In re Susan Wetsman (Storch), petitioner, Respondent, vs. Paul Storch, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-267

 

In re Susan Wetsman (Storch), petitioner,

Respondent,

 

vs.

 

Paul Storch,

Appellant.

 

Filed November 30, 2004

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. F8-99-2099

 

John M. Jerabek, Candace J. Barr, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, MN 55402 (for respondent)

 

Robert J. Milavetz, Barbara N. Nevin, Allen H. Aaron, Milavetz, Gallop & Milavetz, P.A., 6500 France Avenue South, Edina, MN 55435 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Paul Storch contends the district court erred in denying his motion for an evidentiary hearing to determine whether respondent, the sole physical custodian of the parties' minor children, could move out of the state with the parties' children.  Appellant argues that he established a prima facie case that respondent's move is not in the children's best interests, will endanger the children, and is an attempt to interfere with appellant's parenting time.  We affirm.

D E C I S I O N

It is presumed that a request by a custodial parent to remove a child to another state is in the best interests of the child.  See Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983).  To defeat that presumption, the party opposing removal must offer evidence to establish that the removal is not in the best interests of the child and would endanger the child's health and well-being, or that the removal is intended to interfere with visitation.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); see also Sefkow v. Sefkow, 427 N.W.2d 203, 214 (Minn. 1988).  A showing of endangerment is necessary because a denial of a motion to remove the children from the state would be, in effect, a modification of the original decree.   Silbaugh, 543 N.W.2d at 642.

To obtain an evidentiary hearing, the party seeking modification of custody has the burden to establish a prima facie case by alleging facts that, if proven, would show that respondent's removal was not in the best interests of the children.  Geiger v. Geiger, 470 N.W.2d 704, 708 (Minn. App. 1991) (citing Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983)).  Generally, an appellate court "will not overturn the trial court's finding that appellant failed to establish a prima facie case unless the finding is ‘clearly erroneous.'"  Geiger, 470 N.W.2d at 708 (quoting Knott v. Knott, 418 N.W.2d 505, 508 (Minn. App. 1988)).

            Appellant contends the district court erred by denying him an evidentiary hearing because the allegations in his affidavit establish a prima facie case of endangerment.  We disagree.  Appellant must allege acts that show a "significant degree of danger" to make a prima facie showing of endangerment.  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  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).

Appellant first argues that because respondent's decision to move is impulsive it was not in the children's best interests.  But the record supports the district court finding that appellant's argument was speculative.  Respondent provided evidence of the schools that the children would be attending and testified that she would be living in the home of her cousin, with whom she was very close.  The district court found that even though respondent did not have employment arranged in advance of the move, respondent's rationale that she wanted to have her children settled before she found a part-time teaching job was reasonable and in the children's best interests.  The record supports the district court's finding.

            Appellant also argues that the children would be emotionally harmed by the change in therapists when they moved.  But the district court noted that respondent planned to enroll the children into therapy after the move and that the children had already been moved from one therapist.  And appellant presented no expert evidence that a move from the children's current therapist would emotionally harm the children.  Based on the evidence presented, the district court could properly conclude that the change in therapists would not harm the children.

Appellant further contends that respondent has not taken a proper interest in the children's educational progress or religious training.  Appellant noted that a teacher had reported that his oldest child had difficulty making academic progress in school because she lacked confidence.  Appellant alleged that respondent refused to acknowledge the child's difficulty and refused to have the child tested for learning disabilities.  Appellant also alleged that respondent refused to educate the children according to the Jewish faith even though the children were of the age for this training.  Although the district court did not make a finding on the children's school progress, the record shows that appellant failed to make use of an expediter regarding this issue and only raised it for the first time following respondent's petition to move.  And the district court found that the parties had previously litigated the issue of religious education with a parenting time expediter and appellant had not appealed the expediter's decision to allow the child to have a say in her religious education.  We conclude that the record supports the district court's conclusion that appellant has not shown that the move would endanger the children's education or religious upbringing. 

            Appellant argues that respondent was moving to California to be closer to an alleged boyfriend and that the boyfriend may have spent time alone with his daughters while the boyfriend visited respondent for a month.  But appellant made no allegations regarding physical or emotional abuse of his children by the boyfriend.  And the district court found that appellant did not communicate any concerns to the court when they arose and that appellant failed to put forth any specific allegations.  We conclude that the record supports the district court's conclusion that appellant's allegations do not show endangerment.

The district court also properly rejected as "highly speculative" appellant's argument that if respondent were to become incapacitated due to a chronic ailment that she suffers, respondent would not allow appellant to parent the parties' children, but would place the children with her cousins.  Because there is no current issue regarding respondent's incapacitation, the district court did not abuse its discretion by finding that the children are not endangered by respondent's health condition.

            Finally, appellant alleges that respondent decided to move to deny him his parenting time.  But the record supports the district court's finding that respondent did not have a history of denying parenting time.  Moreover there was evidence in the record that the move would be beneficial to respondent's health.  Based on this evidence, we cannot say the district court erred in concluding that respondent's move was not an attempt to interfere with appellant's custody time, but rather, an attempt to improve her health.  

            We conclude that the district court did not abuse its discretion by denying an evidentiary hearing to appellant where the record indicates that appellant's allegations failed to establish a prima facie case of endangerment warranting an evidentiary hearing.

            Affirmed.