This opinion will be unpublished and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

A05-493

 

 

In re the Marriage of:

 

Dorene Marjorie Blooflat, petitioner,

Respondent,

 

vs.

 

Bennett David Blooflat,

Appellant.

 

 

Filed August 30, 2005

Affirmed

Lansing, Judge

 

 

Hennepin County District Court

File No. DC 238481

 

 

Kristy A. K. Rodd, Fredrikson & Byron, P.A., 4000 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402-4125 (for respondent)

 

Bennett D. Blooflat, 23653 – 165th Avenue, Fort Ripley, MN 56449 (pro se appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Bennett Blooflat appeals from a district court order that denied, without an evidentiary hearing, his motion to modify Dorene Blooflat’s primary physical custody of their three children and to grant him sole physical custody.  Because the district court did not abuse its discretion in determining that the affidavit in support of the motion, taken as true, failed to establish a prima facie case for modification, we affirm the summary denial of the motion.

F A C T S

In the June 1998 marital-dissolution judgment, the district court provided for the custody of Bennett and Dorene Blooflat’s three children by adopting the custody provisions of the Blooflats’ marital-termination agreement.  The Blooflats retained joint legal custody of their children, now ages 16, 12, and 8, and Dorene Blooflat received “primary physical custody,” subject to Bennett Blooflat’s scheduled parenting time.  Dorene Blooflat was represented by counsel during the dissolution proceedings;  Bennett Blooflat was not.

Five years after the dissolution, in June 2003, Dorene Blooflat brought a motion to change the children’s residence to Michigan to enable her to reside with her fiancé.  In  conjunction with her motion, she proposed a new parenting-time schedule.  Bennett Blooflat did not oppose the residence change, but proposed a different parenting-time schedule in a responsive affidavit.  The district court found that Dorene Blooflat’s proposed parenting-time schedule was more reasonable, granted her motion, and implemented the parenting-time schedule that accompanied it.

In September 2004 Bennett Blooflat moved to modify custody to obtain sole physical custody of the three children.  His affidavit in support of the motion stated several bases for the modification:  Dorene Blooflat’s instability as demonstrated by her move to Michigan and her return to Minnesota when the engagement failed; her overriding interest in money; the Blooflats’ unsuccessful attempt to reconcile; the children’s condition when left for visitation, including the state of their clothing and the absence of either backpacks or schoolwork; inappropriate reprimands about food; and improper involvement of the children in her attempts to avoid creditors.  The affidavit also asserted that Dorene Blooflat tells the children to hide information from him and provides a poor example by not seeking employment.  Bennett Blooflat maintains that he can provide a more appropriate living environment for the children in his new home.

The district court concluded that Bennett Blooflat’s affidavit failed to demonstrate that the current custodial arrangement endangered the children or that the children’s circumstances had changed materially from the time of the dissolution judgment that established the custody arrangement.  In this appeal from the denial of his motion, Bennett Blooflat (1) challenges the denial of an evidentiary hearing, (2) asserts that the district court was impermissibly biased against him, and (3) raises constitutional objections, including his lack of representation in the marital-dissolution proceedings.

D E C I S I O N

I

 

To obtain an evidentiary hearing on a custody-modification motion, the petitioning party must establish four elements for a prima facie case, including a change in the circumstances of the child or custodian and evidence that the child’s present environment endangers the child’s physical or emotional health or emotional development.  Minn. Stat. § 518.18(d) (2004); Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997).  The parent seeking modification must submit an affidavit asserting sufficient justification on the required factors.  Minn. Stat. § 518.185 (2004).  The district court must accept the facts in the petitioner’s affidavit as true to determine whether the petitioner has established a prima facie case.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  If the facts, taken as true, fail to provide sufficient grounds for modification, the court need not grant an evidentiary hearing.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).  In reviewing a district court’s decision to deny a custody-modification petition without an evidentiary hearing, we apply an abuse-of-discretion standard.  Geibe, 571 N.W.2d at 777.

Bennett Blooflat contends that the district court erred by relying on only one consideration—that the Blooflats’ son “does not wish to have visitation with [Bennett Blooflat]”—to deny him a hearing and a modification of custody.  The record does not support this interpretation of the district court’s reasons for denial. 

The district court’s written order includes a reference to the son’s expressed desire not to have visitation with his father, but this preference is not the basis for the court’s denial of Bennett Blooflat’s motion.  The written order clearly states that the foundation for the district court’s denial of the custody-modification motion is its determination that the allegations in Bennett Blooflat’s affidavit, even if true, did not demonstrate a prima facie showing on the requisite changed-circumstances and endangerment factors.

The record supports the determination that the factual allegations are insufficient.  On the changed-circumstances factor, the petitioner must show that a significant change in circumstances has occurred since the original custody order.  Id. at 778.  “Factors constituting a significant change in circumstances are determined on a case-by-case basis.”  Lilleboe v. Lilleboe, 453 N.W.2d 721, 723 (Minn. App. 1990).

In his affidavit, Bennett Blooflat alleged that Dorene Blooflat is “unstable” as shown by her failed engagement and related moves between Michigan and Minnesota.  The two moves and the failed engagement, however, do not show a change or instability that negatively affects the children’s circumstances.  The allegations do not demonstrate a significant change or deterioration in the relationship between Dorene Blooflat and the three children.  And the affidavit does not allege a denial of scheduled parenting time or behavioral changes in the children between the time of the petition and the court’s previous order.  See Myhervold v. Myhervold, 271 N.W.2d 837, 838 (Minn. 1978) (relying on changed circumstances demonstrated by numerous visitation problems and deteriorating relationships between children and family members); Wilkus-Schmidt-Hight v. Wilkus, 398 N.W.2d 44, 46 (Minn. App. 1986) (relying on changed circumstances demonstrated by child’s sudden exhibition of behavioral changes). 

Bennett Blooflat’s affidavit also relies on the Blooflats’ failed reconciliation as a basis for claiming changed circumstances.  As this court has previously noted, however, a change in circumstances possibly caused by the petitioner’s own actions is unlikely to trigger a change in custody.  See Lundell v. Lundell, 387 N.W.2d 654, 658 (Minn. App. 1986) (questioning whether parent should be permitted to use her own noncompliance with court decision to establish change of circumstances).  Furthermore, because the focus of the changed-circumstances factor is on the child and the custodial parent, the portion of Bennett Blooflat’s affidavit discussing his current marriage and residence is not of primary relevance.  See Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999) (stating that petitioner must demonstrate changed circumstances involving child or custodial parent).

The endangerment factor “requires a showing of a significant degree of danger.”  Geibe, 571 N.W.2d at 778 (quotation omitted).  “[T]o establish danger to a child’s welfare, a parent’s conduct must be shown to result in an actual adverse effect on the child.”  Weber v. W.P.W., 653 N.W.2d 804, 811 (Minn. App. 2002).  “[B]ehavioral problems and poor school performance by the child have served as indications of endangerment to a child’s physical and emotional health.”  Id.

In his affidavit, Bennett Blooflat asserts that Dorene Blooflat is “unstable” and “only interested in money” and that the children arrive for his parenting time with clothing that does not fit and without socks, their schoolwork, or their backpacks.  He further alleged, based on his conversations with Dorene Blooflat’s former fiancé, that she inappropriately reprimanded the children about food preparation, conditioned the distribution of food on the children’s saying that she is the “[b]est [m]ommy in the world,” and involved the children in her efforts to avoid having to answer phone calls from creditors.  But these assertions are not accompanied with any specific allegations of actual adverse effects on the children.  The affidavit does not claim that the children are performing poorly in school, that they have health or nourishment problems, or that they have behavioral or psychological problems caused by Dorene Blooflat’s parenting.  “Bare allegations . . . [do not] rise to the level of establishing endangerment.”  Silbaugh v. Silbaugh, 543 N.W.2d 639, 642 (Minn. 1999).

Because the allegations raised in Bennett Blooflat’s affidavit, even if true, do not demonstrate a prima facie showing on the requisite changed-circumstances and endangerment factors, the district court did not abuse its discretion in summarily denying the motion to modify custody.

II

Bennett Blooflat next argues that the November 2004 order denying his custody-modification motion should be reversed on the grounds of judicial bias.  A party may remove a judge by filing a notice to remove within ten days after receiving notice of which judge will preside at the hearing.  Minn. R. Civ. P. 63.03.  If a party who has notice of the assignment of the presiding judge fails to file a removal notice prior to the hearing, the issue is waived unless the party presents “an affirmative showing of prejudice.”  Id.  Bennett Blooflat failed to bring a prehearing or posthearing motion on the issue of judicial bias in the district court and, consequently, he has waived his claim of prejudicial bias.

Even if we were to extend review, the claim of judicial bias would fail on its merits.  Judicial bias that results in reversal generally must arise from an extrajudicial source, In re Estate of Lange, 398 N.W.2d 569, 573 (Minn. App. 1986), or must amount to pervasive bias, which exists when conduct is “so extreme as to display [a] clear inability to render fair judgment.”  Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct. 1147, 1155 (1994).  Bennett Blooflat does not claim an extrajudicial source of bias, and the district court record merely demonstrates that the district court repeatedly disagreed with Bennett Blooflat, which does not rise to the level of pervasive bias.  See State v. Laughlin, 508 N.W.2d 545, 548 (Minn. App. 1993) (stating that judicial bias cannot be based on litigant’s subjective belief); Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986) (stating that prior adverse rulings do not constitute bias).

III

Bennett Blooflat raises two final claims in his pro se appellate brief: (1) that the district court’s failure to modify custody deprives him of a constitutionally protected liberty interest, and (2) that the ex parte nature of the June 1998 dissolution renders its provisions for custody unenforceable.

The constitutional challenge was not raised in the district court proceedings.  Issues not argued in the district court are generally waived on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  We may consider constitutional claims for the first time on appeal in the interests of justice when the parties had adequate briefing time and the issues were implied in the district court.  Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982).  Because the constitutional challenge was not implied below, we conclude that the issue is waived.  See Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001) (“Although some accommodations may be made for pro se litigants, this court has repeatedly emphasized that pro se litigants are generally held to the same standards as attorneys and must comply with court rules.”).

Bennett Blooflat also neglected to object in the district court to his lack of representation in the proceedings that resulted in the June 1998 dissolution judgment and therefore waived the issue.  Thiele, 425 N.W.2d at 582.  Furthermore the time to appeal from the dissolution judgment has long since expired.  See Minn. R. Civ. App. P. 104.01, subd. 1 (providing that appeal generally may be taken from judgment within sixty days after service by any party of written notice of its filing).  Bennett Blooflat has not brought a motion to reopen the dissolution under Minn. Stat. § 518.145, subd. 2 (2004), and thus the issue may not be raised in this appeal. 

            Affirmed.