This opinion will be unpublished and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

C0-98-535

In Re the Marriage of:

Kazimierz Roslik, petitioner,

Appellant,

vs.

Carol Ann Roslik,

n/k/a Carol Ann MacLean,

Respondent.

Filed June 30, 1998

Reversed

Davies, Judge

Anoka County District Court

File No. F2965338

Michael L. Perlman, Perlman Law Office, 333 Parkdale Plaza, 1660 South Highway 100, St. Louis Park, MN 55416 (for appellant)

Jennifer R. Wellner, Wellner & Isaacson, 2E South Pine Dr., Circle Pines, MN 55014 (for respondent)

Considered and decided by Davies, Presiding Judge, Crippen, Judge, and Harten, Judge.

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

DAVIES, Judge

Appellant challenges the district court's denial of his custody modification motion without an evidentiary hearing. Appellant has presented a prima facie case of endangerment and is entitled to an evidentiary hearing. We reverse.

FACTS

Appellant Kasimierz Roslik (father) and respondent Carol Ann Roslik (mother) were divorced in May 1997 pursuant to a judgment in which they stipulated to a custody arrangement for their minor children. They agreed that mother would have physical custody of the younger two children (ages 17 and 13), and that the parents would share joint legal custody.

Six months later, father brought a custody modification motion. The motion was based on his affidavit and on an affidavit from the daughter who lived with mother at the time. Before the court's ruling, the parties stipulated that physical custody of the 17-year-old daughter would be transferred to father, leaving the custody of the younger son as the only contested issue. The court ruled that

there is not a prima facie showing with regard to the level of physical or mental harm that would justify * * * a change of custody at his point.

The court denied appellant's motion for an evidentiary hearing regarding the physical custody of the son and later issued an amended judgment and decree in which the court concluded that father had "failed to make a prima facie showing of endangerment" as to the son. This appeal followed.

D E C I S I O N

The denial of an evidentiary hearing on custody modification will not be reversed absent an abuse of discretion. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). When the motion is made less than one year after the entry of the dissolution decree, a child custody modification movant must show endangerment of the child's physical or emotional health or impairment of his emotional development. Minn. Stat. § 518.18 (c) (1996). A district court need not hold an evidentiary hearing on a custody modification motion unless a prima facie showing of endangerment is made by the moving party. Nice-Petersen, 310 N.W.2d at 472. The moving party has the burden of establishing a prima facie case of endangerment when requesting a modification of child custody. Id. The district court must, however, assume that a movant's allegations are true. Smith v. Smith, 508 N.W.2d 222, 226 (Minn. App. 1993).

Allegations of physical or emotional abuse are sufficient for a prima facie case of endangerment. Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990). Here, the daughter's affidavit states that: (1) mother left the children in the house alone for long periods with little or no food and with no way to contact the mother; (2) mother refused to buy necessary clothes for the daughter; and (3) mother created an unhealthy condition in the house by setting the thermostat too low during the winter and forbidding a fan during the summer. The affiant also stated that she was depressed and feared her brother would become depressed also. The daughter's affidavit alleges facts supporting a finding of endangerment of the physical and emotional health of both children; father made out a prima facie case of endangerment on the basis of the daughter's affidavit alone.

Adding to that prima facie case, father's affidavit states: (1) he has received calls from his children as late as 11:00 p.m. asking him to pick them up because their mother was not home; (2) the 13-year-old son has frequently been left home alone by mother without his knowing her whereabouts; (3) the daughter has been forced to spend the night at a friend's house when mother could not be located; (4) mother "rarely arrives home before 11:00 or 11:30 p.m." and sometimes "does not get home until 2:00 or 3:00 a.m."; (5) the children "must make their own meals and put themselves to bed without any adult supervision"; (6) there is "nothing to eat in the [mother's] house except cereal"; and (7) on "several occasions" he had been forced to buy groceries for the children and bring them to mother's house "in order for them to have a decent meal."

Father also reported that the son's grades have "steadily fallen" and as a result he was forced to attend summer school. Father alleged that mother did not help the son with his homework and that the son would more than likely have to repeat eighth grade. Finally, father relayed the daughter's reports that the children received threatening phone calls late at night from friends of their mother.

We perceive the district court's decision to be a credibility determination on affidavits, which, because the moving party's assertions must be taken as true, is improper without an evidentiary hearing. Smith, 508 N.W.2d at 226. The district court erred in refusing to grant an evidentiary hearing on the custody modification.

Reversed.