Opinion
No. CX-02-807.
Filed November 5, 2002.
Appeal from the District Court, Washington County, File No. F0892225.
Paul E. Overson, (for respondent)
Andrew M. Silverstein, (for appellant)
Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Mulally, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Russell David Hondlik challenges the district court's denial of his motion to change custody of his now 15-year-old son. He argues that the court abused its discretion by failing to grant him an evidentiary hearing, by ignoring the child's preference to live with his father, and by failing to interview the child or appoint a guardian ad litem. Respondent Sandra Jean Hondlik argues that the district court's decisions were proper exercises of its discretion, given the lack of any allegations to suggest endangerment and the court's finding that the child's stated preference was the product of manipulation by appellant. We agree and affirm.
DECISION
We review a district court's denial of an evidentiary hearing on a motion to change custody under an abuse-of- discretion standard. Geibe v. Geibe, 571 N.W.2d 774, 777-78 (Minn.App. 1997). The party moving for modification must establish a prima facie case of changed circumstances by demonstrating:
(1) [that] a change has occurred in the circumstances of the child or [custodian]; (2) that a modification of custody is necessary to serve the best interests of the child; (3) that the child's present environment endangers his physical or emotional health or emotional development; and (4) that the harm likely to be caused by the change of environment is outweighed by the advantage of change to the child.
Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn.App. 1992) (quotation omitted); see also Minn. Stat. §§ 518.18(d) (modification motion may be brought when change has occurred in circumstances of child or parties and when modification is necessary to serve best interests of child), 518.18(d)(iv) (Supp. 2001) (current custody arrangement must be upheld unless child's present environment endangers child and harm caused by change is outweighed by advantage of change).
The moving party establishes a prima facie case through affidavits setting forth specific facts in support of the modification motion, and other parties may submit opposing affidavits. Minn. Stat. § 518.185 (2000). The district court must hold an evidentiary hearing if the moving party's affidavits "taken as true, make out a prima facie case for the modification." Abbott, 481 N.W.2d at 868 (citation and emphasis omitted). While the district court must accept the facts in the moving party's affidavit as true, it may consider the opposing affidavits and "may take note of statements * * * that explain the circumstances surrounding the accusations." Geibe, 571 N.W.2d at 779.
Here, appellant's modification motion is based on the child's claimed inability to communicate with his mother and his stated preference to live with his father. Appellant argues that an older child's preference alone is determinative, relying on Ross v. Ross, 477 N.W.2d 753 (Minn.App. 1991). Ross, however, involved a 17-year-old who expressed "strong" preference to live with his father and who had suffered some emotional distress while living with his mother that had resulted in performance problems at school. Id. at 756. In dictum, this court mused that "[t]here is a serious question when dealing with a child of this age whether trial courts can practically contradict the child's choice even if it was shown to be misguided." Id. at 757.
When it is obvious from the record that a child's stated preference results from manipulation by the moving party, it is within the district court's discretion to deny an evidentiary hearing. Geibe, 571 N.W.2d at 778 (citing Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690-91 (Minn.App. 1989), review denied (Minn. June 21, 1989)). Many other Minnesota cases have indicated that a child's preference, even a teenager's preference, is only one factor to consider when determining whether a change in custody is in the child's best interests. See, e.g., Lundell v. Lundell, 387 N.W.2d 654, 658 (Minn.App. 1986); Englund v. Englund, 352 N.W.2d 800, 802-03 (Minn.App. 1984). While an older child's preference is an important consideration, stability in custody arrangements is still presumed to be in a child's best interests. Westphal v. Westphal, 457 N.W.2d 226, 229-30 (Minn.App. 1990). When a child's preference is cited as one ground to modify custody, a court generally will require other allegations of abuse or of a "serious breakdown" in the child's relationship with the custodial parent. See, e.g., Geibe, 571 N.W.2d at 779; Madgett v. Madgett, 360 N.W.2d 411, 413 (Minn.App. 1985); Rinker v. Rinker, 358 N.W.2d 165, 168 (Minn.App. 1984).
Here, the district court found that "it was not convinced" that the child's preference was not the product of manipulation by appellant. Although appellant insists that there is no evidence to show that he improperly influenced the child, the child's affidavit exhibits a mature tone that appears beyond the ability of a 14-year-old. In addition, respondent has alleged in her affidavit that appellant has "brainwashed [the child] since he was a little boy into thinking that I was horrible, and that [the child] would be living with [him] someday." She further alleged that after she and the child had a disagreement in October 2001, appellant informed her that the child "would be moving to his house, in two weeks, for the next four years." When respondent did not agree to appellant's demands, she claims that he told the child "when you turn 15, you can go in front of a Judge, and it'll be a done deal, so until then, good luck." While this evidence of manipulation is not great, we conclude that it was within the district court's discretion to reject the child's preference without an evidentiary hearing. Schwamb v. Schwamb, 395 N.W.2d 732, 735 (Minn.App. 1986).
Beyond the child's stated preference to live with appellant, the affidavits submitted by appellant allege that the child and his mother do not get along or communicate very well. Cases that have ordered an evidentiary hearing tend to involve much more serious allegations of endangerment, such as where a child suffers emotional distress due to actions on the part of the custodial parent. See, e.g., Abbott, 481 N.W.2d at 868-69; Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.App. 1991); Taflin v. Taflin, 366 N.W.2d 315, 320-21 (Minn.App. 1985).
Finally, appellant argues that the district court should have interviewed the child or appointed a guardian ad litem. However, appellant made no formal motions for this type of relief; rather, at the hearing before the district court, appellant's attorney suggested that the district court "might consider interviewing the child" or "potentially order a guardian ad litem to make sure that the child's preference is well founded." A district court's decision regarding whether it should interview a child or appoint a guardian ad litem is discretionary. See Minn. Stat. § 518.166 (2000) (court "may interview the child in chambers to ascertain the child's reasonable preference as to custodian"); Schwamb, 395 N.W.2d at 735; Madgett, 360 N.W.2d at 413. Based on our review of the record and circumstances here, we cannot conclude that the district court abused its discretion by failing to sua sponte interview the child or appoint a guardian ad litem.
The district court's denial of appellant's motion to modify custody is affirmed.