In Re the Marriage of: Therese Ann Ryman, petitioner, Appellant, vs. Lyle Duane Ryman, Respondent.

This opinion will be unpublished and
may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-98-614

In Re the Marriage of:

Therese Ann Ryman, petitioner,

Appellant,

vs.

Lyle Duane Ryman,
Respondent.

Filed October 20, 1998
Reversed and remanded
Crippen, Judge

Dakota County District Court
File No. F59212157

Timothy H. Dodd, Davis, Dodd, Levine & Miller, Ltd., 1219 Marquette Avenue South, Suite 200, Minneapolis, MN 55403 (for appellant)

Sharon K. Hills, Severson, Sheldon, Dougherty & Molenda, P.A., 7300 West 147th Street, Suite 600, Apple Valley, MN 55124 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant challenges an order denying her motion for modification of custody. Because we conclude that the trial court erred in refusing to consider a therapist's report and that report establishes a prima facie case of endangerment, we reverse and remand for an evidentiary hearing.

FACTS

The parties divorced in May 1992 and were awarded joint legal and physical custody of their two minor children, one nearing age 13 and one age 9. The original decree included a co-parenting agreement under which the children stayed with their mother on weekdays and every third weekend during the school year; in the summer they stayed with their father during the week and every third weekend.

In March 1996, the parties agreed to modify their custody arrangement, reversing the weekday and weekend arrangement during the school year. In April 1996, the trial court entered an amended judgment and decree that reflected the modified custody agreement.

In late December 1997, appellant brought a motion to modify custody, premised primarily on a therapist's report reciting separation anxiety of both children, verbal abuse and hitting of the younger child, and clinical depression of the older. The therapist reported that the older child considered running away from home and contemplated suicide. The trial court excluded the report because appellant arranged the therapist's contacts without consulting respondent as required by the judgment and decree; the court cited Silbaugh v. Silbaugh, 543 N.W.2d 639 (Minn. 1996), as authority for excluding the report. The trial court further concluded that appellant failed to meet her burden of proving endangerment warranting a change of custody within two years of a prior custody order and failed to establish a prima facie case of a change of circumstances rendering it in the best interests of the children to modify the present custody agreement.

D E C I S I O N

On appeal, this court's role is limited to determining whether the trial court abused its discretion by making findings unsupported by the evidence or by misapplying the law. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993).

1. Exclusion of the therapist's report.

Silbaugh v. Silbaugh, 543 N.W.2d 639 (Minn. 1996), does not support the trial court's decision to exclude the therapist's report. Silbaugh involved a therapist's report stating an overall conclusion on the best interests of children, not the report of evidence on their endangerment. The therapist's affidavit in that case failed, not only for the absence of one parent's consent to the interview, but also because the report was unreliable and based on brief and partial contacts with the children. Id. at 640-41. However equitable in terms of the interests of the parents, the trial court in this case could not justly act for the best interests of the children while refusing to examine a report that suggests endangerment of the children. See Lucas v. Lucas, 389 N.W.2d 744, 747 (Minn. App. 1986) (holding that even suspect evidence indicating potential dangers leaves the trial court with the burden to make a reliable determination on the safety and best interests of the children).

2. Custody modification.

Appellant contends that the change-in-visitation standard, requiring no showing of danger, should govern the expansion of her contacts with the child. See Minn. Stat. § 518.175, subd. 5 (Supp. 1997) (stating best-interests test for most visitation disputes), and Minn. Stat. § 518.18 (1996) (for motions within two years of a prior modification, requiring proof of endangerment only for a proposal to alter custody). But the endangerment standard governs a substantial alteration of the care arrangement, here a change from appellant's current one-third of the care to her proposed two-thirds of the care. Ayers, at 520 (custody change in which one parent would have "virtually no custody during the school year" is not "insubstantial"); Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn. App. 1992) (proposed change from equal division of care to full custody during the school year constituted a substantial alteration); Dabrowski v. Dabrowski, 477 N.W.2d 761, 763-65 (Minn. App. 1991) (endangerment standard applies to proposed change from 36 percent of care to full custody). The trial court did not err in determining that appellant's proposed change was substantial and applying the endangerment standard.

3. Prima facie case.

If the moving party fails to establish a prima facie case that a change would serve the children's best interests and avoid their endangerment, the trial court may deny the motion without an evidentiary hearing. Taflin v. Taflin, 366 N.W.2d 315, 320 (Minn. App. 1985). We conclude that the therapist's report establishes a prima facie case, entitling appellant to an evidentiary hearing on her motion.

4. Attorney fees.

In light of our decision, we decline to award any fees on appeal.

Reversed and remanded.