In Re:  Diane Pelinka, petitioner, Respondent, vs. Richard Pelinka, Appellant.

In Re:  Diane Pelinka, petitioner, Respondent, vs. Richard Pelinka, Appellant. A04-884, Court of Appeals Unpublished, March 15, 2005.

This opinion will be unpublished and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

A04-884

 

In Re:  Diane Pelinka,

petitioner,

Respondent,

 

vs.

 

Richard Pelinka,

Appellant.

 

Filed March 15, 2005

Affirmed
Klaphake, Judge

 

St. Louis County District Court

File No. F9-96-600071

 

Diane Pelinka, 2502 East 2nd Street, Duluth, MN  55812 (pro se respondent)

 

William D. Paul, 1217 East 1st Street, Duluth, MN  55805 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Richard Pelinka challenges the district court's denial of his motion to modify child support and physical custody of his almost-18-year-old daughter.  He argues that the district court abused its discretion by refusing to at least grant him an evidentiary hearing, where he could present uncontradicted evidence that the child no longer lives with her mother, pro se respondent Diane Pelinka, and that the child now lives with him.

            Because appellant made no allegations and presented no evidence to suggest that the child was endangered and because respondent did not consent to the change and made allegations to suggest that appellant may have manipulated and unduly influenced the child's decision to move in with appellant, we affirm the district court's decision denying modification.

D E C I S I O N

            Appellate review of a district court's decision to deny a custody modification motion without an evidentiary hearing is limited to whether the district court abused its discretion.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).  The party seeking modification has the burden of proof and must submit an affidavit asserting facts sufficient to support the requested modification.  Minn. Stat. § 518.185 (2002); In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002).

            A modification motion may not be heard within two years after a prior motion, regardless of how the earlier motion was decided, unless:  (1) the parties agree in writing to a motion hearing at some other time; (2) the court finds there is persistent and willful denial or interference with parenting time; or (3) the court has reason to believe that the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development.  Minn. Stat. 518.18(b), (c) (2002).  Because appellant filed his current motion less than six months after the district court denied a prior motion, he was required to show that one of these circumstances existed.

            Here, none of these circumstances was shown:  the parties did not agree in writing to have a motion hearing, and appellant's motion failed to allege a denial of parenting time or that the present custody arrangement endangered the child's physical or emotional health or impaired the child's emotional development.  Nor can it be alleged that respondent consented to the child's move.  Under these circumstances, the district court did not abuse its discretion in concluding that appellant failed to make a prima facie case for modification of the prior custody order.

            Appellant nevertheless insists that he is entitled to an evidentiary hearing based solely on the fact that "the parties' oldest child, who was more than 17 years old at the time, ran away from [respondent's] home."  A child's preference alone is insufficient to require a change of custody, even though the child is almost 18 years old, particularly when endangerment has not been alleged or shown and when the custodial parent has not consented to the change and has made allegations[1] that suggest the noncustodial parent has manipulated the child and influenced the child's preference.  See Weber, 653 N.W.2d at 810-12 (evidentiary hearing denied when father failed to show it would be in 15-year-old's best interests to change living arrangements, child was not endangered in present living environment, and moving party's permissive parenting and manipulation would harm child); Geibe, 571 N.W.2d at 778-80 (evidentiary hearing denied despite 17-year-old's preference for custody modification, when no endangerment shown).  Under these facts, we cannot conclude that the district court abused its discretion by denying appellant's modification motion without an evidentiary hearing.

            Finally, we note that the district court awarded respondent attorney fees of $700.  Appellant fails to address or otherwise challenge the award in his brief on appeal; issues not briefed on appeal are generally deemed waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  While we need not address the award of attorney fees, we choose to do so and conclude that the award is reasonably supported by findings and was well within the discretion of the district court.  See Minn. Stat. § 518.14 (2002) (providing statutory basis for fees and requiring findings); Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001) (stating decision to award fees discretionary with district court).

            Affirmed.

[1]  In her affidavit opposing modification, respondent acknowledged that the child was living with appellant, but opposed the change of custody for a number of reasons.  In particular, respondent alleged that (1) appellant encouraged the child to not return to respondent's home; (2) the child "has had a difficult adolescence primarily due to [appellant's] refusal to obey Court Orders or cooperate with [respondent] in any way"; and (3) the child prefers to live with appellant because he is more permissive than respondent and allows her to engage in risky behaviors.