C5-02-1041

Matthew G. Galles, petitioner,

Appellant,

vs.

Christine Japs,

Respondent.

Filed December 30, 2002

Affirmed

Willis, Judge

Hennepin County District Court

File No. PA38938

Ronald Resnik, 6200 Shingle Creek Parkway, Suite 340, Brooklyn Center, MN 55430 (for appellant)

Elizabeth Carlson, Franke & Carlson, P.A., 900 Flour Exchange Building, P.O. Box 22365, Minneapolis, MN 55422-0365 (for respondent)

Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

On appeal from an order denying his motion for sole physical and legal custody of his child, appellant argues that (1) one of the district court’s findings is not supported by the evidence, (2) the district court’s findings do not support its denial of his motion, and (3) the district court erred by not complying with Minn. Stat. § 518.17, subd. 1a (2002), in determining the best interests of the child. Because the district court did not abuse its discretion and because Minn. Stat. § 518.17, subd. 1a, is inapplicable here, we affirm.

FACTS

Appellant Matthew G. Galles and respondent Christine Japs are the unmarried parents of a child born in August 1995. Paternity was determined in 1996, and the parties subsequently agreed that Japs would have sole legal and physical custody of the child. In April 2000, the district court granted Japs permanent sole legal and physical custody and granted Galles visitation.

Japs has repeatedly asserted that Galles had sexually abused the child. The allegations were investigated by Hennepin County Child Protection, which concluded in June 2001 that abuse had occurred. Galles appealed the decision. On December 4, 2001, the Minnesota Department of Human Services (DHS) reversed Hennepin County’s determination, finding that a preponderance of the evidence did not support the conclusion that Galles abused the child.

In January 2002, Galles brought a motion in district court seeking (1) “permanent, primary physical custody” of the child, (2) an order that Hennepin County make a custody evaluation, and (3) an order that Japs pay the attorney fees he incurred in bringing the motion. Attached to the motion was Galles’s affidavit which, inter alia, argued that the reversal by DHS of Hennepin County’s determination proved that he was innocent of the sexual-abuse charges.

On April 28, 2002, the district court found that (1) Susan DeVries, a court-appointed psychologist, believed that Galles had not sexually abused the child, (2) DeVries concluded that the child is adversely affected by the parties’ continuous disputes, (3) the only change in the parties’ circumstances was that Japs’s allegations of sexual abuse were “further undermined,” (4) the potential benefits of a change in custody did not outweigh the adverse effects of such a change, and (5) Galles’s visitation with the child no longer needed to be supervised. The district court denied Galles’s motion for a change of custody, and this appeal follows.

D E C I S I O N

Galles asserts that the district court’s finding number eight is not supported by the evidence. This court will sustain a district court’s finding unless it is unsupported by record evidence. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). In finding number eight, the district court determined that

[t]he parties’ total disdain, disrespect, and hostility to each other is, and has been, the fundamental cause of overwhelming conflict for the child. Neither party is without blame in their enmeshed struggle.

Galles contends that the evidence does not show that the parties are mutually responsible for the child’s conflict, but rather that Japs is solely responsible. But the finding is supported by the record. A court-ordered psychological evaluation of the child found that the child

is well aware of the hostility between his parents, stating that his father does not like his mother, and that his mother does not like his father and does not want [the child] to see him.

Because the evidence supports finding number eight, we sustain the finding.

II.

Galles also argues that the district court abused its discretion because its findings do not support the denial of Galles’s motion for primary physical custody of the child. This court’s role in reviewing a custody-modification case is limited:

An appellate court will not reverse a custody determination unless the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. On appeal, a district court’s findings of fact, whether based on documentary or oral evidence, are not set aside unless clearly erroneous, and the record is reviewed in a light most favorable to the findings.

Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999) (citation omitted). We apply an abuse-of-discretion standard to a district court’s denial of a motion for modification of custody. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).

The party seeking to modify custody bears the burden of establishing facts justifying the modification. See Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). The moving party must show that (1) a significant change has occurred in the child’s circumstances, (2) a modification of custody would be in the child’s best interests, (3) the current custody arrangement endangers the child’s physical or emotional health, and (4) the harm likely to be caused by the change of environment is outweighed by the advantage of change to the child. See Minn. Stat. § 518.18(d) (2002). If any of the four elements is not shown by the moving party, the district court may deny the custody-modification motion. See Taflin v. Taflin, 366 N.W.2d 315, 320 (Minn. App. 1985).

Of the assertions made by Galles in his affidavit the district court recognized only one as relevant to a change-of-circumstances analysis: the fact that the allegation that Galles had sexually abused the child has “been further undermined by the decision of the Commissioner of Human Services.” But the reversal of Hennepin County’s determination affects Galles’s circumstances, not the child’s. The district court did not err by concluding that Galles failed to allege a significant change in the child’s circumstances.

The district court also found that the potential benefits of a change in custody would not outweigh the adverse effect of such a change on the child. Galles presented no evidence suggesting that the child would benefit from living with him or how such a change would outweigh the adverse effects of removing the child from Japs’s home, where the child has lived since birth.

The district court’s findings are supported by the evidence, and the court did not, therefore, abuse its discretion by denying Galles’s motion for a modification of the child custody.

Galles also claims that, at the very least, we should remand this case to the district court for an evidentiary hearing. But because Galles failed to allege in his affidavit facts that, if proved, would warrant a change in custody, he did not present a prima facie case for modification and is not, therefore, entitled to an evidentiary hearing. Cf. id. at 320 (holding that, if prima facie case for custody modification is made, district court must order evidentiary hearing).

III.

Galles also asserts that the district court “essentially ignored” its obligation to comply with Minn. Stat. § 518.17, subd. 1a (2002), which requires a district court, when determining the best interests of the child, to consider as evidence a violation of Minn. Stat. § 609.507 (2002), which make it an offense to knowingly make false allegations of child abuse with the intent of affecting a child-custody hearing. Our review of a custody determination is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Silbaugh, 543 N.W.2d at 641. Japs was not charged with or convicted of violating Minn. Stat. § 518.17, subd. 1a. The district court, therefore, did not abuse its discretion by not considering Minn. Stat. § 518.17, subd. 1a, in determining the child’s best interests.

Affirmed.