This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of the Welfare of: C. S. B. & C. R. H.

Filed April 27, 1999

Affirmed in part and Reversed in part

Motion Denied

Kalitowski, Judge

Stearns County District Court

File No. F48850860

Andrew D. Hultgren, Neils, Franz & Chirhart, 1011 N. 2nd Street, P.O. Box 307, St. Cloud, MN 56302 (for appellant Michelle R. Hoppe)

Paul A. Jeddeloh, Peters Jeddeloh & Skelly, LLP, Marketplace Office Tower, Suite 226, 110 South 2nd Street, Waite Park, MN 56387 (for respondent Jesse Brinker)

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



Michelle Hoppe challenges the district court's order denying her motion for custody modification. Legal custody of C.S.B., born May 17, 1982, and C.R.H., born November 23, 1987, was awarded to Jesse Brinker by stipulation in 1988. On November 17, 1998, the district court: (1) denied Hoppe's motion for temporary sole and legal custody; (2) denied Hoppe's request that a guardian ad litem be appointed on behalf of the children; (3) continued withholding her child support obligation; (4) denied her request that blood tests be ordered to determine C.R.H.'s paternity; (5) upheld the 1988 order adjudicating paternity; (6) denied Hoppe's request for an evidentiary hearing; and (7) denied Brinker's motion to restrict Hoppe's visitation with C.R.H.

On appeal, Hoppe argues: (1) the district court abused its discretion by accepting respondent's untimely responsive affidavits and memorandum of law; and (2) the district court abused its discretion by denying her request for an evidentiary hearing. We affirm in part, reverse in part, and deny Brinker's request for sanctions and fees.



Hoppe argues the district court abused its discretion by accepting Brinker's untimely responsive memorandum of law and affidavits. We disagree. It is well-settled law in Minnesota that where the interests of justice would be best served by relieving a party from formal compliance with a rule, the trial court has the discretion to suspend or relax the rules. Swenson v. Swenson, 257 Minn. 431, 434, 101 N.W.2d 914, 917 (1960). We conclude the district court acted within its discretion when it accepted filings that were late due to a delay in the appointment of Brinker's counsel.


Hoppe first argues the district court erred by considering Brinker's affidavit when denying Hoppe's request for an evidentiary hearing. We disagree. The district court reviews the moving party's affidavits, taking the facts alleged as true, in order to determine whether a prima facie case has been made for an evidentiary hearing. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981); Minn. Stat. § 518.185 (1998) (stating a party seeking modification of custody shall submit affidavits setting forth facts that demonstrate that modification should be granted under section 518.18). But the court may consider evidence from sources other than the moving party's affidavits when making a determination. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997) (citing Krogstad v. Krogstad, 388 N.W.2d 376, 383 (Minn. App. 1986)). We conclude the district court did not err when it considered Brinker's allegation that Hoppe's own actions are endangering C.R.H.'s emotional health and well-being. See Krogstad, 388 N.W.2d at 383 (upholding a denial of evidentiary hearing where child's behavioral problems, asserted in the moving party's affidavit, were found to be caused by visits with the moving party).

Hoppe also argues the district court erred in determining she failed to establish a prima facie case for custody modification so as to entitle her to an evidentiary hearing. See Nice-Petersen, 310 N.W.2d at 472 (trial court should grant evidentiary hearing when moving party's affidavits, taken as true, make sufficient justification for custody modification). But the denial of an evidentiary hearing on custody modification will not be reversed absent an abuse of discretion. Id. To establish a prima facie case for custody modification, the moving party must show:

(1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child's present environment endangers her physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.

Geibe, 571 N.W.2d at 778.

a. C.S.B.

Hoppe contends she established a prima facie case that custody of C.S.B. should be modified because C.S.B. has resided with her since May of 1996 and has been integrated into her home. We agree. Brinker does not dispute that C.S.B. resides with Hoppe. Brinker's failure to object to the change of residence constitutes implicit consent to the integration. See Gibson v. Gibson, 471 N.W.2d 384, 386 (Minn. App. 1991) (holding that if integration has occurred, consent will normally exist, regardless of a parent's subjective intent, absent kidnapping, fraud, or coercion), review denied (Minn. Aug. 12, 1991). Further, where the child is an older teenager, her choice is an "overwhelming consideration in determining the child's custody or in deciding whether [she] is endangered by preserving the custodial placement [she] opposes." Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991). Thus, C.S.B.'s choice to live with her mother for the past three years is a significant change of circumstances. See Eckman v. Eckman, 410 N.W.2d 385, 388 (Minn. App. 1987) (holding that significant change of circumstances existed where child preferred to live with noncustodial parent).

C.S.B.'s preference alone does not provide sufficient evidence of endangerment to mandate a hearing. See Geibe, 571 N.W.2d at 778 (stating that child's preferences are to be considered at evidentiary hearing rather than in determining whether prima facie case has been made). However, the record here indicates: (1) in the three years C.S.B. has been living with her mother, Brinker has never requested that C.S.B. return to his custody; (2) C.S.B. has limited contact with her father; (3) no significant problems have resulted under C.S.B.'s current living arrangement; (4) although C.S.B. lives with Hoppe, Hoppe is still under a child support obligation; and (5) Hoppe's affidavit indicates that Brinker threw C.S.B. out of his house after accusing her of stealing a sweatshirt. See Abbott v. Abbott, 481 N.W.2d 864, 869-70 (Minn. App. 1992) (stating that evidence that respondent threw children out of house was evidence of endangerment).

We conclude Hoppe established a prima facie case that custody of C.S.B. should be modified. Therefore, the district court abused its discretion by denying an evidentiary hearing for C.S.B.

b. C.R.H.

Hoppe argues she established a prima facie case that custody of C.R.H. should be modified by alleging: (1) C.R.H.'s sister moved out of Brinker's home; (2) C.R.H. now knows her custodial parent is not her biological father; and (3) C.R.H. has made numerous requests to live with Hoppe. See Abbott, 481 N.W.2d at 868 (noting there must be significant change of circumstances since prior order establishing custody to warrant evidentiary hearing). Hoppe further alleges C.R.H.'s physical and emotional health is endangered due to physical and emotional abuse by Brinker's wife. Allegations of abuse, both physical and mental, have been held to endanger a child's well-being. Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990). But an alleged single incident of borderline abuse has been held insufficient to warrant custody modification. Geibe, 571 N.W.2d at 779.

Based on all the evidence, we cannot conclude the district court abused its discretion by giving little weight to Hoppe's allegations. See id.; Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987) (affirming trial court's denial of evidentiary hearing where affidavit was devoid of allegations supported by specific, credible evidence). Stability of custody is in the child's best interests. In re Guardianship of D.M.S., 379 N.W.2d 605, 608 (Minn. App. 1985). The record indicates: (1) an evidentiary hearing would involve C.R.H. and force her to choose between her parents; (2) even if Hoppe's unsupported allegations about C.R.H.'s preference are true, C.R.H. is only ten years old and her preference does not carry as much weight as the preference of an older child; (3) Brinker claims the only endangerment is by Hoppe herself who is pursuing this action to the detriment of C.R.H; and (4) Brinker notes that C.R.H.'s school work and behavior have worsened as a result of this ongoing custody dispute.

We conclude the district court did not abuse its discretion when it determined that further custody proceedings are not in C.R.H.'s best interests and would do C.R.H more harm than good. Finally, we deny Brinker's motion requesting sanctions and attorney fees based on the 1988 stipulation.

Affirmed in part and reversed in part, motion denied.