This opinion will be unpublished and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

A04-1670

 

In re the Marriage of:
June Marie Rick, n/k/a June Marie Thompson, petitioner,
Respondent,

vs.

Timothy Donald Rick,
Appellant.

 

Filed May 24, 2005

Reversed and remanded; motion denied

Wright, Judge

Minge, Judge, concurring specially

 

Wright County District Court

File No. F9-02-1722

 

 

Timothy D. Rick, 3891 Eaken Avenue Southeast, Delano, MN  55328 (pro se appellant)

 

Mary L. Sawatzke, Mary L. Sawatzke Law Office, 601 Soo Lane, Suite B2, P.O. Box 116, Buffalo, MN  55313 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Randall, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district court’s denial of his motion to modify custody of the parties’ children without an evidentiary hearing.  The district court determined that appellant failed to make a prima facie case that (1) the children are endangered in their present environment or (2) the benefits of custody modification outweigh the harm.  Appellant argues that the district court erred by denying an evidentiary hearing on his motion because his affidavits establish prima facie evidence of these elements.  We reverse and remand.

FACTS

 

Appellant Timothy Rick and respondent June Thompson had three children during their marriage:  P.D., born September 8, 1995; R.L., born April 16, 1997; and T.D., born May 8, 1999.  Prior to the parties’ separation, Rick was twice convicted of fifth-degree assault of his oldest child, P.D., for incidents occurring in September 1998 and April 2001.  Thompson petitioned for dissolution of the marriage in May 2002.

The parties entered into a preliminary agreement on child custody, which was subsequently incorporated in a district court order.  By the terms of this agreement, Thompson received sole physical custody of the parties’ children and was permitted to move with the children to Arkansas.  The parties thereafter reached an agreement as to the dissolution, which the district court adopted in its decree entered October 14, 2002.  The decree granted Thompson sole legal and sole physical custody of the parties’ children.

Proceeding on a theory of endangerment, Rick moved to modify custody on July 28, 2004, seeking joint legal and sole physical custody.  Based on his personal observations, Rick claimed that Thompson was abusive and failed to provide a sanitary home or adequate care for the children.  Rick also produced a partial record of an investigation of allegations of sexual abuse conducted by the Arkansas Department of Human Services (ADHS).

Following a referral in August 2003, ADHS found evidence that P.D. had engaged in sexual contact with R.L.  An ADHS official developed a plan requiring Thompson to keep the children under constant supervision.  Following another referral in April 2004, ADHS found additional evidence that the children had sexual contact with each other.  An ADHS official concluded that Thompson had not taken adequate steps to prevent this sexual contact.

Regarding his fitness as a parent, Rick offered documentation of his success with anger management.  Only two of these records postdate his most recent domestic-abuse conviction in May 2001.  These records do not establish whether Rick has sufficient parenting skills or whether he can provide a suitable home for the children.

In its order dated August 16, 2004, the district court found that Rick had failed to make a prima facie case that (1) the children are endangered in their present environment or (2) the benefits from a modification of custody outweigh the harm.  Based on this determination, the district court denied the motion without an evidentiary hearing.  This appeal followed.

D E C I S I O N

 

Rick argues that, because he presented prima facie evidence in support of custody modification, the district court erred in denying the motion without an evidentiary hearing.  As an initial matter, the parties dispute the applicable standard of review for the district court’s decision.

            To proceed with a motion to modify custody, the movant must submit affidavits that establish a prima facie case in support of modification.  Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987).  When determining whether the movant has met this burden, the allegations in the affidavits are viewed in the light most favorable to the movant.  Id.  If reasonable evidence supports a determination that the movant is entitled to modification of custody, then the district court shall order an evidentiary hearing on the motion.  Harkema v. Harkema, 474 N.W.2d 10, 13 (Minn. App. 1991). 

The burden of the movant to establish prima facie evidence was originally set out by the Minnesota Supreme Court in Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  The Nice-Petersen court concluded, “[T]he trial court did not abuse its discretion in denying the motion on affidavits and in refusing to schedule an evidentiary hearing.”  310 N.W.2d at 472.  The Minnesota Supreme Court reiterated this standard in Valentine v. Lutz, 512 N.W.2d 868, 871-72 (Minn. 1994), holding that the district court “did not abuse its discretion in denying an evidentiary hearing[.]”

We have, on occasion, called into question the abuse-of-discretion standard.  See, e.g.,Griese v. Kamp, 666 N.W.2d 404, 407 (Minn. App. 2003), review denied (Sept. 24, 2003); Ross v. Ross, 477 N.W.2d 753, 755-56 (Minn. App. 1991).  But as an error-correcting court, we lack legal authority to adopt a standard of review that is contrary to that utilized in custody-modification decisions of the Minnesota Supreme Court.  St. Aubin v. Burke, 434 N.W.2d 282, 284 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989).  In accordance with Nice-Petersen and the preponderance of our decisions in this area, we conclude that the correct standard of review is for an abuse of discretion.  See, e.g.,Geibe v. Geibe, 571 N.W.2d 774, 777-78 (Minn. App. 1997); Smith v. Smith, 508 N.W.2d 222, 226-27 (Minn. App. 1993); Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).

Modification of custody is governed by Minn. Stat. § 518.18(d) (2004), which provides in relevant part:

[T]he court shall not modify a prior custody order or a parenting plan provision which specifies the child’s primary residence 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 . . . 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.

 

This statute is often characterized as requiring the movant to establish the following four elements: (1) a change in circumstances prior to modification; (2) that modification serves the best interests of the child; (3) that the child is presently endangered; and (4) that the balance of harms favors modification.  See e.g., In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002); Geibe, 571 N.W.2d at 778.  If a district court concludes that the movant has not provided prima facie evidence of these elements, it is not required to hold a hearing or make particularized findings.  Axford, 402 N.W.2d at 145.

            To determine whether a child is presently endangered, considerations include the physical and emotional well-being of the child.  Harkema, 474 N.W.2d at 13-14.  Endangerment is not precisely defined and varies according to the circumstances of each case.  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  But to make a prima facie case of endangerment, the movant must present evidence establishing, from the conduct of the custodial parent, that the child faces substantial danger and suffers actual adverse effects.  Weber, 653 N.W.2d at 811.  Not all allegations of abuse will supply prima facie evidence of endangerment.  See Geibe, 571 N.W.2d at 779 (holding that “single incident of borderline abuse” did not establish endangerment).

            Endangerment may be based on circumstances in which, due to the inaction of the custodial parent, a child faces a heightened risk of sexual abuse.  Bettin v. Bettin, 404 N.W.2d 807, 810 (Minn. App. 1987).  But if a child engages in unusual or precocious sexual behavior unattributable to the conduct of the custodial parent or the circumstances created by that parent’s inaction, such sexual behavior does not support a finding of endangerment.  Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994); Krogstad v. Krogstad, 388 N.W.2d 376, 383 (Minn. App. 1986).

            When viewed in the light most favorable to Rick, the record demonstrates that, as of September 2003, Thompson knew of sexual contact between her children.  An investigation by ADHS produced additional evidence of sexual contact between the children in April 2004, leading ADHS to conclude that Thompson did not take adequate measures to protect the children from sexual contact.  On this record, we conclude that the district court erred when it determined that Rick had not made a prima facie case of endangerment.

            Having concluded that the record establishes a prima facie case that the children are endangered in Thompson’s custody, we must balance this alleged harm against Rick’s uncontroverted history of physical abuse of his oldest child.  To determine whether the balance of harms favors modification, the primary consideration is whether the children would benefit from placement with the noncustodial parent.  The district court shall presume that stability is in the best interests of the child.  Weber, 653 N.W.2d at 811.

The district court held that a prima facie case that the balance of harms favored modification had not been made.  Because the district court did not address the serious allegations against Thompson or Rick’s history of violence against P.D., we are unable to discern a rationale for its decision.

Although the district court is not required to state particularized findings, it is nevertheless required to make sufficient findings to permit meaningful appellate review.  Otherwise, we cannot determine whether the denial of an evidentiary hearing constitutes a sound exercise of the district court’s discretion.  Accordingly, we reverse and remand to the district court for findings to support its conclusion with respect to the balance of harms or an evidentiary hearing on the motion.

Reversed and remanded; motion denied.[1]

MINGE, Judge (concurring specially)

            I concur in the result and opinion of the majority except that part of the opinion that discusses the standard by which we review district court decisions denying evidentiary hearings.  I would not reject this court’s opinion in Griese v. Kamp, 666 N.W.2d 404, 407-08 (Minn. App. 2003), review denied (Minn. Sept. 24, 2004).  As the majority opinion indicates, regardless of the standard, an evidentiary hearing should be conducted in this case.