A03-1510

In re the Marriage of:

Theresa Katherine Claviter,

n/k/a Theresa Katherine Fabish, petitioner,

Appellant,

vs.

William Randall Claviter,

Respondent.

Filed April 13, 2004

Affirmed

Willis, Judge

St. Louis County District Court

File No. F8-99-100921

Christopher M. Banas, Hellmuth & Johnson, PLLC, 10400 Viking Drive, Suite 500, Eden Prairie, MN 55344 (for appellant)

William Randall Claviter, 510 13th Street North, Virginia, MN 55792 (pro se respondent)

Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.

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

WILLIS, Judge

Appellant-mother challenges the district court’s denial of her motion to modify child custody without an evidentiary hearing. Because mother failed to establish a prima facie case justifying a change in custody, we affirm.

FACTS

The marriage of appellant Theresa Katherine Claviter, n/k/a Theresa Katherine Fabish (mother), and respondent William Randall Claviter (father) was dissolved in February 2001. The divorce decree granted the parties joint legal custody of their only child. Father was granted sole physical custody of the child and mother was granted a specific parenting-time schedule.

In July 2003, mother moved the St. Louis County District Court for an order, inter alia, granting her “immediate, temporary sole legal and physical custody” of the child, ordering father and his new wife to undergo chemical-dependency evaluations, and appointing a guardian ad litem to investigate allegations of chemical and physical abuse in father’s home and to make child-custody recommendations. In an affidavit supporting her motion, mother explained that she feared for the child’s safety in light of recent events at father’s home and statements that the child had made to her. In particular, mother cited an incident on May 21, 2003, in which police responded to a 911 domestic-abuse call at father’s house and statements allegedly made to her by the child concerning drug abuse by father’s new wife and the child’s fear that the new wife would hurt her father.

On July 14, 2003, mother submitted a supplemental affidavit and exhibits calling to the court’s attention two more incidents in which police responded to reports of disputes between father and his new wife. Mother stated that she was submitting the second affidavit “to show the Court that there is a pattern here. Domestic violence has and continues to be alleged.” Father moved the court to deny mother’s motion, arguing that mother had failed to present a prima facie case for modification.

At a hearing on July 29, mother requested an evidentiary hearing on her motion for custody modification. On August 8, without an evidentiary hearing, the district court issued an order denying mother’s motion on the ground that she had failed to make a prima facie case for modification of the existing custody order. The court explained that the information in the affidavits evinced only problems between father and his new wife and did not show any emotional or physical endangerment to the child. This appeal follows.

D E C I S I O N

Under Minnesota law,

the court shall not modify a prior custody order . . . unless it finds, upon the basis of facts . . . 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:

. . . .

(iv) 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.

Minn. Stat. § 518.18(d) (2002). The party seeking modification of custody must submit an affidavit asserting the facts on which the motion is based, and other parties to the proceeding may file opposing affidavits. Minn. Stat. § 518.185 (2002). The court must determine whether the moving party has established a prima facie case for modification by alleging facts that, if true, would provide sufficient grounds for modification. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). To warrant an evidentiary hearing on a motion for endangerment-based custody modification, the moving party must, by affidavit, make a prima facie showing that: (1) a change has occurred in the circumstances of the child or custodial parent; (2) a modification of custody is necessary to serve the best interests of the child; (3) the present environment endangers the child’s physical or emotional health or emotional development; and (4) the harm likely to be caused by the change of environment is outweighed by the advantage of change to the child. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992). “The [district] court must findall four elements.” Leyh v. Stelzer, 398 N.W.2d 63, 66 (Minn. App. 1986).

If sufficient evidence exists to warrant consideration of a modification order,then the district court must order an evidentiary hearing. Harkema v. Harkema, 474 N.W.2d 10, 13 (Minn. App. 1991). Evidentiary hearings are strongly encouraged where there are allegations of present endangerment to a child’s health or emotional well-being. Ross v. Ross,477 N.W.2d 753, 756 (Minn. App. 1991). But the district court may deny a motion for modification of custody without an evidentiary hearing if the allegations of the accompanying affidavits, if true, do not show sufficient justification for modification. Id. at 755 (citing Nice-Petersen, 310 N.W.2d at 472). We review a district court’s denial of an evidentiary hearing in a child-custody matter under an abuse-of-discretion standard. Geibe v. Geibe, 571 N.W.2d 774, 777-78 (Minn. App. 1997).

Mother claims that the district court abused its discretion by denying her request for an evidentiary hearing, arguing that the facts alleged in her affidavits establish a prima facie case that the environment in father’s home endangers the child’s emotional and physical health. Father responds that mother’s affidavits do not establish a prima facie case for modification because they are not supported by firsthand knowledge, none of the alleged incidents occurred when the child was present, and mother admits in her affidavits that the child has not been harmed.

Mother’s affidavits allege various dangers to the child in father’s home, including domestic abuse between father and his new wife, chemical abuse by father’s new wife, and verbal abuse of the child by the new wife. But mother stated in her initial affidavit that “there is no evidence of direct physical abuse to my child at this time” and that “it is unclear how (or if) [my child] has been . . . affected by her current environment.” To establish danger to a child’s welfare, the moving parent must make a prima facie showing that the child has actually been adversely affected by the non-moving parent’s conduct. In re Weber, 653 N.W.2d 804, 811 (Minn. App. 2002). Here, because mother acknowledges that there is no evidence that the environment in father’s home has adversely affected the child, she has failed to establish that the child’s welfare is in danger.

Neither the district court in its order nor the parties in their briefs on appeal address the other three of the four elements necessary to establish a prima facie case for modification. But because mother failed to make a showing that the environment in father’s home endangers the child’s physical or emotional health or emotional development, she failed to establish a prima facie case for modification. See Leyh, 398 N.W.2d at 66 (stating that “the [district] court must find all four elements” before modifying custody). The district court did not abuse its discretion by denying mother’s motion without an evidentiary hearing.

Affirmed.