Carole M. Megarry, Katz & Manka, Ltd., 4150 First Bank Place, 601 Second Ave. S., Minneapolis, MN 55402 (for Respondent)

Aldo J. Terrazas, 701 Fourth Ave. S., Suite 500, Minneapolis, MN 55415 (Pro se Appellant)

Considered and decided by Davies, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.

Appellant Aldo J. Terrazas seeks review of the district court's order denying his motion to modify custody of the parties' child from sole physical custody in respondent Dawn Marie Autenreith to joint physical custody. We affirm.

In May 1996, appellant brought a motion to modify physical custody from sole to joint, claiming integration of J.A. into his family. In his supporting affidavit, appellant alleged that the parties have shared custody of J.A. since the spring of 1992. Appellant states that he picks up J.A. from day care two days during the week for overnight stays, sees J.A. one day every weekend, and has J.A. from Friday to Monday once a month. Appellant states that during the time that J.A. is with him he provides for all of J.A.'s needs.

Appellant's initial affidavit details the history of the parties' troubled relationship. Appellant indicates in the affidavit that he knows respondent dislikes him, but that both parties love J.A. and are able to cooperate with respect to his care.

In her affidavit opposing modification, respondent alleged that appellant attempts to intimidate her, that the parties have argued and appellant has called respondent vulgar names in J.A.'s presence, and that the relationship between the parties is generally hostile. Respondent stated that she believes appellant is unable to control his anger, citing an incident J.A. recently described to her in which appellant yelled at J.A. and threw toys around the room. Respondent also stated that, based on J.A.'s reports, she believed appellant spanks J.A. in ways that appear to her as abusive.

In his reply affidavit, appellant denied abusing J.A. in any form whatsoever. Appellant acknowledged that there was a recent isolated incident in which he yelled and threw J.A.'s toys because J.A. refused to pick them up. Appellant stated that he later apologized to J.A. Appellant stated he has always tried to promote a good relationship between J.A. and respondent, whereas respondent has attempted to alienate J.A. from appellant.

The family court referee denied appellant's modification motion without an evidentiary hearing on the ground that appellant failed to establish a prima facie case to modify child custody. The referee also awarded respondent $750 in attorney fees. The district court affirmed the order, and this appeal followed.

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.

Minn. Stat. § 518.18(d) (1996). The court is to retain the custody arrangement established by the prior order unless, among other grounds, "the child has been integrated into the family of the petitioner with the consent of the other party." Id. at (d)(ii).

In determining whether to order an evidentiary hearing on the modification motion, the district court reviews the moving party's affidavits, taking the facts alleged therein to be true, and determines whether a prima facie case has been made for modification. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). If a prima facie case has not been made, the district court should deny the motion for an evidentiary hearing. Id. The standard of review is whether the district court abused its discretion in denying an evidentiary hearing. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).

Appellant argues that his affidavit established a prima facie case for modification based on J.A.'s integration into his family, with respondent's consent, because the access schedule resulted in de facto joint physical custody. But appellant's affidavit did not establish that the access schedule resulted in a shared custody arrangement rather than mere implementation of the liberal visitation awarded appellant under the prior order. See Geiger v. Geiger, 470 N.W.2d 704, 706 (Minn. App. 1991) (noncustodial parent's liberal visitation did not constitute de facto joint physical custody), review denied (Minn. Aug. 1, 1991).

Moreover, the district court found that appellant had not shown a prima facie case for joint physical custody in view of the level of mistrust between the parties. A grant of joint physical custody will only be appropriate in "exceptional cases." Brauer v. Brauer, 384 N.W.2d 595, 598 (Minn. App. 1996). Joint physical custody should not be granted where the difficulties between the parties are "so significant and pervasive as to preclude cooperation." Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993) (citing Greenlaw v. Greenlaw, 396 N.W.2d 68, 74 (Minn. App. 1986)).

Appellant argues that the district court erred in considering disputed facts raised in respondent's affidavit. An opposing party is authorized to file an affidavit in response to an affidavit supporting a motion for modification of custody. Minn. Stat. § 518.185 (1996). Although the allegations of the movant's affidavit are accepted as true for the purpose of determining whether an evidentiary hearing is warranted, the district court is not prohibited from considering matters raised in an opposing affidavit. In this case, both parties' affidavits document the pervasive hostility and mistrust between the parties with respect to both their personal relationship and parenting issues.

Appellant also contends the district court erred in failing to consider his original affidavit in support of the motion. The district court's order specifically refers to appellant's reply affidavit in response to respondent's affidavit, but there is no indication that the court failed to consider the original affidavit. The district court apparently referenced the reply affidavit because it confirms the court's conclusion concerning the level of mistrust between the parties. Because the affidavits together show that this is not one of the exceptional cases in which a grant of joint physical custody would be appropriate, the district court did not abuse its discretion in denying the modification motion without an evidentiary hearing.

In his brief, appellant requests that the "$700.00 penalty" assessed against him for the custody modification motion be reversed. It appears appellant is referring to the $750 attorney fees award ordered by the family court referee. We decline to address this issue because appellant failed to adequately brief it. See Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135, 290 Minn. 518, 519-20 (1971) (issue advanced without discussion or citation to authority is deemed waived on appeal).

Respondent moves for an award of attorney fees on appeal. Respondent is awarded $250 in attorney fees for this appeal.

Affirmed; motion for attorney fees granted.