In re Lowell David Jensen, petitioner, Respondent, vs. Victoria Lynn Jensen, Appellant.

In re Lowell David Jensen, petitioner, Respondent, vs. Victoria Lynn Jensen, Appellant. A04-1282, Court of Appeals Unpublished, February 15, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1282

 

In re Lowell David Jensen, petitioner,
Respondent,
 
vs.
 
Victoria Lynn Jensen,
Appellant.

 

Filed February 15, 2005 Affirmed

Peterson, Judge

 

Washington County District Court

File No. F9992354

 

Sean P. Stokes, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN  55082 (for respondent)

 

Gregory J. Schmidt, Gregory J. Schmidt Law Offices, P.A., 510 Spruce Tree Center, 1600 University Avenue West, St. Paul, Mn  55104; and

 

Jack D. Nelson, 1563 Portland Avenue, St. Paul, MN  55104 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this child-custody dispute, appellant-mother Victoria Jensen argues that the district court (1) incorrectly ruled that mother failed to make a prima facie case for modification of custody; and (2) incorrectly based an award of compensatory parenting time to respondent-father Lowell Jensen on the theory of "passive interference."  We affirm. 

FACTS

The Jensens dissolved their marriage in 1999 and agreed to share legal and physical custody of their two children.  The custody agreement specified that the children would spend alternating weeks with each parent.  According to an affidavit submitted by mother in support of her motion, as of October 2003, the children no longer desired to spend alternating weeks with father, and both children refused to accommodate the parenting schedule as of February 2004.  The parties attempted to mediate the issue in January 2004, but reached no agreement.  The children are now 12 and 13 years old.

            In the context of other disputes not related to this appeal, mother sought an order modifying physical custody of the children so that, instead of alternating weeks, father would have the children on alternating weekends.  Mother also sought modification of child support to an amount consistent with the new physical-custody arrangement.  In support of her motion, mother stated that "[t]he children's strong preference and need for ongoing stability prompted [her] to bring this motion," and asserted that the children had been fully integrated into her home with father's knowledge and consent. 

            Father filed a responsive motion for an order denying mother's motion and seeking compensatory parenting time.  In his supporting affidavit, he denied that the children had been integrated into mother's home with his consent and asserted that mother had not met the statutory requirements for a modification of custody.  He also alleged that mother was not allowing him to see the children for his parenting time.

            Mother filed a responsive affidavit in which she stated that she had not encouraged or coached the children to stop staying with their father and that she had not denied him access to them.  She also alleged that his behavior was causing "damage" to his relationship with the children.  At a hearing before the district court, mother's attorney contended that the "very strong preferences" of the children to live with their mother, along with their stress and anxiety, constituted endangerment under the custody-modification statute. 

            The district court denied mother's motion to modify physical custody, stating that she had not presented a prima facie case to support modification of the existing arrangement.  The court granted father's motion for compensatory parenting time, stating that mother's making the children available for visitation but refusing to make them go did not satisfy her responsibilities under the dissolution judgment to (1) "present a unified front on the handling of any problems with the child[ren]" and (2) not allow the children to be "placed in the position to manipulate one parent against the other."  The court also ruled on several issues that have not been appealed.

D E C I S I O N

I.

Our 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 must submit an affidavit that asserts facts sufficient to support the requested modification.  Minn. Stat. § 518.185 (2002); In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002).  To establish a prima facie case and obtain an evidentiary hearing, a party moving for an endangerment-based custody modification must establish four elements: 

(1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child's present environment endangers her physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.

 

Geibe, 571 N.W.2d at 778; see Minn. Stat. § 518.18 (d) (2002) (stating relevant factors when considering motions for an endangerment-based custody modification).  The affidavit must show the present endangerment of the child.  See Minn. Stat. § 518.18 (d)(iv) (requiring analysis of the child's "present environment").

When evaluating the relevant factors, a district court must accept the moving party's affidavits as true.  Geibe, 571 N.W.2d at 777.  "[A]llegations need not be corroborated with additional independent evidence."  Griese v. Kamp, 666 N.W.2d 404, 408 (Minn. App. 2003), review denied (Minn. Sept. 24, 2003).  If the affidavit does not provide sufficient grounds for modification, the district court should deny an evidentiary hearing.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).  But when a factual dispute exists regarding whether the present environment endangers the child, an evidentiary hearing is justified.  Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn. App. 1991).  Generally, the child's expressed preference is "not sufficient evidence of endangerment to require an evidentiary hearing."  Geibe,571 N.W.2d at 779.  But cf. Ross v. Ross, 477 N.W.2d 753, 754-56 (Minn. App. 1991) (child's preference, when combined with evidence that emotional distress had been alleviated by child's decision to move in with non-custodial parent, established prima facie case for modification).  "Endangerment requires a showing of a ‘significant degree of danger,' but the danger may be purely to emotional development."  Geibe, 571 N.W.2d at 778 (quoting Ross, 477 N.W.2d at 756).

Mother's appeal focuses on her claim that her affidavits contain "substantial and numerous examples of the kind of conduct on the part of respondent that is prima facie detrimental to the mental health of the children, and thus, an endangerment."  She provides the following as examples of father's endangering behavior: his refusal to return the children's belongings, his refusal to agree to allow them to travel, his threats to call police to compel them to return to his home, verbal harassment, and ignoring them when they knocked on his door.  Assuming these allegations to be true, they do not demonstrate a significant degree of danger to the children's emotional health or emotional development.    

Therefore, because mother's affidavit does not allege facts sufficient to sustain a finding that continuing to spend alternating weeks with father would endanger the children, the district court did not abuse its discretion by denying mother's modification motion without an evidentiary hearing.

II.

The district court has extensive discretion in deciding parenting-time issues and we will not reverse its decision absent an abuse of that discretion.  Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001).  Minn. Stat. § 518.175, subd. 6(b) (2002), states that "[i]f the court finds that a person has been deprived of court-ordered parenting time, the court shall order the parent who has interfered to allow compensatory parenting time to the other parent or the court shall make specific findings as to why a request for compensatory parenting time is denied." 

            Mother focuses on the district court's use of the term "passive interference" to describe her actions, and contends that such actions cannot trigger a grant of compensatory parenting time under Minnesota law.  The entire context of the district court's discussion of mother's duties is as follows:

Respondent has argued that she has not interfered with Petitioner's parenting time but has "made the children available for visits."  At the same time, Respondent states, "I have not, and will not, force them to go."  Under the terms of the Judgment and Decree, this does not satisfy Respondent's responsibilities.  Respondent agreed, and the Court ordered, that each parent has the responsibility to "present a unified front on the handling of any problems with the child[ren]," and that the children would not be "placed in the position to manipulate one parent against the other."  . . .  The Court also notes that, based on sound public policy, it is contrary to the laws of Minnesota to cede to children the responsibility and authority to decide when and how to modify the judicially determined physical custody and parenting time rights of their parents.  Moreover, it would be contrary to the children's best interest for Respondent to continue with this passive interference instead of taking reasonable steps to motivate the children to respect and abide by the custody and parenting time arrangement that Respondent herself requested as part of the MTARespondent should not force Petitioner to resort to law enforcement officers to have the parenting time to which he is entitled by the parties' MTA and the Judgment and Decree of this Court.

 

(Footnote omitted; alteration in original.)  The district court did not, as mother contends, simply grant compensatory parenting time "without critical analysis" under the language of the remedies subdivision of the parenting-time statute.  It interpreted the statute's requirement of "denial of or interference with court-ordered parenting time" in light of the custody and visitation provisions of the dissolution judgment.  Minn. Stat. § 518.175, subd. 6(a) (2002).

            Mother argues that the statutory language requires an affirmative act on her part to deny father his allotted parenting time to justify a grant of compensatory parenting time and that the reported cases ratify this theory.  But she does not analyze those cases in light of the affirmative responsibilities placed upon her by the dissolution judgment.  Under the judgment, it is not enough for mother to simply present the children and allow them to decide whether they will go with father; she has the additional responsibility to present a unified front with father with respect to honoring the terms of the judgment.  We conclude that the district court did not abuse its discretion by granting compensatory parenting time to father based on mother's failure to satisfy her responsibilities under the dissolution judgment for handling problems with the children.

Affirmed.