may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Sandra Ottesen, f/k/a Anderson, petitioner,
Chris Matthew Anderson,
Filed June 15, 1999
Becker County District Court
File No. F1-96-866
Michael L. Gjesdahl, Gjesdahl & Dietz, PLLP, 107 North Eighth Street, Fargo, ND 58102 (for appellant)
Stuart J. Kitzmann, Kitzmann Law Firm, 916 Washington Avenue, Detroit Lakes, MN 56501 (for respondent)
Considered and decided by Randall, Presiding Judge, Davies, Judge, and Anderson, Judge.
Appellant challenges the district court's denial of an evidentiary hearing on appellant's motion for modification of child custody. Because appellant failed to establish a prima facie case for modification, we affirm.
On October 2, 1998, appellant filed a motion to change custody, seeking sole physical custody of the three children. Along with her motion, appellant submitted her affidavit. In it, appellant addresses many of the reasons the district court originally relied on in granting respondent custody and points to evidence demonstrating how those circumstances have since changed.
She also submitted a letter from Sharon Solum, a counselor who the children have seen through Valley Christian Counseling Center, Inc. In the letter, Solum stated that the girls told her that their father had hit them. Solum reported this to Clay County Social Services, which later found that no maltreatment had occurred and that no protective services were needed.
Additionally, appellant provided affidavits from eight individuals whose children attend daycare at appellant's home, all indicating that appellant takes very good care of their children and that their children like appellant's fiancé.
The district court denied both the request for an evidentiary hearing and custody modification, after finding that, although appellant set out several changed circumstances occurring since trial, none of them rise to a level of endangerment for the children. This appeal followed.
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, including unwarranted denial of, or interference with, a duly established visitation schedule, 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:
* * * *
(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.
Custody may be modified if the moving party shows that:
(1) a change in the circumstances of the child[ren] or custodian; (2) that a modification of custody is necessary to serve the best interests of the child[ren]; (3) that the child[ren]'s present environment endangers [their] physical or emotional health or emotional development; and (4) that the harm likely to be caused by the change of environment is outweighed by the advantage of change to the child[ren].
Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992). Based on affidavits submitted by appellant, the district court determines whether appellant 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).
In determining whether to grant an evidentiary hearing, the district court must accept the facts in appellant's affidavits as true. Id. Generally, a party is entitled to an evidentiary hearing only if the party makes a prima facie case for modification. Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992). If the facts asserted are sufficient to support modification, then the district court must hold an evidentiary hearing. Geibe, 571 N.W.2d at 777. A hearing is strongly encouraged when there are allegations of present endangerment to the health or emotional well being of the children. Id. Endangerment requires a showing of a "significant degree of danger." Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991). The danger, however, 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).
Although the district court found that appellant set out examples of changes in circumstances with respondent since the original decree, appellant must also show that: (1) the children's present environment endangers their physical or emotional health or emotional development; and (2) the harm likely to be caused by a change of environment is outweighed by the advantage of change. See Abbott, 481 N.W.2d at 868. The district court found that appellant had failed to meet her burden.
What constitutes endangerment required to allow a custody modification is "based on the particular facts of each case." Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990). Appellant's strongest allegation is that respondent has hit the children in the face. At the hearing, appellant's attorney referred to the conduct in question as "inappropriate discipline." While the district court admitted physical contact occurred between respondent and the children, it characterized the contact as "discipline," notably omitting any reference to its alleged impropriety. Also, the record shows that, to support her motion, appellant submitted an exhibit referring to the conduct in question. The exhibit, however, shows both that the county investigated an allegation that respondent had hit the children and that the county determined that "no maltreatment had occurred and that no protective services were needed." Thus, not only is the district court's refusal to characterize the conduct in question as "abuse" consistent with appellant's own submissions to the court, but it is also consistent with case law. See Geibe, 571 N.W.2d at 779 (holding that, in determining whether to order evidentiary hearing, the district court "may take note of statements in [the non-moving party's submissions] that explain the circumstances surrounding the accusations [of the moving party]" (citation omitted)). Thus, on this record, we cannot say mother's twice-rejected allegations of "abuse" are sufficient to require an evidentiary hearing.
Appellant also contends that respondent has interfered with her visitation and relationship with the children. But episodes of interference with visitation do not alone establish grounds to modify child custody. Dabill v. Dabill, 514 N.W.2d 590, 595 (Minn. App. 1994).
Appellant primarily provided reasons explaining why she believes that respondent is not the better parent. These reasons may be sufficient under a "best-interest" standard when a court initially grants custody; they are insufficient to warrant a modification of custody or an evidentiary hearing for purposes of modifying custody. See id. (requiring showing of endangerment); see also Lutzi, 485 N.W.2d at 315 (noting that traditional best-interest standard may govern insubstantial custody alterations, but endangerment standard must be employed where party proposes a substantial change in custody). Appellant has provided no support for why all of the other alleged shortcomings that respondent may have as a father pose a "significant degree of danger" to the physical or emotional development of the children. See Ross, 477 N.W.2d at 756.
Appellant compares her case to decisions, cited below, in which this court has reversed the district court's denial of an evidentiary hearing on a motion for custody modification and argues that, for similar reasoning, this court should reverse the district court here. But contrary to appellant's assertions, there are no significant similarities in the facts of these cases to facts appellant provided; nor do facts here rise to the level of endangerment as they do in the following cases. See Ross, 477 N.W.2d at 754 (evidence establishes prima facie case that child's present environment may endanger his emotional health or development where that child, nearly 17 years of age chooses to live with noncustodial parent, has physically moved into parent's home, and where there is additional evidence indicating distress of child during his residence with custodial parent and resulting deterioration of his school performance); Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn. App. 1991) (holding that evidentiary hearing should be held where trial court already found change in circumstances and modification is in the children's best interest); Lilleboe, 453 N.W.2d at 722-23 (reversing and remanding for evidentiary hearing based on affidavits alleging specific incidents of physical and emotional abuse committed by custodial mother and stepfather and deterioration of children's emotional state; and affidavit of fourteen-year-old child alleging excessive physical punishment, fear of stepfather, and desire to live with father; and psychologist's report that girls were in immediate danger of both physical and emotional harm and should not be returned to mother); Larson v. Larson, 400 N.W.2d 379, 380 (Minn. App. 1987) (holding that allegations of frequent cohabitation, changes of residence, and drug use affecting children were sufficient to require evidentiary hearing on motion to change custody); Benson v. Benson, 346 N.W.2d 196, 198 (Minn. App. 1984) (reversing denial of evidentiary hearing in light of facts that respondent requested removal of children to Texas, her new marriage was questionable, seven people would be living in trailer home, no evaluation of that home by social service agency, four-year-old child was not receiving necessary medical care and not yet toilet trained, visitation with father would be affected).
Appellant has failed to establish a prima facie case for modification because the evidence presented did not show (1) that the children's present environment endangers their physical or emotional health or development or (2) that harm to the children likely to be caused by a change of environment is outweighed by the advantage of the change. Therefore, the district court did not abuse its discretion in denying an evidentiary hearing.