STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Diana Moyers, a/k/a Diana
Bechman, a/k/a Diana Taylor,
a/k/a Diana Dobbins,
Bert R. Dobbins,
Filed November 23, 1999
Washington County District Court
File No. F2-94-5786
Susan Danner Olson, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for appellant)
Esther E. McGinnis, Peterson, Fram & Bergman, P.A., 50 East Fifth Street, Suite 300, St. Paul, MN 55101 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.
Appellant, a father, challenges the district court's denial of his motions to modify custody and for an evidentiary hearing. Because we see no abuse of discretion, we affirm.
Respondent has twice been found in contempt of court for interfering with appellant's visitation rights. In 1989, a Nebraska court found her in willful contempt for refusing to allow appellant visitation as provided in the dissolution judgment. In 1990, after she moved with J.W.D. to Iowa, an Iowa court found her in contempt for violating visitation rights and removing J.W.D. from Iowa without approval. In 1991, she and J.W.D. moved to Minnesota.
In 1999, appellant moved for a change of custody, or alternatively, for an evidentiary hearing on his custody motion. His motions were denied, and he appeals, arguing that he was denied visitation, that there has been a change in J.W.D.'s circumstances, and that J.W.D. is endangered in his present environment.
The party seeking a modification of custody must submit an affidavit asserting the facts on which the motion is based. Minn. Stat. § 518.185 (1996). The court must determine whether the petitioner has established a prima facie case by alleging facts that, if true, would provide sufficient grounds for a modification. * * *
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[D]ecisions by this court have applied an abuse of discretion standard to a district court's dismissal of a modification petition without an evidentiary hearing, relying on the court's general broad discretion in custody matters.
Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997) (citations omitted).
1. Denial of Visitation
Interference with visitation can be a basis for modification of custody. See Minn. Stat. § 518.18(d) (1998); but see Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993) (noting unwarranted denial of visitation due but require custody modification). The district court found that "[respondent] has willfully interfered with [appellant's] right to telephone contact with his son" and ordered:
That [respondent] is in Constructive Civil Contempt of Court, and the Court sentences [respondent] to serve ten (10) days in the Washington County Jail. Said sentence shall be suspended on the condition there be no further interference with [appellant's] right to contact [J.W.D.] by telephone.
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That [respondent] shall strictly comply with the terms of all visitation Orders presently in place. Any interference or denial of visitation rights may again subject [respondent] to the possibility of being cited with Contempt of Court. The Court will in the future strictly scrutinize [respondent's] compliance with the visitation provisions currently in force. Furthermore, as [J.W.D.] becomes older, his input into his relationship with his father, including visitation and other communication issues, will grow increasingly important. Although the Court is not yet prepared to change the custodial arrangement, continued interference by [respondent] with visitation and communication may result in such a change upon proper motion.
Appellant argues that this finding, coupled with the contempt of court citations for failing to allow visitation in Nebraska in 1989 and in Iowa in 1990, supports custody modification. But the Nebraska and Iowa citations were ten and nine years old respectively when the district court made its decision. The district court was aware that interference with visitation could provide a basis for modifying custody, but decided that modification is not now necessary to serve the best interests of J.W.D. Appellant provides no basis for overturning this decision, and under Rogge, the decision was not beyond the discretion of the district court.
2. Change in Circumstances
Appellant alleges that circumstances have changed because (1) respondent moved J.W.D. from the public school to a church-affiliated home school co-op; (2) J.W.D. provided a letter that evinces maltreatment and physical altercation with respondent; (3) appellant provided evidence of medical and dental maltreatment or neglect; and (4) J.W.D. is now expressing a preference to live with appellant.
The district court found that appellant "had failed to establish that [J.W.D.] is being denied medical care" and that there was insufficient evidence that he was endangered by the change in schools. The district court also denied appellant's motion to compel orthodontic work. The findings show that the district court considered appellant's arguments but found them unsupported by the facts. A child's preference alone does not provide sufficient evidence of endangerment to mandate a hearing. Geibe, 571 N.W.2d at 778. Again, there is no basis to overturn the decision.
The district court denied an evidentiary hearing after finding that "[Appellant] has failed to establish a prima facie case of endangerment so as to justify a modification of the custody of the parties' minor child." Appellant challenges this finding, arguing that J.W.D. is the subject of past and present physical abuse. The basis for this argument is J.W.D.'s letter asserting that respondent threw him into a wall on one occasion and that he has been beaten with a wooden spoon. The Washington County child protection agency became involved after J.W.D. alleged that he was thrown into the wall but the agency failed to substantiate any child abuse.
We conclude that appellant has failed to show that the district court abused its discretion in denying his motion for modification of custody and his alternative motion for an evidentiary hearing.