This opinion will be unpublished and

may not be cited except as provided by

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




William John Kloster, petitioner,



Lori Ann Kloster,


Filed December 8, 1998

Affirmed; motion granted

Shumaker, Judge

Hennepin County District Court

File No. 190941

Jennifer A. Beckman, Beckman & Steen, 14550 Excelsior Blvd., Suite 206, Minnetonka, MN 55345 (for respondent)

Charles M. Goldstein, Goldstein Law Office, P.A., 12450 Wayzata Blvd., Suite 224, Minnetonka, MN 55305 (for appellant)

Andrea K. Niemi, 510 Marquette Avenue, Suite 700, Minneapolis, MN 55402 (guardian ad litem)

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.



Appellant Lori Ann Kloster contends that the trial court erred by denying, without an evidentiary hearing, her motion for a change of the physical custody of the parties' two minor daughters. Respondent William John Kloster moves to strike portions of appellant's brief on the ground that they are outside the record on appeal. We affirm the trial court's denial of appellant's motion and we grant respondent's motion to strike.


Upon dissolution of the parties' marriage in 1993, appellant was awarded sole physical custody of their two minor daughters. The decree was amended in 1994 and sole physical custody of the children was transferred to respondent.

Appellant moved in 1998 for a change of custody back to her on the ground that the children were endangered in respondent's custody. She supported her motion with her own affidavit and the affidavit of a psychologist, Dr. Singh, whom she had retained to evaluate the children. The district court appointed a guardian ad litem, directed the guardian to prepare a report, and continued the motion pending completion of the report.

In its order of May 11, 1998, the district court ruled that appellant had not made the requisite showing of endangerment to entitle her to an evidentiary hearing and denied the motion to modify custody. On appeal, appellant included in the appendix to her brief a document characterized as "Transcribed Session Notes From Dr. Singh." Respondent moved to strike this document and any reference to it on the ground that it was not made part of the record in the district court. See Minn. R. Civ. App. P. 110.01 (defining record on appeal as papers, exhibits, and transcripts filed in district court); Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (stating any matters outside the record "must be stricken") (citing Safeco Ins. Co. v. Diaz, 385 N.W.2d 845, 847 (Minn. App. 1986) review denied (Minn. June 30, 1986)); see Pacific Equip. & Irrigation, Inc. v. Toro Co., 519 N.W.2d 911, 918 (Minn. App. 1994) (striking references in party's brief to document not in record). It appears that the document in question was not part of the district court record. Therefore, we grant respondent's motion to strike the document and all references to the document in appellant's brief.

Child custody can properly be modified if circumstances have changed since the prior custody order, the current circumstances endanger the children's physical or emotional health, and it would be in the children's best interests that custody be changed. Minn. Stat. § 518.18, subd. (d)(iii) (1996).

Although the trial court must consider a motion for a custody change, it "should not hold an evidentiary hearing in a custody modification proceeding unless the movant makes a prima facie showing" of endangerment. Westphal v. Westphal, 457 N.W.2d 226, 228 (Minn. App. 1990); see Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (addressing proceedings to modify custody).

To make a prima facie showing of endangerment, the moving party must allege facts that, if true, would establish the endangerment. Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997). Endangerment must be of a "significant" degree before a custody modification on that ground is permitted. Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).

As partial support of her motion, appellant submitted the affidavit of psychologist Dr. John Singh. Dr. Singh saw the children three times for an evaluation. Appellant told Dr. Singh that the children had complained to her that they had been physically abused while in respondent's custody. Dr. Singh explored that issue with the children and learned that the disciplinary method of spanking, causing in "red marks and some pain," was at issue. Dr. Singh indicated that he sensed that fights in the family resulted in anxieties in the children and that they "live in fear of what will happen next." He noted that physical abuse results in emotional and mental abuse and can cause psychological and emotional difficulties "which can manifest in present and later years." He concluded with the opinion that "the girls would be better off to live with their mother, whose environment is peaceful and contributes to their health and welfare."

Dr. Singh's affidavit does not support a prima facie finding of endangerment. The alleged "physical abuse" consisted of ordinary spanking in a disciplinary context. Although spanking as a disciplinary method is not condoned by all experts, the act as described and documented in this case is not the type of conduct constituting physical abuse ordinarily understood as endangering a child's physical or emotional health.

Appellant's own affidavit describes complaints by the children regarding physical discipline administered by respondent's wife, fights between respondent and his wife, and the use of profanity by respondent's wife toward one of the children. Appellant concludes that the "environment is definitely having a negative effect on the children."

In considering a moving party's assertions, the trial court may consider the non-moving party's submissions as an explanation of the moving party's assertions. Geibe, 571 N.W.2d at 779. It is also appropriate for the trial court to consider evidence from sources other than affidavits provided by the moving party. Krogstad v. Krogstad, 388 N.W.2d 376, 383 (Minn. App. 1986) (court denied evidentiary hearing after considering court services' study and third-party affidavits as well as evidence submitted by moving party). Therefore, the district court did not err in considering Dr. Singh's affidavit or the report of the guardian ad litem.

Appellant's affidavit is insufficient to establish a prima facie case of endangerment. Many of her assertions lack specificity and many are mitigated to various degrees by respondent's assertions and by the report of the guardian ad litem. The issues raised by appellant are those adjustment issues that parents and children commonly experience when a divorced parent remarries and blends the children into the family of the new spouse. Moreover, respondent and his spouse have sought counseling to address the adjustment problems. See Hassing v. Lancaster, 570 N.W.2d 701, 703 (Minn. App. 1997) (noting that custody determinations must be based on child's "present circumstances").

A trial court's denial of a motion to modify custody without an evidentiary hearing is discretionary, and the denial will not be reversed absent a clear showing of abuse of that discretion. Geibe, 571 N.W.2d at 778. Appellant has alleged insufficient facts to suggest that respondent has been deficient in his care of the children since the prior custody order. See Westphal, 457 N.W.2d at 229 (affirming denial of motion to modify custody without evidentiary hearing despite unfavorable expert reports where custodian not shown to be deficient). The facts appellant has alleged, even if true, do not show the significant degree of endangerment Ross requires for a custody change. The trial court, therefore, did not abuse its discretion in denying appellant's motion without an evidentiary hearing. Because appellant's failure to make a prima facie showing of endangerment is dispositive, we need not address her other arguments. See Niemi v. Schachtschneider, 435 N.W.2d 117, 119 (Minn. App. 1989) (lack of endangerment fatal to custody modification); see also Dabill v. Dabill, 514 N.W.2d 590, 595 (Minn. App. 1994) (endangerment described as "threshold" for modifying custody).

Affirmed; motion granted.