G.G., petitioner, Appellant, vs. N.K., Respondent.

G.G., petitioner, Appellant, vs. N.K., Respondent. A06-741, Court of Appeals Unpublished, December 19, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-741

 

G.G., petitioner,

Appellant,

 

vs.

 

N.K.,

Respondent.

 

Filed December 19, 2006

Affirmed
Klaphake, Judge

 

Beltrami County District Court

File No. F5-95-958

 

John E. Valen, Valen Law Office, Fifth & Michigan, P.O. Box 1105, Walker, MN  56484 (for appellant)

 

George L. Duranske, III, Duranske Law Firm, 1435 Anne Street N.E., Post Office Box 1383, Bemidji, MN  56619 (for respondent)

 

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

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant G.G. and respondent N.K. are the parents of two children who are now 14 and 12 years old.  Respondent has had physical custody of the children since 1997, when she was awarded custody under the terms of a paternity judgment.  Appellant challenges the district court's denial, without an evidentiary hearing, of his motion to modify custody of the children.  Because the district court did not abuse its discretion in determining that appellant failed to establish a prima facie case so as to warrant an evidentiary hearing, we affirm.

D E C I S I O N

            On review of a district court's decision to dismiss a custody modification petition without an evidentiary hearing, this court applies an abuse of discretion standard.  In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002).  The party seeking modification must submit an affidavit in support of his or her motion.  Minn. Stat. § 518.185 (2004).  To obtain an evidentiary hearing on a motion to modify based on endangerment, the moving party's affidavit must allege the following four elements to establish a prima facie case for modification:  (1) a change in the circumstances of the child; (2) modification would serve the child's best interests; (3) the child's present environment endangers his or her physical or emotional health or development; and (4) the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.  See Minn. Stat. § 518.18(d)(iv) (2004); Weber, 653 N.W.2d at 809.

            The district court must accept the facts in the moving party's affidavit as true and need not grant an evidentiary hearing if that affidavit does not provide sufficient grounds for modification.  Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981); Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).  While the district court must disregard any directly contradictory statements in the nonmoving party's submission, it "may take note of statements . . . that explain the circumstances surrounding the [moving party's] accusations."  Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997).

            Here, the information provided by respondent in her affidavit does not contradict the allegations made by appellant; rather, respondent's affidavit provides additional information on the children's current situations.  When the two parties' affidavits are read together, it is clear that appellant has failed to make a prima facie case of endangerment so as to warrant an evidentiary hearing on his motion.

            Change in Circumstances

            Appellant's affidavit focuses on three changes in circumstances to support his request to modify custody:  (1) a deteriorating relationship between the children and respondent; (2) suicidal statements by the older child; and (3) the stated preference of the older child, who is 14, to live with appellant.  To warrant modification, the change in circumstances must be significant, must have occurred since the original custody order, and must endanger the child's physical or emotional health or development.  Weber, 653 N.W.2d at 809.

            A child's preference to live with a different parent may not warrant an evidentiary hearing when "it is obvious from the record that [the] stated preference results from manipulation by the moving party."  Geibe, 571 N.W.2d at 778.  The district court here made no finding of manipulation, but the record suggests that appellant may have pressured the child to state a preference.  As respondent asserts, appellant "seems to be attempting to exploit difficulties that developed and peaked with [the older child] in the spring of 2005," and that appellant "extracts [the child's] statements about his feelings toward his mother during the first few days of his psychiatric hospitalization."  When these statements are read in context, it is clear that the child was upset with respondent and blamed her for his in-patient treatment.  Further, as respondent explains in her affidavit, the older child is currently doing well at home and in school.  We thus agree with respondent, who insists that the district court "astutely recognized that a few months of adolescent difficulties and conflict with a custodial parent do not rise to the level of a ‘significant change in circumstances.'"

            Best Interests of Child

            Appellant points to the May 12 opinion one of the older child's counselors, who stated that it would be in the child's "best interest to reside with his father."  Appellant insists that this statement alone should be sufficient to warrant an evidentiary hearing.  However, the counselor fails to provide any explanation for his opinion.  Nor does the counselor address any of the best interest factors set out in Minn. Stat. § 518.17, subd. 1 (2004) (determination of child's best interests involves consideration of number of factors, including child's mental health, wishes of parents, intimacy of relationship between each parent and child, and child's relationship with siblings).

            Endangerment

            Allegations of physical and emotional abuse may establish endangerment, but only when the degree of danger is significant.  Weber, 653 N.W.2d at 811.  An evidentiary hearing may be denied when the moving party's affidavit is "‘devoid of allegations supported by any specific, credible evidence.'"  Id. (quoting Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987)).  To establish endangerment, it must be shown that a parent's conduct has resulted in an "actual, adverse effect on the child," such as behavioral problems or poor school performance.  Id.

            Appellant claims that he has shown endangerment based on the older child's expressed preference to live with him, the child's deteriorating relationship with respondent, and the child's development of suicidal thoughts and depression in his current living situation.  As respondent notes, however, these allegations of endangerment were "cherry picked" from various documents generated during the child's in-patient treatment.  Contrary to appellant's claim, respondent's actions in obtaining professional help and referring the older child to in-patient treatment has benefited the child, as evidenced by his marked improvement at school and at home.[1]

            Balance of Harm

            The moving party must finally establish that the advantage of modifying custody outweighs the harm likely to be caused by the change.  Weber, 653 N.W.2d at 811.  Minnesota law presumes that stability in custody is in a child's best interests, so that an existing custodial arrangement is not lightly overturned.  Id.

            Appellant merely argues that this factor is generally considered after an evidentiary hearing, and that the first (change of circumstances) and third (endangerment) factors are determinative of whether an evidentiary hearing should be held.  However, appellant's position is not supported by the case law, which holds that the moving party must make some showing that the child would benefit from a change in custody.  See Weber, 653 N.W.2d at 811-12.

            Here, contrary to appellant's claims, the record generally shows that respondent has provided a stable home for the children.  Although she has attempted to communicate with appellant and involve him in decisions involving the children, he has generally left the decisions regarding the children's upbringing to respondent.  The children also have several other siblings who reside in respondent's home.  Finally, appellant has failed to provide any evidence to show that the children would be better off residing in his home.  To the contrary, there are references in the record to appellant's drug use and his tendency to disparage respondent in front of the children.  Thus, appellant has failed to provide evidence to show that the advantage of changing custody is outweighed by the harm it would cause.

            We therefore affirm the district court's denial, without an evidentiary hearing, of appellant's motion to modify custody of his two children.

            Affirmed.

[1] Appellant argues that the district court improperly penalized him for the delay between the filing of his motion in August 2005 and the district court's decision in February 2006.  The district court discounted appellant's allegations because the information failed to show the children's current circumstances.  To make a prima facie case, appellant was obligated to show that the child's "present environment endangered his emotional health."  Minn. Stat. § 518.18(d)(iv) (2004).  Appellant failed to provide current evidence and respondent successfully rebutted his claims by providing information about the child's successful progress since hospitalization in May 2005.