may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Matter of:
Paul Todd Minehart, et al., petitioners,
Anne Marie Minehart,
Filed May 4, 1998
Affirmed; motion denied
Hennepin County District Court
File No. 241796
Carole M. Megarry, Katz & Manka, Ltd., 4150 U.S. Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for respondent Anne Marie Minehart)
Timotheus Blaylark, 3923 First Avenue South, #1, Minneapolis, MN 55408 (pro se respondent)
Considered and decided by Harten, Presiding Judge, Randall, Judge, and Anderson, Judge.
Appellants Paul and Beth Minehart, sister and brother-in-law of respondent Anne Marie Minehart, challenge the district court's order denying, without a hearing, their motion for a custody change of respondent's son, K.L.M. Appellants argue they met their prima facie burden entitling them to an evidentiary hearing on the matter. We affirm and deny respondent's motion for attorney fees.
In December 1995, Timotheus Blaylark was adjudicated the father of K.L.M. Respondent was granted sole physical custody of K.L.M. while reasonable visitation was awarded to Blaylark. Respondent and Blaylark were granted joint legal custody of K.L.M. Appellants made no appearance in the paternity action.
In August 1998, appellants filed a petition for a change of custody and obtained an ex parte order awarding them temporary sole physical custody of K.L.M. After a hearing, the ex parte order was vacated and the parties were ordered to reinstate their previous arrangements for K.L.M.
At the October 1998 custody hearing, appellants argued that they should be granted sole physical custody of K.L.M. due to respondent's history of (1) mental health problems, (2) unstable housing, and (3) sporadic employment. Appellants submitted evidence in support of their assertions (e.g., unlawful detainer dated 1988; social security decision regarding SSI eligibility dated 1990; letters from rental agencies dated 1992 and 1995) that generally predated the birth of K.L.M. The most recent evidence appellants submitted regarding respondent's mental health consisted of a letter referring respondent to psychological testing in 1997 and a summary report of a psychological evaluation completed in April 1998.
In its order denying appellants' custody motion, the district court stated, among other things, that appellants had not shown a change in circumstances since the original custody order in 1995. The court stated at the time of the paternity adjudication, when respondent was awarded sole physical custody of K.L.M., that appellants had been caring for K.L.M. four days per week for one year and did not, at that point, move the court for custody of K.L.M. The only change in circumstances the court found was that respondent, through the assistance of her family, had begun to pull her life together and is on the road to self-sufficiency.
Under the endangerment standard, the court found, among other things, that appellants were unable to prove endangerment. The court stated that appellants have proffered little evidence regarding respondent's present mental status. The court further stated that appellants had not shown that (1) respondent is currently unable to care for K.L.M and (2) her caretaking endangers K.L.M. Absent a showing of changed circumstances or endangerment, the district court declined to perform the best-interests analysis. Accordingly, the district court denied an evidentiary hearing, and respondent retained sole physical custody of K.L.M.
A reviewing court will not reverse an order denying an evidentiary hearing on the issue of custody modification absent an abuse of discretion. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).
Custody modifications are governed by Minn. Stat. § 518.18 (1998). Minn. Stat. § 518.18(d) provides:
If the court has jurisdiction to determine child custody matters, the court shall not modify a prior custody order unless it finds, upon the basis of facts, * * * that have arisen since the prior order or that were unknown to the court at the time of 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:
(i) both parties agree to the modification;
(ii) the child has been integrated into the family of the petitioner with the consent of the other party; or
(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.
Under Minn. Stat. § 518(d)(iii), the relevant statute applicable here, the moving party must establish four elements for a prima facie case: (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. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992). The standard is the same whether the moving party is a parent or non-parent. Westphal v. Westphal, 457 N.W.2d 226, 228 (Minn. App. 1990).
A change in circumstances must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989). Endangerment requires a showing of a "significant degree of danger," Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991), but the danger may be purely to emotional development. See Eckman v. Eckman, 410 N.W.2d 385, 389 (Minn. App. 1987) (upholding sufficiency of evidence for modification based on child's isolation in father's home and preference for mother).
Here, appellants do not argue that there has been a change in circumstances since the paternity adjudication, but rather that the circumstances existing when the paternity adjudication was made were unknown to the court. Appellants point to the following as circumstances unknown: the parties' alleged shared custodial arrangements; respondent's alleged significant mental health issues; and respondent's past troubled housing issues.
The burden falls on appellants, as the moving parties, to show that the district court was not aware of the circumstances at the time of paternity adjudication. See Abbott, 481 N.W.2d at 868. Appellants were not parties to the proceeding and state in their brief that they did not have access to the paternity file. If appellants were not present during the proceeding and cannot gain access to the paternity file to provide a record supporting their assertion, it appears they are unable to establish a change in circumstances. If the affidavits accompanying a motion for custody modification do not allege sufficient facts to show a significant change in circumstances, the district court is not required to grant an evidentiary hearing on custody modification. Lundell v Lundell, 387 N.W.2d 654, 657 (Minn. App. 1986); Taflin v. Taflin, 366 N.W.2d 315, 320 (Minn. App. 1985).
If, however, the district court assumed that appellants' allegations were true and the district court that adjudicated paternity was not aware of the circumstances, arguably we can assume a change in circumstances exists. See Smith v. Smith, 508 N.W.2d 222, 226 (Minn. App. 1993) (district court must assume that movant's allegations are true).
Having arguably established a change in circumstances, appellants next must satisfy one of the conditions described in subdivisions (i)-(iii) of Minn. Stat. § 518.18(d). Downey v. Zwigart, 378 N.W.2d 639, 642 (Minn. App. 1985).
Here, appellants argue to this court that they raised the issue of family integration and that the district court failed to make findings regarding their assertion and found instead that appellants had not established endangerment. A review of the record does not indicate that appellants' integration argument was made to the district court. At the district court level, appellants argued for custody under Minn. Stat. § 518.156, subd. (1)(b) (1996); no reference was made to integration under Minn. Stat. 518.18(d)(ii).
Assuming the integration issue was raised, appellants assert that K.L.M. has been integrated into their home because of the amount of time respondent has allowed him to spend there. It is undisputed that K.L.M. spends at least half of the week with appellants. The issue not addressed by appellants is whether respondent provided the required consent. Allowing K.L.M. to spend nights at appellants' home does not necessarily mean that respondent has consented to integration. Furthermore, appellants spend considerable time arguing that respondent is not mentally competent. The district court essentially found the evidence offered regarding respondent's competency (i.e., mental status) was stale. If the district court is correct, all we have is a record that respondent was incompetent at one time and no record of whether she is presently competent and able to consent. On the other hand, if the evidence presented to the district court was not stale, then there is a showing that respondent is incompetent, in which case she is unable to consent to the integration. Under either scenario appellants are unable to establish proper consent.
A district court's refusal to modify custody can be justified by a valid determination either as to absence of changed circumstances, best interests of child, or absence of special statutory conditions for modification (i.e., custodial agreement, consent to integration, or endangerment of child in present environment). Gibson v. Gibson, 471 N.W.2d 384, 386 (Minn. App. 1991), review denied (Minn. Aug. 12, 1991). Because appellants did not meet their prima facie burden, the district court did not abuse its discretion in denying an evidentiary hearing.
Respondent requests attorney fees on appeal but fails to provide legal grounds to support such an award. Based on the affidavit, it appears that respondent bases her request on need as well as an alleged disparity in the parties' income. Minn. Stat. § 518.14, subd. 1 (1998), provides for an award of attorney fees when the party from whom the fees are sought has the means to pay them, and the party requesting the fees does not have the means to pay them. Other than speculation, however, respondent fails to offer any proof of income disparity.
Furthermore, there is no evidence that this appeal was frivolous or brought in bad faith. See id. (providing criteria for award of attorney fees on appeal).
We deny respondent's request for attorney fees.
Affirmed; motion denied.
 Appellants argue in their brief that the record fails to reflect the filing of a prior custody order, which raises a question of whether this proceeding is governed by Minn. Stat. § 518.18 (1998) dealing with custody modifications. Respondent's appendix contains a certified copy of the paternity adjudication signed by a Hennepin County District Court Judge and filed with that court in December 1995. On January 31, 1999 appellants, respondent, and Blaylark stipulated to the entry of the Paternity Judgment into the record. It appears appellants entered into the stipulation after the filing of their brief. Their argument regarding which statute governs is now moot.
 See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, appellate courts only address issues presented to and decided by district court; party may not raise new theory on appeal); Frank v. Illinois Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983) (where district court fails to address issue and party who raised it did not seek amended findings, there was nothing for supreme court to review). But see Minn. R. Civ. P. 103.04 (appellate court may address any issue as justice requires).