Opinion · Supreme Court of Minnesota

Marriage of Nice-Petersen v. Nice-Petersen

310 N.W.2d 471

Type: Opinion
Court: Supreme Court of Minnesota
Jurisdiction: Minnesota
Date: 1981-09-25
Topic: general

explaining that, if a moving party fails to make a prima facie case, district court “[is] require[d] . . . to deny [the] motion” | stating that a moving party’s burden is to allege facts—rather than gather evidence—sufficient to justify modification | noting that, because father’s affidavit did not “set forth any change in circumstances sufficient to justify a modification of the custody award,” the district court “did not abuse its discretion in denying the motion on affidavits and in refusing to schedule an evidentiary hearing” | construing Minn.Stat. § 518.185, which requires party seeking modification of custody to submit affidavit setting forth facts to support modification, as requiring trial court to accept allegations as true and not allow court to make findings based on affidavit | court determines modification from circumstances arising since the “original or amended custody order” | “[T]he burden is upon the movant to establish satisfactorily on a preliminary basis that there has occurred a significant change of circumstances from the time when the original or amended custody order was issued.” | “[T]he trial court shall review the documents and schedule an evidentiary hearing [on the motion to modify custody] if that review indicates a likelihood that the movant might establish the requisite change of circumstances upon which a modification may be based.”

Citator

Cited by: 45 opinions

NICE-PETERSEN v. NICE-PETERSEN,310 N.W.2d 471(Minn. 1981)

In re the Marriage of Pamela NICE-PETERSEN, Petitioner, Respondent, v.

Perry W. NICE-PETERSEN, Appellant.

No. 51795.

Supreme Court of Minnesota.

September 25, 1981.

Appeal from the District Court, Hennepin Court, Robert E. Bowen, J.

Syllabus by the Court

A trial court is accorded broad discretion in its consideration and disposition of a motion to modify an award of child custody made incident to a judgment and decree of marital dissolution. Upon its consideration of affidavits submitted in support of the motion, Minn.Stat. §518.185(1980), the trial court shall review the documents and schedule an evidentiary hearing thereon if that review indicates a likelihood that the movant might establish the requisite change of circumstances upon which a modification may be based.Peterson v. Peterson,308 Minn. 297,308,242 N.W.2d 88,95(1976).

Jack S. Jaycox, Edina, for appellant.

Lauhead Morrow, Minneapolis, for petitioner, respondent.Page 472

Considered and decided by the court en banc without oral argument.

YETKA, Justice.

Perry W. Nice-Petersen seeks review of an order of the Hennepin County District Court denying his motion for a modification of an original award of child custody made incident to the judgment and decree of marital dissolution of the parties on April 4, 1979. His primary assignment of error is that the trial court failed to schedule an evidentiary hearing to consider the competing positions of the parties. We affirm.

By the terms of the judgment and decree of marital dissolution, the custody of the parties' 3-year-old daughter Nicole was granted to the respondent Pamela Nice-Petersen. The appellant's visitation rights were to be supervised by the Department of Court Services. Although the parties entered into a stipulation governing visitation which was approved by the court, disputes arose thereafter relating to the visitation schedule. On July 7, 1980, the appellant filed a motion with the court for an order granting the parties joint custody of their child. The motion stated that it was "made upon the attached affidavits, upon all the files, records and proceedings herein, and upon the statutes of the State of Minnesota." A hearing was conducted in the district court to consider the parties' motions and the guardian ad litem's motion for an order adopting her recommendation that there be no change in custody. The appellant objected to the inclusion in the record of the guardian's report and respondent's attempt to introduce reports prepared by a psychiatrist and an employee of the Department of Court Services. Appellant therefore moved the court for an evidentiary hearing to allow his cross-examination of the authors of the reports. The order denying the evidentiary hearing and refusing to modify the original custody award is the subject of this appeal.

The focal question on appeal is whether the trial court erred in denying the appellant's motion to modify the child custody award without providing him an evidentiary hearing.

Minn.Stat. §518.185(1980) requires a party seeking a modification of a custody order to submit together with his moving papers an affidavit setting forth facts in support of the modification and further directs that notice be provided to all other parties to the proceedings to facilitate their filing of opposing affidavits. This section does not specifically authorize the trial court to make findings based upon the affidavits. It is our view that a reasonable construction of the statute would be to require the trial court to deny a motion for modification of a custody order unless the accompanying affidavits set forth sufficient justification, if the facts alleged therein are true, for the modification. This interpretation is wholly consistent with section 410 of the Uniform Marriage and Divorce Act, from which section518.185was largely taken.

As a practical matter, the burden is upon the movant to establish satisfactorily on a preliminary basis that there has occurred a significant change of circumstances from the time when the original or amended custody order was issued.Peterson v. Peterson,308 Minn. 297,308,242 N.W.2d 88,95(1976). Moreover, the significant change of circumstances must endanger the child's physical or emotional health or the child's development.SeeMinn.Stat. §518.18(d)(iii) (1980).

A review of the several affidavits accompanying the appellant's motion indicates that they do not set forth any change in circumstances sufficient to justify a modification of the custody award. Therefore, the trial court did not abuse its discretion in denying the motion on affidavits and in refusing to schedule an evidentiary hearing. As our resolution of this question is dispositive of the appeal, we do not address the other issues raised by the appellant.

Affirmed.Page 473