In re the Marriage of: Blanca Margarita Zaldivar, petitioner, Respondent, vs. Luis Roberto Rodríguez Zaldivar, Appellant.

In re the Marriage of: Blanca Margarita Zaldivar, petitioner, Respondent, vs. Luis Roberto Rodríguez Zaldivar, Appellant. A06-1427, Court of Appeals Unpublished, December 5, 2006.

This opinion will be unpublished and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

A06-1427

 

 

In re the Marriage of:

Blanca Margarita Zaldivar, petitioner,

Respondent,

 

vs.

 

Luis Roberto Rodríguez Zaldivar,

Appellant.

 

 

Filed December 5, 2006

Affirmed

Lansing, Judge

 

 

Watonwan County District Court

File No. F0-03-426

 

 

Janet C. Werness, Southern Minnesota Regional Legal Services, 166 East Fourth Street, Suite 200, St. Paul, MN 55101 (for respondent)

 

Luis Roberto Zaldivar, 205-1/2 Downtown Plaza #2, Fairmont, MN 56031 (pro se appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Luis Zaldivar appeals the district court's denial of his motions to modify child custody and to reopen his dissolution judgment.  We affirm the denial of the modification motion without a hearing because the affidavits and supplemental material do not establish prima facie evidence of a change in circumstances that endangers the child's physical or emotional health.  We do not reach Zaldivar's challenge to the dissolution judgment because he failed to address it in the text of his appellate brief and, on the face of the record, we perceive no error in the district court's determination.

F A C T S

            Blanca Parada, formerly Blanca Zaldivar, and Luis Zaldivar are the parents of a ten-year-old child who was born on July 17, 1996.  Parada and Zaldivar were married in 1993 in El Salvador and separated in April 2003 when Parada and the child moved out of the family home in St. James, Minnesota. 

            Parada obtained an order for protection based on acts of domestic violence and filed a marital-dissolution petition in September 2003.  Zaldivar and Parada agreed to a decree of dissolution and ultimately resolved the property-division and child-custody issues.  Based on Zaldivar and Parada's agreement, the district court issued an order granting Parada sole legal and physical custody; granting Zaldivar unsupervised parenting time; ordering phone and e-mail contact between the child and Zaldivar; and ordering that Parada would retain ownership of the family home conditioned on payment of one-half the value of the property to Zaldivar at the time of sale.  The district court reserved the issue of child support and denied spousal maintenance. 

            After entry of the final dissolution judgment, Zaldivar made a number of motions relating to parenting time.  In conjunction with one of Zaldivar's motions, the district court appointed a guardian ad litem for the child.  The guardian ad litem issued a report in May 2006, one week before the district court heard arguments on the motions that are the subject of this appeal.

            The first of Zaldivar's motions raised in this appeal requested a change in custody.  In two affidavits submitted in support of the motion, Zaldivar alleged that Parada and the child had moved to the state of Virginia, that Parada had denied him parenting time and telephone communication, and that Parada was suffering from depression and "paranoid psychotic episodes."  Eight days after filing the modification motion, Zaldivar filed a motion to vacate the dissolution judgment for fraud on the court.  He alleged that Parada had failed to disclose income, that she had improperly removed marital property from their house, and that the house was nonmarital property to which he was entitled.

            The district court heard arguments on both motions and reviewed the guardian ad litem's report.  The report refuted parts of Zaldivar's affidavits and recommended that Parada retain sole legal and physical custody of the child.  The district court denied Zaldivar's motions without an evidentiary hearing and Zaldivar appeals.

D E C I S I O N

I

We review the denial of a motion to modify custody for abuse of discretion.   Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981); Valentine v. Lutz, 512 N.W.2d 868, 871(Minn. 1994).  Minnesota courts follow a two-step process to determine whether a custody order should be modified.  Nice-Petersen, 310 N.W.2d at 472.  The party seeking a change in custody must submit affidavits to the district court setting forth enough facts to make a prima facie case for modification.  Id.; see also Minn. Stat. § 518.185 (2004).  If a prima facie case is made, the district court must then hold an evidentiary hearing.  In re Weber, 653 N.W.2d 804, 809 (Minn. App. 2002). 

Physical custody may be modified if the child is "endangered."  Minn. Stat. § 518.18(d) (2004).  To establish a prima facie case for modification under the "endangerment" standard, the moving party must demonstrate that a change of circumstances in the child's environment endangers the child's physical or emotional health or development, that a custody modification would be in the child's best interests, and that the advantage of a modification will outweigh any harm likely caused by the modification.  Id.; Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999).  The change in circumstances must be significant and must have occurred since the original custody order.  Nice-Petersen, 310 N.W.2d at 472; see also Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) (stating that legislature "likely intended to demand a showing of a significant degree of danger" for endangerment in context of child custody). 

The district court, in denying Zaldivar's motion to modify custody without an evidentiary hearing, concluded that Zaldivar's affidavits failed to provide prima facie evidence of a change in circumstances.  The court stated:  "[T]he Court finds that Mr. Zaldivar has not presented any new evidence not already considered by the Court."  This finding is supported by the record.

            Zaldivar has failed to allege facts that would establish a significant change in circumstances.  Although he provides a long list of allegations, most of these allegations have already been raised and considered either before the order establishing custody or in intervening motions that have been rejected by the district court.

We note that some of the allegations purport to demonstrate a change in circumstances, but these allegations conflict with supplemental evidence that Zaldivar has provided that negates the occurrence of the alleged change.  For instance, Zaldivar alleges that Parada has moved to Virginia in violation of a court order.  To support this allegation, he provided a report from the daughter's school indicating that she was absent because she was in Virginia.  The same report, however, indicates that the daughter returned to school in Minnesota after having missed only four days of school.  This was not a significant change in circumstances.  Zaldivar also alleges that Parada is suffering from depression and "paranoid psychotic episodes," but he provides no basis for these allegations.  The medical records indicate only that Parada experienced situational depression during the dissolution proceedings.  Zaldivar's other allegations similarly fail to show a significant change in circumstances.  The district court therefore did not abuse its discretion in finding that Zaldivar failed to establish a prima facie case of changed circumstances.

Because the district court appropriately found that Zaldivar had failed to establish a prima facie case of a change in circumstances, we need not address the district court's evaluation of the evidence on the child's best interests or whether the advantages of a modification would outweigh any harm likely caused by it.  We note, however, that the district court properly relied on the recent guardian-ad-litem report in evaluating Zaldivar's motions.  See Valentine, 512 N.W.2d at 871-72 (relying on report of social worker and therapist in determining whether to hold evidentiary hearing); Nice-Petersen, 310 N.W.2d at 472 (considering guardian ad litem's report in determining whether to hold evidentiary hearing); Geibe v. Geibe, 571 N.W.2d 774, 777, 779 (Minn. App. 1997) (stating that while district court accepts facts in moving party's affidavits as true, district court may consider other evidence that explains circumstances surrounding accusations).  The guardian ad litem's report reviewed and investigated Zaldivar's accusations and concluded that there were no reasonable grounds to consider either a modification in custody or the parenting time schedule.

II

            Zaldivar initially indicated that he was appealing the order denying his motion to reopen his dissolution judgment.  In his brief, however, he does not refer to this order and makes no argument on this issue.  Although Zaldivar refers to the order in his reply brief, he does so only in response to Parada's brief, and he does not explain why his motion to reopen should have been granted.  Issues not argued in briefs are waived on appeal.  McKenzie v. State, 583 N.W.2d 744, 746 n.1 (Minn. 1998).  It is not enough to tangentially identify an issue.  In re Olson, 648 N.W.2d 226, 228 (Minn. 2002).  We therefore conclude that Zaldivar has waived this issue.

            In addition, we note that a party cannot move to reopen a dissolution judgment under Minn. R. Civ. P. 60.02.  After judgment has been entered, the sole relief from judgment lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2 (2004).  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997).  Therefore, because Zaldivar moved for reopening under rule 60.02, the district court properly denied his motion.  See Lindsey v. Lindsey, 388 N.W.2d 713, 716 n.1 (Minn. 1986) (noting that in future "motions to modify divorce decrees brought under Rule 60.02 should not be entertained by the district courts").

            Affirmed.

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