This opinion will be unpublished and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

C5-02-469

 

In re:

 

Carolyn Ann Rewitzer, petitioner,

Respondent,

 

vs.

 

Thomas Joseph Rewitzer,

Appellant.

 

Filed ­­­September 24, 2002

Affirmed

Harten, Judge

 

Brown County District Court

File No. F5-91-328

 

T. Oliver Skillings, Skillings & Associates, 100 Voyager Bank Building, 107 North Second Street, Mankato, MN 56001 (for appellant)

 

Ruth A. Webster, Gislason & Hunter, L.L.P., 2700 South Broadway, P.O. Box 458, New Ulm, MN 56073-0458 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant challenges the district court’s denial of an evidentiary hearing on his motion to modify custody of the parties’ children.  Because we see no abuse of discretion, we affirm.

FACTS

 

When the marriage of appellant Thomas Rewitzer and respondent Carolyn Rewitzer was dissolved in 1991, respondent was awarded sole legal and physical custody of their two children, B.R., born in January 1990, and J.R., born in June 1991.  J.R. has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD).[1]

The parties live in a small town.  Respondent is self-employed; appellant is unemployed and receives social security and long-term disability income.  The children spend a great deal of time with appellant when respondent is working.  Arguing that the children had been integrated into his family with the consent of respondent, see Minn. Stat. § 518.18(d)(iii) (2000), appellant moved to modify custody and sought an evidentiary hearing.

            The district court found that appellant had “failed to meet the prima facie elements necessary to allow an evidentiary hearing on the issue of modifying custody.”  Appellant argues that this was an abuse of discretion.[2]

D E C I S I O N

            This court applies an abuse of discretion standard in reviewing a district court’s decision to deny a petition for modification of custody without holding an evidentiary
hearing.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).

            A party seeking * * * modification of a custody order shall submit together with moving papers an affidavit setting forth facts supporting the requested * * * modification and shall give notice, together with a copy of the affidavit, to other parties to the proceeding, who may file opposing affidavits.

 

Minn. Stat. § 518.185 (2000).

            The court must determine whether the petitioner has established a prima facie case by alleging facts that, if true, would provide sufficient grounds for a modification.  For purposes of this determination, the court must accept the facts in the moving party’s affidavits as true, and the allegations do not need independent substantiation.  But * * * the court may consider evidence from sources other than the moving party’s affidavits in making its determination.

 

Geibe, 571 N.W.2d at 777 (citations omitted).   Here, the district court received affidavits from both parties and relied on both to conclude that appellant had not established a prima facie case for custody modification.

[T]he court shall not modify a prior custody order * * * unless it finds * * * that a change has occurred in the circumstances of the child or the parties * * * .  [T]he court shall retain the custody arrangement * * * established by the prior order unless * * * (iii) the child has been integrated into the family of the petitioner with the consent of the other party  * * * .

 

Minn. Stat. § 518.18(d) (2000) (emphasis added).  Appellant asserts that the children have been integrated into his family and that respondent has consented to this integration.

To support this assertion, appellant stated in his affidavit that: (1) the children spend much of their after school time with him; (2) J.R.’s disorders are less severe when he is with appellant; (3) respondent may be overmedicating J.R; (4) respondent relied on appellant to care for the children during the summer; and (5) the children would like their primary residence to be with appellant.  Appellant also submitted a 2000 behavioral health report on J.R. stating that respondent has difficulty handling him while appellant does not and a 1998 report stating that some of J.R.’s problems may be due to his moving back and forth between the different parenting styles of his parents’ homes.

In opposition to appellant’s motion, respondent submitted an affidavit stating that: (1) some of the time appellant said the children had been with him they were in fact with her; (2) appellant does not acknowledge the seriousness of J.R.’s disorders; and (3) appellant does not comply with prescribed medical treatment for J.R., and J.R. has injured himself as a result. Respondent also provided documentation showing that she had interacted extensively with J.R.’s teacher during the 1999-2000 school year and that in June 2000 a doctor stated that J.R. must remain on his medications.[3]

            We conclude that the district court did not abuse its discretion in relying on both parties’ affidavits and in assuming that all of appellant’s allegations were true.  But even if true, appellant’s allegations do not show integration into appellant’s home; and there is no evidence of respondent’s consent to the children’s alleged integration.[4] 

            Affirmed.