In re the Marriage of: Jennifer L. Millsop, n/k/a Jennifer L. Boryca, petitioner, Appellant, vs. Reginald C. Millsop, Respondent.

In re the Marriage of: Jennifer L. Millsop, n/k/a Jennifer L. Boryca, petitioner, Appellant, vs. Reginald C. Millsop, Respondent. A06-2191, Court of Appeals Unpublished, June 12, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2191

 

 

In re the Marriage of:

Jennifer L. Millsop, n/k/a Jennifer L. Boryca, petitioner,

Appellant,

 

vs.

 

Reginald C. Millsop,

Respondent.

 

 

Filed June 12, 2007

Affirmed

Toussaint, Chief Judge

 

Roseau County District Court

File No. F6-02-724

 

Ronald Resnik, 6200 Shingle Creek Parkway, Suite 340, Brooklyn Center, MN 55430 (for appellant)

 

Kevin T. Duffy, Post Office Box 715, Thief River Falls, MN 56701 (for respondent)

 

            Considered and decided by Ross, Presiding Judge; Toussaint, Chief Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            On appeal from the district court's denial of the motion of appellant Jennifer L. Millsop, n/k/a Jennifer L. Boryca, to modify custody, she argues that the district court should have granted her either immediate temporary custody of the child, an evidentiary hearing on her motion to modify custody, or a new guardian ad litem.  We affirm.

D E C I S I O N

            Appellant argues that the district court abused its discretion by finding that appellant did not made a prima facie case of endangerment justifying an evidentiary hearing to modify physical custody.  Whether a party makes a prima facie case to modify custody is dispositive of whether an evidentiary hearing will occur on the motion.  See Morey v. Peppin, 375 N.W.2d 19, 25 (Minn. 1985) (stating "evidentiary hearing shall be scheduled" if moving party makes prima facie case to modify custody); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (stating if moving party fails to make prima facie case, district court is "require[d] . . . to deny [the] motion").  A district court, however, has discretion in deciding whether a moving party makes a prima facie case to modify custody.  See Geibe v. Geibe, 571 N.W.2d 774, 780 (Minn. App. 1997) (holding district court did not abuse discretion in ruling moving party failed to make prima facie case to modify custody).

            The district court may modify a prior custody order in the child's best interest to address changed circumstances.  Minn. Stat. § 518.18(d) (2006).  But custody may be changed only if the circumstances endanger the child's physical or emotional health and only when the change is more advantageous than the harm caused by changing the child's living arrangements.  Id.  The party who seeks the modification must support its motion with an affidavit setting forth facts supporting the request.  Minn. Stat. § 518.185 (2006).

Endangerment implies a "significant degree of danger" or likely harm to the child's physical or emotional well-being.  Sharp v. Bilbro,614 N.W.2d 260, 263 (Minn. App. 2000) (quotation omitted), review denied (Minn. Sept. 26, 2000).  But an "alleged single incident of borderline abuse or neglect has been held not to constitute sufficient endangerment to warrant a custody modification."  Giebe, 571 N.W.2d at 779.  Indications of such danger include fear of the custodial parent and the custodial parent's spouse, allegations of abuse, poor school performance, and behavioral problems.  Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).

Here, appellant claims her son is endangered becauserespondent Reginald C. Millsop's fiancée slapped appellant's son in the face.  In addition, respondent's household sends the son to bed at 7 p.m., and respondent, who works during the day, is not spending time with his son.  Appellant also claims respondent does not cooperate in scheduling appellant's parenting time, does not communicate with her about their son, refuses appellant's telephone calls outside of the court-ordered parenting time, and fails to provide the son with sufficient medical care.  Other incidents in appellant's affidavits, including the son's exposure to carbon-monoxide poisoning, the son's lack of weight gain, and respondent's returning a parcel sent to their son with his favorite cookies and a toy, happened before the most recent child-support order and are therefore not changed circumstances. 

Respondent and his fiancée have both denied that the son was ever slapped and state that they would never strike a child.  They explained that they begin the son's bedtime at 7 p.m., but that includes bathing and activities with respondent and his fiancée.  The son is put to bed after 8 p.m.  Respondent stated that he permits appellant telephone access with their son during the court-ordered times.  In addition, respondent stated that appellant chose not to use her parenting time because of her own transportation problems.  Respondent describes the son as "a very healthy, strong young boy," and respondent states that he "certainly does not bring him to the doctor unless he is sick." 

Given appellant's failure to provide only isolated incidents that do not indicate "a significant degree of danger," appellant has not shown a prima facie case for modifying custody, and the district court properly denied appellant's request for immediate physical custody.

            Appellant claims that the district court's order failed to provide sufficient findings of fact to support the district court's conclusions.  "Generally, the [district] court is required to make specific findings demonstrating the basis for its conclusions when deciding a custody matter."  Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992).  But when denying an evidentiary hearing that was requested on affidavits, the district "court does not need to make particularized findings indicating consideration of the statutory factors."  Id.  Here, based on the affidavits, the district court found that appellant "failed to meet her burden of establishing a prima facie showing that grounds exist to change custody."  Such a finding is sufficient.

            Appellant also claims that the district court should have at least appointed a new guardian ad litem.  In a contested custody matter, the district court may, in its discretion, appoint a guardian ad litem and must appoint a guardian ad litem if "the court has reason to believe that the minor child is a victim of domestic child abuse or neglect."  Minn. Stat. § 518.165 (2006).  Conversely, if the allegations of abuse are insubstantial or rebutted, the district court may refuse to appoint a guardian ad litem.  Abbott, 481 N.W.2d at 870; Baum v. Baum, 465 N.W.2d 598, 600 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).  Because appellant's claims are not changed circumstances or indicative of endangerment, a new guardian ad litem is not warranted.

            Affirmed.