State of Minnesota, Respondent, vs. Troy Alan Pederson, Appellant.

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This opinion will be unpublished and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

 C9-97-1463

In Re the Marriage of:

Gregg J. VanGuilder,

Respondent,

vs.

Lisa Gaye VanGuilder

Appellant.

 

 

 Filed February 3, 1998

 Affirmed in part, reversed in part, and remanded

 Crippen, Judge

Ramsey County District Court

File No. F09357

Rachel B. Rosen, Brehmer & Rosen, P.L.L.P., 5001 West 80th St., Suite 745, Bloomington, MN 55437 (for appellant)

Christopher Johnson, Larkin, Hoffman, Daly, & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Ave. South, Bloomington, MN 55431-1194 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Forsberg, Judge**

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

 

 

 U N P U B L I S H E D O P I N I O N

 

 CRIPPEN, Judge

Pursuant to their stipulation, the parties are joint custodians of their two sons. Appellant Lisa VanGuilder challenges the current trial court decision, made without a custody investigation or an evidentiary hearing, denying her claim for sole physical custody and a support award. We affirm the trial court's decision on appellant's custody modification motion but reverse and remand for consideration of a child support issue that the district court failed to determine.

 FACTS

 

In their 1993 divorce settlement and judgment, the parties were named joint custodians of their two sons, now ages nine and eight. In 1995, following a 16-month interim arrangement of child care by respondent, the joint arrangement was restored and detailed, again by stipulation, and child support claims of the parties were reserved.

In January 1997, appellant filed a motion to redetermine the custody arrangement, beginning with her temporary role as sole physical custodian. Appellant asserted that the children were endangered when they were in respondent's custody because their care was inadequate and because they were cared for by their paternal grandparents whenever respondent had custody. She asserted that respondent had committed fraud on the court by agreeing to joint custody while duplicitously planning to "farm-out" his children to their grandparents whenever he had custody. The trial court denied appellant's requests for a modification of the custody and support orders and for an evidentiary hearing.

 DECISION

 1.

 

The parties agree that appellant can succeed in her motion for custody modification only if she has shown a prima facie case that the couple's children are endangered in their present circumstances. Minn. Stat. § 518.18 (d) (1996) (establishing endangerment standard for custody modification orders); § 518.18(e) (stating that endangerment standard applies to motion to modify joint custody order unless parties agree otherwise or one party seeks to move children out of state); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (holding that custody modification movant has burden to establish a prima facie case of endangerment before a hearing on the motion will be granted).

As the trial court determined, the affidavit submitted by appellant fails to establish a prima facie case of endangerment. All of the statements submitted by appellant are conclusory and lack the required specificity that would allow a finding supporting her position. We note in this respect her statements that respondent has "basically `farmed out' the children to his parents"; that he "has come in and out of the children's lives" and failed to take an "active part" in child raising; that she has "a lot of problems" with visitation because he has been "violent" in making contacts with her; that in his care one of the children is the "favorite"; and that she's having "a lot of trouble" with this child as a result of the grandparents' care, including their "extreme favoritism" for this child, he being "favored, blatantly, over the other," which "causes a lot of jealousy and animosity between the children." In addition, she states that the grandparents do not "institute any discipline or rules at [their] house"; that the father "doesn't have much contact with" the children; that he "basically pawns them off on his parents"; that the grandmother is "consistently spoiling" the younger child and pays very little attention to the older child; and that her husband has "very little to do with either of the children." None of these allegations is sufficient to show a prima facie case of endangerment. See, e.g., Ford Motor Credit Co. v. BJL Corp., 411 N.W.2d 605, 608 (Minn. App. 1987) (finding that party cannot defeat summary judgment motion by submitting an affidavit containing only conclusory statements rather than specific allegations) (quoting Alexander Constr. Co., Inc. v. C & H Contracting, Inc., 354 N.W.2d 535, 537-38 (Minn. App. 1984)).

Ultimately, appellant succeeds in making only two nonconclusory statements of fact and neither of those is accompanied by any showing of a resulting danger to the children. First, appellant successfully raises the issue of whether the children spend too little time with their father and too much time with their grandparents. Assuming this allegation is true, there is nevertheless no showing that this care arrangement has been harmful to the children. In fact, the current complaints that appellant poses are exactly like those she raised when custody was disputed in April 1995 and she entered into the current joint custody arrangement.

The record shows that the paternal grandparents provide much of the care for the children. On appeal, appellant suggests the grandparents' care is dangerous to the children on its face. This statement is unsupported in law or in evidence of record. Finally, appellant suggests the arrangement amounts to a subterfuge that permits custodial care by one who has no standing to seek it. In spite of difficulties the grandparents might have in seeking custody, they furnish care on behalf of the custodian and the law does not permit a modification of the custody arrangement in the absence of an actual showing of danger. Moreover, it is significant that the father's dependence on caretaking by his parents has never been hidden from the court or appellant and was established at the time of the April 1995 joint custody stipulation. Finally, it is undisputed that appellant has also relied on the grandparents for care of the children, at least occasionally.

One of the children was suspended from school for five days because he brought a pocketknife to school. Respondent states that this was an unintentional oversight because neither he nor the child's grandmother intended the boy to take the knife to school. Nothing in appellant's brief suggests otherwise. The incident is not evidence of danger on its face.

Appellant's attempt to rely on Taflin v. Taflin, 366 N.W.2d 315 (Minn. App. 1985) is misplaced.[5]

.

 

 

 U N P U B L I S H E D O P I N I O N

 

 CRIPPEN, Judge

Pursuant to their stipulation, the parties are joint custodians of their two sons. Appellant Lisa VanGuilder challenges the current trial court decision, made without a custody investigation or an evidentiary hearing, denying her claim for sole physical custody and a support award. We affirm the trial court's decision on appellant's custody modification motion but reverse and remand for consideration of a child support issue that the district court failed to determine.

 FACTS

 

In their 1993 divorce settlement and judgment, the parties were named joint custodians of their two sons, now ages nine and eight. In 1995, following a 16-month interim arrangement of child care by respondent, the joint arrangement was restored and detailed, again by stipulation, and child support claims of the parties were reserved.

In January 1997, appellant filed a motion to redetermine the custody arrangement, beginning with her temporary role as sole physical custodian. Appellant asserted that the children were endangered when they were in respondent's custody because their care was inadequate and because they were cared for by their paternal grandparents whenever respondent had custody. She asserted that respondent had committed fraud on the court by agreeing to joint custody while duplicitously planning to "farm-out" his children to their grandparents whenever he had custody. The trial court denied appellant's requests for a modification of the custody and support orders and for an evidentiary hearing.

 DECISION

 1.

 

The parties agree that appellant can succeed in her motion for custody modification only if she has shown a prima facie case that the couple's children are endangered in their present circumstances. Minn. Stat. § 518.18 (d) (1996) (establishing endangerment standard for custody modification orders); § 518.18(e) (stating that endangerment standard applies to motion to modify joint custody order unless parties agree otherwise or one party seeks to move children out of state); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (holding that custody modification movant has burden to establish a prima facie case of endangerment before a hearing on the motion will be granted).

As the trial court determined, the affidavit submitted by appellant fails to establish a prima facie case of endangerment. All of the statements submitted by appellant are conclusory and lack the required specificity that would allow a finding supporting her position. We note in this respect her statements that respondent has "basically `farmed out' the children to his parents"; that he "has come in and out of the children's lives" and failed to take an "active part" in child raising; that she has "a lot of problems" with visitation because he has been "violent" in making contacts with her; that in his care one of the children is the "favorite"; and that she's having "a lot of trouble" with this child as a result of the grandparents' care, including their "extreme favoritism" for this child, he being "favored, blatantly, over the other," which "causes a lot of jealousy and animosity between the children." In addition, she states that the grandparents do not "institute any discipline or rules at [their] house"; that the father "doesn't have much contact with" the children; that he "basically pawns them off on his parents"; that the grandmother is "consistently spoiling" the younger child and pays very little attention to the older child; and that her husband has "very little to do with either of the children." None of these allegations is sufficient to show a prima facie case of endangerment. See, e.g., Ford Motor Credit Co. v. BJL Corp., 411 N.W.2d 605, 608 (Minn. App. 1987) (finding that party cannot defeat summary judgment motion by submitting an affidavit containing only conclusory statements rather than specific allegations) (quoting Alexander Constr. Co., Inc. v. C & H Contracting, Inc., 354 N.W.2d 535, 537-38 (Minn. App. 1984)).

Ultimately, appellant succeeds in making only two nonconclusory statements of fact and neither of those is accompanied by any showing of a resulting danger to the children. First, appellant successfully raises the issue of whether the children spend too little time with their father and too much time with their grandparents. Assuming this allegation is true, there is nevertheless no showing that this care arrangement has been harmful to the children. In fact, the current complaints that appellant poses are exactly like those she raised when custody was disputed in April 1995 and she entered into the current joint custody arrangement.

The record shows that the paternal grandparents provide much of the care for the children. On appeal, appellant suggests the grandparents' care is dangerous to the children on its face. This statement is unsupported in law or in evidence of record. Finally, appellant suggests the arrangement amounts to a subterfuge that permits custodial care by one who has no standing to seek it. In spite of difficulties the grandparents might have in seeking custody, they furnish care on behalf of the custodian and the law does not permit a modification of the custody arrangement in the absence of an actual showing of danger. Moreover, it is significant that the father's dependence on caretaking by his parents has never been hidden from the court or appellant and was established at the time of the April 1995 joint custody stipulation. Finally, it is undisputed that appellant has also relied on the grandparents for care of the children, at least occasionally.

One of the children was suspended from school for five days because he brought a pocketknife to school. Respondent states that this was an unintentional oversight because neither he nor the child's grandmother intended the boy to take the knife to school. Nothing in appellant's brief suggests otherwise. The incident is not evidence of danger on its face.

Appellant's attempt to rely on Taflin v. Taflin, 366 N.W.2d 315 (Minn. App. 1985) is misplaced.[1] The trial court properly determined that appellant was not entitled to an evidentiary hearing on her modification motion.

 2.

Appellant requested a modification of the existing child support arrangement, an issue that had been previously reserved. The trial court concluded that this matter had been decided separately in an administrative hearing and that the request had been denied. If the court's observation is correct, and if it is based on the parties' current circumstances, its conclusion was seemingly proper. But there is nothing in the record, for this court or the trial court, to support the conclusion that the matter was settled in an administrative forum. We reverse and remand for the trial court to determine whether the child support issue was, in fact, decided in another forum and, if not, for a determination of the motion on the merits.

 3.

 

Because appellant included in the appendix of her brief a 1994 custody evaluation report, respondent moves to strike this portion of the brief. Respondent argues that the report was not submitted to the trial court before appellant's current motions were denied. Because the custody report was already part of the trial court file as a result of earlier motions, the report is properly before the court of appeals and need not be stricken from appellant's appendix and brief.

  Affirmed in part, reversed in part, and remanded.

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

1] In addition to the respondent's limited contact with the children claimed by appellant, the non-custodial parent in Taflin also alleged that the custodial parent had contributed "no emotional support" of the children, borrowed excessive amounts of money from her minor children without repaying it and diverted child support payments to pay her own personal expenses. 366 N.W.2d at 320. Because those additional allegations are not present here, the trial court was correct in concluding that appellant did not allege a prima facie case of endangerment.

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