This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In Re the Marriage of:

Robert A. Poehler, petitioner,



Suzan M. Poehler,


Filed March 9, 1999

Reversed and remanded

Crippen, Judge

Nicollet County District Court

File No. F494167

David C. Schoenberger, 512 Second Street North, P.O. Box 485, New Ulm, MN 56073 (for appellant)

Clark A. Tuttle, III, Kari J. Johnson, Berens, Rodenberg & O'Connor, Chartered, 519 Center Street, P.O. Box 428, New Ulm, MN 55073-0428 (for respondent)

Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.



Appellant disputes the trial court's conclusion that he failed to establish a prima facie case on the issue of endangerment and thus was not entitled to an evidentiary hearing on his motion to modify custody of his 13-year-old daughter. Because the record contains substantial evidence of endangerment, we reverse and remand for an evidentiary hearing on the safety and best interests of the child.


The parties were married in August 1984 and had the only child of their marriage, B.S.P., on October 1, 1985. Their marriage was dissolved in April 1995, and custody of the child was placed with respondent.

In late 1997, at the request of appellant, Officer Wersal of the Nicollet County Sheriff's Department spoke with B.S.P. about the problems she was having living with her mother. B.S.P. stated that her mother went out at night frequently, often paid little attention to her, and involved B.S.P. in her relationship problems.

In April 1998, appellant made a motion for a change of custody. In an affidavit supporting that motion, B.S.P. stated that she has "a very difficult time getting along with" her mother, that her mother frequently goes out at night and leaves her alone, that she is "missing [her] childhood and being forced to grow up too quickly," and that she gets along better with her father and would prefer living with him. B.S.P. also reported that her half brother had been spending the night at the same house as B.S.P., in violation of the divorce judgment that included findings on prior sex offenses of the half brother.

The trial court heard appellant's motion in May and appointed a guardian ad litem to the case. The guardian ad litem's report suggests that much of B.S.P.'s current unhappiness stems from her parents' fight for her custody. Those interviewed by the guardian ad litem portray B.S.P. as an intelligent and mature girl who very much wants to resolve the stress and conflict in her family. The guardian ad litem recommended a three-month trial change in custody.

On August 28, 1998, the trial court denied appellant's motion for an evidentiary hearing, stating that "[i]f [B.S.P.] was 14 years of age, the Court would give great weight to her strong desire to live with her father * * * [but] [a]t this time the Court does not find endangerment, and while [B.S.P.] is old enough to express a preference, she has not yet reached a sufficient age for the Court to give overwhelming consideration in determining her custody."


We review the trial court's decision to deny a motion to schedule an evidentiary hearing for an abuse of discretion. Axford v. Axford, 402 N.W.2d 143, 144 (Minn. App. 1987). The trial court should grant an evidentiary hearing if the moving party's affidavits, taken as true, make out a prima facie case for the modification. Id. at 145. In order to make out a prima facie case for modification of custody, appellant had to show that a change of circumstances had occurred; modification was necessary to serve the child's best interests; the child's present environment endangers her emotional health or development; and the harm of a change will be outweighed by its advantage. Itasca County Soc. Servs. ex. rel. Hall v. David, 379 N.W.2d 700, 703 (Minn. App. 1986); see also Minn. Stat. § 518.18(d) (1998). The court must then review the affidavits appellant submitted in support of his motion for modification to see if appellant made out a prima facie case under this four-factor test. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).

Here, the court took no issue with three of the four factors for establishing a prima facie case. It solely questioned whether appellant had shown endangerment. In the circumstances revealed to the trial court in this case, a prima facie case of endangerment is evident and the prospect of danger to the emotional health and development of the child cannot be determined without a hearing. This conclusion arises from these factors: (a) the age of the child, who was 13 in the fall of 1998; (b) equally as important, the evidence that the child was unusually mature for her age; (c) evidence that the child was intelligent; (d) evidence that a change in custody was a strongly held choice of the child; (e) evidence that the child's choice was reasoned and not based on selfish or frivolous concerns. The child reported being left alone often, a deteriorating relationship with her mother, and a good relationship with her father and her half sister. Also, the child's half brother was spending the night in the same house as the child, notwithstanding the fact that he was not supposed to be. We conclude that it was an abuse of discretion to fail to hold an evidentiary hearing in these circumstances. See State ex rel. Feeley v. Williams, 176 Minn. 193, 197, 222 N.W.2d 927, 928 (1929) (custodial choice of 121/2-year-old given great weight in refusing to modify custody); see also Rose v. Rose, 176 W.Va. 18, 20-21 & n.4, 340 S.E.2d 176, 178-79 & n.4 (1985) (stressing the importance of maturity and intelligence such that a child under 14 years of age can express a voluntary preference for one parent; stressing the need to examine the rationale for choice offered by the child).

Respondent argues that the desire for a change in custody lies as much with appellant as with the child, that appellant has a record of manipulative behavior, and that there is cause to believe the child's will has been manipulated. Manipulation of the child's will diminishes the rationality of her choice, a consequence that may be less likely as the child's maturity increases. We acknowledge that this is a legitimate subject for inquiry, but it cannot be resolved on evidence in the existing record and would naturally be explored during the evidentiary hearing. See Geibe v. Geibe, 571 N.W.2d 774, 778-79 (Minn. App. 1997) (stating that, although it is sometimes clear that a child's stated preference results from manipulation by the moving party, a child's motives for an expression of preference are generally to be considered at the evidentiary hearing stage).

Respondent also contends that, notwithstanding the child's choices, the record shows no manifestation of harm caused by the difficulties that the child has encountered. Respondent errs by mistaking endangerment for actual harm. In determining the best and safest course for the child, courts need not wait until the child's wounds are evident. Also, given the serious concerns of the child, and the causes stated for those concerns, the prima facie case can be explored with a reasonable expectation that the thwarting of her choice at this time may be unusually harmful. The risk of harm associated with the frustration of the child's reasonable choices is sufficiently evident to justify a hearing where the question of endangerment will be fully explored.

Reversed and remanded.