may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jeffrey Paul Ziemer, petitioner,
Teresa Ann Ziemer, n/k/a
Teresa Ann Newville,
Martin County District Court
LaMar T. Piper, Piper Law Firm, 615 Second Avenue South, P.O. Box 109, St. James, Minnesota 56081 (for appellant)
Terry W. Viesselman, Viesselman & Barke, P.A., 923 North State Street, Suite 130, Fairmont, MN 56031 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.
Appellant Teresa Ann Ziemer, n/k/a Teresa Ann Newville, appeals from an order denying her motion to change custody of her daughter Jennifer Ziemer. We affirm.
In 1994, the court entered judgment dissolving the parties' 24-year marriage. The decree incorporated the parties' marital termination agreement which provided for an award of sole physical custody of four minor children (there were four other children who were not minors) to respondent, Jeffrey Paul Ziemer, joint legal custody, and liberal visitation rights to appellant. The decree also contained a provision that appellant "shall not expose the minor children to any situation which may be detrimental to their emotional or physical health."
The trial court held an evidentiary hearing on appellant's motion to change custody of the parties' ten-year-old daughter, Jennifer, and denied the motion on June 25, 1997. The basis for the court's denial was that appellant had failed to meet her burden under Minn. Stat. § 518.18(d)(iii) (1996) of showing a change in circumstances that has created an environment that endangers Jennifer's physical or emotional health or that impairs her emotional development.
Jennifer testified that she wants to live with appellant because she loves her and it would be more fun to live with her. She testified that appellant takes her shopping and makes pizza for her, and that her main activity with respondent is watching television. She also testified that she does well in school, receiving A's and B's, that she loves both appellant and respondent, and that she has a good relationship with her siblings. When asked whether anything about residing with respondent scared her, she said no. She further testified that respondent usually comes home between 6:30 and 7:00 p.m. and that either he, her brother, or her sister cooks supper. Occasionally, but very rarely, she is home alone for part of the evening without supervision, although on those occasions an older sister is supposed to be babysitting.
Three of Jennifer's siblings testified that Jennifer misses appellant. The guardian ad litem testified that Jennifer has wanted to live with appellant from the time the marriage was dissolved. The siblings and the guardian ad litem also testified that Jennifer is a happy girl.
Jennifer testified that appellant told her she had renewed a relationship with a previous husband, Gary Weerts. Weerts has a criminal record, is an alcoholic, and has been convicted of physically assaulting appellant. Some of Jennifer's siblings testified that Jennifer should not live with appellant if Weerts is present. The district court denied appellant's motion to change custody and she now appeals.
Custody modifications are governed by Minn. Stat. § 518.18 (1996), which provides:
If the court has jurisdiction to determine child custody matters, the court shall not modify a prior custody order unless it finds, upon the basis of facts, including unwarranted denial of, or interference with, a duly established visitation schedule, that have arisen since the prior order, or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement established by the prior order unless:
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(iii) the 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.
Under this statute, the moving party must show: (1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child's present environment endangers her physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992) (quoting Itasca County Soc. Servs. ex rel. Hall v. David, 379 N.W.2d 700, 703 (Minn. App. 1986).
Appellant argues that respondent's home is devoid of a nurturing atmosphere; there is no structure or routine; and Jennifer has no meaningful relationship with respondent. Appellant points to the following as changed circumstances: Jennifer has grown older; she has a distant relationship with respondent; and her siblings have outgrown her. Characterizing Jennifer's home environment as one of benign neglect, appellant contends that there is a strong inference to be drawn that Jennifer's emotional health or emotional development is in danger. Appellant also contends that respondent's unwarranted interference with visitation supports a custody modification.
The evidence adduced at trial, particularly the testimony of Jennifer herself, amply
supports the trial court's conclusions that Jennifer has a strong family support system in respondent's household and that she is in no danger. The endangerment necessary for a custody modification requires a showing "that a significant change of circumstances had occurred that endangered" the child's health. Ross v. Ross, 477 N.W.2d 753, 755 (Minn. App. 1991). In order to find that Jennifer was in danger, this court would be required to reject the very evidence the trial court found to be credible and persuasive. It is for the fact-finder to assess credibility. State ex rel Trimble v. Hedman, 291 Minn. 442, 456, 192 N.W.2d 432, 440 (1971).
Additionally, we conclude that, in light of Jennifer's positive home life with respondent, her preference to live with appellant is not controlling. See Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989) (holding that a child's preference alone was not sufficient evidence of endangerment) reviewed denied (Minn. June 21, 1989). The evidence demonstrates that Jennifer's emotional well-being is not endangered in the current custodial situation, and, under the circumstances of this case, her preference to live with appellant is an insufficient basis for a custody modification.
Because the evidence supports the district court's finding that Jennifer was not endangered, this court need not address the other elements of custody modification. See Niemi v. Schachtschneider, 435 N.W.2d 117, 119 (Minn. App. 1989) (endangerment is a threshold issue for custody modifications).
Appellant claims that respondent interfered with visitation on numerous occasions. Respondent admits he put one limitation on visitation. On appeal, appellant claims the trial court erred by ignoring respondent's denial of and interference with her visitation.
See Minn. Stat. § 518.18(d) (unwarranted denial of or interference with visitation supports modifying custody). The trial court did not specifically address this claim. It did, however, address it indirectly by stating that appellant's poor judgment in exposing the children to certain situations, presumably referring to Weerts, poses a very real threat to the "children's well-being."
Generally, under Minn. Stat. § 518.18(d), interference with visitation can be used to support a custody modification. The facts here, however, suggest that respondent's interference with visitation was minimal and for the ostensible purpose of protecting Jennifer and her siblings. Further, to support the finding of endangerment necessary for a custody modification, unwarranted denial of or interference with visitation requires evidence of actual adverse effects on the child. Dabill v. Dabill, 514 N.W.2d 590, 595-596 (Minn. App. 1994). Here there was no finding that respondent's interference with visitation adversely affected Jennifer. Indeed, the district court's findings suggest that if respondent had not interfered with visitation the children might have been endangered. Under these facts, any failure by the trial court to further consider respondent's interference with visitation was harmless. See Minn. R. Civ. P. 61 (harmless error to be ignored).