This opinion will be unpublished and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:

Elizabeth Anne Myers, n/k/a Elizabeth Connoy, petitioner,



Steven James Myers,


Filed March 30, 1999


Short, Judge

Dissenting, Klaphake, Judge

Anoka County District Court

File No. F290011885

Jeffrey J. Storey, 277 Coon Rapids Boulevard, Suite 310, Coon Rapids, MN 55433 (for respondent)

Barbara Nilva Nevin, Milavetz, Gallop & Milavetz, P.A., 6500 France Avenue South, Edina, MN 55435 (for appellant)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.


SHORT, Judge

Steven James Myers's marriage was dissolved in 1991. Although the parties were granted joint legal custody of their three sons, Myers's spouse was granted physical custody of all three children. In 1998, Myers unsuccessfully moved for a change of custody of D.M. (born 4-28-84). On appeal, Myers argues the trial court abused its discretion in denying his motion without an evidentiary hearing. We affirm.


Myers argues he established a prima facie case for custody modification and the trial court abused its discretion in refusing to grant an evidentiary hearing. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (noting trial court should grant evidentiary hearing when moving party's affidavits, taken as true, make out prima facie case for custody modification). But the denial of an evidentiary hearing on custody modification will not be reversed absent an abuse of discretion. Id. A prima facie case is established by showing that a significant change of circumstances has occurred from the time the original custody order was issued that either endangers the child's physical or emotional health or impairs the child's emotional development. Minn. Stat. §§ 518.18(c) (1998), .18(d)(iii) (1998); Nice-Petersen, 310 N.W.2d at 472.

The record shows: (1) during the parties' dissolution proceedings, a custody evaluator considered D.M.'s preference to live with his father and concluded it was in the best interests of the children to live with their mother; (2) the custody evaluator based this decision in part on Myers's chemical dependency and anger management issues; (3) Myers has failed to follow the evaluator's treatment recommendations and continues to drink during visitation with D.M.; (4) Myers argues D.M.'s relationship with his mother has deteriorated but only provided one example of a conflict; (5) during sessions with a family therapist arranged by D.M.'s mother to discuss the parties' divorce, D.M. did not mention any problems with his mother and stated it would be difficult to move because he would not see his mother as often; (6) D.M. also told his therapist he feels pressured to move and "part of him wants to move and part of him wants to stay"; (7) D.M. is currently involved in band, Boy Scouts, baseball, and Catechism and expressed discomfort to his therapist about switching schools; (8) unlike Myers, who has attended very few of D.M.'s school conferences and activities, D.M.'s mother helps D.M. with homework, communicates regularly with teachers, and ensures his privacy by providing him with his own bedroom and desk; and (9) D.M. has had problems in the past with completing homework while visiting Myers, is subjected to fewer restrictions at Myers's house, and stated in an affidavit arranged by Myers that he wants a change in custody in large part because he will have better access to activities.

Further, although the record demonstrates some conflict between D.M. and his younger brothers, such conflict occurs at both parties' homes and must be interpreted in light of D.M.'s statement that he loves his brothers and would miss them if he lived with his father. Under these circumstances, the conflict is not unusual or detrimental to D.M.'s health or development. See Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989) (upholding trial court's denial of evidentiary hearing because record only contains evidence of "teenagers having conflicts with their mother"), review denied (Minn. June 21, 1989); cf. Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn. App. 1991) (reversing trial court's denial of evidentiary hearing where stepfather scared children by yelling, throwing things, hitting walls, driving car "like a maniac," and calling them names).

Given these facts and our limited standard of review, we conclude Myers failed to establish a prima facie case for custody modification. Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997) (stating "preferences alone do not provide sufficient evidence of endangerment to mandate a hearing"); cf. Abbott v. Abbott, 481 N.W.2d 864, 868-69 (Minn. App. 1992) (concluding daughter's refusal to live with mother after being thrown out of house constituted significant change in circumstances establishing prima facie case of endangerment); Ross v. Ross, 477 N.W.2d 753, 754, 756-57 (Minn. App. 1991) (considering both 17-year-old's strong preference to live with his father based on mother's continuous anger and child's physical relocation to father's home in determining whether father established prima facie case of endangerment); Wilkus-Schmidt-Hight v. Wilkus, 398 N.W.2d 44, 48 (Minn. App. 1986) (upholding trial court finding of substantial change in circumstances based on child's sudden and severe behavioral changes). The trial court did not abuse its discretion in denying Myers an evidentiary hearing. See Abbott, 481 N.W.2d at 868 (concluding decision to grant evidentiary hearing in custody modification proceeding is discretionary with trial court); Taflin v. Taflin, 366 N.W.2d 315, 320 (Minn. App. 1985) (noting burden on movant to establish prima facie case).


KLAPHAKE, Judge (dissenting)

I respectfully dissent because I believe the trial court abused its discretion in denying an evidentiary hearing on appellant's motion for change of custody.

Appellant's affidavits presented the following facts: (1) D.M. is 14 years old; (2) while anxious about moving from his mother's house, D.M. expressed a clear preference to live with his father;[1] (3) at his mother's request, since March 1996, D.M. has been in therapy to review, among other things, his physically aggressive behavior towards his brothers; (4) D.M.'s therapist reports that while D.M. graphs out at 75 percent anger and sadness, prospects of living with his father reduce the sadness portion to 10 percent; (5) a friend of both parties confirms D.M.'s preference to live with his father, D.M.'s maturity, and his frustrations with his mother for "not understanding his desire" to live with his father; (6) the friend also reports that when she has suggested that the mother extend visitation with the father to relieve D.M.'s "strong desire" to live with his father, she has responded that she is the custodial parent and that D.M. would not do anything that she could not control; (7) evidence of aggressive behavior between D.M. and his brothers, including a smashed door, which occurred during a fight between them and an acknowledgment that similar confrontations have occurred in the mother's home; (8) in the summer immediately preceding this motion, D.M. was not allowed to accompany the rest of the family to visit his maternal grandparents because of an argument between D.M. and his mother; (9) all of the parties' children spent most of the summer away from the mother and with the father or the grandparents; and (10) the father's home provides privacy for D.M. and is close to a school and his grandparents.

Based on this record, which the trial court must take as true, appellant has made a prima facie case of change in circumstances based on emotional endangerment. Smith v. Smith, 508 N.W.2d 222, 226 (Minn. App. 1993) (court must assume movant's allegations as true when determining whether a prima facie case exists).

Respondent claims, and the trial court appears to have accepted her claim, that appellant has manipulated the child to state a preference to live with appellant. Appellant denies manipulation; the reports from the therapist independently confirm the child's condition and preferences; and a friend of both the mother and the father confirms the longstanding desire of the child to live with the father. Moreover, the basis for a child's expressed preference should be examined at an evidentiary hearing, rather than at this initial stage. See Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (remanding for hearing despite affidavit questioning basis for child's preference); Geibe v. Geibe, 571 N.W.2d 774, 778-79 (Minn. App. 1997) (child's motives for expression of preference generally to be considered at evidentiary hearing).

This child, almost 15, has repeatedly expressed a preference to live with his father and has filed an affidavit stating that preference. Three separate affidavits, plus one from the child's therapist, confirm that preference. This child has been treated for depression and sadness, at least in part associated with the lack of response to his preference. Recently, the child has exhibited aggressive tendencies and his schoolwork is substantially below his capabilities. Under these circumstances, summary dismissal of the motion for custody modification is inappropriate and an evidentiary hearing is mandated to fully explore the claims of endangerment and the best interests of the child.

[1] D.M. based his preference on (a) the lack of privacy in his mother's home because he used to share a small bedroom with his two younger siblings, (b) a feeling of unfair treatment because

the son of the mother's significant other occupied a single bedroom, (c) the turmoil in the household, as exhibited by his fighting with his brothers and his witnessing his mother's arguments with her significant other late at night, (d) his mother's lack of involvement in supervising his homework, resulting in poor grades (e) his mother's limiting his social interaction with others, (f) the lack of family activities, such as sitting down for dinner as a family, and (g) his substantial depression and sadness while living with his mother.