In re the Marriage of: Joshua Joseph Kern, petitioner, Appellant, vs. Angel Marie Kern n/k/a Angel Marie Morley, Respondent.

In re the Marriage of: Joshua Joseph Kern, petitioner, Appellant, vs. Angel Marie Kern n/k/a Angel Marie Morley, Respondent. A06-2030, Court of Appeals Unpublished, May 22, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2030

 

In re the Marriage of:

Joshua Joseph Kern, petitioner,
Appellant,
 
vs.
 
Angel Marie Kern n/k/a Angel Marie Morley,
Respondent.

 

Filed May 22, 2007

Reversed and remanded

Wright, Judge

 

Clearwater County District Court

File No. F6-03-321

 

 

George L. Duranske, III, Duranske Law Firm, 1435 Anne Street Northwest, P.O. Box 1383, Bemidji, MN  56619 (for appellant)

 

Janel C. Wallace, 305 Pleasant Avenue, Park Rapids, MN  56470 (for respondent)

 

 

            Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

In this appeal from the district court's denial without an evidentiary hearing of appellant-father's motion for custody modification, appellant argues that the affidavits submitted in support of his motion establish a prima facie case for modifying custody.  We reverse and remand.

FACTS

 

The district court entered a judgment and decree dissolving the marriage of appellant-father Joshua Kern and respondent-mother Angel Morley[1] on December 30, 2003.  The district court granted the parties joint legal custody of their three children who are currently ages six, five, and four.  Although the judgment and decree does not expressly award sole or joint physical custody, it set forth a parenting-time schedule in which the children's primary residence is with Kern during the school year and is with Morley during the summer months. 

In January 2005, after failing in his attempts to schedule mediation,[2] Kern moved the district court for an order addressing several issues regarding the parties' parenting and property disputes.[3]  In March 2005, Morley moved the district court for sole physical custody of the three children and reasonable parenting time for Kern.  Morley also sought an order directing Kern to pay child support.  The district court denied both motions without an evidentiary hearing, ordered the parties to agree on a person to transport the children between the parties, and ordered the parties to cease vilifying one another in the presence of their children.   

In July 2006, Kern moved the district court for sole legal and physical custody.  He also requested that Morley's parenting time with the children be supervised at a visitation center.  In addition, Kern sought an order directing Morley to undergo drug testing and a psychiatric evaluation to determine her fitness for parenting time.  Morley filed a cross€‘motion for sole legal and physical custody.  Morley alternatively moved to modify the parenting-time provisions of the dissolution decree to grant Morley physical custody of the children during the school year and Kern parenting time every other weekend.  Morley also sought compensatory parenting time, police assistance, when needed, to transfer the children from Kern, and a prohibition against unsupervised contact between the children and Kern's mother, Bonnie Kern.

Both Kern and Morley submitted several affidavits in support of their respective motions.  Each party alleged that the other is responsible for physical and emotional abuse, neglect, and difficult parenting-time exchanges of the children.  The district court denied both parties' custody-modification motions without an evidentiary hearing, setting forth its rationale in a single sentence: "The record created does not warrant any of the relief requested by the parties."  This appeal followed. 

D E C I S I O N

 

A district court is required to hold an evidentiary hearing in a custody€‘modification proceeding if the movant establishes a prima facie case that the statutory requirements for modification have been met.  Westphal v. Westphal, 457 N.W.2d 226, 228 (Minn. App. 1990).  We review for an abuse of discretion a district court's decision to deny a custody-modification motion without an evidentiary hearing.  In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002). 

            A party seeking custody modification based on child endangerment must establish (1) a change in the circumstances of the child or the parents; (2) modification is necessary to serve the child's best interests; (3) the child's present environment endangers the child's physical health or emotional health or development; and (4) the likely harm to the child caused by the change of custody is outweighed by the benefits of the change.  Minn. Stat. § 518.18(d) (2006).  The motion to modify custody must be accompanied by a supporting affidavit.  Minn. Stat. § 518.185 (2006).  Although the district court must accept the allegations as true, an evidentiary hearing is not required if the affidavit does not provide sufficient grounds for modification, Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981), or if it is "devoid of allegations supported by any specific, credible evidence,"  Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987); see Smith v. Smith, 508 N.W.2d 222, 227-28 (Minn. App. 1993) (denying custody modification without an evidentiary hearing in part because allegations were "too vague to support a finding of endangerment").  The district court may consider statements in an affidavit that explain the circumstances surrounding the moving party's accusations.  Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997).  But allegations of present endangerment to a child's health or emotional well-being strongly favor an evidentiary hearing.  See Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn. App. 1991) (holding that when some dispute exists as to whether present environment endangers children, an evidentiary hearing is justified).

Kern maintains that, because his affidavits set forth sufficient facts to establish a prima facie case under section 518.18(d), the district court abused its discretion by denying his motion for custody modification without an evidentiary hearing.  We address each factor in turn. 

A.

To warrant custody modification, a significant change in circumstances that endangers the child's physical or emotional health or development must have occurred since the original custody order.  Weber, 653 N.W.2d at 809.  Factors constituting a significant change in circumstances are determined on a case-by-case basis.  Lilleboe v. Lilleboe, 453 N.W.2d 721, 723 (Minn. App. 1990); see Myhervold v. Myhervold, 271 N.W.2d 837, 838 (Minn. 1978) (citing as factors constituting significant change numerous parenting-time problems and deteriorating relationships between children and family members); Wilkus-Schmidt-Hight v. Wilkus, 398 N.W.2d 44, 47 (Minn. App. 1986) (citing as factors constituting significant change endangerment to emotional health leading to exhibition of behavioral changes). 

The affidavits accompanying Kern's motion establish a significant change in circumstances.  These affidavits allege that Morley has not seen the children since May 2006, does not visit the children on holidays, and has only called to speak with the children two or three times since October 2003.  The affidavits of Kern and Bonnie Kern allege that Morley left a message for Kern in February 2006 stating that she may never see the children again.  Kern alleges that Morley no longer has a permanent address or telephone number.  And Kern contends that, since the children have been spending less time with Morley, they no longer have nightmares, their behavior has improved, and they are no longer afraid of the police.  When taken as true for purposes of determining whether an evidentiary hearing is warranted, the allegations establish a significant change in circumstances.

B.

The children's best interests are determined according to the factors listed in Minn. Stat. § 518.17 (2006), which presumes that stability in custody is in a child's best interests.  Weber, 653 N.W.2d at 810. 

Applying the facts alleged in the affidavits submitted by Kern, several factors weigh in favor of granting an evidentiary hearing.  The district court is to consider the children's primary caretaker, their adjustment to home, school and community, the length of time the children have lived in a stable, satisfactory environment, and the desirability of maintaining continuity.  Minn. Stat. § 518.17, subd. 1(a)(3), (6), (7).  Here, the children have lived with Kern for at least nine months of each year.  Because Morley allegedly has no permanent address or residence and she has made little effort to maintain contact with the children, the stability factor weighs in favor of Kern. 

The district court also is to consider the mental and physical health of the parties and their capacity to give the children love, affection, and guidance.  Minn. Stat. § 518.17, subd. 1(a)(9), (10).  When taken as true, the allegations in Kern's supporting affidavit depict Morley as mentally unstable, abusive to the children, and chemically dependent.  According to the affidavit, there is prima facie evidence that Morley lacks the capacity to guide and support the children and that custody modification is necessary to serve the children's best interests.

C.

To establish danger to the children's welfare, the conduct must pose an actual adverse effect on the children.  Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn. App. 1994); see Harkema, 474 N.W.2d at 13-14 (alleging emotional abuse by custodial parent's spouse); Lilleboe, 453 N.W.2d at 724 (remanding for an evidentiary hearing where allegations of specific facts which, if true, establish endangerment, including excessive physical punishment, fear of the custodial parent, and changes in children's behavior). 

Kern's affidavit submissions allege that the children are abused and neglected in Morley's care.  For example, when Morley returns the children to Kern, they are filthy and have rashes, head lice, and fleas.  The affidavits allege that Morley fails to give the children proper medical attention, fails to provide adequate meals, and does not use available car seats when transporting the children.  The children are afraid of parenting time with Morley, Kern alleges, because they fear that she will not return them to Kern.  According to Kern, when the parties attempt to exchange the children, Morley is violent, uses foul language, and often is late or fails to appear at all.  Kern also alleges that Morley is "mentally unstable." 

Bonnie Kern's affidavit alleges specific instances of physical abuse during the exchange of the children.  She also alleges that Morley is mentally unstable and poses a danger to the children.  Other affiants support the allegations of Morley's verbal and physical abuse, neglect, and drug abuse.  Accordingly, Kern has alleged facts establishing a prima facie case of endangerment to the children's welfare.

D.

            Lastly, Kern has made a prima facie showing that the advantages of modifying custody outweigh the harm likely to be caused by a change.  See Weber, 653 N.W.2d at 811 (holding that movant must show that advantages of modification outweigh harm likely caused by change).  The affidavit evidence presented by Kern alleges that Kern provides a stable environment in contrast to Morley's unpredictable approach to parenting time and physical custody.  Rather than explain the circumstances addressed in Kern's allegations, Morley's affidavit submissions controvert the issues even further.

            Because Kern alleged specific facts which, when taken as true, establish prima facie evidence of a significant change in circumstances that endangers the children's physical and emotional health, the district court abused its discretion when it denied Kern's motion without an evidentiary hearing.  We, therefore, reverse and remand to the district court for a hearing on the motion.

            Reversed and remanded.

 

 

[1] After the dissolution, respondent-mother remarried and changed her last name to Morley.

[2] Although the dissolution decree contemplated the use of an expeditor to resolve parenting-time disputes, financial constraints prevented the parties from doing so.  Such a limitation does not bar the requested relief.  See Minn. Stat. § 518.1751, subd. 1a(3) (2006) (stating that party is not required to refer dispute to parenting-time expeditor when one party is unable to pay expeditor's costs).

[3] Specifically, Kern moved the district court to order Morley to cease contacting Kern at work and at his mother's house, modifying the appearance of the children with extreme haircuts, using corporal punishment, and telling the children only Morley's side of the parties' disputes.  The motion also sought to direct Morley to utilize "mediation" rather than falsely reporting abuse to social services, to engage in counseling or parenting training, to complete mental-health and chemical assessments, and to turn over to Kern the children's birth certificates and personal property awarded in the judgment.  The motion also sought to have Morley's parenting time with the children be supervised until she can resolve her "psychological problems" and a determination of Morley's employment status and earnings to facilitate a motion for child support.