Opinion
No. C4-97-947.
Filed October 7, 1997.
Appeal from the District Court, Dakota County, File No. F0946531.
Ronald L. Moersch, (for appellant)
Tim D. Wermager, (for respondent)
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
The district court denied a custody modification motion without holding an evidentiary hearing. We affirm the denial because the modification motion is not supported by prima facie evidence that the child is endangered or that the advantage of a modification would outweigh any likely harm to the child.
FACTS
Curtis Bond and Jennifer Valek are the parents of a three-and-a-half-year-old child. Under the terms of a November 18, 1994 paternity judgment, Valek has physical custody and the parties have joint legal custody. In March 1997, Bond filed a modification motion to transfer physical custody to him.
In support of the motion, Bond submitted affidavits from family members and friends and his own affidavit incorporating a log which he kept from October 1995 to January 1997. In the log, Bond reported that Valek allegedly used vulgar language to him during visitation transfers, did not let the child use the bathroom before leaving for one visitation, and did not send the child's snow pants and blanket. The log reports that on several occasions Valek denied or limited Bond's visitation, but also indicates that Valek frequently allowed additional visitation. The log also reports that the child says Valek is "mean," says she wants to live with Bond, says that Valek and her husband fight, says that Valek's husband drinks and uses drugs, and that the child resists returning to Valek at the end of Bond's visitation. One entry indicates that the child also said Valek "hurts her" but provides no information on how this occurs.
Bond also provided a report from a psychologist who Bond retained to talk with the child at Bond's home. The report is not in affidavit form. The report states that the child says that Valek is mean, Valek and her husband fight, she does not like Valek, and that Valek does not like to play with her or read to her. In another section, the report indicates that the child says Valek does read to her. The report concludes that the child is endangered in Valek's custody because of inadequate warmth or love. The psychologist did not contact or meet with Valek.
Valek's affidavit states that the information presented in Bond's log is exaggerated, misconstrued, or simply false. She reports that the child cries before leaving for visitation with Bond, but Valek attributes this response to a reluctance to interrupt ongoing play rather than negative feelings about Bond. Valek states that as the custodial parent and primary disciplinarian, she would not be surprised if the child were occasionally upset with her, but that her relationship with the child is positive, the child has never been neglected or abused, and that neither Valek nor her husband uses drugs or abuses alcohol.
Valek provided affidavits from her husband, family members, friends, and the child's day care provider attesting to the close and loving relationship between Valek and the child. Valek stated that she was not informed that the child was being evaluated by a psychologist and had no opportunity to address any of the psychologist's stated concerns.
In denying Bond's request for an evidentiary hearing on his motion to modify custody, the district court found that neither Bond's affidavits nor the psychologist's letter establish a prima facie case for modification and thus an evidentiary hearing is not warranted. Bond appeals the denial of the hearing.
DECISION I
On a motion for modification of custody, the district court should grant an evidentiary hearing if the affidavits submitted by the moving party, taken as true, establish a prima facie case. Nice-Petersen v. Nice-Petersen , 310 N.W.2d 471, 472 (Minn. 1981). To establish a prima facie case, the moving party must demonstrate a change of circumstance in the child's environment that endangers the child's physical or emotional health or emotional development, that a modification would be in the child's best interests, and that the advantage of a change will outweigh any harm likely caused by the change. Minn. Stat. § 518.18(d) (1996); Abbott v. Abbott , 481 N.W.2d 864, 868 (Minn.App. 1992). We review the district court's decision to deny an evidentiary hearing under an abuse of discretion standard. See Valentine v. Lutz , 512 N.W.2d 868, 872 (Minn. 1994).
Bond maintains that the psychologist's report and his affidavits present prima facie evidence requiring a hearing because his affidavit shows that the child is frequently in his care and comfortable with his home environment, the psychologist's report indicates that the child's mental health is endangered by her current placement, and the child has stated her preference to live with Bond. We disagree that the district court erred in concluding that the evidence was deficient.
In requiring a threshold of "endangerment" in the context of child custody, the legislature "likely intended to demand a showing of a significant degree of danger." Ross v. Ross , 477 N.W.2d 753, 756 (Minn.App. 1991). Normally, the conduct or circumstances of a parent does not establish danger to the welfare of children without evidence of actual adverse effects. Dabill v. Dabill , 514 N.W.2d 590, 595-96 (Minn.App. 1994).
The factual allegations do not show the "significant degree of danger" required by Ross . The allegations that suggest possible danger are vague and provide no specific indications of adverse effects. The psychologist's conclusion that the child is not receiving enough love and care from Valek is very speculative, particularly in light of the fact that the psychologist did not interview Valek or observe her interactions with the child. No evidence demonstrates actual adverse effects resulting from Valek's care of the child. Bond's argument that the three-and-a-half-year-old child expresses a preference to live with him is not probative. Speltz v. Speltz , 386 N.W.2d 264, 267 (Minn.App. 1986) (children aged six and four are too young to express a custodial preference, regardless of asserted maturity levels), review denied (Minn. June 30, 1986).
In addition to the speculative nature of the psychologist's report, Bond's decision to have the child evaluated by a psychologist without informing Valek is inconsistent with the provisions of the November 18, 1994 judgment directing the parties to jointly make decisions on all matters having significant impact on the child's life, including her psychological health. Valek was not allowed the opportunity to participate, and consequently the report is one-sided. When the psychological evaluation of a child was made without the knowledge or consent of the custodial parent, and the report is based on limited information, the district court has discretion to refuse to consider it in determining whether the noncustodial parent has made the prima facie showing necessary to trigger an evidentiary hearing. Silbaugh v. Silbaugh , 543 N.W.2d 639, 641 (Minn. 1996).
The district court acted within its discretion in rejecting the psychologist's speculative conclusion on the relationship between Valek and the child. Because Bond failed to present a prima facie case of endangerment or that the harm likely to be caused by disruption of the child's current living circumstances would be outweighed by the advantages of the change, an evidentiary hearing was not required.
II
Attorneys' fees may be awarded on the basis of financial need or against a party who unreasonably contributes to the length or expense of the proceeding. Minn. Stat. § 518.14, subd. 1 (1996); see Pitkin v. Gross , 385 N.W.2d 367, 371 (Minn.App. 1986) (allowing attorneys' fees in custody actions following paternity determination.) Valek moves for an award of attorneys' fees on appeal, but does not provide a basis for her request. Valek has not shown that she is unable to pay her own attorneys' fees or that the appeal is frivolous, and we decline to award fees on appeal.