This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-474

 

In re the Matter of: 

Jeremiah Carlson,

petitioner,

Respondent,

 

vs.

 

Jaime Holmes,

f/k/a Jaime Buzas,

Appellant.

 

Filed October 9, 2001

Affirmed

Klaphake, Judge

 

Anoka County District Court

File No. F1965069

 

Alan C. Eidsness, Timothy Mulrooney, Henson & Efron, P.A., 400 Second Avenue south, Suite 1200, Minneapolis, MN  55401 (for respondent)

 

Elizabeth A. Schading, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Coon Rapids, MN  55433 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Jaime Buzas challenges the district court’s order denying her motion to permanently remove her child, T.C., from Minnesota to live in the state of Ohio.  The child’s father, respondent Jeremiah Carlson, opposed the move.  The court denied the removal request after finding that its purpose was “to interfere with [respondent’s] visitation rights * * * .”  Because the evidence supports this finding, which is a proper statutory basis for denying a removal request under Minn. Stat. § 518.175, subd. 3 (2000), we affirm.

D E C I S I O N

            An appellate court’s review of a removal decision “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) (quoting Pikula v Pikula, 374 N.W.2d 705, 710 (Minn. 1985)).  The custodial parent is presumptively entitled to remove a child in his or her custody to another state.  Id.; Auge v. Auge, 334 N.W.2d 393, 396 (Minn. 1983).  This presumption also applies where the parties have joint legal custody of a child but only one party has physical custody, subject to liberal visitation rights of the noncustodial parent.  Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983).

            The Auge presumption may be overcome if the party opposing the motion for removal makes a prima facie showing against removal.  Auge, 334 N.W.2d at 396.  “A prima facie case is [a] case which has proceeded upon sufficient proof to that stage where it will support [a] finding if evidence to the contrary is disregarded.”  Benson v. Benson, 346 N.W.2d 196, 198 (Minn. App. 1984) (quotation omitted).  Once a noncustodial parent establishes a prima facie case and is granted an evidentiary hearing, the parent must establish by a preponderance of the evidence that removal is not in the child’s best interests and would endanger the child, Minn. Stat. § 518.18(d) (2000); Silbaugh, 543 N.W.2d at 641, or that the removal request was made for the purpose of interfering with the noncustodial parent’s visitation rights.  Minn. Stat. § 518.175, subd. 3; Auge, 334 N.W.2d at 400.  If a removal request is made solely to interfere with visitation, “the court shall not permit the child’s residence to be moved.”  Id.; see Minn. Stat. § 645.44, subd. 16 (2000) (use of “[s]hall” by legislature is mandatory).        

            The essence of appellant’s argument is that the district court erred in making its dispositive finding that the purpose of her removal request was to interfere with respondent’s visitation rights.  The record shows, and the court also found, that the proposed move provided no actual economic advantage to appellant’s new family and was contrary to appellant’s primary stated reason for not moving to Ohio a short time earlier: her reluctance to separate T.C. from respondent.  Further, taking respondent’s testimony as credible, which we must, appellant has restricted his access to T.C. and has attempted to minimize his role in his son’s life.  See Minn. R. Civ. P. 52.02 (requiring deference to district court on credibility determinations).  Appellant left respondent’s names off school forms, encouraged her son to refer to her new husband as his father, and asked respondent to allow her new husband to adopt T.C.  Both parties also acknowledge that appellant’s father dislikes respondent, and respondent claims that his access to T.C. would be limited if T.C. moved to his grandfather’s home, as appellant has proposed.  Although the move itself would alter respondent’s visitation with T.C., this factor may not be considered in removal cases.  See Geiger v. Geiger, 470 N.W.2d 704, 708 (Minn. App. 1991) (“[r]emoval may not be denied * * * simply because the move may require an adjustment in the existing pattern of visitation.”) (quoting Auge, 334 N.W.2d at 397)), review denied (Minn. Aug. 1, 1991).  We conclude that the district court’s findings are supported by the evidence, and those findings support its conclusion that the purpose of appellant’s proposed move was to interfere with respondent’s visitation.[1]

            Affirmed.