Considered and decided by Lansing, Presiding Judge, Short, Judge, and Foley, Judge.[*]

BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:

1. Our unpublished opinion was filed on July 29, 1997.

2. The opinion indicated that respondent had failed to file a notice of review. We have learned that respondent did file a notice of review, but that notice was not recorded properly by the Clerk of the Appellate Courts.

3. The opinion has been modified, to address the issues raised by respondent's notice of review.

IT IS HEREBY ORDERED the opinion filed July 29, 1997, is withdrawn and the attached opinion is substituted.

Dated: August 19, 1997

BY THE COURT

/s/ Harriet Lansing

Harriet Lansing

Opinion Judge

Virginia Stark, P.O. Box 797, Lindstrom, MN 55045 (for Appellant)

Michael L. Bjerke, 539 Sixth Street, Pine City, MN 55063 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Foley, Judge.[*]

This appeal challenges district court rulings denying a mother's request to modify custody. Because the district court did not err in its findings or conclusions, we affirm.

Morgan moved to vacate the stipulated agreement and order in 1994, alleging that she was misled by an incompetent attorney. That motion was denied by the district court, and the denial was affirmed by this court. Steele v. Kunze, No. C8-94-869 (Minn. App. Aug. 16, 1994), review denied (Minn. Sept. 16, 1994).

Morgan then moved to modify custody. The district court bifurcated the modification hearing to consider first, evidence of "endangerment," and, if the evidence demonstrated that the children were endangered, then to consider the remaining statutory requirements. After five days of hearing, the district court, in an October 12, 1995 order, ruled that Morgan had failed to demonstrate that the children were endangered and denied her motion. In the same order the court scheduled Morgan's visitation for every other weekend, six weeks during the summer, and alternating holidays. Morgan moved for a new hearing, which the district court denied by order dated December 11, 1995.

In July 1996 the district court heard evidence on Kunze's motion to restrict visitation with the children's maternal grandfather and Morgan's motion for an immediate change in custody and custody modification. While the decision on these motions was still pending, Morgan failed to return the children to Kunze after their six-week summer visitation. Kunze pursued criminal proceedings (kidnapping) against Morgan, and Morgan applied to this court for a writ of prohibition to stay execution of the kidnapping arrest warrant. The writ was denied after the district court issued a detailed opinion rejecting the motion for immediate change of custody. Morgan v. Kunze, No. C6-96-163 (Minn. App. Feb. 27, 1996) (order op.).

In an October 3, 1996 order the district court denied Morgan's motion for a change in custody and denied Kunze's motion to restrict visitation. Thereafter Morgan brought a contempt motion for Kunze's failure to bring the children to court-ordered counselling and for denial of a weekend visitation. That motion was denied by order dated February 18, 1997.

The district court has broad discretion to provide for the custody of children upon dissolution of marriage. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not reverse a custody determination unless the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). The district court's findings are sustained unless clearly erroneous. Id.

Minn. Stat. § 518.18(d)(iii) provides that the court may not modify a prior custody order unless "the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development * * * ." In other words, a showing of endangerment to physical or emotional health or impairment of emotional development is required before custody may be modified. The district court, applying the statute, treated endangerment/impairment as the "threshold issue," bifurcated the evidentiary hearing, and limited the scope of the initial phase to evidence and testimony relevant to those issues. After a five-day hearing, the court found that Morgan had failed to establish the endangerment or impairment required by the statute.

We find no error in the court's decision to bifurcate the hearing. Although Morgan asserts on appeal that the bifurcation violated her due process rights, she has failed to point to any constitutional requirement that a hearing to determine custody modification necessarily take a particular form. She relies on Abbott v. Abbott, 481 N.W.2d 864, 870 (Minn. App. 1992), in which the court stated that the question whether to modify custody in that case "should be decided * * * at an evidentiary hearing where the trial court can weigh all the evidence and all the statutory factors and make detailed, specific findings as to the best interests of [the children]." Id. (emphasis added). But the holding in Abbott is not inconsistent with the bifurcation procedure.

Morgan's challenge suggests that important evidence was excluded from the hearing because of the bifurcation. She has, however, failed to point to or challenge any specific evidentiary rulings. If evidence relevant to the endangerment or impairment of the children's health and development was excluded, those specific adverse rulings could have been raised on appeal.

The district court bifurcated the hearing because "it was an efficient use of time and resources to first determine whether the party seeking modification of custody could meet the threshold showing of endangerment." December 11, 1995 Order. Public policy favors the efficient use of judicial resources. See Karon v. Karon, 435 N.W.2d 501, 504 (Minn. 1989) (citing judicial economy as one basis for enforcing a stipulation in dissolution action). For these reasons and because the statute requires a showing of endangerment or impairment before custody modification is allowed, the district court did not err in bifurcating the evidentiary hearing.

We do not agree that the court's October 12, 1995 order awarded de facto custody to Patricia Kunze. The court's finding summarized Patricia Kunze's past care; it did not provide for Patricia Kunze's prospective care. In its December 11, 1995 order denying a rehearing the court noted that Kunze had found a job closer to home and was at home most evenings and that Patricia Kunze essentially provided daycare for the children. The record supports that finding. Morgan's assertion that the district court erred by awarding de facto custody to Patricia Kunze is unsupported.

We need not reach the issue of whether, as a matter of law, a court order granting full authority over visitation to the custodial parent would bar consideration of interference with visitation as a factor contributing to the endangerment or impairment of a child's health and development. Interference with visitation alone normally does not meet the statutory requirement for proof of endangerment or impairment of the child's emotional development. Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994). There must be evidence of "actual adverse effects." Id. at 596; see also Grein v. Grein 364 N.W.2d 383, 386 (Minn. 1985) ("In and of itself an unwarranted denial of or interference with visitation is not controlling [of the decision to modify custody].").

The provision allowing Kunze to determine visitation is unusual and may have been ill-considered in light of the parents' complete inability to cooperate. But Morgan's remedy was to appeal or petition for a change in visitation. The evidence in the record does not establish that the emotional endangerment to the children resulted from restrictions Kunze placed on Morgan's visitation. Rather, as noted in nearly every district court order, it is the parents' prolonged intransigence, animosity, and failure to cooperate that continue to endanger these children. The 1995 court-ordered evaluation stated: "All three of the children are emotionally wrought over the animosity which they are feeling and the pressure of being caught in the middle of this dispute. * * * [It] is by far the most serious current source of emotional damage to the children." The record is replete with evidence that both parties have been disrespectful and contemptuous of the rights of the other. Responsibility for the damage to the emotional health and development of the three children must be borne by both their parents.

To the extent that Kunze could have "interfered" with Morgan's visitation during the period Kunze had full authority over the visitation schedule, that interference was not a demonstrated basis for the children's emotional troubles, and therefore the district court did not err in finding that the visitation restrictions did not endanger the children.

The district court found that Morgan's affidavits failed to establish a prima facie showing of endangerment. The district court meticulously set out the allegations Morgan had made prior to the 1995 hearing to distinguish them from allegations describing the children's "present environment." Minn. Stat. § 518.18(c) (emphasis added). The court found that the affidavits filed after the June 1995 hearing generally restated the prior allegations and that the supplemental psychological evaluations did not describe the children's emotional problems as new developments.

Our review of the evidence supports the district court's conclusion. The supplemental affidavits are insufficient to establish a prima facie case that the children are endangered by their present environment. See Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (accompanying affidavits, assumed true, must set forth sufficient justification for modification).

In 1995 the district court found that Morgan's motions were not frivolous and that Morgan did not have the ability to pay Kunze's attorneys' fees. The evidence establishes that Kunze has severely limited and interfered with Morgan's visitation in the past, that the children's emotional development has suffered, that allegations of abuse have been made, and that the children have expressed a preference to live with Morgan. Based on that evidence it was within the district court's discretion to find that Morgan's motions were not frivolous and decline to award attorneys' fees.

"Upon motion, the court may rescind its permission to proceed in forma pauperis if it finds the allegations of poverty contained in the affidavit are untrue, or if, following commencement of the action, the party becomes able to pay the fees, costs and security for the costs." Minn. Stat. § 563.01, subd. 9 (1996). Kunze asserts that the "motion" referred to in the statute may be brought by anyone, but we find that his argument is unpersuasive.

"Upon motion" simply instructs a party that has standing what procedure to use to assert its claim. To have standing a party must have a sufficient stake in a justiciable controversy to seek relief from the court. Sierra Club v. Morton, 405 U.S. 727, 731-32, 92 S. Ct. 1361, 1364-65 (1972). "Standing is acquired in two ways: either the plaintiff has suffered some 'injury-in-fact' or the plaintiff is the beneficiary of some legislative enactment granting standing." State by Humphrey v. Philip Morris, Inc., 551 N.W.2d 490, 493 (Minn. 1996) (citation omitted).

Kunze has failed to show any injury-in-fact from the court's allowing Morgan to proceed in forma pauperis. Likewise he has failed to show that any statute grants him standing to challenge her in forma pauperis status. Therefore, the district court properly denied his motion to evaluate Morgan's indigence status.

Minn. Stat. § 518.175, subd. 5 (1996), which governs modification of visitation, states that the "court shall modify an order granting or denying visitation rights whenever modification would serve the best interest of the child." The court may not restrict visitation rights without a finding of endangerment. Minn. Stat. § 518.175, subd. 5 (1). Our review of the record supports the district court's determination that the limited and supervised contact the children have with their maternal grandfather does not endanger them. The district court has broad discretion in deciding visitation questions, Manthei v. Manthei, 268 N.W.2d 45 (Minn. 1978), and the court did not abuse that discretion in denying Kunze's motion to restrict contact between the children and their maternal grandfather.

Affirmed.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.