In re the Marriage of: William Thomas Calva, Jr., petitioner, Appellant, vs. Devi Chandrani Calva, n/k/a Devi Chandrani Ramphal-Edwin, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1151

 

In re the Marriage of:  William Thomas Calva, Jr., petitioner,
Appellant,
 
vs.
 
Devi Chandrani Calva, n/k/a Devi Chandrani Ramphal-Edwin,
Respondent.

 

Filed March 9, 2004

Affirmed in part and reversed in part

Minge, Judge

 

Dakota County District Court

File No. F2-93-15026

 

 

Marcus P. Beyer, Thomas L. Steffens, Steffens & Rasmussen, 300 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for appellant)

 

Wayne A. Jagow, 350 West Burnsville Parkway, Suite 625, Burnsville, MN 55337 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant father challenges the district court's denial of an evidentiary hearing on his motion to modify custody and the sua sponte transfer of venue of subsequent proceedings.  Because the evidence was insufficient to warrant an evidentiary hearing, the district court did not abuse its discretion in denying the motion.  Because Minn. Stat. § 518D.207 (2002) requires that the district court allow the parties to submit information prior to making a determination on the inconvenient forum issue, the district court erred in transferring venue. 

 

FACTS

 

            Appellant father and respondent mother were residents of Minnesota and divorced in 1993.  They share joint physical and legal custody of their son, M.C., who was born in 1990.  Respondent moved to Arizona in 1994, and appellant subsequently moved to Wright County, Minnesota.  Pursuant to a stipulated order, M.C. was to reside with respondent during the school year and with appellant during the summers, and Dakota County was to have continuing jurisdiction.

            In August 1998, appellant unsuccessfully sought to modify the custody order.  In July 2003, he brought a second motion seeking sole physical custody on several grounds, including alleged abuse and the preference of M.C., now age 13.  The allegations of abuse were based on telephone conversations appellant had with M.C. and a letter M.C. had written.  Respondent submitted an explanation of the alleged abuse and a document from the Arizona Child Protection Services stating that it had investigated the allegation of abuse and found it unsubstantiated. 

            The district court denied appellant's motion for an evidentiary hearing, finding that the allegation of abuse was unsubstantiated and that appellant's other allegations failed to establish a case of endangerment.  At the hearing on the motion, the district court sua sponte raised the issue of the appropriateness of the forum and transferred venue for custody and parenting-time issues to Arizona and all other matters to Wright County, Minnesota.  Appellant appeals both the denial of an evidentiary hearing and the transfer of venue. 

D E C I S I O N

 

I.

 

            In general, this court applies an abuse of discretion standard in reviewing a district court's decision to deny a custody-modification petition without an evidentiary hearing.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).   An evidentiary hearing on a custody-modification motion requires the moving party to make a prima facie case.  Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992).  The party seeking a modification of custody must submit an affidavit asserting the facts on which the motion is based.  Minn. Stat. § 518.185 (2002).  Four elements are required to establish a prima facie case for any endangerment-based modification: (1) a change in the circumstances of the child or custodian; (2) that the child's present environment endangers her physical or emotional health or emotional development; (3) that a modification would serve the best interests of the child; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of the change.  Geibe, 571 N.W.2d at 778; see Minn. Stat. § 518.18(d) (2002).  Although the district court must accept the allegations in the moving party's affidavits as true and although the allegations do not need independent substantiation, the court can consider evidence from other sources that "explain[s] the circumstances surrounding the accusations."  Geibe, 571 N.W.2d at 777, 779.  An evidentiary hearing may be denied when the moving party's affidavits do not provide sufficient grounds to make a prima facie case for modification.  Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987). 

The first task is to determine whether there has been a change in circumstances.  The parties appear to disagree on the date from which the change is assessed.  Appellant argues that the original custody order is the baseline from which the change in circumstances is determined and that in this case all the changes occurred since 1993.  Respondent would limit consideration to change in circumstances since 1998 when the district court entered an order rejecting appellant's prior motion.

            Minnesota statutes indicate that the change in circumstances has to have occurred since the last court order awarding custody.  See Minn. Stat.§ 518.18(d).  This implies that an intervening denial of custody modification is not a point in time from which changed circumstances are measured.  However, caselaw suggests that the circumstances at the time of the denied motion are relevant.  In Phillips v. Phillips, 472 N.W.2d 677, 680 (Minn. App. 1991), this court stated that when a child support modification is sought after a previously denied motion for modification:

[T]he first question is whether the change since the denied motion has been significant enough that it might, because of its incremental effect, require the trial court to examine the cumulative changes since the order setting the support level.  If the changes are weighty enough to meet the above test of potential significance, the trial court must consider the cumulative changes since the prior award/modification order to see if altogether the incremental changes are substantial.

 

While Phillips involves child support, its rationale applies to child custody.  The second argument is based on the concept of res judicata.  In Loo v. Loo, 520 N.W.2d 740, 743 (Minn. 1994), the supreme court found that although parties may always move for modifications based on changed circumstances, earlier rulings on similar motions should be considered and, if appropriate, given preclusive effect.

            In this proceeding, the circumstances existing at the 1998 motion should be considered in deciding whether a hearing is required on appellant's motion.  In his 1998 motion, appellant argued that M.C. wanted to live with him, was performing poorly in school, and was being emotionally and physically abused.  The district court rejected appellant's claim that there had been a change in circumstances between 1993 and 1998 that endangered M.C..  Absent an incremental, substantial character to the alleged problems, the district court in this proceeding could focus on those circumstances alleged to have changed since 1998 to determine if there were adequate grounds to meet the requirements of modifications.

The circumstances currently alleged are the same as in 1998, except in two respects.  First, in 1998, M.C. was eight when he expressed his preference; he is now 13.  A child's preference to live with a different parent may constitute a change in circumstances sufficient to warrant an evidentiary hearing.  Geibe, 571 N.W.2d at 778.  But a stated preference does not, by itself, mandate that the court hold an evidentiary hearing.  Id. 

"The choice of an older teenage child is an overwhelming consideration in determining the child's custody or in deciding whether he is endangered by preserving the custodial placement he opposes."  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  But there is no bright-line rule regarding the age at which the preference becomes an "overwhelming consideration."  Caselaw supports giving consideration to the preference of a 13-year-old.  See Jones v. Jones, 242 Minn. 251, 264, 64 N.W.2d 508, 516 (1954) (noting that a 14- and a 15-year-old were not too young to exercise judgment with respect to custody and that their desires were entitled to consideration); Steinke v. Steinke, 428 N.W.2d 579, 583-84 (Minn. App. 1988) (holding that the district court erred in not giving significant weight to a ten-year-old's preference).  But, in other cases, while still considering a child's preference, courts have refused to allow a younger child's preference to be the only consideration.  See Lundell v. Lundell, 387 N.W.2d 654, 658 (Minn. App. 1986) (finding that the district court did not abuse its discretion in refusing to give preclusive effect to a 12-year-old's preference); Englund v. Englund, 352 N.W.2d 800, 802-03 (Minn. App. 1984) (affirming the district court's denial of custody modification even though the 16-year-old child expressed a preference to live with appellant).  Based on uncertainty regarding the age at which preference is an "overwhelming" consideration, the district court did not abuse its discretion by failing to give preclusive effect to M.C.'s preference when he is only 13, scarcely an "older" teenager.

The second claimed change in circumstance is an alleged abusive incident.  Appellant claims that M.C. was abused when respondent's husband allegedly choked him.  The district court found that the claim of abuse was unsubstantiated and did not require a hearing.  Endangerment is decided on a case-by-case basis.  Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).  It requires a "significant degree of danger," which includes danger purely to emotional development.  Geibe, 571 N.W.2d at 778 (quotation omitted).  A single incident of borderline abuse or neglect does not constitute a sufficient degree of endangerment to require a hearing to justify custody modification.  Id. at 779.

Here, appellant's claim of abuse is not based on any firsthand knowledge, and respondent provided the court with both an explanation of the incident, placing the incident into context, and a finding by the Arizona Child Protection Services that the abuse claim was unsubstantiated.  The district court did not abuse its discretion when it found that this alleged incident was insufficient to constitute a change in circumstance.  See Krogstad v. Krogstad, 388 N.W.2d 376, 383 (Minn. App. 1986) (upholding the district court's denial of the party's motion for failure to make out a prima facie case based, in part, on its consideration of a court services study).  Furthermore, even if the stepfather's grabbing of M.C. to discipline him was harsh in nature, it was not an abuse of the district court's discretion to find that it did not warrant a hearing.  

Appellant's other allegations, even if true, also are insufficient to establish a prima facie case of endangerment.  Other indications of endangerment include behavioral problems and poor school performance.  In re Weber, 653 N.W.2d 804, 811 (Minn. App. 2002).  But in order to establish danger to a child's welfare, a parent's conduct must be shown to result in an actual adverse effect on the child.  Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994).  A district court may properly deny an evidentiary hearing where the affidavit in support of a modification of custody "[is] devoid of allegations supported by any specific, credible evidence."  Axford, 402 N.W.2d at 145. 

While appellant presented evidence that M.C. is below average in reading, he is performing well in other subjects.  Although appellant argues that respondent has failed to get M.C. assessed for a learning disability, the record unequivocally shows that respondent has taken M.C. for treatment of Attention Deficit Disorder, suggesting that she is actively participating in M.C.'s educational needs.  Appellant offers no evidence that respondent's different ideas on treatment and education are the cause of M.C.'s poor reading performance, that M.C.'s other problems are caused by respondent's actions, or that M.C. is isolated from respondent's family and is excessively disciplined.  Viewing the allegations in appellant's affidavits as true, the district court did not err when it found that given the context, appellant did not establish a level of endangerment that required an evidentiary hearing. 

Because the change in circumstances is not significant and because there is no endangerment, we do not need to address whether a modification is in M.C.'s best interests or whether the harm to him likely caused by a change in environment is outweighed by the advantage of the change.

II.

The district court transferred venue of future custody and parenting-time disputes to Arizona because M.C. resides primarily in Arizona and neither party resides in Dakota County.  It transferred venue for all other matters to Wright County.  Appellant objects to the transfer of venue based on the parties' 1996 agreement.  The stipulation reads as follows:

The State of Minnesota, County of Dakota . . . shall remain the Court of Jurisdiction for any matters relating to . . . the Judgment and Decree . . . .  In no event without the mutual consent of the parties and the Court shall the venue or jurisdiction be changed in this matter . . . .  Arizona shall not have jurisdiction in this matter and the legal residence of the parties' minor child shall remain the State of Minnesota now or in the future unless mutually agreed to by the parties and this Court.

 

The issue is whether the district court erred in disregarding the parties' agreement and transferring venue when the agreed-to venue may no longer be proper. 

            First, it must be noted that the parties' agreement cannot absolutely bind the district court.  The best interests of the child is always a consideration in child custody and child support cases, and are more important than the wishes of the parties.  Diedrich v. Diedrich, 424 N.W.2d 580, 583 (Minn. App. 1988).  Further, under Minnesota and federal law, the district court acted properly in considering transferring venue when neither party lives in Dakota County and Arizona has more significant contacts.  The Uniform Child Custody Jurisdiction and Enforcement Act, Minn. Stat. § 518D.101-.317 (2002), and the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (2002), establish what court has proper jurisdiction in child-custody determinations and recognize that proper jurisdiction may change.  Dissolution statutes also suggest that jurisdiction can be changed irrespective of the parties' agreement.  Minn. Stat. § 518.09 (2002) establishes that dissolution proceedings are to be brought in "the county where either spouse resides" but grants the court discretion to change venue when "it appears to the court that an impartial hearing cannot be had in the county where the proceedings are pending, or when the convenience of the parties or the ends of justice would be promoted by the change." 

            Minn. Stat. § 518D.207(a) (2002) recognizes that the district court can transfer venue to a more convenient forum upon motion of a party, the court's own motion, or request of another court.  Minn. Stat. § 518D.207(b) mandates, however, that the district court shall allow the parties to submit information on eight factors that bear on the venue issue and shall consider those factors.  Further, the statute dictates that if the court determines that another court is more appropriate, "it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state . . . ."  Minn. Stat. § 518D.207(c). 

Here, the district court sua sponte raised the issue of transferring venue for the first time at the motion hearing itself.  While the parties were given the opportunity at that hearing to present arguments on the issue, no notice was given allowing them to prepare for consideration of the issue or to submit information prior to the hearing.  The district court did not stay the proceeding; rather, it transferred the case after fully deciding its own motion.  Based on the statute, the district court erred in not first notifying the parties of its intent to address the issue.  This is especially important in considering the stipulation of the parties.  Furthermore, we note that if a venue change was appropriate, the statute indicates that the district court should have stayed the proceeding and allowed it to be heard in Arizona.  We therefore reverse the district court's transfer of venue as it pertains to Arizona. 

            Child custody and marriage dissolution proceedings can be brought in and maintained in separate venues.  See Minn. Stat. § 518D.207(d) (granting courts the power to decline to exercise jurisdiction in child custody determinations while still retaining jurisdiction over marriage dissolutions); Berc v. Berc, 407 N.W.2d 131, 134 (Minn. 1987) ("When one party resides or is domiciled in a state other than the state in which the other party and the children are domiciled, the dissolution may be heard in one state and custody in another.").  Because the issues transferred to Wright County are not covered by the requirements of Minn. Stat. § 518D.207 and are instead covered by the more general venue provisions of dissolution proceedings in Minn. Stat. § 518.09, we affirm the transfer of venue to Wright County.

            Affirmed in part and reversed in part.