In Re the Marriage of: Douglas Alan Ritari, petitioner, Appellant, vs. Tina Ellen Ritari, Respondent.

This opinion will be unpublished and
may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-98-721

In Re the Marriage of:

Douglas Alan Ritari, petitioner,
Appellant,

vs.

Tina Ellen Ritari,
Respondent.

Filed October 20, 1998
Reversed and remanded
Crippen, Judge

Washington County District Court
File No. F8971398

Lisa M. Amundson, Brent G. Eilefson, Dudley and Smith, P.A., 2602 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for appellant)

Rosanne Nathanson, Jill H. Bollettieri, Leonard, Street and Deinard, P.A., 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

On three separate theories of fact, appellant has successfully established a prima facie case to support his petition against removal of three children of the parties to Boston, Massachusetts. Hence, we reverse the trial court's decision that denies appellant's petition without an evidentiary hearing and permits removal to occur.

FACTS

A December 1997 divorce judgment, consistent with a stipulation of the parties, established joint legal custody of their three minor children, one now age 4 and the other two age 12. Primary physical custody of the children was placed with respondent Tina Ritari, and regular visitation was provided for appellant Douglas Ritari. The judgment also provided that the parties were to make joint decisions on substantial questions relating to religion, education and health issues, and that appellant, who was the sole parent involved in the children's religious instruction, would be allowed to take the children to confirmation classes that fell on his nonvisitation nights; respondent also takes the children to church services.

In March 1998, premised on a job transfer with the possibility of advancement, respondent brought a motion requesting sole legal custody and leave to remove the children to Boston. Respondent had been employed for ten years by the same company, owned by her uncle, and had not previously been transferred.

Claiming interference with visitation and endangerment, appellant opposed the motion and moved for a denial of removal or for a change in custody. The endangerment claim was first based on an incident where appellant called the police in response to a call from one of the parties' minor children, A.R., regarding a dispute she had with respondent. According to the police report, respondent "struck [A.R.'s] face lightly while [A.R.] was screaming." Following that incident, A.R. went to stay with appellant for a week, reporting her feeling that respondent "[did] not want [A.R.] anymore." Appellant also submitted a social worker's report that A.R. feels "her mother favors her twin sister," that respondent mocks her and "threatens to send her to Juvenile Hall," and that respondent "has gotten quite physical with her" and broke her saxophone by kicking it. Additionally, a psychologist reported that "[A.R.] is much more concerned about a continuous relationship with her father than the relationship with her mother." Finally, appellant attached to his affidavit information indicating that the anti-depressant medication that A.R. was taking was contraindicated for children.

The trial court, ruling that appellant had failed to make a prima facie case against removal, rejected his motion for an evidentiary hearing and granted the motion to remove. The court further ruled that respondent failed to make a prima facie showing of endangerment and denied her motion for sole legal custody.

D E C I S I O N

Our review of custody determinations is limited to "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). We must sustain the trial court's findings unless they are clearly erroneous, but in reviewing questions of law we need not defer to the trial court. Id.

For a parent whose custody is limited only by visitation rights, removal is presumptively appropriate and may be granted without an evidentiary hearing in the absence of a prima facie showing against removal by the noncustodial parent. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).(1) Under Silbaugh, a parent opposing removal can defeat the presumption by showing either that removal would endanger the child and is not in the child's best interests or that the removal is intended to interfere with visitation.(2) Silbaugh, 543 N.W.2d at 641.

Endangerment. If true, appellant's affidavit, which depicts a troubled relationship between respondent and A.R., raises concerns about the children's emotional health and well-being and cannot be disregarded.(3) Ross v. Ross, 477 N.W.2d 753, 755-56 (Minn. App. 1991) (party moving for modification has burden of presenting a prima facie case of endangerment but "hearings are strongly encouraged where allegations are made of present endangerment to a child's health or emotional well being"); Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990) (allegations of physical or emotional abuse deserve special attention); Benson v. Benson, 346 N.W.2d 196, 198 (Minn. App. 1984) (prima facie proof is proof that will support a finding if evidence to the contrary is disregarded); see also Downey v. Zwigart, 378 N.W.2d 639, 642 n.1 (Minn. App. 1985) (noting similarity of standards for motions to remove and motions to modify custody). Taking into account the gravity that assertions of endangerment have been afforded, we conclude that a prima facie case has been established and that appellant is entitled to an evidentiary hearing on this issue.

Change of Legal Custody. Appellant also contends that because he is opposing removal for religious reasons, he is entitled to an evidentiary hearing. In Auge, the supreme court placed the evidentiary burden on the party objecting to removal. 334 N.W.2d at 399-400. As appellant suggests, the circumstances presented here are unique; the move to Boston will result in a termination of appellant's role in the children's religious education, functionally resulting in modification of the joint legal custody arrangement established by stipulation of the parties. The significance of this consideration is signaled by the trial court's refusal to modify the judgment on joint legal custody. Because this motion for a significant alteration of the joint custody agreement was brought within one year from when the decree was entered, the governing statute permits the change only if continuation of the present arrangement endangers the child. Minn. Stat. § 518.18 (1996) (prohibiting change of custody within one year of decree unless parties agree or endangerment is shown). Given the occurrence of change of custody, with or without removal of the children, we conclude that the case cannot be resolved without an evidentiary hearing in which each party has a burden of proof, appellant on the danger of moving and respondent on the danger in denying a move as an attempt to preserve appellant's role in the religious instruction of the children.(4)

Interference with Visitation. Pointing to respondent's long-term employment in a company owned by her uncle, appellant also claims that respondent's transfer to Boston is an attempt to deprive him of visitation, which if true, would preclude removal. Minn. Stat. § 518.175, subd. 3 (1996).

The trial court was clearly disturbed by the close proximity between respondent's job transfer and the party's divorce, as evidenced by the following remarks:

It does seem disingenuous to me that on December 30, 1997, less than 90 days ago, these parties entered into an agreement which was formulated into a court order dissolving their marriage which provided for joint legal custody and custody to Ms. Ritari with substantial visitation by Mr. Ritari, and here we are 90 days later and suddenly she has this marvelous job offer to go to Boston made to her by her uncle or her uncles' company. It sounds like * * * sandbagging to me.

Despite respondent's contention that she was offered an executive position that would result in a substantial pay increase and that no similar opportunity for career advancement was available in the Minneapolis office, on this record we share the trial court's concern. Noting the inconsistencies presented in these circumstances, we are persuaded that the inferences that can be drawn from this evidence require an evidentiary hearing.

Because appellant has established a prima facie case on all three of the grounds that he has asserted, there is cause for a hearing on his petition.

Reversed and remanded.

1. Appellant has "Time with the Minor Children," not otherwise characterized in the judgment, every second weekend, every Wednesday evening, plus specified holidays and three weeks in the summer. Silbaugh dealt with "liberal" visitation contacts. Appellant characterizes his caretaking rights as "substantial," but they are not equal to respondent's rights, or nearly so, and are not tantamount to a joint physical custody arrangement. Thus, this case does not require our determination on the breadth of application of Silbaugh. See Hegerle v. Hegerle, 355 N.W.2d 726, 731 (Minn. App. 1984) (holding that presumption favoring removal had no logical bearing on a case of joint physical custody where the parties were "equally involved with the child's care"); see also Minn. Stat. §§ 518.175, subd. 5, 518.18 (permitting substantial restriction of visitation and custodial rights (respectively) that do not endanger the children).

2. Appellant does not question that his burden under Silbaugh, when applied, is to prove endangerment. Cf. Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983) ("hold[ing]" that "[m]otions by the custodial parent to permit removal to another state shall be granted unless the party opposing the motion establishes by a preponderance of the evidence that the move is not in the best interests of the child"); Ayers, 508 N.W.2d at 518-20 (for designated joint custodian who had only visitation contacts during the school year, affirming denial of removal premised on best interests of child).

3. We note that appellant has not specifically cited examples of endangerment with regard to the other children. Nevertheless, danger to one sibling may be determinative on the placement of all of the children because the law recognizes the interest of children in maintaining a relationship with each other. Sefkow v. Sefkow, 427 N.W.2d 203, 215 (Minn. 1988).

4. If neither or both positions are sustained, we envision the necessity to decide the case consistent with the fundamental, underlying obligation of the court to act for the best interests of each of the children. Minn. Stat. § 518.18 (1996).