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 Marriage of:
Amy Jo Grindeland, n/k/a
Amy Jo Pittman, joint petitioner,
Wade Alan Grindeland,
Filed May 18, 1999
Marshall County District Court
File No. F2-98-25
Shirley A. Dvorak, Moosbrugger, Dvorak and Carter, P.L.L.P., 311 S. Fourth St., Ste. 101, Grand Forks, ND 58201 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Short, Judge, and Holtan, Judge.[*]
Appellant Wayne Grindeland claims the district court abused its discretion by denying his motion to modify custody from respondent Amy Pittman to himself without holding an evidentiary hearing. Because appellant did not establish a prima facie case to modify custody, we affirm.
In deciding whether to hold an evidentiary hearing on a motion to modify custody, the district court takes the moving party's allegations as true. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997). While the district court must disregard statements by the non-moving party that are contrary to those by the moving party, it may consider statements by the non-moving party to the extent they explain "the circumstances surrounding the [moving party's] accusations." Id. at 779. If the moving party does not establish a prima facie case to modify custody, the district court may deny the motion without conducting an evidentiary hearing. Lilleboe v. Lilleboe, 453 N.W.2d 721, 723 (Minn. App. 1990). A prima facie case requires a showing of, among other things, substantially changed circumstances and endangerment. Geibe, 571 N.W.2d at 778; see Minn. Stat. § 518.18(d) (1998) (addressing custody modification).
What constitutes substantially changed circumstances is "determined on a case-by-case basis." Lilleboe, 453 N.W.2d at 723 (citations omitted). Here, because the dissolution findings acknowledge that post-dissolution relationships by the parties were anticipated, we reject appellant's argument that respondent's relationship with her current fiancé is a substantial change in circumstance. See Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987) (trial court's construction of its own decree given "great weight" on appeal), review denied (Minn. Dec. 22, 1987). Also, because the dissolution judgment recognized that at least one party would be moving, it implicitly contemplated the possibility that the child might be placed with a new daycare provider. Therefore, neither respondent's move nor her placement of the child with a new daycare provider shows substantially changed circumstances. Cf. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989) (continuation of existing circumstances is not changed circumstances), review denied (Minn. Jun. 21, 1989).
Appellant alleges the child's poor behavior shows the child is endangered. See Lilleboe, 453 N.W.2d at 724 (stating endangerment may be shown by behavior problems). Whether endangerment exists is determined on a case-by-case basis. Id. To show endangerment, a party must show a significant degree of danger. Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991). Here, the district court stated appellant was unable to attribute the child's behavior to the move or to respondent's relationship with her fiancé and that the child's conduct could be a result of the parties' divorce. The record shows that when the parties divorced in early 1998, respondent moved in with her parents and the child was placed with a new daycare provider. In July 1998, respondent changed the child's daycare provider and in August 1998, she moved in with her fiancé. The district court did not clearly err by finding appellant failed to successfully attribute the child's behavior to something other than the dissolution-related changes in the child's life or in refusing to find the child to be endangered. Also, while appellant claims the child is rebellious, he admits that, as the child ages, "his personality will be developing and he will be asserting his independence." Lastly, on this record, the child's use of improper language, while an issue of parental discipline, is not enough to show endangerment.
Appellant did not establish a prima facie case to modify custody because he showed neither substantially changed circumstances nor endangerment. The district court did not abuse its discretion by denying appellant's motion without an evidentiary hearing.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.