In re Weber
- Reporters:
- , ,
- Before:
- Toussaint, Kalitowski, Halbrooks
OPINION
HALBROOKS, Judge.
FACTS
This matter arises out of a very acrimonious custody battle. The marriage of appellant Alan Robert Weber and respondent Beth Marie Dalbec was dissolved on February 2, 1998. Following the parties’ stipulation, the court awarded Dalbec sole legal and physical custody of the couple‘s children, appellant W.P.W. (now age 15) and C.W.W. (now age ten). Weber was granted reasonable and liberal visitation.
On December 21, 2001, W.P.W. brought a motion pursuant to
On January 22, 2002, Beth Marie Dalbec filed a motion, inter alia, to dismiss W.P.W.‘s motion and to obtain supervised visitation between W.P.W. and Weber. In her responsive affidavit, Dalbec alleged that Weber manipulated and emotionally harmed W.P.W.
On February 14, 2002, W.P.W. filed a second motion that sought a change of permanent and temporary physical custody to his father subject to reasonable visitation with his mother. Weber simultaneously filed a motion, seeking, inter alia, to obtain permanent and temporary physical custody of both minor children and to appoint Bradley Dalbec as GAL for both minor children. Dalbec opposed both motions.
On March 8, 2002, the court issued an order denying, with prejudice, W.P.W.‘s motion for the appointment of Bradley Dalbec as GAL and his motion for a change in custody. The court found that W.P.W. lacked standing to bring a motion for change of custody and that the procedure for appointment of a GAL in family law cases is properly set forth in
The court dismissed, without prejudice, Weber‘s motions for modification of custody and a finding that the property settlement was fully paid on the basis that the motions were untimely. The court ordered the appointment of a GAL and scheduled an evidentiary hearing for April 26, 2002, on the issues of whether or not Weber‘s visitation should be restricted and whether his child support obligation was commensurate with the child support guidelines. The court also ordered the GAL to issue a report on the visitation issue and ordered Weber to produce pertinent wage information before the hearing. Additionally, the court ordered that the attorney for W.P.W. and Weber‘s attorney should not meet with or discuss issues relating to the litigation with the children without first bringing a motion before the court.
The court held the scheduled hearing on April 26, 2002. After reviewing the GAL‘s report and listening to counsel‘s arguments on the custody issue, the court determined that (1) there had been a significant change of circumstances based on W.P.W.‘s change in preference to live with Weber, but that the change resulted from Weber‘s manipulation of W.P.W.; (2) Weber‘s insistence on involving W.P.W. in the custody dispute, despite a court order prohibiting such conduct; failure to hold W.P.W. accountable for bad behavior; and lack of support for W.P.W.‘s ongoing involvement with Dalbec resulted in endangerment of W.P.W.‘s emotional health and impairment of his emotional development; (3) there was no showing of endangerment of W.P.W. while in Dalbec‘s home; and (4) W.P.W. would be harmed by living with his father because of Weber‘s efforts to manipulate W.P.W. and alienate him from Dalbec. Weber‘s motion for an evidentiary hearing on the change-of-custody motion was denied on the ground that Weber had failed to establish a prima facie case.
ISSUES
1. Did the district court err in denying W.P.W.‘s motion for the appointment of a guardian ad litem of his choice under
2. Did the district court abuse its discretion by denying Weber an evidentiary hearing on his change-of-custody motion?
3. Did the district court improperly preclude the attorney for W.P.W. and the attorney for Weber to discuss any issue relating to the litigation, child custody, or visitation with W.P.W. without first obtaining the court‘s permission?
ANALYSIS
I. Guardian Ad Litem
Relying on
W.P.W. cites Ross v. Ross, 477 N.W.2d 753, 756-57 (Minn.App.1991), in support of his argument that
Indeed,
II. Custody Modification
Weber disputes the district court‘s denial of his motion to modify custody without conducting an evidentiary hearing. This court applies an abuse-of-discretion standard in reviewing a district court‘s decision to dismiss a custody-modification petition without an evidentiary hearing. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn.App. 1997). We defer to the opportunity of the trial court to assess the credibility of the witnesses. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (citing
The party seeking a custody modification must submit an affidavit asserting sufficient justification for the modification.
In determining whether the moving party has established a prima facie case, the district court must accept the facts in the moving party‘s affidavit as true. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981). If the moving party‘s affidavit does not allege facts that, if true, would provide sufficient grounds for modification, the court need not grant an evidentiary hearing. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn.App.1989), review denied (Minn. June 21, 1989). But if some dispute exists as to whether the present environment endangers the child‘s emotional development, an evidentiary hearing would be helpful and is justified. Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.App. 1991). Here, appellant‘s affidavits do not allege facts that warrant a separate evidentiary hearing.
A. Change in Circumstance
To warrant modification of custody, the change in circumstances must be significant and must have occurred since the original custody order. Roehrdanz, 438 N.W.2d at 690. Moreover, the change in circumstances must endanger the child‘s physical or emotional health or development. Nice-Petersen, 310 N.W.2d at 472 (citing
Here, the district court determined that W.P.W.‘s “expressed preference” to live with his father “[was] significant and [had] occurred since the last custody order,” but that W.P.W.‘s “expressed preference for a change in custody resulted from manipulation by his father.” The record supports the district court‘s finding of manipulation.
The district court relied in part on the GAL‘s conclusion that the change of circumstances resulted from Weber‘s manipulation of W.P.W. The district court also properly took note of statements in Dalbec‘s affidavit that explained the circumstances. Taken together, the record supported the conclusions that
the signs of alienation could not be more clear—a campaign of hatred, a failure of guilt on the minor child for treating the parent with malice, the parroting of adult language, and a declaration of independence.
The record reflects that the district court determinations were not clearly erroneous, so we will not disturb the conclusion that manipulation was a factor in this case.
B. Best Interests of the Child
A child‘s best interests are determined according to the factors listed in
Weber makes two primary endangerment arguments: (1) that Dalbec abused W.P.W., and (2) that the denial of a teenager‘s custodial preference demonstrates endangerment.
Allegations of physical and emotional abuse are indicators of endangerment, but only when the degree of danger is significant. Ross, 477 N.W.2d at 756. A district court may properly deny an evidentiary hearing where the affidavit submitted in support of a modification of custody “was devoid of allegations supported by any specific, credible evidence.” Axford v. Axford, 402 N.W.2d 143, 145 (Minn.App.1987). Importantly, in order to establish danger to a child‘s welfare, a parent‘s conduct must be shown to result in an actual adverse effect on the child. Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn.App.1994). For example, behavioral problems and poor school performance by the child have served as indications of endangerment to a child‘s physical and emotional health. Kimmel v. Kimmel, 392 N.W.2d 904, 908 (Minn.App.1986), review denied (Minn. Oct. 29,1986).
Weber alleges that Dalbec pulled C.W.W. downstairs by a leg, that Dalbec often yelled obscenities, heaped physical and emotional abuse on the boys, and that one Easter, she pulled W.P.W. off the couch by his hair while screaming at him because he had dirt on his pants. The record shows that Weber petitioned for, and was denied an order for protection for the minor children when Dalbec allegedly “stomped” on W.P.W. But in order to establish danger to a child‘s welfare, Weber must show that Dalbec‘s conduct resulted in an actual adverse effect on the child. Weber presented no evidence demonstrating any such adverse effect. In this case, the district court rejected Weber‘s allegations because he failed to allege specific facts and because the allegations presented in Weber‘s affidavits were not supported by first-hand knowledge. The court also relied on the GAL‘s report, which found no evidence of physical or emotional endangerment of W.P.W. in the mother‘s environment. We conclude that the district court did not abuse its discretion.
Weber next argues that, “[t]he choice of an older teenage child is an overwhelming consideration in * * * deciding whether he is endangered by preserving the custodial placement he opposes.” Ross, 477 N.W.2d at 756. But while a child‘s preference may justify an evidentiary hearing, a child‘s preference does not alone provide sufficient evidence of endangerment. Geibe, 571 N.W.2d at 778-79.
In Ross, the appellant established a prima facie case because the teenage child held a strong preference to live with his father, the child physically relocated to the father‘s home, and the child suffered emotional distress that led to poor school performance. Ross, 477 N.W.2d at 754. Here, by contrast, the record demonstrates only that the child wishes to change custody. Because none of the other endangerment elements are present and a change in preference alone does not prove emotional endangerment, Geibe, 571 N.W.2d at 779, the district court did not abuse its discretion in determining that evidence did not establish endangerment.
D. Balance of Harm
Appellant must next show that the advantage of modifying custody outweighs the harm likely to be caused by the change. Roehrdanz, 438 N.W.2d at 690. Minnesota law presumes that stability in custody is in a child‘s best interests. Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn.App.1990). While Minnesota courts
III. Attorney Contact
W.P.W. claims that paragraph 21 of the district court‘s March 3, 2002 order prohibits W.P.W.‘s attorney from meeting with him under any circumstances. W.P.W. contends that because he was on probation to the Wright County Court Services, and could face further penalties,
The express language in the order belies W.P.W.‘s reading of the order. The order states that:
The attorney for the minor child and the attorney for Petitioner shall not meet with the minor children or discuss any issues relating to this litigation, child custody or visitation with the minor children. * * * If the attorney representing Petitioner wishes to meet with either minor child, he shall bring a motion before the Court requesting permission to do so.
The order does not preclude W.P.W. from discussing any issues relating to probation or other juvenile protection with his attorney. The court merely precludes the attorney from discussing custody issues. In the context of this acrimonious proceeding, where the father was found to be alienating his son from his mother, this limitation was not an abuse of the court‘s discretion.
Weber and W.P.W. raise several other issues on appeal. They argue that the court erred in (1) appointing a GAL to conduct parenting-time studies and other investigations, (2) ignoring the untimeliness of Dalbec‘s motion and not granting a continuance, (3) denying W.P.W.‘s standing to seek relief in his parents’ dissolution proceeding, and (4) denying a continuance for an allegedly untimely motion, and that on remand, the court should be directed to recuse itself in light of the “personal opinions” expressed in the order. After fully examining these additional issues, we conclude that they lack merit.
DECISION
The district court did not err in concluding that W.P.W. may not rely on
A