reject father's claims he would have introduced additional evidence on R.F.'s use of chemicals if he knew the chemical issue was going to be critical to whether he would get an evidentiary hearing on his motion to modify custody. The entire first hearing, which preceded the motion hearing by 11 days, revolved around the district court's statements that the critical issue for the modification of custody was whether son had a problem with chemicals.

[3] Ross also states that "[o]ften * * * the possibility of objectionable influences on the older teenaged child does very little to diminish the weight of the child's preference." Ross, 477 N.W.2d at 757 (emphasis added). Because Ross states the district court's disregard of objectionable influences on an elder teenager's custodial preference is only "[o]ften[,]" rather than universal, we cannot say that the district court abused its discretion by rejecting R.F.'s preference to live with a party whom the district court believed might not adequately deal with R.F.'s chemical problems.