This opinion will be unpublished and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:

Dale Timothy Christenson, Sr.,



June Audrey Clark,


Filed January 13, 1998

Reversed and remanded

Huspeni, Judge

Freeborn County District Court

File No. F187576

William L. Bodensteiner, 309 S. Main St., Austin, MN 55912 (for appellant)

June Audrey Clark, 307 E. William, Albert Lea, MN 56007 (pro se respondent)

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



Appellant challenges the district court's refusal to grant an evidentiary hearing on his motion for a change in custody. Because the evidence was sufficient to compel an evidentiary hearing, we reverse and remand.


In September 1980, appellant Dale Christenson married respondent June Clark;[1] they divorced in 1982. In December 1983, the parties reconciled and remarried, but divorced again in 1988.

The parties have two children: D.C., 13; and J.C., 12. At the time of the second divorce, the parties mediated a custody agreement that gave respondent sole physical custody of the children, and appellant liberal visitation rights.

In April 1997, appellant filed a motion for a change in custody and seeking an evidentiary hearing. At a hearing on the motion, appellant cited two incidents in which he was required to seek medical attention for D.C. for problems allegedly ignored by respondent. In one case, D.C. had a severe ear infection and fainted in the doctor's waiting room; in the other, D.C. had a strained tendon in his knee. Appellant also alleged that on one occasion respondent lost her temper with J.C. and threw a chair at him.

Appellant introduced affidavits from Mary Sheeran, the social worker from D.C.'s school, and Linda Laird, the social worker from J.C.'s school, regarding the children's lack of emotional development and poor performance in school. Sheeran stated that in January a truancy petition was filed on D.C. for excessive absences from school, although as of March, D.C.'s attendance had improved. She also stated that D.C. has significant difficulties in organizational skills and knowledge gaps due to poor attendance. She stated that these problems could not be attributed to a learning disability. Laird stated that as of February, J.C. had missed 23 out of 48 school days and had missed 36 assignments. She stated that J.C. told her that these absences were due to illness and missing the bus. When asked why his mother did not give him a ride to school, J.C. responded that his mother's boyfriend's car was parked in front of hers, and she did not want to wake him. Laird also stated that J.C.'s development is impaired because of his excessive absences and because education is "not viewed as a priority in his home."

The court denied appellant's request for an evidentiary hearing, but appointed a guardian ad litem (GAL) to investigate respondent's alleged "lackadaisical attitude" towards her children's education and to "make a report to the court."


"A trial court has broad discretion in matters of child custody and will not be reversed absent a clear showing of an abuse of that discretion." Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989). A court may modify custody if:

the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

Minn. Stat. § 518.18(d)(iii) (1996). The party requesting an evidentiary hearing has the burden of establishing satisfactorily on a preliminary basis that a significant change of circumstances has occurred from the time when the custody order was issued. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).

Evidentiary hearings are strongly encouraged. Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn. App. 1991). The court must hold an evidentiary hearing if a review of the moving party's documents indicates that they might establish the requisite change in circumstances required for a change in custody. Nice-Petersen, 310 N.W.2d at 472. When reviewing affidavits, the court should take the alleged facts to be true. Smith v. Smith, 508 N.W.2d 222, 226 (Minn. App. 1993). Among the factors indicating a danger to a child's well-being and development are poor school performance and behavioral problems. Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).

We conclude that the affidavits of the social workers regarding the children's performance and attendance problems in school, together with appellant's allegations of respondent's failure to seek medical care for one of the children, and her alleged throwing of a chair, are sufficient to meet the requirements for an evidentiary hearing set forth in Nice-Petersen. Further, although not instrumental in our decision that an evidentiary hearing is required, we note the district court's own concern regarding the welfare of the children as manifested in its appointment of a GAL and directive that a report be made.[2]

We reverse the denial of appellant's motion for a change of custody and remand for an evidentiary hearing.

Reversed and remanded.

[1] Respondent has not filed a brief in this appeal, and we shall consider the merits of the case pursuant to Minn. R. Civ. App. P. 142.03.

[2] This appointment was commendable; however, under the circumstances of this case, it might have been preferable for the court to withhold ruling on appellant's motion until the GAL's report was received and considered by the court.