In re the Marriage of: James Patrick Coughlan, petitioner, Appellant, vs. Rachel Ann Coughlan, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-206

 

In re the Marriage of:

James Patrick Coughlan,

petitioner,

Appellant,

 

vs.

 

Rachel Ann Coughlan,

Respondent.

 

Filed September 16, 2003

Affirmed
Klaphake, Judge

 

Blue Earth County District Court

File No. F1-99-1677

 

Susan M. Lach, Vija L. Brookshire, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN  55402 (for appellant)

 

Randall C. Berkland, Christopher M. Roe, Blethen, Gage & Krause, PLLP, 127 South Second Street, P.O. Box 3049, Mankato, MN  56002-3049 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant James Coughlan moved to modify custody or, in the alternative, to increase his parenting time with his four minor children.  Respondent Rachel Coughlan opposed the motion and requested that appellant be ordered to pursue the dispute resolution process set out in the parties' parenting plan.  The district court denied appellant's motion and ordered the parties to follow the dispute resolution process.  Because the district court did not err in ordering the parties to follow the dispute resolution process, we affirm.

D E C I S I O N

            The district court ordered the parties to follow the dispute resolution process agreed to in their parenting plan.[1]  Under Minn. Stat. § 518.1705 (2002), parties may create a parenting plan.  Such a plan must include certain elements, including a custody designation, a schedule of time each parent spends with the child, a designation of decision-making responsibilities regarding the child, and a method of dispute resolution.  Id.; Rutz v. Rutz, 644 N.W.2d 489, 492 (Minn. App. 2002) (absent inclusion of dispute-resolution mechanism, dissolution judgment did not create parenting plan), review denied (Minn. July 16, 2002).

            Paragraph X of the parenting plan is entitled "Dispute Resolution" and provides:

Disputes between the parents, concerning other than child support disputes and change of residence outside the boundaries of ISD 77, shall be submitted to a mediator/ arbitrator, agreed upon by the parties, and if the parties cannot agree, then selected by the court.  The parties shall first attempt to mediate the dispute, and if they are unable to reach resolution, the mediator shall assume the role of a binding arbitrator, and resolve the issue through findings and an award, which will be binding on both parents.

 

This paragraph further provides that "[u]nless an emergency exists, the parents shall use the designated process to resolve disputes relating to implementation of the plan."

            Appellant argues that the above language indicates the parties' intent to not follow the dispute resolution process if an "emergency" existed.  He further argues that because his moving papers have established a prima facie case of endangerment, an emergency necessarily exists. 

            Even if we read the parenting plan in this manner, we disagree with appellant's claim that he has established a prima facie case of endangerment so as to warrant bypassing the dispute resolution process set out in the parenting plan or so as to warrant an evidentiary hearing.  See Minn. Stat. § 518.18(d) (2002); Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992) (moving party must demonstrate that change has occurred, that modification is in best interests of children, that children's present environment endangers them, and that harm likely to be caused by change is outweighed by advantage of change).  The allegations of endangerment must be significant and supported by specific, credible evidence.  See Smith v. Smith, 508 N.W.2d 222, 227 (Minn. App. 1993) (affirming district court's denial of custody modification without evidentiary hearing where noncustodial parent failed to allege significant endangerment and where his statements were too vague to support finding of endangerment); Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987) (affirming district court's denial of evidentiary hearing where affidavit was "devoid of allegations supported by any specific, credible evidence").

            A review of the allegations in appellant's affidavit and of respondent's responsive affidavit demonstrates that appellant has not met his burden of establishing a prima facie case that the children are endangered while in respondent's care.  See Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997) (stating that although court must accept facts in moving party's affidavit as true, it may consider opposing affidavits and "take note of statements . . . that explain the circumstances surrounding the accusations").  In particular, appellant alleges that respondent frequently leaves the children alone with their half-siblings, who are 14, 17, and 19 years old, and who neglect them and verbally abuse them; that respondent does not keep the children clean; that respondent's residence is unsanitary, with dog feces in the yard and home; that the children do not do their homework when with respondent; that the children watch too much television; that the children are exposed to teenage sexual activity; that respondent smokes and has been intoxicated in front of the children; and that respondent does not demonstrate appropriate sexual boundaries in front of the children with her own boyfriends.  These allegations might be serious when considered alone, but when read in context with respondent's affidavit and with the family's situation, they could describe almost any blended-family situation, with three teenage children from a previous marriage residing with their mother and four younger half-siblings.  Because appellant's affidavit fails to include specific, credible evidence to show that his children are endangered by their present environment or that an emergency otherwise exists, we refuse to allow him to bypass the dispute resolution process set out in the parties' parenting plan.

            Appellant further argues that mediation and binding arbitration are unacceptable substitutions for a court proceeding in a modification of custody.  Even in a child custody dispute, however, a district court may require the parties to complete mediation prior to further court proceedings.  A court may order the parties to mediate a petition for modification of custody or parenting time unless there is probable cause that one of the parties, or a child of the party, has been physically or sexually abused by the other party.  See Minn. Stat. § 518.619, subds. 1, 2 (2002); Minn. R. Gen. Pract. 310.01, .02.  While appellant alleges that the children are not properly supervised or cared for by respondent, he does not allege that they have been physically or sexually abused by her or by their half-siblings.  Thus, the district court here had the authority to order the parties to mediate their dispute.

            Finally, appellant questions whether the district court can order the parties to binding arbitration, which is required by the parenting plan if mediation is unsuccessful.  Appellant does not challenge the validity of the parenting plan or otherwise seek to modify that plan.  We therefore decline to comment on what our standard of review might be of a binding arbitration decision in a custody matter. 

            We affirm the district court's decision to order the parties to follow the dispute resolution process agreed to in their parenting plan.

            Affirmed.

 

[1] Respondent questions whether the district court's order is an appealable final order under Minn. R. Civ. App. 103.03.  See, e.g., Fedie v. Mid-Century Ins. Co., 631 N.W.2d 815, 818-19 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).  While respondent may indeed be correct, we decline to dismiss the appeal solely on that basis.  Cf. Minn. R. Civ. App. P. 105.01 (providing that "in the interest of justice," this court may allow appeal from order not otherwise appealable).