In re the Marriage of: Martin R. Wegner, petitioner, Appellant, vs. Tamara J. Wegner, n/k/a Tamara J. Wall, Respondent.

In re the Marriage of: Martin R. Wegner, petitioner, Appellant, vs. Tamara J. Wegner, n/k/a Tamara J. Wall, Respondent. A04-1928, Court of Appeals Unpublished, April 5, 2005.

This opinion will be unpublished and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

A04-1928

 

In re the Marriage of:

 

Martin R. Wegner, petitioner,

Appellant,

 

vs.

 

Tamara J. Wegner, n/k/a Tamara J. Wall,

Respondent.

 

Filed April 5, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Meeker County District Court

File No. F8-98-922

 

John E. Mack, Mack & Daby, P.A., P.O. Box 302, New London, MN 56273 (for appellant)

 

Tamara J. Wall, 28965 Koronis Drive, Paynesville, MN 56362 (pro se respondent)

 

            Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

 

            Appellant challenges the district court's denial of his custody-modification motion without an evidentiary hearing.  Because the district court did not abuse its discretion, we affirm.

FACTS

 

            Appellant Martin R. Wegner and respondent Tamara J. Wegner, now known as Tamara J. Wall, dissolved their marriage in November 1998.  The couple had two children during the marriage: a son, A.R.W., born on February 23, 1988, and a daughter, E.C.W., born on January 10, 1991.  The parties were awarded joint legal custody of both children, and respondent was awarded sole physical custody of both children with visitation by appellant.  In March 2002, appellant moved for a modification in physical custody of A.R.W.  The district court granted appellant's motion for a custody modification evidentiary hearing and appointed a guardian ad litem to make custody recommendations.  In August 2002, the district court transferred temporary physical custody of A.R.W to appellant.  In April 2003, after an evidentiary hearing and the parties' stipulation, the district court modified the arrangement by awarding appellant permanent physical custody of A.R.W.

            In July 2004, appellant moved to obtain physical custody of E.C.W.  E.C.W. submitted an accompanying affidavit expressing her preferences.  Respondent has remarried and intends to move with E.C.W. from Litchfield to Paynesville.  Respondent plans to keep E.C.W., who is 14 years old, enrolled at Litchfield Middle School and to commute approximately 46 miles round trip per day.  In the affidavit, E.C.W. stated her opposition to the move because of concerns about the commute, disruption in extracurricular activities, and living with two teenage stepbrothers, ages 13 and 15.  She expressed a preference to move in with appellant who lives in Litchfield.  In September 2004, the district court denied appellant's motion to hold an evidentiary hearing regarding custody modification for E.C.W.  Appellant challenges the denial.

D E C I S I O N

 

            Appellant argues that the district court abused its discretion when it refused to conduct an evidentiary hearing on the motion to modify physical custody.  The district court exercises its discretion in determining whether to deny a custody-modification motion without an evidentiary hearing.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).  The moving party must submit an affidavit providing sufficient justification for the modification.  Minn. Stat. § 518.185 (2004); In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002).  To obtain an evidentiary hearing, the moving party must present a prima facie case for an endangerment-based custody modification by establishing 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 his 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.

 

Weber, 653 N.W.2d at 809.

To determine whether the moving party has presented a prima facie case, the district court must accept the assertions in the moving party's affidavit as true.  Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).  The court must grant an evidentiary hearing only if the affidavit's facts, if true, would warrant the hearing.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).  A teenage child's preference in custody arrangements is relevant to three of the four modification factors.  Geibe, 571 N.W.2d at 778.

Change in Circumstances

            To establish a prima facie case, a "change in circumstances must be significant and must have occurred since the original custody order."  Id.  Further, the change in circumstances must threaten the child's physical or emotional health or development.  Weber, 653 N.W.2d at 809 (citing Nice-Petersen, 310 N.W.2d at 472).  The district court found that change in circumstances since the last custody modification was significant because respondent has remarried, E.C.W. and her brother have lived apart for about three years, and respondent plans to move E.C.W. to a neighboring town.  Taken as true, these circumstances constitute significant change.

Best Interests of the Child

            A child's best interests are determined by the factors listed in Minn. Stat. § 518.17 (2004).  Geibe, 571 N.W.2d at 778.  The district court made the following findings on several of the statutory factors: (1) appellant wants custody modification for E.C.W., and respondent wants the arrangement to remain unchanged; (2) E.C.W. prefers to live with appellant to avoid a move to a neighboring town away from her brother A.R.W.; (3) respondent has been E.C.W.'s primary caretaker during the last six years since the marriage dissolution; (4) E.C.W. is close to both of her parents; (5) E.C.W. likes her stepfather but is concerned about living with her new stepsiblings; (6) E.C.W. has spent most of her life in Litchfield and participates in school and church activities; and (7) both parties can give E.C.W. love, affection and guidance, and E.C.W. will continue to be enrolled in her present school.  Upon weighing these factors, the district court reiterated that E.C.W.'s close relationship with respondent along with the fact that she will remain enrolled in her present school favor keeping the physical custody unmodified.

As appellant argues, E.C.W.'s expressed preference to live with appellant is the factor that weighs most heavily in favor of modifying physical custody.  Respondent does not dispute that E.C.W. expressed a preference to live with appellant.  E.C.W.'s preference appears to stem from anxieties about moving to a neighboring town and the new family arrangement.  But a child's preference is only one factor among many used to determine a child's best interests.  See Lundell v. Lundell, 387 N.W.2d 654, 658 (Minn. App. 1986) (no abuse of discretion for refusing to follow the child's preference due to other factors).

Appellant further contends that because the district court granted an evidentiary hearing on the motion for custody modification of A.R.W., it should have similarly granted an evidentiary hearing for E.C.W.'s motion.  But the district court's findings of fact in A.R.W.'s custody-modification case indicate that A.R.W. and respondent had developed a tense relationship that included frequent arguments.  There were also findings that respondent's then boyfriend regularly criticized A.R.W. and his religious beliefs.  Evidence of similar tensions is absent from E.C.W.'s case.  E.C.W.'s affidavit states that she likes respondent's new husband, and the record indicates that respondent and E.C.W. have a good relationship.  Because of the lack of evidence of similar hostilities that were present in A.R.W.'s case, denying an evidentiary hearing for E.C.W. was appropriate.  A review of the record indicates that the district court properly balanced the best interest factors.

Endangerment

            To establish danger to a child's welfare, parental conduct must result in an actual adverse effect on the child.  Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994).  Endangerment of a significant level is required to establish this factor, but the danger may be purely to emotional development.  Geibe, 571 N.W.2d at 778.

Here, the district court stated that appellant "has not shown that the present custodial arrangement in any way endangers the child's physical or emotional health, or emotional development."  An examination of the record supports this finding; no significant endangerment has been shown.  Respondent's conduct is not alleged to have adversely affected E.C.W.'s welfare.  As the district court noted, E.C.W. is apprehensive about moving to a new town and living with two new stepbrothers in a new family arrangement.  This degree of upheaval does not rise to the level of endangerment necessary to support a prima facie case.

            Appellant cites Ross v. Ross, 477 N.W.2d 753 (Minn. App. 1991), to contend that significant weight should be placed on E.C.W.'s expressed preference to live with her father.  In Ross, the child's preference was "an overwhelming consideration" used to prove the endangerment factor.  Id. at 756.  But, as the district court noted, the specific circumstances of the child's situation in Ross contributed to the weight placed on his preference.  There, the teenage child expressed a strong preference to live with his noncustodial parent, moved in with that parent, and suffered emotional distress and diminished school performance because of his custodial parent's anger.  Id. at 754.  But, if none of the other endangerment elements are present, as is the case here, a child's stated preference alone does not establish endangerment.  Weber, 653 N.W.2d at 811. The district court considered E.C.W.'s preference and determined that "[t]he circumstances of this case do not merit treating her preferences as an overwhelming consideration."  The district court did not abuse its discretion by finding no endangerment.

Balance of Harm

            The balance of harm factor requires a showing that the benefit of modifying custody outweighs the harm likely to be caused by the change.  Id.  Stability in custody is presumed to be in the child's best interests.  Id.

The district court found that the "perceived harms" in this case "are speculative."  E.C.W.'s affidavit supports this conclusion.  While E.C.W. fears that her relationship with her brother will deteriorate as a result of the move, the daily commute will interrupt her daily activities, and she will not adjust well to living with her new stepbrothers, these harms are not certain to occur.  Further, while E.C.W. expressed a preference to live with her father, Minnesota custody-modification cases that have endorsed an older child's preference have mostly involved the preference to remain in the present arrangement or return to a previous arrangement.  Id.  Here, E.C.W. has not lived with her father since her parents' divorce.  Because she has lived with respondent for the past six years, preserving that relationship, despite the move, will prolong stability.  Thus, the district court's finding that the balance of harm factor does not favor a custody-modification hearing was not clearly erroneous.

            Because three of the four custody-modification factors demonstrate that an evidentiary hearing is not necessary, the district court did not abuse its discretion by refusing to grant a hearing.

Affirmed.