Agnes D. Dennis, Respondent, vs. Frederick J. Badio, Appellant.

This opinion will be unpublished and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

A04-200

 

Agnes D. Dennis,

Respondent,

 

vs.

 

Frederick J. Badio,

Appellant.

 

Filed November 2, 2004

Affirmed Forsberg, Judge*

 

Hennepin County District Court

File No. PA 35232

 

Agnes D. Dennis, 12 Wisdom Avenue, Providence, RI 02908 (pro se respondent)

 

Frederick Badio, 2930 Blaisdell Avenue South, #304, Minneapolis, MN 55408 (pro se appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            On appeal from the district court's denial of his motion to modify custody, appellant-father argues that the district court erred in finding that respondent-mother did not intentionally interfere with appellant's parenting time and that modification of custody was not necessary to prevent endangerment.  Appellant also argues that the district court referee perpetrated a fraud on the court and failed to conduct the proceedings in an impartial manner.  Because the record supports the challenged district court findings, we affirm. 

FACTS

            Appellant Frederick J. Badio and respondent Agnes D. Dennis are the parents of R.B., born December 5, 1995.  On August 9, 1996, respondent was granted sole physical custody of R.B.; the parties were granted joint legal custody of the child, and appellant was granted parenting time.  Respondent moved with R.B. from Minnesota to Boston on November 30, 2002.  Appellant did not have any contact with either respondent or R.B. until after the initiation of these proceedings.

Appellant filed a motion to modify custody on March 14, 2003, requesting sole physical custody of R.B.  Appellant alleged in his affidavit that respondent moved without his consent in order to intentionally interfere with appellant's parenting time, and that R.B. suffers emotionally because she has been deprived of contact with her father and her father's family.  Appellant further alleged that R.B.'s physical and emotional health was endangered.  Appellant stated that there was domestic abuse in respondent's home, including violent physical attacks, and that respondent was an alcoholic.

            An evidentiary hearing on appellant's motion was held on August 28, 2003, before a family court referee.  Respondent testified that she moved to Boston because she found employment as an office assistant at a significantly higher salary.  She is newly married and R.B. has frequent contact with her husband's family.  Respondent testified that she obtained appellant's permission to move on two prior occasions before she moved to Boston in late November 2002, and she phoned appellant's family soon after settling in Boston to provide contact information.  Respondent learned that appellant was traveling abroad and could not be reached for ten weeks.  Appellant did not return respondent's phone calls, and respondent assumed that he no longer wished to have contact with R.B.  Respondent acknowledged that she did not make any further attempts to contact appellant, but she testified that it was not her intention to keep R.B. from him. 

            Three witnesses testified on appellant's behalf.  Appellant's fiancé testified that R.B. and appellant have a loving relationship, and R.B. used to spend roughly 50% of her time with appellant.  Additionally, appellant's fiancé described two encounters she had with respondent in which respondent threatened her physically and was verbally abusive.  Appellant's brother-in-law testified to the strong bond he had observed between R.B. and both of her parents.  He acknowledged receiving a phone call from respondent shortly after her move in which respondent provided contact information to facilitate future communication with appellant and maintain the relationship between R.B. and appellant's family.  Appellant's final witness was a friend who testified that, about a year ago, respondent threw a beer bottle at his face.

            Appellant testified he has always been, and will continue to be, a presence in R.B.'s life.  Appellant stated that he did not contact R.B. because he did not have respondent's phone number or address.  Appellant acknowledged that respondent had provided her address at a hearing in March, but stated that he could not understand her at the time, and the court clerks refused to provide the address upon his request.  He further testified that he had attempted to contact R.B. by phone two weeks before the August 28 hearing.  Respondent answered, laughed at his request, and stated that R.B. wasn't home.  Appellant testified that he is concerned about his child's current environment because he does not know the mental health of respondent's new husband or his family.  Finally, appellant introduced a tape of answering machine messages left by respondent.  On this tape, respondent repeatedly uses profane language and states that she hates appellant.

            The referee denied appellant's motion to modify custody on November 24, 2003.  Appellant sought review of the order.  In its January 14, 2004 order, the district court found that appellant had not demonstrated that removal to Boston was not in R.B.'s best interests, that R.B. was currently endangered, or that respondent had willfully interfered with appellant's parenting time.  The court observed that the parties had significant anger toward each other that limited their ability to communicate.  Moreover, while the audiotape demonstrated the depth of respondent's anger toward appellant, it did not provide a basis to modify custody.  Finally, although appellant lost parenting time following respondent's move, that loss is attributable to their breakdown in communication and not to any intentional deprivation on respondent's part.  This appeal follows.

D E C I S I O N

            Appellant argues that the district court clearly erred in finding that respondent's removal of the child from Minnesota was not for the purpose of depriving appellant of parenting time, and hence that the district court abused its discretion by denying appellant's motion to modify custody.  He also argues that modification of physical custody is necessary because R.B. is presently endangered.  Appellate review of custody modification cases is limited to whether the trial court abused its discretion by either making findings unsupported by the evidence or improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1999).  Where the issue on appeal is the sufficiency of the evidence supporting the trial court's findings, Minn. R. Civ. P. 52.01 dictates that the trial court's determinations be upheld on appeal unless those findings are clearly erroneous.  Under the clearly erroneous standard, a trial court's findings should not be disturbed if supported by reasonable evidence.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).

Intentional Interference

            Under Minnesota law, if respondent wrongfully interfered with appellant's court-ordered parenting time, the court may award appellant compensatory parenting time, a monetary civil penalty, attorney fees, or any other reasonable remedy.  Minn. Stat. § 518.175, subd. 6(a), (c) (2002).  Additionally, proof of an unwarranted denial of or interference with duly established parenting time may be relevant to reversing custody.  Id. § 518.175, subd. 6(e); see Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000) (stating that, while denial of parenting time is not controlling in a custody modification proceeding, it must be considered along with the custody modification factors set out in Minn. Stat. § 518.18 (2002)), review denied (Minn. Sept. 26, 2000).

            Appellant contends that respondent intentionally interfered with his parenting time by moving R.B. to Boston without his consent or a court order.  In support of his argument, appellant notes that (1) respondent did not have a firm job offer in her field when she moved; (2) there is no evidence that the move improved R.B.'s financial circumstances or that respondent was presently employed; (3) respondent had ample time to seek court permission prior to her move; and (4) respondent did not provide appellant with updated contact information.

            The district court's determination that respondent did not intentionally interfere with appellant's parenting time is supported by reasonable evidence.  According to respondent's testimony, it was never her intent to deprive appellant of visitation with R.B.  She obtained new employment, which, although outside her current field, provided a significantly higher salary.  Respondent received appellant's permission to move with R.B. and phoned appellant's family shortly thereafter with her new address and number.  Although appellant's version of events differs significantly, the reviewing court must view the record in the light most favorable to the findings and defer to the district court's credibility determinations.  Here, the district court deemed respondent's testimony more credible.  And this court is obligated to defer to that determination on review.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

            The record in this case supports the district court's determination that the lapse in appellant's parenting time is attributable to a breakdown in communication between the parties.  Appellant frequently exercised his parenting time before R.B. moved to Boston.  Respondent moved to Boston to better herself financially and, at least initially, actively attempted to maintain a relationship between R.B. and appellant, as well as appellant's family.  Accordingly, the district court did not abuse its discretion in finding no intentional interference.

Custody Modification

Custody Modification proceedings are governed by Minn. Stat. § 518.18(d) (2002), which provides that a court may order an endangerment-based modification of custody if the moving party demonstrates (1) a change in the circumstances of the child or custodian; (2) that modification is necessary to serve the best interests of the child; and (3) that the child's present environment endangers the child's physical or emotional development and the harm likely to be caused by a change of environment is outweighed by the advantages to the child.  See Minn. Stat. § 518.17, subd. 1(a) (2002) (listing the 13 "best interests" factors). 

Appellant contends that the record supports his assertion that modification of physical custody is necessary because R.B.'s current home endangers the child's physical and emotional health.  For an existing or potential threat to a child's emotional health or physical safety to constitute endangerment, there must be "a showing of a significant degree of danger."  Sharp, 614 N.W.2d at 263 (quoting Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991)).  Accordingly, "[b]are allegations . . . cannot be said to rise to the level of establishing endangerment."  Silbaugh,543 N.W.2d at 642.

The district court's finding that R.B.'s current living arrangement does not endanger her physical or emotional health is not clearly erroneous.  Appellant contends that R.B. is affected emotionally by the transition because the child has always spent considerable time with her father.  But appellant acknowledged in his testimony that he was unfamiliar with R.B.'s current living situation.  While the record shows that respondent may be capable of physical violence and profane language, the record does not show that respondent directed any of these acts towards R.B.  Additionally, appellant presented no evidence linking respondent's conduct to R.B.'s emotional or physical health. 

Appellant did not put forth evidence of sufficient specificity to warrant a finding of endangerment.  As such, the district court did not abuse its discretion when it denied appellant's motion to modify custody.

Fraud on the Court

Appellant makes two additional arguments in his brief: (1) The referee perpetrated fraud upon the court; and (2) the referee failed to conduct the proceedings in an impartial manner and should have recused herself.  Appellant provides no support for these assertions.  Issues not briefed on appeal are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  Accordingly, this court declines to address appellant's additional arguments.

Affirmed.

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