Opinion
A22-1401
05-04-2023
Thomas Malcolm Jackson, petitioner, Appellant, v. Kathleen Rose Gaworski, Respondent.
St. Louis County District Court File No. 69DU-FA-13-258
Considered and decided by Wheelock, Presiding Judge; Ross, Judge; and Rodenberg, Judge. [*]
ORDER OPINION
John Rodenberg Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Thomas Malcolm Jackson appeals from the district court's September 21, 2022, order denying-without an evidentiary hearing-his endangerment-based motion to modify custody. He argues that the district court erred when it determined that he had not made a prima facie case for modification and did not order an evidentiary hearing. We remand.
2. Appellant and respondent Kathleen Rose Gaworski are the parents of E.R.J., ten years old, and L.M.J., six years old. Appellant and respondent have never been married. In 2014, the district court entered a custody and parenting-time order giving the parents joint legal custody and respondent sole physical custody of E.R.J. In 2018, after L.M.J. was born, the district court entered a similar order concerning her custody. The children's custody cases were later consolidated. Since 2018, appellant has thrice moved to modify the custody and parenting-time arrangement, including the motion denied by the district court here.
3. In November 2020, appellant moved that a parenting-time expeditor be appointed, and that appellant be awarded sole legal and physical custody of the children. The district court did not modify custody but did appoint a parenting-time expeditor under Minnesota Statutes section 518.1751 (2020) and modified parenting time so that appellant and respondent each had equal parenting time.
4. In September 2021, the district court denied another motion by appellant to modify custody and parenting time, which had been initially filed-and denied-in April 2021 as an emergency motion. In its order, the district court noted the overwhelming amount of litigation between the parties and appointed a new parenting-time expeditor. The parties opted to use a parenting consultant (PC) instead, and the district court accepted a stipulation and filed an order appointing a PC on December 20, 2021.
The district court held a hearing on that motion and other issues in the case in July 2021.
5. On June 24, 2022, appellant filed an emergency ex parte motion to modify custody and parenting time and award him temporary sole legal and temporary sole physical custody of the children. His motion was accompanied by supporting affidavits and was filed after the PC sent notice to the parties that she was suspending her services due to a series of inappropriate and hostile communications directed at her by respondent. The PC recommended that respondent complete a "full diagnostic mental health evaluation" because of the PC's concern that respondent's behavior was affecting the children's well-being. The district court granted appellant's emergency motion, granted appellant temporary sole legal and temporary sole physical custody of E.R.J. and L.M.J, and suspended respondent's parenting time.
6. A hearing on appellant's motion was held on August 1, 2022. Before the hearing, respondent submitted affidavits denying the allegations against her and providing additional context for the situation. On September 21, 2022, the district court filed an order that (1) vacated the emergency ex parte order, (2) denied appellant an evidentiary hearing, and (3) ordered that the prior parenting-time schedule resume. Appellant now appeals only the denial of an evidentiary hearing, and does not challenge those portions of the district court's order vacating the ex parte order or reinstating the earlier parenting-time schedule.
7. Appellant moved to modify custody under Minnesota Statutes section 518.18(d)(iv) (2022), which governs endangerment-based modifications. When faced with such a motion, the district court must go through a three-step process to determine if an evidentiary hearing is necessary. Boland v. Murtha, 800 N.W.2d 179, 183 (Minn.App. 2011).
8. "First, the district court must accept the facts in the moving party's affidavits as true, disregard the contrary allegations in the nonmoving party's affidavits, and consider the allegations in the nonmoving party's affidavits only to the extent they explain or contextualize the allegations contained in the moving party's affidavits." Id.
9. Second, the district court must determine if the moving party has made a prima facie case that supports modification of custody. Id. A movant makes a prima facie case for modification by "alleging facts that, if true, would provide sufficient grounds for modification." Woolsey v. Woolsey, 975 N.W.2d 502, 507 (Minn. 2022); see also Amarreh v. Amarreh, 918 N.W.2d 228, 231 (Minn.App. 2018) ("At the prima-facie-case stage of the proceeding, [the movant] need not establish anything. [The movant] need only make allegations which, if true, would allow the district court to grant the relief he seeks."). But a prima facie case is not made if the allegations are merely conclusory, "too vague to support a finding of endangerment," or "devoid of allegations supported by any specific, credible evidence." Szarzynski v. Szarzynski, 732 N.W.2d 285, 292 (Minn.App. 2007) (quotations omitted), rev. denied (Minn. Oct. 16, 2006); see Miller v. Miller, 953 N.W.2d 489, 494 (Minn. 2021) (requiring the district court, when addressing a motion to intervene to accept the movant's allegations unless they are "frivolous on their face"). To make a prima facie case for modification of custody based on endangerment, the movant must allege that: "(1) the circumstances of the children or custodian have changed; (2) modification would serve the children's best interests; (3) the children's present environment endangers their physical health, emotional health, or emotional development; and (4) the benefits of the change outweigh its detriments with respect to the children." Crowley v. Meyer, 897 N.W.2d 288, 293-94 (Minn. 2017); see also Minn. Stat. § 518.18(d)(iv). "The district court must make specific findings on these requirements to comply with section 518.18(d) and to aid appellate review." Woolsey, 975 N.W.2d at 508 (citing Gunderson v. Preuss, 336 N.W.2d 546, 548 (Minn. 1983)).
10. Third, the district court must decide if an evidentiary hearing on the issue of modification is necessary. Boland, 800 N.W.2d at 183. "Whether a party makes a prima facie case to modify custody is dispositive of whether an evidentiary hearing will occur on the motion." Szarzynski, 732 N.W.2d at 292. If a prima facie case is made, the district court must hold an evidentiary hearing. Crowley, 897 N.W.2d at 293-94.
11. If the district court denies an endangerment-based motion to modify custody without an evidentiary hearing, we review that decision by making "three discrete determinations." Boland, 800 N.W.2d at 185. We first review the district court's treatment of the parties' affidavits de novo. Id. We then review for abuse of discretion the district court's determination of whether a prima facie case for modification was made. Id. Finally, we review de novo a district court's denial of an evidentiary hearing. Id.
12. Here, the district court denied appellant's motion to modify custody without holding an evidentiary hearing. The entirety of the district court's stated reasoning is as follows:
While the [c]ourt finds [r]espondent's correspondence to the parenting consultant despicable and immature, it cannot find a basis to continue the ex parte order further limiting her parenting time. The [c]ourt makes this decision based upon the extensive history of this case. The parties' inability to co-parent and act like adults is staggering. The [c]ourt will not single one parent out over the other as both are the cause of the need for constant court intervention. No matter the amount of contempt the parties have for one another, if these behaviors continue and litigation continues the children will be irreparably damaged. The children are always the losers in these situations and even when the children are not directly involved in conversations and court proceedings, they feel the tension and understand more than we, as the adults, give them credit for. The [c]ourt implores
the parties to attempt to work together for the benefit of the children.
We are unable to determine if the district court erred or abused its discretion based on this order.
13. The district court, which is obviously familiar with the litigious history of the parties, did not identify the Boland three-step formula and did not provide any explanation for denying appellant's motion that expressly or implicitly shows compliance with the requirements of Boland. We do not know, and therefore cannot review, if the district court properly treated appellant's affidavit as true while disregarding contrary statements in respondent's affidavit and considering it only for context. And while we recognize that the district court must have concluded that appellant did not make a prima facie case because it denied his motion without an evidentiary hearing, the district court did not articulate the reasoning behind this decision or even reference Minn. Stat. § 518.18(d). Consequently, we are unable to review whether the district court abused its discretion in concluding that appellant failed to make a prima facie case. See Woolsey, 975 N.W.2d at 508 (requiring "the district court to specific[ally]" address the relevant factors "to comply with section 518.18(d) and to aid appellate review." (emphasis added)).
14. Nothing in this order should be interpreted as any indication that the district court erred in denying appellant an evidentiary hearing. The brevity of the district court's order renders affirming the denial of an evidentiary hearing impossible. We express nothing concerning the merits of appellant's appeal, and instead we remand to the district court for a more-detailed expression of its findings and conclusions concerning appellant's motion for an evidentiary hearing on the question of custody modification.
Understanding the district court's treatment of the parties' affidavits and its reasoning about whether a prima facie case was made is particularly important in this case because an emergency ex parte order was previously granted. Appellant must have made a prima facie case of endangerment. But contrary to appellant's arguments on appeal, the prior grant of an emergency order does not necessarily require a conclusion that an evidentiary hearing is necessary. Cf. Minn. Stat. § 518.31, subd. 9(a) (2022) (stating that orders for temporary relief shall not prejudice a district court's resolution of the merits of a dispute). The district court granted the emergency order after reviewing only appellant's affidavits. While it must disregard any directly contrary statements in respondent's affidavits-which it received after the emergency order was granted but before the motion hearing-it still may consider respondent's statements to "explain or contextualize the allegations." Boland, 800 N.W.2d at 183. These determinations are uniquely in the realm of the district court's authority, and not for this court on appeal. See Szarzynski, 732 N.W.2d at 292 ("A district court . . . has discretion in deciding whether a moving party makes a prima facie case to modify custody.").
IT IS HEREBY ORDERED:
1. That portion of the district court's September 21, 2022, order denying appellant's motion for an evidentiary hearing is remanded for further findings. The balance of the district court's September 21, 2022, order is unaffected by this remand.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.