In Re the Marriage of: Michelle M. Golubowicz, n/k/a Michelle M. Roodell, petitioner, Respondent, vs. Allan R. Golubowicz, Appellant. C9-97-541, Court of Appeals Unpublished, September 2, 1997.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-541

In Re the Marriage of:

Michelle M. Golubowicz,

n/k/a Michelle M. Roodell, petitioner,

Respondent,

vs.

Allan R. Golubowicz,

Appellant.

Filed September 2, 1997

Reversed and remanded; motion denied

Willis, Judge

Anoka County District Court

File No. FX862928

Jeanette M. Tuzinski, 7050 Brooklyn Boulevard, Minneapolis, MN 55429 (for Respondent)

Doris C. McKinnis, 1012 Grain Exchange Building, Minneapolis, MN 55415 (for Appellant)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant Allan R. Golubowicz challenges the district court's (1) denial of his motion to modify physical custody of the parties' minor child, M.M.G., and (2) order that M.M.G.'s dog be returned to the home of respondent Michelle M. Roodell. We reverse and remand for an evidentiary hearing.

FACTS

The parties' marriage was dissolved in 1987. The district court awarded them joint legal custody of their daughter, M.M.G., now 14 years old, and awarded sole physical custody to Roodell, with reasonable visitation rights to Golubowicz.

On January 3, 1997, Roodell brought a motion for an order allowing her to move with M.M.G. to Frederic, Wisconsin, 75 miles from her home in Minnesota. Although January 3 was not a scheduled visitation day for Golubowicz, at M.M.G.'s request Golubowicz arranged for her to be taken to his home after school that day. Golubowicz informed Roodell that M.M.G. was at his home and that she was going to begin living with him. Golubowicz then moved that custody be modified to give him sole physical custody of M.M.G. The district court (1) ordered that M.M.G. be returned to Roodell's custody; (2) granted Roodell's motion to move M.M.G. to Frederic, Wisconsin; (3) denied, without an evidentiary hearing, Golubowicz's motion for custody modification; and (4) ordered that Golubowicz deliver M.M.G.'s dog and other property to her at Roodell's home. This appeal followed.

D E C I S I O N

This court's review is limited to whether the district court abused its discretion by (1) making findings unsupported by the evidence or (2) improperly applying the law. Lundell v. Lundell, 387 N.W.2d 654, 657 (Minn. App. 1986) (citing Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985)).

Golubowicz claims that the district court erred in denying him an evidentiary hearing on his motion to modify custody. Golubowicz argues that he created a prima facie case of endangerment to M.M.G.'s emotional health by presenting evidence that it is her preference to reside with him, asserting that the district court's determination that he manipulated M.M.G.'s expression of custodial preference was an abuse of discretion.

If the court has jurisdiction to determine child custody matters, the court shall not modify a prior custody order 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 established by the prior order unless: * * *

(iii) 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.

Minn. Stat. § 518.18(d) (1996) (emphasis added). The petitioner has the burden of presenting a prima facie case of endangerment. Ross v. Ross, 477 N.W.2d 753, 755 (Minn. App. 1991). If the affidavits accompanying a motion for custody modification do not allege sufficient facts to show a significant change in circumstances, the district court is not required to grant an evidentiary hearing on custody modification. Lundell, 387 N.W.2d at 657; Taflin v. Taflin, 366 N.W.2d 315, 320 (Minn. App. 1985). But "hearings are strongly encouraged where allegations are made of present endangerment to a child's health or emotional well being." Ross, 477 N.W.2d at 756.

An older child's choice regarding custodial placement is of "predominant importance" in determining the child's best interests. Id. But a court may conclude that a child's custodial preference is not determinative of the child's best interests if the court is "convinced" that the child's expression of preference is the result of manipulation by the noncustodial parent. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 21, 1989) (citing Edsten v. Edsten, 407 N.W.2d 102, 104 (Minn. App. 1987)). This level of certainty is required because "the possibility of objectionable influences on the older teenaged child does very little to diminish the weight of the child's preference," Ross, 477 N.W.2d at 757, and the imposition of custody against an older child's wishes may be harmful to the child's best interests. State ex. rel. Feeley v. Williams, 176 Minn. 193, 196, 222 N.W. 927, 928 (1929). "Imaginary wrongs are almost as detrimental [to a teenage child's psyche] as real ones." Id.

The district court here found that Golubowicz "failed to allege a prima facie case against removal to warrant an evidentiary hearing" and ordered that Golubowicz was "restrained from manipulating [M.M.G.] or making disparaging remarks in the presence of [M.M.G.] or involving [M.M.G.] in any way in this proceeding." The district court made no finding of manipulation. But it appears that the court may have determined an evidentiary hearing was unnecessary because it concluded that Golubowicz had manipulated M.M.G.'s expression of custodial preference to a degree that the court did not have to consider her preference as determinative of her best interests. M.M.G.'s two affidavits in this matter express a strong preference that she be allowed to live with Golubowicz and allege sufficient facts to create a prima facie case of endangerment of M.M.G.'s emotional health or well-being. We conclude that on the record before us it was an abuse of discretion for the district court to deny Golubowicz's custody modification motion without an evidentiary hearing, at which the court can make credibility determinations. We therefore reverse and remand for an evidentiary hearing.

II.

Golubowicz contends that the district court erred in deciding, without hearing testimony, that M.M.G.'s dog should be returned to Roodell's home. The parties agree that M.M.G. owns the dog. Because Golubowicz is not the dog's owner and does not assert that he makes the claim on M.M.G.'s behalf, he does not have standing to raise the issue because he is not a real party in interest. See Minn. R. Civ. P. 17.01 (person bringing suit must be a real party in interest).

III.

Roodell has moved to strike "portions of Appellant's brief referencing the removal from state because that matter is not the subject of Appellant's appeal." Both parties have referred in their statements of fact to Roodell's motion to remove M.M.G. from the state. So also have we. But because we do not address the substance of the issue, the motion to strike is denied.

Reversed and remanded; motion denied.

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