In re the Marriage of: Donald Allen Olinger, petitioner, Respondent, vs. Shelley Lynn Beckman, f/k/a Shelley Lynn Olinger, f/k/a Shelley Lynn Hable, Appellant.

In re the Marriage of: Donald Allen Olinger, petitioner, Respondent, vs. Shelley Lynn Beckman, f/k/a Shelley Lynn Olinger, f/k/a Shelley Lynn Hable, Appellant. A04-2363, Court of Appeals Unpublished, June 14, 2005. This opinion will be unpublished and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

A04-2363   In re the Marriage of:
Donald Allen Olinger, petitioner,
Respondent,
 
vs.
 
Shelley Lynn Beckman, f/k/a Shelley Lynn Olinger,
f/k/a Shelley Lynn Hable,
Appellant.

 

Filed June 14, 2005

Affirmed

Poritsky, Judge*

 

Renville County District Court

File No. FX01933

 

John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN  56273 (for appellant)

 

 

Ann M. Gustafson, Waechter & Gustafson, 328 Fifth Street Southwest, Willmar, MN  56201 (for respondent)

 

 

            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            Appellant-mother moved to amend the dissolution judgment to change the primary physical residence of the parties' children.  The district court denied the motion without holding an evidentiary hearing, ruling that appellant had not made a prima facie case of either endangerment or changed circumstances.  Appellant argues that, because this matter is governed by the best-interest-of-the-child standardas recited in the stipulated portion of the judgment addressing custody and parenting timethe district erred when it applied the endangerment standard. Alternatively, appellant argues that even under the endangerment standard, an evidentiary hearing was required.  We affirm.

FACTS

            The 2002 judgment dissolving the marriage of appellant Shelley Beckman and respondent Donald Olinger incorporated a stipulation that purported to be a parenting plan under Minn. Stat. § 518.1705 (2002) and that was described in the judgment as a "parenting plan."As a result of the judgment's adoption of the stipulation, the judgment (a) granted the parties joint legal and physical custody of their three children; (b) stated that the children's residence was to be "shared between both parent's homes[,]" but that if one parent moved outside the local school district, "the residence of the parent who continues to reside in the school district shall be considered the children's primary residence[;]" (c) expressly contemplated that Beckman would move out of the school district and thus that Olinger's home would become the children's primary physical residence; and (d) stated that decisions regarding both whether to modify the parenting time schedule set out in the stipulation and whether to modify the children's residence were to be resolved based on the children's best interests[1]. 

            In July 2004, Beckman moved the district court to have her home designated as the children's primary physical residence.  The parties do not contest that Beckman had previously left the school district and that, as a result, Olinger's home had become the children's primary physical residence.  In an affidavit supporting her motion, Beckman alleged that Olinger did not devote adequate time to the children and deferred parenting responsibilities to babysitters, that the children were not cleaned or clothed properly, that the children were exposed to improper music and behavior, and that Olinger could not control his temper in the children's presence.  Olinger generally denied the allegations of poor parenting and offered letters from the children's teachers and physicians to explain and rebut the allegations of neglect.

In a November 2004 ruling, the district court treated the parties' prior custody-related stipulation as a parenting plan under Minn. Stat. § 518.1705 (2004), and held that it did not constitute a stipulation to allow modification when modification was in the children's best interests.  Applying the endangerment-based custody-modification analysis of Minn. Stat. § 518.18(d) (2004), the district court described Beckman's claims against Olinger as "conclusory, vague, inadequate in substance, or adequately . . . refuted[,]" and denied Beckman's motion without an evidentiary hearing, stating she had not made a prima facie case of either changed circumstances or endangerment.  Beckman appeals.

D E C I S I O N

            Beckman argues that the parties stipulated to allow modification of the children's primary physical residence when a change of residence is in the children's best interests. Her argument is based on an assumption that the parties' custody-related stipulation, which was incorporated into the dissolution judgment, was a parenting plan as defined by Minn. Stat. § 518.1705 (2004).  Therefore, Beckman argues, the district court erred when it applied the endangerment-based custody-modification standard of Minn. Stat. § 518.18(d) (2004) to her motion.  Beckman asks that the case be remanded for an evidentiary hearing.  Olinger, also assuming that the parties' custody-related stipulation is a parenting plan under Minn. Stat. § 518.1705, agrees that the district court should have applied the best-interests standard, but argues that any error in applying the wrong standard was harmless because Beckman failed to make a prima facie case of changed circumstances demonstrating that it was in the children's best interests to have their primary residence modified.  We appreciate Olinger's candor in stating that the best-interests standard should have been applied here. 

I.

            For a provision in a judgment or order to be a parenting plan, it "must include[,]" among other things, "a method of dispute resolution."  Minn. Stat. § 518.1705, subd. 2(a)(3); see also Minn. Stat. § 645.44, subd. 15(a) (2004) (stating "‘[m]ust' is mandatory").  A lack of a dispute-resolution method "means that the judgment [adopting the parties' agreement] did not create a parenting plan."  Rutz v. Rutz, 644 N.W.2d 489, 492 (Minn. App. 2002), review denied (Minn. July 16, 2002).  From our examination of the stipulation, we conclude that the parties' stipulation lacks the statutorily-required method of resolving disputes.  The record shows, however, that at the time of the dissolution, the parties, their attorneys, the individual who assisted the parties in reaching the custody-related stipulation, and the dissolution court, as well as the district court issuing the order currently under review, all assumed that the stipulation was a parenting plan under Minn. Stat. § 518.1705.  Additionally, a review of the custody-related stipulation and the record does not suggest that treating this stipulation as a parenting plan for purposes of this appeal will be contrary to the children's best interests.  Thus, although one of the required elements of a parenting plan is missing, for purposes of this appeal, we will treat the stipulation as if it were a parenting plan under Minn. Stat. § 518.1705. 

II.

            Modification of parenting plans is addressed by Minn. Stat. § 518.1705, subd. 9.  Under that provision, if, as here, "both parties were represented by counsel when the parenting plan was approved[,]" the parties may, as they did here, "agree . . .  to apply the best interests standard in section 518.17 . . . for deciding a motion for modification that would change the child's primary residence[.]"  Id., subd. 9(b).  "If the parties do not agree to apply the best interests standard, section 518.18, paragraph (d), applies."  Id., subd. 9(c).  Although Minn. Stat. § 518.1705, subd. 9(c), states that Minn. Stat. § 518.18(d) governs situations in which the parties do not agree to apply the best-interests standard, section 518.1705, subdivision 9, does not address situations in which the parties do agree to apply the best-interests standard.  Thus, section 518.1705, subdivision 9 does not necessarily preclude application of section 518.18(d) if the parties have agreed to apply the best-interest standard, as the parties did in this case.  Indeed, the relevant provision of section 518.18(d) explicitly addresses situations where the parties to a parenting plan have stipulated to application of the best-interests standard to motions to modify their children's primary residence:

[T]he court shall not modify a prior . . . parenting plan provision which specifies the child's primary residence unless it finds, upon the basis of facts, including unwarranted denial of, or interference with, a duly established parenting time schedule, that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.  In applying these standards the court shall retain . . . the parenting plan provision specifying the child's primary residence that was established by the prior order unless:

            (i) the court finds that a change in the . . . primary residence is in the best interests of the child and the parties previously agreed, in a writing approved by a court, to apply the best interests standard in section 518.17 or 257.025, as applicable; and, with respect to agreements approved by a court on or after April 28, 2000, both parties were represented by counsel when the agreement was approved or the court found the parties were fully informed, the agreement was voluntary, and the parties were aware of its implications[.]

 

We conclude that Minn. Stat. § 518.18(d)(i) applies here.  Moreover, in their briefs on appeal, both parties take the position that an amendment to the stipulation is governed by section § 518.18(d)(i).

III

            Beckman argues that under the best-interest-of-the-children standard, she made out a prima facie case for modification and is therefore entitled to an evidentiary hearing on her motion.  When a district court finds no prima facie evidence and denies a motion to modify under Minn. Stat. § 518.18(d), we review the decision for an abuse of discretion.  Valentine v. Lutz, 512 N.W.2d 868, 872 (Minn. 1994); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).

            To proceed with a motion to modify under Minn. Stat. § 518.18(d), the movant must submit affidavits that establish a prima facie case for modification.  Id.; Minn. Stat. § 518.185 (2004).  The court, in considering whether a prima facie case has been established, is to take the allegations in the movant's affidavits in the light most favorable to the movant.  Smith v. Smith, 508 N.W.2d 222, 226 (Minn. App. 1993).  In addition,  "other parties  . . . may file opposing affidavits."  Minn. Stat. § 518.185.  And the court "may take note of statements in [opposing affidavits] that explain the circumstances surrounding" the movant's allegations.  Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997).  

            Beckman initially argues that, because the parties' stipulation allows modification when the change is in the best interests of the child, she is not required to present prima facie evidence of changed circumstances.  But under Minn. Stat. § 518.18(d),

the court shall not modify a prior . . . parenting plan provision which specifies the child's primary residence unless it finds, upon the basis of facts . . . that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties[.]

 

            As we have noted above, when the parties agree to allow modification when the change is in the best interests of the child, the parties intend to give effect to the option allowed by Minn. Stat. § 518.18(d)(i).  Nothing in section 518.18(d) suggests that, when parents opt for a stipulation in accordance with section 518.18(d)(i), they otherwise avoid the requirements of a motion to modify set out in that paragraph.  Instead, section 518.18(d) provides that the movant demonstrate changed circumstances, regardless of the theory on which the motion to modify proceeds.  Even if we assume for the sake of argument that it is possible for parents to waive this requirement, the stipulation between Olinger and Beckman does not explicitly state such a waiver.  We conclude that, given the terms of the parties' stipulation here, the burden is on Beckman, as the moving party, to make a prima facie showing of changed circumstances.

            To meet the changed circumstances requirement, the movant must establish "that there has occurred a significant change of circumstances from the time when the original . . . custody order was issued."  Nice-Petersen, 310 N.W.2d at 472 (emphasis added).  In an attempt to show that the children's circumstances have changed, Beckman makes numerous allegations concerning Olinger's care of the children.  But the district court, understanding that it was "not to compare credible evidence submitted by both parties," carefully and thoroughly reviewed the parties' submissions and concluded, "There has been no showing of changed circumstances in this matter."  We agree.  We have examined the record, with reasonable inferences made in Beckman's favor, and explanations in Olinger's affidavit noted, and we conclude that the district court did not abuse its discretion when it ruled that Beckman failed to demonstrate any significant change of circumstances. 

To establish changed circumstances, Beckman seems to rely on the fact that she moved away from the school district.  The parenting-time plan contemplated that Beckman would move away and that Olinger would assume the primary physical residence for the children.  The fact that Beckman moved away was a known and anticipated fact at the time of the decree, and she cannot rely on it to establish changed circumstances.  Cf.Beck v. Kaplan, 566 N.W.2d 723, 726-27 (Minn. 1997) (reversing modification of maintenance when there was no evidence moving party "did not or could not anticipate" the allegedly changed circumstances, meaning it was not unreasonable or unfair to hold parties to negotiated agreement); Hillestad v. Hillestad, 405 N.W.2d 436, 439 (Minn. App. 1987) (stating that "[A]ppellant does not base her arguments on substantially changed circumstances, but on those circumstances either in existence or contemplated three years earlier at the time of the dissolution."), review dismissed (Minn. June 30, 1987).

Beckman further argues that there is a significant change because Olinger did not devote adequate time to the children and deferred parenting responsibilities to babysitters.  Changed circumstances may be established by showing that there is a substantial reduction of the resources one parent devotes to the care of the children.  Myhervold v. Myhervold, 271 N.W.2d 837, 838 (Minn. 1978); Coady v. ViRay, 407 N.W.2d 710, 713 (Minn. App. 1987).  But, here, the record fails to demonstrate that since the time that Olinger's home became the primary physical residence, Olinger has devoted substantially fewer resources to the children than the parties originally contemplated.  Consequently, we conclude thatit was within the district court's discretion to rule that Beckman's showing was insufficient to require an evidentiary hearing.  

IV.

Alternatively, Beckman argues that she made a sufficient showing under the endangerment standard to be entitled to an evidentiary hearing.  Absent changed circumstances, we need not address this question, but we note that the district court made a careful review of Beckman's allegations, and on this issue the court ruled, "[Beckman's] allegations do not meet the threshold for endangerment."  The district court's conclusion was proper.  

V.

We conclude that the district court did not abuse its discretion by denying an evidentiary hearing and denying Beckman's motion to modify the primary physical residence of the children.

            Affirmed.

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

[1] To the extent that the district court found that the stipulation did not require application of the best-interests standard to a motion to modify the children's residence, that finding is inconsistent with the portion of the stipulation stating that "[a]ny decision to move the children's residence and therefore modify the Parenting Time Schedule - whether by agreement or court order - shall be made on the basis of the best interests of the children."