Christopher Dean Townsend, petitioner, Appellant, vs. Jennifer Amy Townsend, n/k/a Jennifer Amy Baumeister, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

Christopher Dean Townsend, petitioner,

Appellant,

vs.

Jennifer Amy Townsend, n/k/a Jennifer Amy Baumeister,

Respondent.

Filed March 20, 2001

Affirmed

Hennepin County District Court

File No. DC194781

Melvin J. Peterson, Jr., 11431 97th Place North, Maple Grove, MN  55369 (for appellant)

Elizabeth V. Larson, Carr & Mankey, P.A., 5100 Eden Avenue, Suite 306, Edina, MN  55436 (for respondent)

            Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

R. A. RANDALL, Judge

            Appellant challenges the order granting respondent's motion to remove the parties' child to California and the district court's failure to hold an evidentiary hearing.  We affirm. 

            The stipulated judgment dissolving the parties' marriage awarded them joint physical custody of their child and ruled that the child would live with appellant Christopher Townsend during the summer and with respondent Jennifer Baumeister during the rest of the year.  Later, Baumeister sought to move the child's residence to California.  Townsend moved for sole physical custody of the child.  The district court, without an evidentiary hearing, granted Baumeister's motion to move the child.  It also ruled that Townsend failed to make a prima facie case of endangerment and denied his motion to modify custody.  Townsend appeals.

            We reject Townsend's challenge to the portion of the order granting removal.  The stipulated but unequal custodial time does not preclude the existence of joint physical custody.  See Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993) (stating "[j]oint physical custody does not require an absolutely equal division of time" and that stipulated custody provisions are given "a good deal of deference") (quotation omitted).  Nor is joint physical custody precluded by the fact that Townsend and the child will live in different states.  See Lees v. Lees, 404 N.W.2d 346, 350 (Minn. App. 1987) (stating, if joint-physical custodian's motion to remove child from state is denied and movant still leaves the state, custody "will not necessarily change") (quotation omitted); Hegerle v. Hegerle, 355 N.W.2d 726, 730-32 (Minn. App. 1984) (affirming ruling that denied joint-physical custodian's motion to remove child but retained her status as joint-physical custodian and adjusted her access to child after move out of state).

            Here, the district court found that if the child moved to California and if Baumeister's proposed changes to the visitation schedule were adopted, (a) Townsend "would have at least as much time with [the child] as he has at present[;]" and (b) the child could still spend summers with Townsend.  Townsend did not show these findings to be clearly erroneous.  See Minn. R. Civ. P. 52.01 (stating findings not set aside unless clearly erroneous); Ayers, 508 N.W.2d at 521 (requiring review of record in light most favorable to district court's findings).  That Townsend will spend about as much time with the child under the new visitation schedule as under the old schedule shows that Townsend can continue in what the parties stipulated was joint physical
custody.  It also means Baumeister's motion to remove the child's residence to California is not a motion to modify custody, but a motion to modify visitation.[1]

            Visitation "shall" be modified whenever it would be in the child's best interests to do so.  Minn. Stat. § 518.175, subd. 5 (1998).  Visitation decisions are reviewed for an abuse of discretion.  Manthei v. Manthei, 268 N.W.2d 45, 46 (Minn. 1978).  Here, the district court did not explicitly find the visitation modification to be in the child's best interests, but it did find that (a) Townsend did not show that the move to California was contrary to the child's best interests or would interfere with his access to the child; (b) Townsend would have "at least" as much time with the child after the move as he does now; (c) Townsend's life was "less stable" after the dissolution and only recently became "less chaotic"; (d) Baumeister "has provided continuity and stability" for the child; and (e) the "only information" Townsend gave suggesting problems in Baumeister's home "dates back to 1993."  These findings show that letting the child move to California is consistent with the child's best interests because there is no harm to the child in letting the child move and because the move will allow the child to stay in Baumeister's stable care.  See Geibe v. Geibe, 571 N.W.2d 774, 780 (Minn. App. 1997) (stating "Minnesota law rests on a presumption that stability of custody is in a child's best interests"); McCabe v. McCabe, 430 N.W.2d 870, 872 (Minn. App. 1988) (recognizing importance of child's emotional and psychological stability underlies best-interests factors of Minn. Stat. § 518.17, subd. 1(a)), review denied (Minn. Dec. 30, 1998).[2]

            Whether to deny a motion to modify custody without an evidentiary hearing is discretionary with the district court.  Geibe, 571 N.W.2d at 778.  Under Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471 (Minn. 1981) and its progeny, an evidentiary hearing on an endangerment-based custody-modification motion under Minn. Stat. § 518.18(d)(iii) (1998) need occur only if the moving party makes a prima facie case for modification.  Lutzi, 485 N.W.2d at 316.[3]  A prima facie case for modification under Minn. Stat. § 518.18(d)(iii) includes a prima facie case that the child's custodial environment endangers the child.  Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).  Endangerment is a "significant degree of danger."  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  Here, the district court found that Townsend failed to make any showing that removal would endanger the child.  Lack of a prima facie showing of endangerment precludes modification of custody.  See Niemi v. Schachtschneider, 435 N.W.2d 117, 119 (Minn. App. 1989) (concluding lack of endangerment fatal to custody modification).

            Townsend's affidavit supporting his motion to modify custody alleged improprieties in the custodial environment at Baumeister's home.  The district court must take these factual allegations as true.  Nice-Petersen, 310 N.W.2d at 472.  While the district court must disregard any directly contrary statements in Baumeister's submissions, it "may take note of statements in [the nonmoving party's submissions] that explain the circumstances surrounding the accusations."  Geibe, 571 N.W.2d at 779 (citation omitted).  Here, Baumeister's affidavit explained the allegations in Townsend's affidavit, except the allegation that leaving the child in Baumeister's custody was "not optimal" for the child.  Alleging a lack of "optimal" circumstances for a child is not the same as alleging the "significant degree of danger" Ross requires to support a motion to modify custody.  Townsend did not make a prima facie case of endangerment.  Thus, the denial of Townsend's motion to modify custody is not defective for the lack of evidentiary hearing.

            We need not address Townsend's claim that the modification decision is flawed because the district court did not consider the child's custodial preference under Minn. Stat. § 518.17, subd. 1(a)(2) (1998).  Townsend did not establish a prima facie case of endangerment.

            Townsend alleges the district court conditioned his visitation on his obtaining a consistent job and consistent housing.  We can find neither restriction in the district court's order.  Thus, we are unable to address this claim.

            Affirmed.

[1] We reject the argument that the district court erred by allowing Baumeister to remove the child based on the presumption in Auge v. Auge, 334 N.W.2d 393, 397 (Minn. 1983).  It is not clear whether Baumeister received the benefit of the Auge presumption.  Moreover, as noted above, the record supports the removal.

[2] This analysis addresses Townsend's claim that the findings are inadequate to show consideration of the child's best interests.  Cf. Lees, 404 N.W.2d at 351 (stating findings on all best-interests factors not required if consideration of child's needs and all statutorily required factors is implicit in existing findings).

[3] Under Minn. Stat. § 518.18(e) (1998), the custody modification standard in Minn. Stat. § 518.18(d) applies to motions to modify joint physical custody unless the parties agreed in writing to a different standard or the party seeking modification requests to move the child to a different state.  These parties have not agreed to a different standard.  And Baumeister, while the party seeking to remove the child to another state, is not the party seeking to modify custody.