Opinion
No. A07-1002.
Filed October 30, 2007.
Appeal from the District Court, Lake of the Woods County, File No. 39-F3-03-000182.
Alan B. Fish, Alan B. Fish, P.S., (for respondent).
George L. Duranske, III, Duranske Law Firm, (for appellant).
Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant Kristi Wells, formerly known as Kristi Stimpfl, challenges the district court's order denying her request for an evidentiary hearing and refusing to modify the custody of the parties' children, who live with respondent Kurt Stimpfl. Appellant also argues that the district court abused its discretion by ordering a change of venue to Wright County, respondent's county of residence.
Because appellant failed to make a prima facie case for modification of custody, and because the district court did not abuse its discretion by ordering a change of venue, we affirm.
DECISION
Custody Modification
This court reviews the district court's order denying a motion to modify custody without an evidentiary hearing for an abuse of discretion. Tarlan v. Sorensen, 702 N.W.2d 915, 922 (Minn.App. 2005). The district court may modify a previous custody order upon a showing of a change in circumstances such that a modification of custody is necessary to serve the child's best interests. Minn. Stat. § 518.18(d) (2006). Where the motion for modification is based on an allegation of endangerment, the court must retain the current custody status unless "the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child[.]" Minn. Stat. § 518.18(d)(iv).
The party requesting modification of custody must submit an affidavit alleging facts that set forth a prima facie case for modification. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn.App. 1997). The court must accept the facts alleged in the affidavit as true. In re Weber, 653 N.W.2d 804, 809 (Minn.App. 2002). If the facts as alleged do not provide a basis for modification, the court need not grant an evidentiary hearing. Id.
A prima facie case for an endangerment-based modification of custody consists of four elements: (1) a change in circumstances has occurred since the original custody order; (2) modification would be in the best interests of the child; (3) the present environment endangers the child's physical or emotional health or emotional development; and (4) the harm caused by a change in custody is outweighed by the advantage of the change. Geibe, 571 N.W.2d at 778. The change in circumstances must not be a continuation of conditions that existed prior to the original custody order. Id. "Endangerment requires a showing of a significant degree of danger." Id. (quotation omitted).
Here, the district court concluded that appellant failed to demonstrate a change in circumstances that would justify modification and to allege facts that show endangerment to the children's physical and emotional health and development. The court noted that appellant had been concerned about and raised one child's weight loss as an issue during the dissolution hearing and in motions made after the hearing, but concluded that this did not represent a change in circumstances. Appellant's allegation about lack of dental care arose after one child had cavities filled and two root canals, which occurred when respondent took the child to the dentist, thus negating the impression that he did not provide dental care; appellant failed to note in her affidavit that the other two children had no dental problems. Although the court must accept the moving party's affidavit as true for purposes of determining whether a prima facie case for modification has been established, the court may also consider evidence from other sources. Id. at 777.
The court found that appellant's allegations that respondent neglected the children, worked long hours, and failed to involve them in extra-curricular activities also did not represent a change in circumstances because these same allegations were raised at the trial. Appellant did allege that respondent had represented to the court that his mother would provide childcare after respondent and the children moved to Georgia, and this in fact did not happen. However, respondent has returned to Minnesota and this allegation is no longer relevant.
The court concluded that use of childcare providers did not rise to the level of endangerment when the custodial parent works full time. Finally, the court stated that appellant failed to allege facts showing physical or emotional endangerment, such as mental or physical abuse or problems in school or with peers that would suggest endangerment.
Because appellant failed to make a prima facie case for modification of custody, the district court did not abuse its discretion by refusing to hold an evidentiary hearing or to modify custody.
Change of Venue
"The venue of any civil action may be changed by order of the court . . . when the convenience of witnesses and the ends of justice would be promoted by the change." Minn. Stat. § 542.11(4) (2006). The district court's decision on a motion for a change of venue in a family law case is reviewed for an abuse of discretion. Toughill v. Toughill, 609 N.W.2d 634, 642 (Minn.App. 2000).
Respondent and the three children live in Wright County, geographically distant from the current venue, Lake of the Woods County. Appellant's request to change venue to Beltrami County would be only marginally closer to the children's residence. Because questions involving custody would be resolved by a study of the children's environment, the district court did not abuse its discretion by ordering a change of venue to Wright County, where the children reside.