This opinion will be unpublished and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:

Michael Skime, petitioner,



Dawn Skime,

n/k/a Dawn Payne,


Filed April 13, 1999


Harten, Judge

Roseau County District Court

File No. F5-91-507

Dale A. Blanshan, 304 Elk Street, Warroad, MN 56763 (for appellant)

Donna K. Dixon, 116 North Main Street, P.O. Box F, Warroad, MN 56763 (for respondent)

Considered and decided by Harten, Presiding Judge, Randall, Judge, and Anderson, Judge.



Appellant claims that the district court abused its discretion in denying her an evidentiary hearing on her motion for modification of child custody by finding that appellant failed to establish a prima facie case. Because appellant showed neither endangerment nor that modification was in the best interests of the children, we affirm.


When the parties' marriage was dissolved in 1992, respondent Michael Skime was granted custody of their children, J.S., now ten and N.S., now eight. In 1997, J.S. was hit by a car; he received a traumatic brain injury and now requires special care. Appellant Dawn Skime moved for custody modification because of what she alleged were specific and continuing instances of respondent's disregard of J.S.'s special needs resulting from the injury.

Appellant's allegations were contained in her own affidavit; she filed no other documents to support her claims. She claimed that respondent failed to follow the advice of health care professionals, cooperate with school officials, keep the children clean, and ensure that the children had enough sleep and that J.S. completed his homework. She asserted that respondent neglected N.S., was trying to turn the children against her, and made visitation difficult. She alleged that the children made inappropriate sexual references and acted out in sexually inappropriate ways possibly because respondent exposed them to pornography. Finally, appellant claimed that she now has a stable home and marriage, has recovered from her drug and alcohol addiction, and lives near a school and neuroscience center that are equipped to deal with J.S.

In a responsive affidavit, respondent denied appellant's claims; he also submitted the children's school records. The district court denied an evidentiary hearing and custody modification. This appeal followed.


1. Standard of Review

Under Minnesota law,

the court shall not modify a prior custody order unless it finds, upon the basis of facts * * * that have arisen since the prior order * * *, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement established by the prior order unless:

* * *

(iii) 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) (1998).

The party seeking a child custody modification should submit an affidavit asserting the facts on which the motion is based. Minn. Stat. § 518.185 (1998). The district court then determines whether petitioner has established a prima facie case by alleging facts that, if true, would provide sufficient grounds for a modification. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997); see also Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). The district court must accept the facts in the moving party's affidavits as true without independent substantiation. Geibe, 571 N.W.2d at 777. Minn. Stat. § 518.185 also grants the opposing party the right to file affidavits, and the court may consider all affidavits in making its determination. Id. As appellant correctly points out, the district court is required to accept appellant's allegations as true and to disregard any directly contrary statements in respondent's affidavit; the court may only "take note of statements in [respondent's] affidavit that explain the circumstances surrounding the accusations." Id. at 779. If the facts asserted by the moving party are sufficient to support modification, the district court must hold an evidentiary hearing. A hearing is strongly encouraged when there are allegations of present endangerment to health or emotional well-being. Id. at 777. In reviewing a modification petition dismissed without an evidentiary hearing, we will not reverse absent an abuse of discretion. Id.

In order to establish a prima facie case, 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 [his or] 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. * * * *

A change in circumstances must be significant and must have occurred since the original custody order * * *. The best interests of the child are determined according to the factors listed in Minn. Stat.

§ 518.17 (1996). Endangerment requires a showing of a significant degree of danger, but the danger may be purely to emotional development. The fourth factor, the balance of harms, may sometimes be implicit in the other factors.

Id. at 778 (quotation and citations omitted).

2. Prima Facie Case

a. Change in Circumstances and Endangerment

The district court concluded that

[appellant] failed to establish on a preliminary basis that there has been a significant change in circumstances, which endanger the children's physical health, emotional health or emotional development.

Appellant argued that J.S.'s head injury was a change in circumstances for both J.S. and N.S. We agree. J.S.'s traumatic brain injury, which requires special emotional and physical care, is a substantial change in circumstances. Appellant also alleged several other conditions that she claims warrant findings of a change in circumstances and endangerment.

Appellant claimed that respondent's failure to meet J.S.'s new special needs has shown an intentional disregard of professional advice. Respondent explained that he was following the advice of his doctor regarding J.S.'s feeding tube, removing J.S. from the hospital grounds, removing J.S.'s brace, and J.S.'s eyeglasses. He explained that he does exercises with J.S., as is evidenced by J.S.'s rapid progress. He also explained that he brought J.S. to all appointments, and if he missed an appointment, it was because appellant had made the appointment and failed to tell him.

Appellant claimed that respondent neglected to give the boys proper hygienic care. Notwithstanding J.S.'s problems brushing his teeth, which are due to his injury, and N.S. being an active eight year old boy, respondent explained that he kept the children as clean as possible. Appellant claimed that the children engaged in inappropriate sexual speech and conduct * * *. Respondent replied that J.S. does behave inappropriately but the behavior is due to his injury. Appellant claimed that respondent interfered with children's relationship with her. Respondent explained that problems with visitation were due to appellant's unstable lifestyle. Appellant claimed that respondent failed to address school and other problems, concealed school problems, and failed to see that J.S. does his homework. However, respondent explained that because J.S. tires more easily than other children, he may have not always complete his homework, but this has not affected his school performance. Respondent admitted that he and appellant do not communicate well, but said that he never interfered in appellant's interaction with the children's school.

Finally, appellant accused respondent of using excessively harsh discipline. Respondent admitted that he did spank the boys with a belt many years ago, but said that the family had counseling regarding these incidents and that the boys had not been spanked with a belt or otherwise for a number of years.

Upon careful examination of the record, we conclude that while there may have been a substantial change in J.S.'s situation, appellant's alleged facts and affidavit, when explained by respondent's affidavit and supplementary records, do not show endangerment.

b. Best Interests

Appellant argues that if there are changed circumstances, the best interests of the child would be served by terminating respondent's custody of the boys. She now has a stable marriage, and lives closer to facilities that can care for J.S.'s special needs. See Minn. Stat. § 518.17, subd. 1(a)(6) (1998) (best interests of child include adjustment to home, school, and community). But J.S. has progressed physically and academically far beyond that expected of him. J.S. and N.S. have lived with their father for six years. See id., subd. 1(a)(7),(8) (stability and permanence of child's environment). While the district court did not make a specific finding regarding best interests, we believe that a finding as to the children's best interests is implicit in its conclusions and its decision was not an abuse of discretion.

c. Balance of Harms

Appellant argues that the benefits of removing the boys from respondent's custody will outweigh any detriments. The district court did not specifically address this issue, although it found that J.S. has made significant progress after his injury and has a current support system in place. The children are not endangered, and any move would harm the stability and permanence they have developed with respondent father. The district court's implicit finding that the balance of harms favors respondent is not an abuse of discretion.