This opinion will be unpublished and may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:
David Ralph Nathe, petitioner,


Susan Marie Nathe Stewart, f/k/a Susan Marie Nathe,

Filed October 12, 1999
Lansing, Judge

Sherburne County District Court
File No. F69500060

Jeffrey Bores, Dennis B. Johnson, Chestnut & Cambronne, P.A., 3700 Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, MN 55402 (for respondent)

Susan Marie Nathe Stewart, 9720 37th Place North, #108, Plymouth, MN 55441 (pro se appellant)

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


Susan Stewart appeals the district court's denial of an evidentiary hearing on her motion for custody modification. Stewart failed to make a prima facie case to justify holding an evidentiary hearing, and we affirm.


David Nathe and Susan Stewart were married from 1989 until 1996. In their 1996 dissolution judgment, the district court provided that Nathe would have sole legal and physical custody of their daughter, who is now nine years old.

In February 1998, Stewart moved for custody modification and requested an evidentiary hearing. Stewart and Nathe submitted affidavits, a psychological evaluation, social services reports, and a police report. After considering the submitted material, the district court denied the evidentiary hearing and the modification motion. The court concluded that Stewart had not shown a substantial change of circumstances to warrant a modification, that a modification was not in the child's best interests, that the present custodial placement with Nathe did not endanger the child's physical or emotional health or development, and that advantages of changing custody did not outweigh likely harm to the child.

Stewart appeals the denial of an evidentiary hearing on the motion and also argues that the district court failed to consider, as a separate basis for her motion, Minn. Stat. § 518.179, subd. 1 (1998), which imposes on a person who has been convicted of certain crimes and is seeking custody an affirmative burden to show that placing custody in that person would be in the best interests of the child.


On a motion for modification of custody, the district court should grant an evidentiary hearing if the affidavits submitted by the moving party, taken as true, establish a prima facie case. Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981). To establish a prima facie case, the moving party must demonstrate a change of circumstance in the child's environment that endangers the child's physical or emotional health or emotional development, that a modification would be in the child's best interests, and that the advantage of a change will outweigh any harm likely caused by the change. Minn. Stat. § 518.18(d) (1998); Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992). We review the district court's decision to deny an evidentiary hearing under an abuse-of-discretion standard. See Valentine v. Lutz, 512 N.W.2d 868, 872 (Minn. 1994).

Stewart does not allege facts sufficient to support a finding of changed circumstances. Stewart argues that the child has expressed a preference to live with her. This is not a change in circumstances, however, because the child expressed the same preference prior to the initial determination of custody. See Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989) (change of circumstances must have occurred after time of last custody order), review denied (Minn. June 21, 1989).

Stewart contends that the incidents that she relies on to show physical and emotional endangerment also demonstrate changed circumstances sufficient to support a prima facie case for custody modification and that the district court erred in failing to properly consider the incidents. Stewart points specifically to an alleged pushing incident and several events centered on family use of the bathroom.

Stewart states that the child told her that Nathe on one occasion pushed her off a counter and then threw her onto a bed. Stewart reported the incident to police, who investigated that same evening. The police report indicates that the child told police she had fallen from the counter-top in an attempt to grab the telephone from her father.

While the district court is required to accept the moving party's allegations as true, it also is allowed to consider the affidavits of other parties to the proceedings and evidence from other sources than the moving party. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997). In this case, while taking as true that the child told Stewart that Nathe pushed her off a counter and onto a bed, the district court was allowed to consider other evidence that provided context for the incident and went to the veracity of the child's statement to her mother.

For instance, when the police questioned the child, she denied that her father had ever struck her. The police report indicates no sign of "outward injuries." Sherburne County Social Services subsequently determined that no maltreatment had occurred. Even if we fully accepted Stewart's allegations, without additional information the incident would not mandate a hearing. "An alleged single incident of borderline abuse or neglect has been held not to constitute sufficient endangerment to warrant a custody modification." Geibe, 571 N.W.2d at 779 (allegation that mother pushed her teenaged daughter onto a bed, slapped her, and pulled her hair insufficient to require evidentiary hearing) (citation omitted). Under the circumstances of this case, the court did not abuse its discretion in giving little weight to this incident. See id.

The other incidents cited by Stewart also prompted responses that provide further context. Stewart alleged that Nathe locked the child in a bathroom for 45 minutes. Nathe's girlfriend stated that the bathroom locks only from the inside. Stewart claims that Nathe makes the child uncomfortable by walking around the house wearing only bikini underwear. This allegation was disputed, and Nathe's girlfriend specifically denied that Nathe owned this type of underwear. But even taking the allegation as true, Stewart has not made a prima facie showing of physical endangerment. See Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (endangerment requires a showing of "significant degree of danger").

In her appeal brief, Stewart failed to address how a change in custody would serve the best interests of the child or how the advantages of a change in custody outweigh the disadvantages. Thus, even if she had met her burden of showing physical or emotional endangerment, Stewart still would not have demonstrated that she met her prima facie burden. The district court did not err in denying an evidentiary hearing in this case.

Stewart's final argument is that the district court failed to consider the legislative amendments to Minn. Stat. § 518.179 (1998) in its order. That section provides that a person who has been convicted of certain crimes and who seeks custody of a child has the burden of proving that custody is in the best interests of the child. In 1998, the legislature amended the statute to include felony harassment, or "stalking," among the listed offenses. See 1998 Minn. Laws ch. 367, art. 2, § 2. In 1996, when the court issued the initial custody order, the statute did not include felony stalking. In 1995, Nathe pleaded guilty to felony harassment of Stewart. Stewart's argument that the change in the statute constitutes a type of "changed circumstance" is erroneous. First, Minn. Stat. 518.18(d) requires a party to show "a change has occurred in the circumstances of the child or the parties" (emphasis added). A change in the law is not relevant. Second, section 518.179 applies only to crimes committed on or after August 1, 1998. 1998 Minn. Laws ch. 367, art. 2, § 34. The statute is thus not applicable to Nathe's conviction. Furthermore, section 518.179 applies only to persons "seeking child custody." Nathe, who already has custody, is not "seeking" custody. The district court did not abuse its discretion when it refused to consider Nathe's 1995 conviction in determining whether Stewart made out a prima facie case of changed circumstances.