Pamela Diane Dyrhaug, f/k/a Pamela Diane Krogseng, n/k/a Pamela Diane Paige, petitioner, Respondent, vs. Kevin John Dyrhaug, Appellant.

Pamela Diane Dyrhaug, f/k/a Pamela Diane Krogseng, n/k/a Pamela Diane Paige, petitioner, Respondent, vs. Kevin John Dyrhaug, Appellant. A04-1702, Court of Appeals Unpublished, June 21, 2005.

This opinion will be unpublished and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

A04-1702

 

 

Pamela Diane Dyrhaug,

f/k/a Pamela Diane Krogseng,

n/k/a Pamela Diane Paige, petitioner,

Respondent,

 

vs.

 

Kevin John Dyrhaug,

Appellant.

 

Filed June 21, 2005

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. DC 255926

 

 

Pamela Diane Paige, 1517 Winfield Avenue, Colorado Springs, CO 80906 (pro se respondent)

 

Mark A. Olson, Olson Law Office, 2605 East Cliff Road, Burnsville, MN 55337 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Kevin Dyrhaug appeals from district court orders that rejected his petition for a writ of habeas corpus, granted Pamela Paige's motion to change their children's residence from Minnesota to Colorado, and denied Dyrhaug's remaining motions to find Paige in contempt, modify custody, and order attorneys' fees.  Because the district court applied the proper legal standards and did not abuse its discretion in determining the motions, we affirm.

F A C T S

A July 2000 district court judgment dissolved Kevin Dyrhaug and Pamela Paige's sixteen-year marriage.  Two children, a daughter, now age 15, and a son, now age 13, were born during the marriage.  The dissolution judgment provided for joint legal custody and granted Paige sole physical custody subject to Dyrhaug's reasonable parenting time to be exercised on alternating weekends and during midweek visits.

Approximately three years after the dissolution, Paige and Dyrhaug stipulated to a modification of the judgment that granted Paige sole legal and physical custody of both children.  The district court modified the judgment to incorporate the stipulation and included the agreement that Dyrhaug would have "no parenting time" except for periodic visits as determined by the children and on alternating holidays.  The modified judgment included a provision that "[n]either party shall move the residence of any minor child of the parties from the State of Minnesota except upon order of the [c]ourt or with the consent of the other party."

According to an affidavit submitted by Paige, she took the children to Colorado in May 2003 for an extended vacation during which she investigated the possibility of moving to Colorado Springs.  While in Colorado she became engaged to be married, established a new job, and enrolled the children in a local school.  Paige alleges that Dyrhaug initially consented to the children's move to Colorado.  Dyrhaug denies giving consent.

The children returned to Minnesota for Dyrhaug's parenting time at Thanksgiving in 2003.  According to Dyrhaug's affidavit, his daughter told him that in Colorado she was not doing well at school, was spending time with "the wrong crowd," was pressured by her peers to "smoke pot," was enduring household fights and verbal abuse, and wanted to remain in Minnesota.  Although the son returned to Colorado after the Thanksgiving holiday, the daughter remained in Minnesota and began attending a Minnesota school.  In December 2003 an uncle, with Paige's permission, took the daughter out of school and drove her to the airport for a prearranged flight to Colorado.

After the daughter returned to Colorado, Dyrhaug petitioned for a writ of habeas corpus to compel Paige to produce the children in court "for the purpose of transferring their custody to [Dyrhaug]."  A referee recommended against issuance of the writ, and this recommendation was subsequently confirmed by the district court.  Following the recommendation, Paige made a motion to change the children's residence to Colorado.  In response, Dyrhaug moved for a finding of contempt against Paige, an order vacating Paige's sole legal custody, an evidentiary hearing on the transfer of physical custody, and attorneys' fees.

Paige and Dyrhaug submitted numerous affidavits and legal memoranda, and the court appointed a guardian ad litem to conduct a custody study.  Based on the submitted evidence and argument, the district court denied Dyrhaug's motion to modify custody and to find Paige in contempt.  The court granted Paige's motion to change the children's residence to Colorado.  The guardian ad litem's report stated that she met with both children in Minnesota and in Colorado.  The guardian reported that both children were initially unhappy when they learned they were staying in Colorado, but both had adjusted and independently stated that they preferred to reside in Colorado.  The guardian also reported that during the interviews both children stated that Paige encourages their relationship with Dyrhaug. 

Dyrhaug appeals, challenging (1) the order allowing Paige to change the children's residence to Colorado, (2) the denial of his motion to modify custody, (3) the denial of his petition for a writ of habeas corpus, and (4) the denial of his motion for attorneys' fees.

D E C I S I O N

I

Under Minn. Stat. § 518.18(d) (2004), parents are presumptively entitled to remove from Minnesota the children in their sole physical custody.  Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983) (holding Minn. Stat. § 518.18(d) creates an implicit presumption that removal is permitted when one parent has sole physical and legal custody); see also Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983) (extending Auge to instances when one parent has sole physical custody and parents share joint legal custody).  To defeat this presumption, the party opposing removal must offer evidence that would establish that (1) removal is not in the best interests of the child and would endanger the child's health and well-being or (2) removal is intended to interfere with visitation.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  Unless the parent opposing removal "‘can make a prima facie showing against removal, permission to remove may be granted without a full evidentiary hearing.'"  Id. (quoting Auge, 334 N.W.2d at 396).

Dyrhaug argues that residing in Colorado endangers his daughter and that Paige's removal of the children to Colorado was intended to interfere with his parenting time.  The district court concluded that Dyrhaug failed to demonstrate endangerment or intended interference.  Dyrhaug contends that he conclusively demonstrated endangerment based on his daughter's preference to reside in Minnesota and her failing grades and behavioral problems in Colorado. 

The guardian ad litem reported that the daughter said she initially did not want to move to Colorado and made a poor adjustment to the move.  At the time of the guardian ad litem's investigation, however, the daughter had changed her position and affirmatively wished to remain in Colorado.  A progress report from her school demonstrated a markedly improved academic performance.  As recognized in Silbaugh, "[a]ny geographic change inevitably creates some anxiety for children, but evidence of the disruption typically associated with such a move is not sufficient to overcome the . . . presumption that removal is in the best interests of the children."  Id. at 642.  Because Dyrhaug's assertions at most show that his daughter initially suffered from anxiety and the effects of disruption associated with moving to another state, the district court did not abuse its discretion in finding that Dyrhaug failed to demonstrate endangerment.

Dyrhaug also contends that he demonstrated that Paige's intent in removal was to frustrate his parenting time.  Under the stipulated modification to the dissolution judgment, Dyrhaug has parenting time at holidays and whenever the children wish to see him.  The guardian ad litem reported that both children stated that "their mother encourages and supports their relationship with their father."  Paige's affidavit states that her move to Colorado was motivated by her interest in remarrying, living near extended family, and taking a new job.  Based on this record, we cannot say that the district court abused its discretion in finding Dyrhaug failed to demonstrate intended interference.

Dyrhaug further argues that this court should conclude that removal of a child from Minnesota in violation of a provision in a dissolution judgment is sufficient to overcome the statutory presumption and to require an evidentiary hearing.  After careful review, we have found no substantive law to support this position, and Dyrhaug has cited none.  Contrary to Dyrhaug's assertion, the overwhelming consideration in a child-custody dispute is the child's best interests.  Ryg v. Kerkow, 296 Minn. 265, 266, 207 N.W.2d 701, 703 (1973). 

The district court found that it was in the children's best interests to remain in Colorado with Paige.  This finding is fully supported by the record, particularly by the report of the guardian ad litem.  Dyrhaug does not challenge this finding, but rather argues that Paige "should not be allowed to benefit from her wrongful act" of moving the children prior to obtaining a court order.  We do not condone Paige's peremptory actions that failed to honor her pledge to Dyrhaug to obtain his consent or obtain a court order.  But we affirm the district court's decision because it is based on a well-supported determination of the children's best interests.  See State ex rel. Doucette v. Kraskey, 496 N.W.2d 425, 428 (Minn. App. 1993) (stating that children's bests interests require father to pay child support even when mother attempts to frustrate his parenting time).

II

In reviewing a district court's decision to dismiss a custody-modification petition without an evidentiary hearing, we apply an abuse-of-discretion standard.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).  The parent seeking custody modification must submit an affidavit asserting sufficient justification for the modification.  Minn. Stat. § 518.185 (2004).  To obtain an evidentiary hearing on a custody-modification petition, the moving party must establish a prima facie case that: (1) a change has occurred in the circumstances of the child or custodian, (2) a modification would serve the best interests of the child, (3) the child's present environment endangers his or her physical or emotional health or emotional development, and (4) the harm to the child that is likely to be caused by the change of environment is outweighed by the advantage of change.  Geibe, 571 N.W.2d at 778. 

The district court accepts the facts in the moving party's affidavit as true in determining whether the moving party has established a prima facie case.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  If the moving party's affidavit does not allege facts that, if true, would provide sufficient grounds for modification, the court need not grant an evidentiary hearing.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).

Dyrhaug contends that he demonstrated a prima facie case of endangerment based on his daughter's preference to reside with him in Minnesota and her failing grades and behavioral problems in Colorado.  Endangerment is decided on a case-by-case basis, Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990), and requires a showing of a "significant degree of danger." Geibe, 571 N.W.2d at 778 (quotation omitted).  Generally, the child's expressed "preferences alone do not provide sufficient evidence of endangerment to mandate a hearing."  Id. 

Dyrhaug's affidavit alleges that his daughter was not doing well in school, was receiving mostly "C" and "D" grades, was enduring fights in Paige's household, was spending time with "the wrong crowd," was being pressured by her peers to "smoke pot," and was verbally abused by Paige who did not think she was "good enough."   Dyrhaug's affidavit described the incident when an uncle came to his daughter's school in Minnesota and took her to the airport to return her to Colorado.  Dyrhaug further asserted that his daughter's preference was to remain in Minnesota.

These assertions, taken as true, demonstrate that the daughter had been affected by the move to Colorado and initially struggled with the move, but they do not amount to a showing of a significant degree of danger.  The district court found that the daughter's situation was not unique for a teenager and concluded that Dyrhaug failed to demonstrate that living with Paige endangers the children.  This conclusion is supported by the guardian ad litem's report.

Because a district court need not grant an evidentiary hearing without a demonstration of endangerment, the district court did not abuse its discretion in denying Dyrhaug's request for custody modification without affording him an evidentiary hearing.  See id. (providing that prima facia case on all four elements, including endangerment, must be demonstrated to require evidentiary hearing).

III

A district court's findings in a habeas corpus proceeding must be sustained if the findings are supported by reasonable evidence.  Tureson v. Tureson, 281 Minn. 107, 112, 160 N.W.2d 552, 556 (1968).  A district court's conclusions of law are reviewed de novo.  See Haefele v. Haefele, 621 N.W.2d 758, 761 (Minn. App. 2001) (stating that this court reviews purely legal issues de novo), review denied (Minn. Feb. 21, 2001).

In evaluating a petition for a writ of habeas corpus, courts effectuate rights of the contending parties if those rights have been fixed by a valid child-custody judgment.  State ex rel. Pappenfus v. Kourtz, 173 Minn. 177, 181, 216 N.W. 937, 939 (1927).  When custody has not been fixed by a valid judgment, the court will consider the best interests of the child to determine custody.  Id.; see also Atwood v. Atwood, 229 Minn. 333, 336, 39 N.W.2d 103, 105 (1949) (stating that court will place best interests of children above rights of either parent); State ex rel. Price v. Price, 211 Minn. 565, 568, 2 N.W.2d 39, 40 (1942) (explaining best interests of children is paramount consideration in habeas corpus proceeding).

Dyrhaug initiated these proceedings to obtain custody of the parties' children based on his allegations that Paige violated the parties' modified dissolution judgment by not delivering the children for his Christmas parenting time, coercing the daughter back to Colorado after she overstayed his Thanksgiving parenting time, and removing the children from Minnesota without consent or court order.  The modified dissolution judgment granted Paige sole legal and physical custody of both minor children and provided that Dyrhaug has "no parenting time" except for periodic visits as determined by the children and on alternating holidays.  The modified dissolution judgment further provided that "[n]either party shall move the residence of any minor child of the parties from the State of Minnesota except upon order of the [c]ourt or with the consent of the other party."

Dyrhaug does not argue in this appeal that the modified dissolution judgment is invalid.  Although the provisions for parenting time and provision for changing the children's residence may have been violated, Paige's physical and legal custody of the children remained valid.  As such, the district court did not err in giving effect to the modified dissolution judgment by denying Dyrhaug's petition for habeas corpus.  See Pappenfus, 173 Minn. at 181, 216 N.W. 937 at 939 (stating that, in habeas corpus proceedings, courts give effect to valid judgment determining custody of child).

Additionally, we find no legal authority, and Dyrhaug has cited none, supporting the assertion that a writ of habeas corpus is an appropriate remedy for violations of a parenting-time order.  Cf. id. (discussing custody in habeas corpus proceeding, not visitation or parenting time).  Even if a habeas corpus proceeding were appropriate, the paramount consideration to determine custody is the best interests of the child.  See State ex rel. Link v. Mason, 179 Minn. 472, 474, 229 N.W. 582, 582 (1930) (concluding, in habeas corpus proceeding, best interests of child trumped father's preferential right to custody); State ex rel. Neib v. Krueger, 143 Minn. 149, 150, 173 N.W. 414, 414 (1919) (concluding that, although legal custody was vested in father, best interests were served by permitting child to remain in custody of grandmother).  The district court properly applied the law, giving effect to the valid judgment and considering the best interests of the children, and did not err in denying Dyrhaug's petition for a writ of habeas corpus.

IV

The factual findings underlying the district court's decision on a contempt motion are subject to reversal only if clearly erroneous, and the contempt decision itself is subject to reversal only if the district court abused its discretion.  Mower County Human Services v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996); Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986).

In exercising civil contempt power in dissolution cases, the district court's objective is to secure compliance with an order presumed reasonable.  Hopp v. Hopp, 279 Minn. 170, 173, 156 N.W.2d 212, 216 (1968).  This power gives the district court "inherently broad discretion to hold an individual in contempt but only where the contemnor has acted contumaciously, in bad faith, and out of disrespect for the judicial process."  Erickson, 385 N.W.2d at 304 (quotation omitted).  "The civil contempt power, by definition, cannot be used to punish a person for past misconduct."  Hopp, 279 Minn. at 175, 156 N.W.2d at 217.  Rather, "the function of the court is to make the rights of one individual as against another meaningful."  Id. at 174, 156 N.W.2d at 216.

Dyrhaug argues that the district court erred in not finding Paige in contempt because she clearly acted in violation of the parties' modified dissolution judgment.  But imposing consequences on Paige for moving the children to Colorado prior to obtaining a court order to change their residence would amount to punishment for past misconduct.  And the district court provided a full opportunity for the parties to participate in the judicial process for determining the merits of the underlying disputewhether custody should remain with Paige or be transferred to Dyrhaug.  For these reasons, we conclude that the district court did not abuse its discretion in denying Dyrhaug's request to find Paige in contempt.

V

Finally, Dyrhaug contends that the district court erred in not ordering conduct-based attorneys' fees.  We will not disturb a determination on a motion for conduct-based attorneys' fees absent a clear abuse of discretion.  Sharp v. Bilbro, 614 N.W.2d 260, 264-65 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  Under Minn. Stat. § 518.14, subd. 1 (2004), a district court can order conduct-based attorneys' fees against a party who unreasonably contributes to the length or expense of the litigation.  Such an allocation may only be based on conduct that occurs during the litigation process.  Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001).

Dyrhaug argues that the district court should have ordered conduct-based attorneys' fees because Paige "interfered with [his] parenting time and unreasonably contributed to the length and expense of these proceedings by removing the children to the State of Colorado."  But the move to Colorado took place prior to litigation and "[f]ailure to comply with a visitation order is not something that occurs as part of court proceedings."  Sharp, 614 N.W.2d at 264.  Because Dyrhaug did not argue or demonstrate before the district court that Paige's conduct during litigation unreasonably contributed to the length or expense of litigation, the district court did not err in denying Dyrhaug's request for fees.

Dyrhaug cites Minn. Stat. § 518.175, subd. 6(c)(3) (2004), as part of his argument for conduct-based attorneys' fees.  This statutory section provides a remedy of attorneys' fees, distinct from Minn. Stat. § 518.14 (2004), for situations in which a parenting-time order is violated.  See Sharp, 614 N.W.2d at 26465 (treating fees under sections 518.175 and 518.14 separately).  To the extent Dyrhaug is raising the issue of attorneys' fees for violations of ordered parenting time, we decline to address the issue because it was not raised before the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that this court will generally consider only matters argued and decided in district court).

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.