This opinion will be unpublished and

may not be cited except as provided by

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




Jane Ruby Black, petitioner,



Joseph Charles Ruether,


Filed February 24, 1998

Affirmed in part, reversed in part, and remanded

Peterson, Judge

Dakota County District Court

File No. F79515429

Sonja Trom Eayrs, Robert H. Zalk, Zalk & Eayrs, P.A., 5861 Cedar Lake Road, Minneapolis, MN 55416 (for appellant)

John R. Hill, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for respondent)

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



In this postdissolution proceeding, appellant challenges the district court's (1) denial of her motion to remove the parties' minor son from Minnesota and (2) modification of child support. We affirm the denial of appellant's motion to remove the son and reverse and remand the child support modification.


The parties were married in 1984 and divorced in May 1997. They have two minor children, a son and a daughter, both age 10. The dissolution judgment awarded the mother, appellant Jane Black, physical custody of both children and granted the father, respondent Joseph Ruether, visitation that resulted in one or both of the children being in his care about 40% of the time.

The mother obtained employment in California and, in July 1997, moved the district court to allow her to remove the children to California. The district court granted the mother's motion to remove the daughter but denied the motion to remove the son. The district court also reduced the father's child support obligation from $1,350 to $1,125 per month and ordered the mother to pay the father $469 per month for child support.



The mother argues that the district court erred in denying her motion to remove the son. Appellate review of removal and custody modification decisions "is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).

The custodial parent must obtain a court order before removing a child's residence to another state when the noncustodial parent has visitation rights and does not consent to the move. Minn. Stat. § 518.175, subd. 3 (1996). The court presumes that removal with the custodial parent will be in the child's best interests. Geiger v. Geiger, 470 N.W.2d 704, 706 (Minn. App. 1991), review denied (Aug. 1, 1991). The party opposing removal has the burden of proving by a preponderance of the evidence that removal is not in the child's best interests and would endanger the child's physical or emotional health and well being. See Silbaugh, 543 N.W.2d at 641-42 (explaining evidence necessary to defeat presumption); see also Geiger, 470 N.W.2d at 706 (setting forth burden of proof).

The mother contends that the evidence does not support the district court's finding of endangerment. Evidence that removal will result in deterioration of a child's emotional well being can support a finding of endangerment. See Dabrowski v. Dabrowski, 477 N.W.2d 761, 765 (Minn. App. 1991) (in custody modification case, evidence that child's emotional well being deteriorated while the child was in appellant's custody was a factor supporting endangerment finding); see also Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990) (behavioral problems can indicate endangerment).

The district court found that the son had been diagnosed with emotional disorders and needed continued therapy. The court also found that the mother has not supported the children's therapy. Finally, the court found that removal of the son

would disrupt necessary therapy, would require [the son] to adjust to a new environment, a new therapist, and would place [the son] in the full time care of a parent who has demonstrated an unwillingness to cooperate or participate in his therapy. Removal of [the son] from Minnesota would not be in [the son's] best interest and would endanger his emotional and mental health.

At the hearing on the mother's motion, Dr. Alison Maule-Kronmiller, a psychologist who has been treating the children since December 1996, testified as follows:

There were many times that I called [the mother] and asked her to come in and she would say she couldn't, she was too busy, she didn't think it was warranted, she had karate classes to take the children to. And she also very clearly told me that she didn't agree with how I saw the children.

* * *

[W]ithout [the mother's] cooperation I was limited in what I could do because her role is so critical. And so, for example, in wanting to really focus on the children's competency and the children's ability to manage themselves and [the daughter's] ability to manage herself, I needed mom to support that as well. And mom was not willing to support that observation and that goal.

* * *

Every time that I * * * came down solid with [the mother] saying this is what I think needs to happen and, no, I can't do what you're asking me to do, she decided that she didn't want to participate in what I was doing. And so that limited therapy. But [the father] was available to continue working in what limited way we could do within that vein.

So I do have concerns that if she were to go to California - * * * - if she would find a competent therapist that is going to try to get the full picture and states things that I believe are true, she is going to withdraw.

The other problem is that I don't think I would have gotten the full picture had I not had [the father] there to provide the balance. So if I were just getting information from [the mother] it would be a distorted picture. I needed the information from [the father].

The other concern that I have is that these children are very slow to warm up children. They take a long time to engage in any sort of therapeutic relationship. They have been through a host of therapists. And my concern, you know, some kids they get to the point where they say, I'm done, forget, it, I'm not going to do it again with anybody else. That is not to say that I am the - have to be their therapist or the best therapist or whatever. I am concerned about those issues.

Dr. Maule-Kronmiller also testified that her analysis of the son's behavior towards the daughter and the daughter's ability to cope with the son's behavior was inconsistent with what she had been told by the mother. Dr. Maule-Kronmiller opined that moving to California would not be in the children's best interests and would endanger their emotional health.

The district court found that it was not economically feasible for the parties to pay for sufficient visitation to enable the children to continue therapy with Dr. Maule-Kronmiller. The evidence supports the district court's finding that removal would endanger the son's emotional and mental health by disrupting therapy.

The mother argues that no evidence showed that the son had a greater need for therapy than the daughter did. We disagree. The district court found:

While continued therapy for [the daughter] is important, continued therapy for [the son] is critical. [The son] is slow to respond to therapy and slow to become comfortable with any therapist.

The son's diagnosis with oppositional-deviant disorder, social phobia and possible affect disorder and Dr. Maule-Kronmiller's testimony about the son's behavior problems showed that the son had a greater need to continue therapy than did the daughter.

The mother objects to the father's failure to present evidence that he could provide an adequate environment for the son. But "'either parent is presumed to be a fit and suitable person to be entrusted with the care of [the child],'" and the party challenging the presumption has the burden of disproving it. Durkin v. Hinich, 442 N.W.2d 148, 152-53 (Minn. 1989) (quoting In re Klugman, 256 Minn. 113, 118-119, 97 N.W.2d 425, 428-29 (1959)). The guardian ad litem testified that the father could not handle the day-to-day details of parenting, but did not specify what aspects of parenting he could not handle. There was evidence that the father tends to be disorganized in some respects, but the record does not show that he is an unsuitable parent.

The mother next argues that the district court did not make sufficient findings to support the denial of removal.

When the court grants a custody modification motion, specific findings showing that the court considered the factors listed under Minn. Stat. § 518.17-18 are "absolutely required."

* * * *

In determining the child's best interests, a trial court must consider "all relevant factors," including the 12 factors defined by [Minn. Stat. § 518.17, subd. 1(a)].

Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993) (citation omitted), review denied (Minn. Jan. 28, 1994); see Sefkow v. Sefkow, 427 N.W.2d 203, 214 (Minn. 1988) (custodial parent's relocation to another state is a change in circumstances triggering the custody modification provision, Minn. Stat. § 518.18(d)); see also Auge v. Auge, 334 N.W.2d 393, 396, 399 (Minn. 1983) (explaining findings required when denial of removal will likely result in custody modification).

The district court failed to make specific findings on many of the statutory best interests factors. The court, however, is not required to make a specific finding on each and every statutory factor. Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993). In this case, evidence showing the son's greater need for continued therapy overcame the presumption that removal with the custodial parent would be in his best interests. The district court did not specifically address the continuity of the son's relationship with his mother or the instability of removing the son from his current family unit. But, given the court's findings on the son's need for continued therapy, we can infer that the court concluded that benefits resulting from a custody change upon the mother's relocation would outweigh any harm resulting from the change in the family unit. See Eckman v. Eckman, 410 N.W.2d 385, 389 (Minn. App. 1987) (trial court's failure to make specific finding regarding the harm caused by an environment change weighed against the advantages of a custody change was not reversible error when balancing test was implicit in the court's findings on the child's best interests and endangerment of the child's emotional health and development). Given the strong evidence regarding the son's need for continued therapy, the mother's lack of cooperation in his therapy, and the absence of evidence that other factors favored removal, the findings are sufficient to support the denial of removal.

If the mother moves to California, the effect of the order denying her motion to remove the son will be a modification of custody. The mother argues that she did not have an adequate opportunity to present evidence relevant to a custody modification. See Auge, 334 N.W.2d at 396 (court must hold an evidentiary hearing before custody can be modified).

The mother does not argue that the district court excluded evidence relevant to a custody modification. Instead, the mother contends that she did not receive notice that modification would be addressed at the evidentiary hearing. The argument is not persuasive. By its very nature, a denial of a motion to remove will result in a custody modification if the parent chooses to relocate. See Sefkow, 427 N.W.2d at 214 (custodial parent's relocation to another state is a change in circumstances triggering the custody modification provision, Minn. Stat. § 518.18(d); the reason for the presumption in favor of removal is that denial of removal could effect a change in custody).

Moreover, both removal and custody modification involve the same elements. Both involve a change in circumstances. See Minn. Stat. § 518.18(d) (1996) (change in circumstances required for custody modification); see also Sefkow, 427 N.W.2d at 214 (in removal cases, the custodial parent's relocation is a change in circumstances). Both also involve endangerment and the child's best interests. The court may only modify custody if it finds that modification is necessary to serve the child's best interests and that the present environment endangers the child. Minn. Stat. § 518.18(d). A parent opposing removal must prove that removal is not in the child's best interests and would endanger the child's health and well being. See Silbaugh, 543 N.W.2d at 641 (explaining evidence necessary to defeat presumption in favor of removal); see also Geiger, 470 N.W.2d at 706 (setting forth burden of proof). The district court did not abuse its discretion in denying removal of the son.


A child support order may be modified upon a showing of substantially increased or decreased need of a party or the children or upon a change in the cost of living for either party, either of which makes the terms of the existing order unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (Supp. 1997). A change in custody is normally a change in circumstances that makes the existing order unreasonable and unfair. Buntje v. Buntje, 511 N.W.2d 479, 481 (Minn. App. 1994).

The district court did not make a finding on the father's income in the current order. But in the dissolution judgment, entered less than four months earlier, the district court had found that the father's net monthly income was $5,083.10. The district court modified the father's monthly child support obligation to $1,125, an amount less than the guidelines amount based on the father's income at the time of dissolution. See Minn. Stat. § 518.551, subd. 5(b) (1996) (guidelines support is 25% of net income for person with net monthly income of $5,000); see also Sefkow, 427 N.W.2d at 216-17 (calculating child support in split custody case). If the court deviates from the guidelines in modifying child support, the court shall make specific findings supporting the deviation. Minn. Stat. § 518.551, subd. 5(i). The district court did not make any findings explaining why it set child support at $1,125. Because the findings do not support the modification, we reverse the child support award and remand the issue for redetermination.

Affirmed in part, reversed in part, and remanded.