may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Filed January 23, 1998
Stearns County District Court
File No. F194779
J.M.D., 815 36th Avenue North, St. Cloud, MN 56303 (pro se respondent)
Cynthia J. Vermeulen, 14 North Seventh Avenue, #114, St. Cloud, MN 56303 (guardian ad litem)
Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Willis, Judge.
Appellant J.N.B. challenges the district court's order and judgment denying his motion for an evidentiary hearing on modification of custody, denying his motion for modification of child support, and awarding respondent $4,000 in attorney fees. We affirm.
The district court held an evidentiary hearing in January 1996 on appellant's motion for modification of custody. The court found that because respondent had denied appellant visitation rights, violated several court orders, and made multiple unsubstantiated allegations that appellant had abused her, there had been a substantial change in circumstances that endangered the emotional health and impaired the emotional development of A.B. and E.B. The court awarded the parties joint physical and legal custody of A.B. and E.B., restrained respondent from further contact with the abuse advocate and all of the advocate's affiliated organizations, ordered that the file remain sealed, and continued appellant's obligation to pay child support until further order of the court. The court also appointed a guardian ad litem for A.B. and E.B. and ordered that he submit a report and recommendation to the court within six months regarding the parties' ability to cooperate to make joint physical and legal custody successful. The court proposed to review and consider the guardian's recommendations in determining whether to continue the custody arrangement.
On December 3, 1996, before the court had the opportunity to review the guardian's recommendation, appellant filed a motion seeking sole legal and physical custody of E.B. and A.B. and a reduction in his child support obligation. Four days later, respondent also filed a motion requesting sole legal and physical custody. Appellant supported his motion with two affidavits, which alleged that respondent deliberately undermined the joint legal and physical custody arrangement and traumatized the children by involving the police in facilitating a custody exchange. Appellant further alleges that respondent has (1) routinely refused to allow A.B. and E.B. to have daily telephone contact with him; (2) removed the children from their daycare provider without consulting appellant; (3) continued contact with the abuse advocate; (4) discussed the case with family and friends despite a court order sealing the file; and (5) spent time in bars on five separate occasions when she had custody of the children.
Appellant also stated that he was working part-time on his parents' farm and had decided to return to school to obtain a bachelor's degree in public administration and public relations because he was unable to continue in his position as a state legislator. He stated that his annual gross income from the farm would be $12,000 and he requested modification of support based on a substantial decrease in his earnings.
On February 7, 1997, the district court issued an order (1) awarding appellant compensatory visitation with A.B. and E.B.; (2) warning respondent against denying appellant telephone contact with the children; and (3) setting a time for appellant to call his children on the days that respondent had custody of them. On July 3, 1997, the district court issued an order denying appellant's motion on custody modification without an evidentiary hearing, denying his motion for modification of child support, and ordering appellant to pay respondent $4,000 in attorney fees. This appeal followed.
The district court has broad discretion in ruling on a motion to modify child custody, and this court will not reverse absent a clear abuse of that discretion. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992). The district court can modify a prior custody order only if it finds (1) a change in circumstances of the child or custodian has occurred; (2) that custody modification is necessary to serve the child's best interests; (3) the child's present environment endangers her physical or emotional health or emotional development; and (4) the harm the change in environment is likely to cause is outweighed by the advantage to the child. Itasca County Social Servs. ex rel. Hall v. David, 379 N.W.2d 700, 703 (Minn. App. 1986); see also Minn. Stat. § 518.18(d) (1996).
The party seeking modification of a custody order must submit an affidavit "setting forth facts supporting the requested * * * modification * * * ." Minn. Stat. § 518.185 (1996). The court must accept the facts in the movant's affidavit as true and disregard any contrary evidence. Abbott, 481 N.W.2d at 867. If the moving party asserts facts sufficient to support modification of custody, the court must hold an evidentiary hearing to determine the truth of the allegations. Taflin v. Taflin, 366 N.W.2d 315, 320 (Minn. App. 1985).
If the court ascertains that the movant's affidavit does not make a prima facie case for modification under the statutory factors, the court is not required to make specific findings on the statutory factors themselves. Abbott, 481 N.W.2d at 868. But to show that the court applied the correct test, it should "at least state that the moving party has failed to make its prima facie case." Id. at n.2. Because the district court's order here contains no finding as to whether appellant made a prima facie case for modification that warranted an evidentiary hearing, we will make that determination. See id. at 868 (holding that where there is no indication that district court applied the four-factor test, reviewing court will determine if moving party has made prima facie case).
Appellant must first show that there has been a significant change in circumstances since the most recent order establishing custody. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981); see also Minn. Stat. § 518.18(d). A change in circumstances must be significant and cannot be a continuation of conditions that existed before the most recent custody order. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989). Appellant's affidavits allege that: (1) respondent does not make the children available for telephone calls from appellant; (2) respondent removed the children from their daycare provider without consulting appellant; (3) respondent has continued contact with a woman's advocate in violation of a court order; (4) respondent shared private information about this case with family and friends; (5) respondent has spent time in bars on days that she had custody of the children; and (6) respondent called the police on one occasion to facilitate a custody exchange.
Appellant has made the first four allegations in the past, and the court has addressed them in a previous custody order. Similarly, the documents appellant attaches to his affidavit show that all five occurrences on which appellant claims respondent was in a bar during a time when the children were in her custody occurred during the first five months of 1996, before the court's May 29, 1996, order modifying custody. The first five of appellant's allegations do not, therefore, establish a prima facie case that a significant change in circumstances has occurred.
Appellant alleges that respondent called the police to facilitate a custody exchange on one occasion when she picked up the children from appellant's residence. The guardian ad litem also reported an instance where respondent called the police to facilitate a custody exchange. But appellant has failed to show how two police-facilitated custody exchanges are a significant change in circumstances as contemplated by Minn. Stat. § 518.18(d). We conclude, therefore, that appellant has not made a prima facie case that a significant change in circumstances has occurred warranting modification of custody.
Because appellant has not shown a significant change in circumstances to warrant an evidentiary hearing, we need not address whether (1) custody modification is necessary to serve the children's best interests, (2) the child's present environment endangers her physical or emotional health or emotional development, or (3) the harm the change in environment is likely to cause is outweighed by the advantage to the children. But we note that the evidence does not appear to establish the prima facie existence of any of those factors either.
2. Child Support Modification
The decision to modify a child support order lies in the district court's broad discretion. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993). This court will reverse the district court's decision for abuse of that discretion only when it finds a clearly erroneous conclusion against logic and facts on the record. Id.
A court can modify an obligor's child support obligation if there has been a substantial change in circumstances making the existing terms of the order unreasonable and unfair. Minn. Stat. § 518.64, subd 2(a) (1996). The moving party must show that his or her earnings have substantially increased or decreased. Minn. Stat. § 518.64, subd. 2(a)(1) (1996). The court does not abuse its discretion in maintaining the moving party's current child support obligation if the party fails to submit adequate financial information to support a claim of substantial decrease in earnings. Taflin, 366 N.W.2d at 319.
The district court found that although appellant stated that he would continue to work on his parents' farm while he returned to school and that his income would only be $12,000 annually, he provided no evidence regarding the basis for his income estimate. We conclude, therefore, that the district court did not abuse its discretion in finding that appellant failed to submit adequate financial information to support a finding of a substantial decrease in his earnings.
Appellant argues that the court abused its discretion in denying his motion without making findings regarding appellant's income, his earning capacity, his monthly living expenses, or the needs of the children. Appellant relies on Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (stating that court must balance all of mentioned factors before determining appropriate amount of child support in each case). The legislature amended Minn. Stat. § 518.551, subd. 5(i) (1996), after Moylan to require a court to make the detailed written findings only when the court deviates from the child support guidelines. Roulard v. Thorson, 542 N.W.2d 681, 683-84 (Minn. App. 1996). Because the district court here found that appellant had not proved a substantial decrease in earnings, the statute does not require such findings.
Appellant contends that the district court abused its discretion in finding that he failed to demonstrate a good-faith effort to obtain employment that provided him with compensation similar to his legislative employment.
If the court finds that a parent is voluntarily * * * underemployed, child support shall be calculated based on a determination of imputed income. A parent is not considered voluntarily * * * underemployed upon a showing by the parent that the * * * underemployment: (1) is temporary and will ultimately lead to an increase in income; or (2) represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child.
Minn. Stat. § 518.551, subd. 5b(d) (1996). Appellant provides no documentation supporting his claim that his underemployment is temporary and will lead to an increase in income or showing that his underemployment is a bona-fide career change. Because there is record evidence to support the finding that appellant failed to make a good-faith effort to obtain employment that provided him with compensation similar to his legislative employment, the district court did not abuse its discretion in imputing income to appellant.
3. Attorney Fees
The decision to award attorney fees in dissolution cases rests almost entirely within the discretion of the district court, and we rarely reverse a district court on this issue. Maeder v. Maeder, 480 N.W.2d 677, 680 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). The court may award fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding. Minn. Stat. § 518.14, subd. 1 (1996). The record supports the court's finding that appellant unreasonably contributed to the expense of the proceedings by filing a motion requesting modification of custody and child support when he knew that the court planned to review imminently its custody order of May 29, 1996. Appellant thereby required respondent to incur attorney fees that she would not otherwise have had to pay. We conclude, therefore, that the district court did not abuse its discretion in awarding respondent $4,000 in attorney fees.
Judge Bruce D. Willis
[ ]1 The district court ordered the entire file sealed. There is a presumption that case records will be accessible to the public, but that presumption does not apply to "[c]ase records made inaccessible to the public by protective or other order of the court." Minn. R. Pub. Access to Recs. of Jud. Branch 4, subd. 1(f). Our use of initials in this opinion is consistent with the protective order of the district court but should not be construed as a comment on the propriety of that order, to which there has been no challenge.