This opinion will be unpublished and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:

Charlotte Elizabeth Osborn, petitioner,



Robertus Joost van der Wege,


Filed May 26, 1998


Kalitowski, Judge

Ramsey County District Court

File No. F292714

Robin Dietz-Mayfield, Baker Court, Suite 305, 821 Raymond Avenue, St. Paul, MN 55114 (for respondent)

Steven T. Hennek, Lawrence D. Olson & Associates, P.A., 2860 Snelling Avenue North, St. Paul, MN 55113 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mulally, Judge.*

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



Appellant Robertus Joost van der Wege challenges the district court's decisions to: (1) sua sponte vacate part of the dissolution judgment and decree; (2) deny an evidentiary hearing because appellant did not establish a prima facie case to change child custody; and (3) award attorney fees and costs to respondent Charlotte Elizabeth Osborn. We affirm.


A district court has discretion regarding motions to modify child custody awards. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). In a child custody modification case, we review the district court's "exercise of its equitable jurisdiction in determining ultimate issues" for an abuse of discretion. Ross v. Ross, 477 N.W.2d 753, 755 (Minn. App. 1991).


A marital judgment and decree entered pursuant to a stipulation of the parties is intended to bring a measure of finality to marriage dissolutions, and therefore, the parties can reopen it only under certain limited circumstances and within a particular time frame. See Maranda v. Maranda, 449 N.W.2d 158 (Minn. 1989). However, these limitations "do not limit the power of a court to entertain an independent action to relieve a party from a judgment and decree." Minn. Stat. § 518.145, subd. 2 (1996). Under Minn. Stat. § 518.145, subd. 2 (5), relief from a judgment and decree is permitted if it is "no longer equitable that the judgment and decree or order should have prospective application."

Appellant's references to case law regarding the binding nature of stipulations relates to issues involving property distribution. The paramount issue in custody decisions, however, is the best interests of the child. Peterson v. Peterson, 296 Minn. 147, 148, 206 N.W.2d 658, 659 (1973). Here, the district court properly found that the parties' stipulation that a child's expression of a preference to reside with one party "shall control" absent a court's determination of harm did not represent the best interests of the children. We therefore conclude the district court's decision to vacate that part of the judgment and decree was not an abuse of discretion.


A court may modify a custody order if a change in circumstances has occurred, and the modification will serve the best interests of the child where

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 district court reviews the affidavits, assuming the truth of the facts alleged, to determine if the moving party has presented a prima facie case of endangerment that justifies custody modification. Smith v. Smith, 508 N.W.2d 222, 226 (Minn. App. 1993). District courts are "strongly encouraged" to hold evidentiary hearings if a present danger to the child's health or well being is alleged. Ross, 477 N.W.2d at 756. The district court does not need to make findings on the statutory factors or hold an evidentiary hearing if it determines the moving party failed to establish a prima facie case. Smith, 508 N.W.2d at 226. We review this determination using an abuse of discretion standard. Id. at 226-27.

Appellant argues that his youngest son's expressed preference to remain with appellant constitutes the changed circumstances that justify a modification. In support of his motion, appellant proffered testimony by a family therapist that the parties' son should be able to decide his own living arrangements for designated periods of time, or risk "relational and emotional deprivation should he be denied this opportunity."

We conclude the district court did not abuse its discretion in concluding that even if appellant's youngest son expressed a preference to live with his father, appellant did not provide sufficient evidence of endangerment to outweigh the harm inherent in the change of living circumstances. See Ross, 477 N.W.2d at 756 (concluding the concept of "endangerment" demands a showing of a "significant degree of danger"). Here, the district court noted the child's preference was "somewhat equivocal" and "not overwhelming." Although the preference of the child is a factor under Minn. Stat. § 518.17, subd. 1(2) (Supp. 1997), the district court properly noted that it is but one of several considerations.

Appellant had the burden of demonstrating a prima facie case of endangerment resulting from his son's current custodial placement.

It is our view that a reasonable construction of the statute would be to require the trial court to deny a motion for modification of a custody order unless the accompanying affidavits set forth sufficient justification * * *.

Nice-Petersen, 310 N.W.2d at 472. While the parties' youngest son may prefer to spend more time with his father, we conclude the district court did not abuse its discretion in determining it is not in the child's best interests to split his school year or to leave his mother and brothers altogether.


We will not reverse an award of attorney fees and costs absent an abuse of discretion. Lundell v. Lundell, 387 N.W.2d 654, 658 (Minn. App. 1986). Respondent's brief details the difficulty respondent had in regaining her lawfully awarded physical custody of her child. The district court referred to appellant's actions as duplicitous. Because the district court had the opportunity to observe the behavior of the parties, we cannot say its award of bad faith attorney fees to respondent was an abuse of discretion.