This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Todd Layne Francis, petitioner,



Tina Marie Francis,

n/k/a Tina Marie Wellman,


Filed February 17, 1998

Reversed and Remanded.

Randall, Judge

Watonwan County District Court

File No. F5-91-267

LaMar Piper, 615 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for appellant)

Steven R. Sunde, 108 Armstrong Boulevard South, P.O. Box 506, Saint James, MN 56081 (for respondent)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge[*].



Appellant argues that the district court erred in denying his motion to change custody or to grant an evidentiary hearing. We agree, and reverse and remand.


Appellant Todd Layne Francis and respondent Tina Marie Francis were divorced in 1991. Respondent received custody of their only child, C.E.F., born 2/23/86. Respondent had a daughter, C.L.F., born 2/13/85, previous to her marriage to appellant. Respondent later married James Wellman and they had two daughters. In January 1997, respondent, despite objection from appellant, received court permission to move C.E.F. to Arizona, but the court required her to inform appellant of her employment and living situation and of any person living with her.

On June 9, 1997, Wellman was arrested and charged with seven counts of child molestation of C.L.F. that occurred in Arizona. Respondent was charged with recklessly causing C.L.F. to suffer physical abuse or injury. After discovering that Wellman was arrested, appellant filed a motion seeking to change custody of C.E.F or, in the alternative, to grant an evidentiary hearing. The district court denied appellant's motion. This appeal follows.


A court may modify a custody order if a change in circumstances has occurred and the modification will serve the best interests of the child. Minn. Stat. § 518.18(d) (1996). The court may change the custodian of the child where

[t]he 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.

Minn. Stat. § 518.18(d)(iii) (1996).

In reviewing the moving party's affidavits to establish that a change in circumstances justifies a modification of custody, the district court, assuming the truth of the alleged facts, determines if the moving party has presented a prima facie case of endangerment under the statute. Smith v. Smith, 508 N.W.2d 222, 226 (Minn. App. 1993). A prima facie case may be established by showing that changed circumstances endangered the child. Ross v. Ross, 477 N.W.2d 753, 755 (Minn. App. 1991). District courts are "strongly encouraged" to hold evidentiary hearings if a present danger to child's health or well being is alleged. Id. at 756. The district court does not need to make findings on the statutory factors if it determines that the moving party fails to establish a prima facie case. Smith, 508 N.W.2d at 226. A district court's determination of whether an evidentiary hearing should have been granted is reviewed on an abuse of discretion standard. Id., at 226-27.

Appellant argues that Wellman's sexual abuse of C.L.F. constituted changed circumstances and that C.E.F may be endangered by respondent's irresponsible and deceptive behavior, alcohol abuse and inability to protect her children. We agree. Wellman's criminal sexual contact with C.L.F., and respondent's inability to protect her own children from her second husband constitute a changed circumstance, even though there is no specific allegation that Wellman sexually abused C.E.F. See Bettin v. Bettin, 404 N.W.2d 807, 808-09 (Minn. App. 1987) (change in circumstances found where custodial parent had psychological problems and had started a relationship with a person who was charged with criminal sexual conduct with a child and had alcohol abuse problems).

In reviewing the denial of an evidentiary hearing, we must assume the truth of the appellant's allegations. Smith, 508 N.W.2d at 226. Here, appellant has alleged that the respondent knew about Wellman's sexual abuse of C.L.F. and failed to stop it; attempted to avoid a child protection petition by moving to Arizona; lived with Wellman in Arizona without informing the appellant, in contravention of a court order; gave the court false and deceptive information concerning her job and living arrangements in Arizona; has not been able to protect her children and will not be able to do so in the future; and has abused alcohol, resulting in four DWI convictions. Given these allegations concerning C.E.F's present environment, by far the most prudent course for the district court to have taken would have been to grant an evidentiary hearing to the appellant to resolve the disputed factual issues.

In reversing the district court, we note that a denial of a motion for an evidentiary hearing is similar to granting a summary judgment for a defendant in a tort case. The court, in effect, rules that, as a matter of law, the nonmoving party does not have a case to begin with. That power is used, but sparingly. The district court hearing on an evidentiary motion is not deciding custody. It is only determining whether sufficient grounds exist to proceed on the contested motion to change custody. If the appellant proves the allegations, the district court may change custody if it sees fit, or may continue custody with respondent with appropriate additional conditions attached to her responsibilities as a parent. We make no comment on the eventual outcome, but simply point out that, on this record, the best interests of C.E.F. lie in granting the motion for an evidentiary hearing and giving the district court a chance to hear the proof appellant has to support his allegations.

Reversed and remanded.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.