This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Custody of: L. L. V.,

d.o.b. 9-19-94.

Filed July 27, 1999


Shumaker, Judge

Blue Earth County District Court

File No. F097385

Michael D. Venn, 20589 Langevin Drive, Richmond, MN 56368 (appellant pro se)

John R. Rodenberg, Berens, Rodenberg & O'Connor, Chtd., 519 Center Street, P.O. Box 428, New Ulm, MN 56073-0428 (for respondent Linda Rich)

Thomas J. Krause, Law Offices of McLoone & Krause, 111 N. State Street, P.O. Box 508, Waseca, MN 56093-0508 (for respondent Sheryl Delaney)

Considered and decided by Shumaker, Presiding Judge, Short, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


Minor child's aunt with visitation rights alleges that the trial court erred in denying her custody-change motion without holding an evidentiary hearing. We affirm.


L.L.V. was born to Sheryl Lynn Delaney and her estranged husband Michael D. Venn on September 19, 1994, in Tennessee. Delaney asked her sister, Linda Rich, to come to Tennessee from her home in Wisconsin to help with the childbirth and then to take the baby back home with her to Wisconsin to care for her. Rich did so.

At the time of L.L.V.'s birth, Delaney's marriage dissolution was pending in Blue Earth County, Minnesota. The court awarded Delaney temporary custody of L.L.V. in October 1994, and Rich returned the child to Delaney in Minnesota.

The dissolution became final on June 14, 1995. The court awarded custody of L.L.V. to Delaney during the summer and to Venn during the school year. Delaney allowed Rich to take L.L.V. back to Wisconsin in June 1995. L.L.V. remained with Rich until November 1996. During this period, Delaney visited L.L.V. in Wisconsin. Venn attempted one visit but Rich refused him because he had not given advance notice.

In August 1996, Rich filed a petition in Wisconsin to be appointed L.L.V.'s legal guardian. Venn objected and the Wisconsin court continued the matter for hearing until November 27, 1996. On November 6, 1996, Delaney abruptly retrieved L.L.V. from Rich and returned with the child to Minnesota.

Rich petitioned for custody of L.L.V. in Blue Earth County on February 11, 1997. By order dated July 1, 1998, the court amended Delaney and Venn's dissolution decree so as to provide that Rich would have reasonable visitation with L.L.V., specifying particular visitation times and dates.

Rich alleges that she immediately had visitation difficulties. Delaney was completely uncooperative. Venn telephoned Rich in August 1998, and asked if she was coming to Minnesota to pick up L.L.V. for visitation. Rich believed that Delaney would bring L.L.V. to Wisconsin for visitation, and Rich was unable to travel to Minnesota.

On September 23, 1998, Rich moved for a change of custody of L.L.V., or, in the alternative, an award of compensatory visitation. The court heard the matter on December 1, 1998, and issued its order on December 4, 1998, finding:

There is probable cause to believe that there has been a persistent and willful denial of visitation by the biological parents as relates to the visitation rights established by this Court in favor of Linda Rich relative to the child [L.L.V.].

The court denied Rich's motion for change of custody but granted her compensatory visitation. Venn filed an appeal from the order, but failed to pursue the appeal. Venn's appeal was dismissed and this matter is before us on Rich's notice of review. Rich argues that "the real issue is whether the trial court should have ordered and conducted an evidentiary hearing."


Although Rich never requested an evidentiary hearing, she contends that she established a prima facie basis for a custody change, and, therefore, the court should have held an evidentiary hearing. In support of her contention, she points to the court's finding of "probable cause" to believe that Delaney and Venn persistently and willfully denied visitation to Rich.

Before a court is required to hold an evidentiary hearing, the moving party must establish a prima facie case in support of a custody modification. See Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992). Not only must the moving party show a substantial change in circumstances since the entry of the prior custody order, but the party must also show that the change endangers the child's physical or emotional health or its development. Id. at 868. See Minn. Stat. § 518.18(d)(iii) (1998). If the affidavits of the noncustodial party do not establish a change sufficient to justify a modification, an evidentiary hearing is not required. Hegerle v. Hegerle, 355 N.W.2d 726, 731 (Minn. App. 1984). For purposes of a prima facie determination, the court must accept the facts in the moving party's affidavit as true. See Lilleboe v. Lilleboe, 453 N.W.2d 721, 723-24 (Minn. App. 1990).

The visitation order of July 1, 1998, provided, among other things, that Rich was to have visitation with L.L.V. the third weekend of each month. According to Rich's affidavits, Rich attempted to contact Delaney as early as August 1, 1998, and then on several dates prior to the third weekend in an effort to arrange for visitation of L.L.V. in August. Before the third weekend, Venn called Rich and said she would have to come to Minnesota to pick L.L.V. up. She could not do so and she missed the August visitation.

By the time of her November 13, 1998, supplemental affidavit, Rich was generally satisfied with Venn's cooperation with visitation but was concerned that Delaney had dumped L.L.V. on Venn instead of keeping her in Peoria, Illinois, where Delaney was residing. Rich complained that the visitation order was based on the assumption that L.L.V. would be living with Delaney and that Delaney had defrauded the court.

There are no facts alleged in Rich's affidavits to suggest that L.L.V. is in any danger of any kind in Venn's custody. Furthermore, no party provided this court with a transcript of the December 1, 1998, hearing; thus, we cannot determine whether additional facts were presented at the hearing. See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (when appellant fails to provide transcript, this court's review is limited to whether trial court's legal conclusions are supported by findings); see also Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (when no transcript is available for review, this court cannot review sufficiency of evidence).

At most, Rich has shown that she was denied one weekend of visitation. The court granted compensatory visitation to rectify the loss. One denial of visitation, even if willful, does not establish a prima facie showing of endangerment as required by Minn. Stat. § 518.18 (1998). See Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (endangerment requires a showing of a "significant degree of danger"). The district court did not err in making its order without an evidentiary hearing.