This opinion will be unpublished and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

A06-343

 

 

Lance Edward Link,

Respondent,

 

vs.

 

Christina Clark,

Appellant.

 

 

Filed December 5, 2006

Affirmed; motion denied

Lansing, Judge

 

Scott County District Court

File No. 2003-06146

 

Paul H. Thomsen, Suite 250, 16670 Franklin Trail Southeast, Prior Lake, MN 55372 (for respondent)

 

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

 

            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court denied Christina Clark’s custody-modification motion without holding an evidentiary hearing.  On appeal, we affirm the denial because the affidavits and supplemental material submitted with the motion did not provide prima facie evidence of a change in circumstances that endangered the child’s physical or emotional health.  We deny Lance Link’s motion to strike portions of Clark’s appellate brief.

F A C T S

            Lance Link and Christina Clark are the parents of a child, born July 14, 2000.  Under the terms of a March 2005 paternity judgment, Link and Clark have joint legal and physical custody, with the child residing primarily with Link during the school year and with Clark during the summer.  In November 2005, Clark filed a modification motion to transfer sole physical custody to her.

            In support of the motion, Clark submitted her own affidavit and affidavits from family members and friends.  She attached a copy of the police reports and medical records that she had previously submitted with her petition for an order for protection in Crow Wing County in July 2005, related to an incident on July 13, 2005, in which Link had spanked the child during Link’s parenting time.  When Clark saw bruises on the child’s buttocks, she took the child to the hospital and reported the incident to the police.  Link was charged with domestic assault and malicious punishment of a child.  The district court in Crow Wing County, where Clark lived at the time, appointed a guardian ad litem for the child.  The guardian ad litem investigated the incident and recommended that the order for protection be dismissed.

            After a motion hearing, at which the attorneys presented arguments, the district court issued an order finding that Clark had failed to make a prima facie case for custody modification and denying Clark’s requested relief.  The district court ordered the parents to refrain from using corporal punishment to discipline their child.  Clark appeals the denial of an evidentiary hearing and the refusal to appoint a second guardian ad litem or to order a custody evaluation.  Link moves to strike portions of Clark’s appellate brief.

D E C I S I O N

I

            On a motion for custody modification, the district court should grant an evidentiary hearing if the affidavits submitted by the moving party, taken as true, establish a prima facie case for modification.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  To establish a prima facie case under the “endangerment” standard, the moving party must demonstrate that a change of circumstances in the child’s environment endangers the child’s physical or emotional health or development, that a modification would be in the child’s best interests, and that the advantage of a change will outweigh any harm likely caused by the change.  Minn. Stat. § 518.18(d) (2004); Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999).  We review a district court’s decision to deny a motion to modify custody without an evidentiary hearing for an abuse of discretion.  Valentine v. Lutz, 512 N.W.2d 868, 872 (Minn. 1994); Nice-Petersen, 310 N.W.2d at 472. 

            To warrant modification of custody, the change in circumstances must be significant and must have occurred since the original custody order.  Nice-Petersen, 310 N.W.2d at 472; see also       Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (stating that legislature “likely intended to demand a showing of a significant degree of danger” in the context of child custody).  Clark maintains that the district court abused its discretion by concluding that the spanking incident in July 2005 and Link’s ensuing criminal charges did not establish a “significant degree of danger” to the child.  After a careful review of the record, we conclude that the district court acted within its discretion by denying the motion without an evidentiary hearing.

Clark’s affidavits allege that Link spanked the child once in July 2005.  Clark did not allege any other previous incident of physical punishment, and Clark’s attorney acknowledged at the November 2005 motion hearing that there have been no subsequent incidents.  The report from the guardian ad litem in Crow Wing County who investigated the spanking incident provided additional contextual information.  See Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997) (stating that while district court accepts facts in moving party’s affidavits as true, district court may consider other evidence that explains circumstances surrounding accusations).

The guardian ad litem interviewed at least twenty-four people during the investigation of the July 2005 spanking incident.  The people who were interviewed included the child, Clark, Link, friends, relatives, a coworker, Clark’s attorneys, Link’s attorney, social services, law enforcement, court administration, the county attorney’s office, and the child’s current and former day-care providers.  The guardian ad litem examined photographs of the child’s buttocks following the reported spanking and reviewed the child’s medical records, two custody evaluations, Link’s psychological testing, law enforcement reports of the reported spanking, records relating to each parent’s chemical-dependency issues, the court file containing the criminal charges against Link, and the district court’s custody order in the paternity proceeding.

The guardian ad litem issued a five-page report that summarized the findings and conclusions of the investigation.  The report stated that Clark brought the child to the hospital emergency center on July 17, 2005, after Clark and Clark’s sister noticed bruises on the child’s buttocks that resembled a hand print.  The child told Clark that “daddy spanked me because I wet my panties.”  The child repeated this explanation to the police, stating, first, that Link had spanked her thirteen times, then saying that he spanked her thirty times.  The child told the guardian ad litem, “I hate my daddy, he spanked me a lot.”  But when the guardian ad litem asked the child if her father had ever spanked her before, the child answered no.  The guardian ad litem concluded that the child likely thought that she was spanked for wetting her clothes even though Link plausibly explained that the child had been briefly and lightly spanked for throwing a temper tantrum when Link told her to change after she had wet her clothes.  The guardian ad litem could not conclude that the spanking caused the marks on the child’s buttocks because that same week the child had participated in a slip-and-slide activity that Link arranged as part of her birthday party.  The activity included sliding down a hill over a slide, and occasionally over stakes holding the slide in place. 

Based on her discussion with the child, the guardian ad litem expressed concern that some of the child’s responses were coached.  The guardian ad litem noted that Clark and Link had a difficult relationship, have had a “long and ugly custody battle,” and that Clark and Link criticize each other in ways that affect their parenting interaction.  The guardian ad litem referred to a report indicating that Link is frustrated with Clark’s parenting methods and has developed an anxiety disorder related, in part, to the difficult interaction.  The guardian ad litem also noted that the two prior custody evaluations referred to Clark’s chemical-dependency issues and concluded that she was unable to put the child’s interests above her own personal relationships.  The evaluations also reported that the child has a strong attachment to Link.  The guardian ad litem recommended that Clark and Link both attend parenting classes and that the order-for-protection petition be dismissed.

            On this record, the district court did not abuse its discretion when it determined that the allegations of endangerment, taken as true, were insufficient to constitute prima facie evidence that the child’s present environment endangered her physical or emotional health.  See Johnson v. Smith, 374 N.W.2d 317, 320 (Minn. App. 1985) (stating that occasional spankings are insufficient to constitute danger), review denied (Minn. Nov. 18, 1985).  The spanking was an isolated incident, not severe, and the district court addressed the potential for future harm by ordering both Clark and Link to refrain from using corporal punishment as a means of discipline.  Likewise the district court did not abuse its discretion by declining to appoint another guardian ad litem to investigate the same circumstances.  See Baum v. Baum, 465 N.W.2d 598, 600 (Minn. App. 1991) (stating that appointment of guardian ad litem not required when insufficient evidence of abuse or neglect presented), review denied (Minn. Apr. 18, 1991).  Because the allegations were insufficient to require an evidentiary hearing, the district court also acted within its discretion by not ordering an additional custody evaluation.

II

 

Link moves this court for an order striking parts of Clark’s appellate brief that refer to Link’s resolution of the criminal charges after the denial of the modification motion.  The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01.  Although the resolution of the charges is not part of the appellate record, a court may properly take judicial notice of associated court files.  See In re Welfare of Clausen, 289 N.W.2d 153, 156-57 (Minn. 1980) (holding that district court “properly took judicial notice” of associated court files); In re Zemple, 489 N.W.2d 818-820 (Minn. App. 1992) (recognizing that reviewing court may take judicial notice of other proceedings involving same litigants).  We, therefore, deny the motion to strike and the accompanying motion for attorneys’ fees.

            Affirmed; motion denied.