In re the Marriage of: Carolyn Sue Moore, petitioner, Respondent, vs. Randall Scott Moore, Appellant.

In re the Marriage of: Carolyn Sue Moore, petitioner, Respondent, vs. Randall Scott Moore, Appellant. A06-212, Court of Appeals Unpublished, August 29, 2006.

This opinion will be unpublished and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

A06-212

 

 

In re the Marriage of:

Carolyn Sue Moore, petitioner,

Respondent,

 

vs.

 

Randall Scott Moore,

Appellant.

 

 

Filed August 29, 2006

Affirmed

Parker, Judge*

 

 

Hennepin County District Court

File No. FA 251 721

 

 

A. Larry Katz, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN  55402 (for respondent)

 

Susan M. Lach, Messerlie & Kramer, P.A., 150 South Fifth Street, Suite 1800, Minneapolis, MN  55402-4218 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            The parenting plan included in the judgment dissolving the marriage of appellant-father Randall Moore and respondent-mother Carolyn Moore equally apportions parenting time between the parties and awards them joint legal custody, but does not identify the children's physical custodian(s).  On appeal from the district court's denial of father's motion for sole custody, father argues that he made a prima facie case to modify custody entitling him to an evidentiary hearing, that the district court should not have replaced the parties' parenting consultant, and that the modification of parenting time is flawed because he was entitled to a hearing on the subject and because the record does not support the district court's reapportioning of parenting time.  We affirm.

D E C I S I O N

I

            Unless parties to a parenting plan either agree to modify the plan or agree that the plan can be modified based on the children's best interests, plan modification is governed by Minn. Stat. § 518.18(d) (2004).  Minn. Stat. § 518.1705, subd. 9(c) (2004).  These parties did not agree to modify their plan and their plan states that a parenting consultant can implement and evaluate temporary alterations in the plan but, absent an agreement of the parties, "the Court shall make the final decision [regarding custody modification]."  Thus, these parties did not agree to modify their plan and did not agree that their plan could be modified based on the children's best interests.  Therefore, Minn. Stat. § 518.18 applies to father's motion for sole physical custody.

            A.        Prima Facie Case

            Under the relevant part of Minn. Stat. § 518.18 (2004), custody may be modified if the existing custodial arrangement "endangers" the children.  Minn. Stat. §518.18 (d)(iv).  A moving party is to submit an affidavit reciting the facts supporting the party's motion to modify custody.  Minn. Stat. § 518.185 (2004).  A party seeking an endangerment-based modification of custody

must establish four elements to make a prima facie case for modification: (1) circumstances have changed involving the child or custodial parent; (2) the modification would be in the best interests of the child; (3) the child's physical or emotional health or emotional development is endangered by his or her present environment; and (4) that harm associated with the proposed change in custody would be outweighed by the benefits of the change.

 

Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999).  In deciding whether a party makes a prima facie case to modify custody, "the court must accept the facts in the moving party's affidavits as true, and the allegations do not need independent substantiation."  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).  Whether a party makes a prima facie case to modify custody dictates whether an evidentiary hearing will occur on the motion.  See Morey v. Peppin, 375 N.W.2d 19, 25 (Minn. 1985) (stating, "an evidentiary hearing shall be scheduled" if moving party makes a prima facie case to modify custody); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (stating if moving party fails to make prima facie case, district court "[is] require[d] . . . to deny [the] motion").  A district court however, has discretion in deciding whether a moving party has made a prima facie case to modify custody.  See Geibe, 571 N.W.2d at 780 (holding district court did not abuse discretion in ruling moving party failed to make prima facie case to modify custody).

            This case did not proceed in the fashion assumed by the structure for custody-modification proceedings recited above.  The parties' disputes prompted their parenting consultant to temporarily alter the parenting schedule.  The district court reserved father's initial 2003 motion to modify custody pending evaluation of the temporary schedule, mother then proposed reinstituting the original schedule, and father, in 2005, moved for sole legal and physical custody of the children, supporting his motion with affidavits from himself and from the parenting consultant.  In February 2005, the district court denied mother's motion, directed certain experts to file and update their reports, and again reserved father's motion.  In August 2005, the district court issued a stipulated order stating, among other things, that the parties stipulated that various documents would be submitted to the court and that "[t]he issues shall be decided by the Court upon said written submissions, as well as upon all the files, records and proceedings herein."

            The portion of father's subsequent written submissions addressing his motion to modify custody included some discussion of the children's best interests but did not mention Minn. Stat. § 518.18.  The district court's November 2005 order at issue here noted the existence of the August stipulated order and denied father's motion for sole custody because the children needed more time with mother than father's proposed modification would allow, because awarding sole physical custody to father required father to satisfy Minn. Stat. § 518.18, and because father "[did] not attempt[] to present a prima facie case to modify custody under the endangerment standard."  Similarly, neither of father's letters seeking reconsideration of the November 2005 order and asserting the right to an evidentiary hearing cited Minn. Stat. § 518.18.  The district court's order denying reconsideration noted that while father's letters addressed the best-interests considerations, they did not show the existence of a prima facie case to modify custody, and stated that even if all of father's assertions were proved at an evidentiary hearing, his failure to satisfy Minn. Stat. § 518.18 would preclude modifying custody.

            While father's submissions could be construed to include some assertions that might address the elements of a prima facie case under Minn. Stat. § 518.18, it is not at all clear that father was trying to show a prima facie case to modify custody.  Nor did he argue that he was trying to do so.  Further, because mother's submissions contained some explanation of, and context for, father's assertions, the district court's consideration of her submissions when determining that father did not make a prima facie case was appropriate.  See Geibe, 571 N.W.2d at 777.  Given the breadth of the district court's discretion in custody matters, this district court's extraordinarily conscientious attempts to decipher a voluminous and unnecessarily murky record, and the peculiar arguments father made to the district court, we cannot say that father has shown that the determination that he failed to make a prima facie case to modify custody is an abuse of the district court's discretion.

            B.        Modification of Custody

            Father cites the district court's statement in the November 2005 order that the dissolution judgment's parenting plan awarded the parties joint physical custody and case law states that an ability to cooperate is a prerequisite to joint physical custody.  He then states that no such cooperation exists here and argues that the district court should have modified physical custody.  We reject this argument.

            The district court based the post-hoc labeling of the custody arrangement in the parenting plan on Nolte v. Mehrens, 648 N.W.2d 727 (Minn. App. 2002).  Nolte addressed the need for a custody label for child-support purposes and specifically notes that it did not involve a parenting plan.  648 N.W.2d at 731 & n.4.  Under the parenting-plan statute, a court-imposed custody label is effective only for enforcement purposes.  Minn. Stat. § 518.1705, subd. 4 (2004).  Thus, father's argument that the custody label has consequences in a custody-modification proceeding, as opposed to an enforcement proceeding, has limited weight.

            To the extent father argues that the parties' inability to cooperate means that the district court should have modified the award of joint legal custody, the parties nominally agree regarding the children's schooling and religious matters.  Therefore, the question is one of enforcing obligations under the parenting plan, rather than modification of the legal custody award.  See Minn. Stat. § 518.003, subd. 3(a) (2004) (defining legal custody to be power to make decisions about child's education, health care, and religious training).

II

            Father argues that the district court should not have required the appointment of a new parenting consultant because there was no motion before the district court to do so.  The district court has broad discretion in matters related to parenting time and will not be reversed absent an abuse of that discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995); Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978).  The record shows that the parties have not previously required strict compliance with the terms of their parenting plan, including not previously selecting as the parenting consultant either of the two persons from whom the parties agreed to select their parenting consultant.  Also, while a primary duty of the parenting consultant is to resolve the parties' disputes, the current parenting consultant and mother cannot cooperate.  In the unique circumstances of this case, and in deference to this district court's much greater familiarity with these parties and this record, we decline to hold that replacing this parenting consultant was an abuse of this district court's broad discretion.

III

            Father notes that the parenting-time schedule set by the district court is a substantial change in his parenting time compared to the temporary schedule in place when he made his motion.  Therefore, he argues, he is entitled to an evidentiary hearing under Matson v. Matson, 638 N.W.2d 462 (Minn. App. 2002), regarding the change in his parenting time.  But father's assertion of a substantial change in parenting time is based on his improper comparing of the new schedule set by the district court with the temporary schedule initially imposed by the consultant.  Cf. Minn. Stat. § 518.131, subd. 9 (2004) (stating temporary order shall not prejudice parties' rights that are to be litigated).  Because the modified parenting schedule set by the district court is, like the parenting-time schedule set in the judgment, an approximately equal split of parenting time, it is not the substantial change in parenting time at issue in Matson.  Further, the parenting-time schedule set by the district court is supported by the record.  See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating appellate court need not "discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court's findings," and that the appellate court's "duty is performed [upon consideration of] all the evidence . . . and determin[ing] that it reasonably supports the findings"); Vangsness v. Vangsness, 607 N.W.2d 468, 474-75 & n.1 (Minn. App. 2000) (applying Wilson in dissolution case).

            Affirmed.

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