This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1421

 

 

In re the Marriage of:

Harvey Everett McMahon, III, petitioner,

Appellant,

 

vs.

 

Hillary Anne McMahon (nee Horner),

Respondent.

 

 

Filed April 19, 2005

Reversed and remanded

Huspeni, Judge*

 

 

Crow Wing County District Court

File No. F8-04-261

 

Robert O. Blatti, Esq., Pemberton Sorlie, Rufer & Kershner, P.L.L.P., 110 North Mill Street, P.O. Box 866, Fergus Falls, MN  56538-0866 (for appellant)

 

Patricia A. Aanes, Esq., Erickson, Pearson & Aanes, 319 South Sixth Street, P.O. Box 525, Brainerd, MN  56401  (for respondent)

 

            Considered and decided by Minge, Presiding Judge, Wright, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            Appellant challenges the order of the district court granting the motion of respondent to move the residence of the minor children and alter the visitation schedule accordingly, and denying, without an evidentiary hearing, the motion of appellant to modify physical custody.  Because the district court failed to adequately address certain assertions of appellant and failed to demonstrate that those assertions were considered as true in determining whether a prima facie showing had been made that moving the residence of the minor children would not be in their best interests and would endanger their health and well-being, we reverse and remand for an evidentiary hearing.

FACTS

            Appellant Harvey McMahon and respondent Hillary McMahon were divorced in North Dakota on January 10, 2002.  Pursuant to the decree, the parties were awarded joint legal custody of their three minor children, with sole physical custody of the children awarded to respondent.  The decree also provided appellant with reasonable visitation subject to reasonable notice by appellant. 

            Shortly after the divorce, appellant moved from North Dakota to Fergus Falls, Minnesota.  In the summer of 2003, respondent and the children moved to Brainerd, Minnesota, where respondent, who is a licensed teacher, began a full-time teaching position.  In April 2004, respondent brought a motion requesting (1) permission to move the residence of the minor children[1] to Oregon, (2) that appellant’s parenting time with the children be modified consistent with the children’s best interests, (3) that the parties be required to equally share in transportation costs for future parenting time, and (4) that appellant pay child support in accordance with Minnesota guidelines.  In support of her request for the move to Oregon, respondent cited her plan to marry an Oregon resident, and the residence of her extended family a few hours away in the state of Washington.  Respondent also noted her ability to substitute teach in Oregon until she obtained a full-time teaching position. 

            Appellant, in a responsive motion, sought denial of respondent’s motion in its entirety, and sought also to have the physical custody of the children granted solely to him, subject to reasonable parenting time by respondent.  Appellant requested an evidentiary hearing on the issues of custody and parenting time, and sought appointment of a custody evaluator and guardian ad litem (GAL) to evaluate the best interests of the children.  In a supporting affidavit, appellant alleged, in part, that (1) the parties’ two sons wanted to live with appellant, (2) the parties’ children are very close to appellant’s family in the North Dakota/Minnesota area, (3) the parties’ sons are afraid of respondent’s fiancé, and (4) respondent and her fiancé acted in a sexually inappropriate manner in the presence of the children.  

            The district court granted respondent’s motion to move the residence of the children, modified the parenting-time schedule to provide for reasonable parenting time for appellant, addressed the logistics of transportation, and ordered the parents to utilize an on-line service to facilitate communications.  All other motions were denied. 

D E C I S I O N

I.

            The parties initially dispute whether a de novo or an abuse-of-discretion standard of review applies.  In general, this court applies an abuse-of-discretion standard in reviewing a district court’s decision to deny a custody-modification petition without an evidentiary hearing.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).  Appellant argues, however, that this court’s decision in Griese v. Kamp, 666 N.W.2d 404, 407 (Minn. App. 2003), review denied (Minn. Sept. 24, 2003), stands for the proposition that a de novo standard of review should apply. 

            In Griese, a father supported his custody-modification motion with affidavits from the child’s grandparents alleging endangerment.  Id. at 405.  Several weeks later, the grandparents filed additional affidavits that “qualified and directly contradicted portions of their prior affidavits.”  Id. at 406.  The district court denied father’s motion without an evidentiary hearing, concluding that it could not take the initial affidavits as true.  Id. at 406-07.  On appeal, this court concluded that a de novo standard of review was appropriate in addressing the district court’s interpretation of an affidavit that was contradicted by a later affidavit by the same affiant.  Id. at 407. 

            Appellant argues that under Griese, a de novo standard of review should apply because the district court failed to accept as true the allegations appellant made in his supporting affidavit.  We disagree.  Griese is factually unique and should not be extended to apply here.  Unlike Griese, there are no contradictory affidavits from the same affiant in this case.  Rather, the question here is the extent to which the district court accepted appellant’s allegations as true.  Accordingly, we apply the usual abuse-of-discretion standard of review.  And we are mindful that a reviewing court “will not overturn the trial court’s finding that appellant failed to establish a prima facie case unless the finding is ‘clearly erroneous.’”  Geiger v. Geiger, 470 N.W.2d 704, 708 (Minn. App. 1991), review denied  (Minn. Aug. 1, 1991) (quotation omitted).

            Despite a deferential standard of review, however, this court is concerned that the district court failed to address several of the allegations raised by appellant in support of his request for an evidentiary hearing.  We recognize that under Minnesota law, it is presumed that a custodial parent’s proposed removal of a child to another jurisdiction is in the best interest of that child.  Auge v. Auge, 334 N.W.2d 393, 397 (Minn. 1983).  And that to defeat the presumption, the party opposing removal must offer evidence which would establish that the removal is not in the best interests of the child and would endanger the child’s health and well-being, or that the removal is intended to interfere with visitation.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 642 (Minn. 1996).  A showing of endangerment is necessary because a denial of a motion to remove the children from the state could be, in effect, a modification of the original decree.  Id.  Unless the party opposing the motion for removal can make a prima facie showing against removal, permission to remove may be granted without a full evidentiary hearing.  Auge, 334 N.W.2d at 396 (citing Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981)).

            To obtain an evidentiary hearing, the party seeking modification of custody has the burden to establish a prima facie case by alleging facts that, if proven, would show that respondent’s removal was not in the best interests of the children.  Geiger, 470 N.W.2d at 708.  Importantly, the district court must accept the allegations in the moving party’s affidavits as true.  Geibe, 571 N.W.2d at 777.  Here, appellant submitted a 12-page affidavit containing allegations that:  (1) appellant has continued to be an involved and dedicated parent to his children; (2) the children are very close to appellant’s family in the North Dakota/Minnesota area, but respondent’s family in the State of Washington would be several hours away from an Oregon home; (3) respondent interfered with and monitored appellant’s phone calls with the children; (4) the parties’ sons are afraid of respondent’s fiancé, who frequently swore at the children; (5) respondent used inappropriate judgment with respect to her engaging in sexual activity with her fiancé; (6) respondent hit one of the parties’ sons in the face, and threatened the boys with foster care or a juvenile delinquency facility; and (7) respondent uses questionable judgment in her relationships with men, including her current fiancé whom she met on the Internet in December 2003, became engaged to in February 2004, and planned to marry in July 2004.  Appellant also noted that the parties’ sons wrote letters to the district court asking to remain in Minnesota with their father.

            While district court findings addressed the issue of the preferences of the parties’ sons (indicating that “neither of their letters to the Court articulated a strong basis or specific and appropriate reasons for their preference”), other concerns raised by appellant were left unresolved or were not addressed.[2]  Taking appellant’s allegations as true, as we must (despite the categorical denial of respondent as to several of the allegations), and having before us a record on which the district court denied an evidentiary hearing without adequately addressing the allegations raised, we conclude that a reversal and remand for an evidentiary hearing is necessary.[3] 

            In remanding this matter for an evidentiary hearing, we note that nothing in the record before us indicates that the May 28, 2004 order of the district court was stayed.  Therefore, we assume that the residence of the minor children is presently in Oregon with respondent and her husband, and has probably been so for at least several months.  Family law issues are often subject to the fluid nature of family relationships themselves.  To limit the evidentiary hearing on remand to the issues as they were frozen in May 2004 would be, we believe, to do a disservice to the parties in this case, and especially to the minor children.  The focus of courts of both general and appellate jurisdiction under the rationale of cases too numerous to cite must remain the best interests of the child.  See, e.g., Olson v. Olson, 534 N.W.2d 547, 549 (Minn. 1995) (tracing the history of the paramount nature of the child’s best interests); Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978) (noting the paramount nature of the child’s best interests in visitation cases). 

            Consistent with the best interests standard, the district court must take new evidence on remand in a custody case where new information could show changed circumstances sufficient to constitute a prima facia case for modifying custody.  See Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn. 1988) (concluding that in lengthy custody disputes, recent events are not only relevant, but crucial in determining the child’s best interests).  The dictates of Sefkow should govern resolution of the remanded issues in this case.  Ideally, the parties here might reach a resolution of all issues by seeking to determine and to promote the best interests of their minor children through a conscientious review of not only the issues as they existed in May 2004, but as they exist or have ceased to exist at the time of this remand.  If the parties are unable to reach agreement as to where the best interests of their children lay at present, the district court shall conduct an evidentiary hearing on all issues presented to it by both parties, and shall expand the record to include testimony of events and circumstances occurring and arising from May 2004 to the time of the evidentiary hearing itself.    

II.

            Although the issue of allocation of parenting time between the parties will be addressed if an evidentiary hearing is necessary upon remand, we address briefly here appellant’s argument that the district court improperly reduced his parenting time without making the findings necessary to support the reduction.  The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of that discretion.  Olson, 534 N.W.2d at 550.

            Under the original divorce decree, appellant had very liberal visitation, including alternating weekends, five alternating major holidays with attached weekends, not including Christmas, six weeks in the summer, one-half of the school Christmas vacation, and one evening each week.[4]  In granting respondent permission to move to Oregon, the district court amended the visitation schedule to provide appellant with an amended visitation schedule that included:  (1) six consecutive weeks each summer; (2) one week during Christmas vacation; (3) alternating major holidays (Christmas, Easter, Memorial Day, and Thanksgiving); (4) such other times including weekends that appellant and the children’s schedule will allow; and (5) reasonable, unmonitored telephone visitation.

            Appellant asserts that the order amending the visitation effectively restricted his parenting time because with the children in Oregon, there will be no practical way for him to take full advantage of the “reasonable visitation” available under the order.  We agree.

            “When removal is permitted, the [district] court shall make such modifications of visitation as are reasonable and necessary to maintain a good relationship between the noncustodial parent and child.”  Auge, 334 N.W.2d at 400.  Although both the decree provision and the May 2004 order provide appellant with approximately the same amount of parenting time, as a practical matter, it would be almost impossible for appellant to see his children as much under the modified order as under the decree provision.  Therefore, on remand, the district court shall assure, if the parties are unable to do so themselves, that an alternative parenting schedule is fashioned to best preserve the children’s relationship with both parents and to specifically take into account the significant distance between the parties.

            Reversed and remanded.