Juan Reyes, petitioner, Appellant, vs. Hazel Rivera, Respondent.

Juan Reyes, petitioner, Appellant, vs. Hazel Rivera, Respondent. A05-2202, Court of Appeals Unpublished, September 26, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2202

 

 

Juan Reyes, petitioner,

Appellant,

 

vs.

 

Hazel Rivera,

Respondent.

 

 

Filed September 26, 2006

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. F1-98-51151

 

 

Jack E. Pierce, Tracy J. Halliday, Pierce Law Firm, P.A., 6040 Earle Brown Drive, Suite 420, Minneapolis, MN 55430 (for appellant)

 

Virginia Stark, Post Office Box 797, Lindstrom, MN 55045 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Juan Reyes challenges the district court's order denying his contempt and change-of-custody motions and granting respondent Hazel Rivera's motion for permission to move their child out of the state.  Because the district court's findings have support in the record and its determinations were within its broad discretion, we affirm. 

FACTS

            Appellant and respondent are the parents of J.L.R., born on May 20, 1998.   In a 1999 order, the court adjudicated appellant the father and awarded respondent sole physical custody, the parties joint legal custody, and appellant weekly parenting time.   At a review hearing, the parties stipulated to a mediated visitation agreement, which expanded appellant's visitation when the child reached three and one-half and five years old.  

            In May 2005, when J.L.R. was seven years old, respondent took him to California with appellant's permission.  Respondent initially stated that she would return to Minnesota on June 2, 2005, but she did not return until required to do so by an order to show cause.  In addition to the order to show cause, appellant filed a motion for contempt and for a change of custody.  

The order-to-show-cause hearing was scheduled for September 26, 2005.  At respondent's request, it was continued for two days, until September 28, 2005.  On September 27, 2005, respondent served countermotions for modification of child support and for a court order allowing her to move with the child out of the state to Arizona.  

After the hearing, the court denied appellant's motions, granted respondent's motion to move out of state, and modified the parenting plan to accommodate the child's new primary residence.  Appellant filed this appeal, arguing that the denial of his motions was an abuse of discretion and that he is entitled to a custody modification or, at a minimum, an evidentiary hearing on the matter. 

D E C I S I O N

I.

            The district court has broad discretion to hold an individual in contempt.  In re Marriage of Crockarell, 631 N.W.2d 829, 833 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).  Civil contempt is not used to punish a party for past misconduct.  Hopp v. Hopp, 279 Minn. 170, 173, 156 N.W.2d 212, 216 (1968).  A party alleged to be in contempt is entitled to an opportunity to show compliance or his reasons for failure to comply.  Id. at 174, 156 N.W.2d at 216.

Appellant contends that respondent was in contempt for failing to obtain a court order before physically moving to Arizona and violating the parenting plan.  "Proof of an unwarranted denial of or interference with duly established parenting time may constitute contempt of court and may be sufficient cause for reversal of custody."  Minn. Stat. § 518.175, subd. 6(e) (2004) (emphasis added).  "May" is permissive;  it does not mean "shall," which is mandatory.  Minn. Stat. § 645.44, subds. 15, 16 (2004).  The court properly gave respondent an opportunity to explain her failure to comply with the order.

            The court found that appellant had not communicated the seriousness of his objection to respondent until late in August when he served her with the order to show cause.  The record reflects that respondent took the matter seriously when served: she appeared at the hearing, sought a two-day continuance to obtain counsel, obtained counsel, filed motions, and then appeared for the hearing with counsel.  The court concluded that respondent had legitimate reasons for being in California and deciding to move to Arizona. 

Appellant also argues that the court's denial of compensatory parenting time was an abuse of discretion.  The court considered but denied appellant's request.  Because appellant had been in regular phone contact with the child and had not been deprived of contact with him and because any interference with visitation was adequately explained, the court expressly stated that it favored granting generous parenting time in the new parenting plan.

On this record, the court did not abuse its discretion in denying the contempt motion. 

II.

On appeal, this court reviews decisions respecting the custody modification and change of residence of minor children for an abuse of discretion.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A district court abuses its discretion when it makes unsupported findings of fact or improperly applies the law.  Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn. App. 1993).  This court "views the record in the light most favorable to the trial court's findings." LaChapelle v. Mitten, 607 N.W.2d 151, 160 (Minn. App. 2000), review denied (Minn. May 16, 2000). 

A parent who has been awarded sole physical custody of a minor child and who proposes to change the child's residence to another state is presumed to be acting in the child's best interests in the change of residence.  Dailey v. Chermak, 709 N.W.2d 626, 633 (Minn. App. 2006), review denied (Minn. May 16, 2006).  But the presumption is rebuttable, and the noncustodial parent may overcome the presumption by showing that the removal of the child's residence is not in the child's best interests because it would endanger the health and welfare of the child or would be done with the intention of interfering with the noncustodial parent's parenting-time rights.  Silbaugh, 543 N.W.2d at 641.

Unless the noncustodial parent can make a prima facie showing that the removal of residence is not in the child's best interests, the custodial parent's motion may be granted without a full evidentiary hearing.  Auge v. Auge, 334 N.W.2d 393, 396 (Minn. 1983).  A prima facie case is shown if there is sufficient evidence to support a particular finding if contrary evidence is disregarded.  Geiger v. Geiger, 470 N.W.2d 704, 708 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991).   Mere allegations unsupported by facts and credible evidence are insufficient to establish a prima facie case.   See Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987).

Appellant alleges that respondent should no longer be the child's custodian because she often moves her residence and has inadequate parenting skills and because the child sleeps on the floor and has missed 24 days of school.  Appellant further alleges that he should be the child's custodian because he has created a stable environment for the child with a daily schedule, his own room, the company of step-siblings, and a step-mother working in the home.

Appellant's allegations are insufficient to establish a prima facie showing that respondent's change of residence is not in the child's best interests.  Appellant inconsistently alleges both that he had exercised all regular visitation plus more and that he has been deprived of visitation often.  Aside from his contradictory assertions, the record contains no prior motions or actions indicating that appellant was previously concerned about parenting time.  Similarly, his claim that respondent cannot provide a stable environment is based on conditions that existed previously without objection by appellant.  Appellant's mere allegations of school absences, child abuse, and respondent's mental health are not supported by credible evidence.

Appellant's allegations do not show that respondent intended to interfere with appellant's parenting rights.  Respondent initially left for California with appellant's permission, and, while out of the state, the child remained in phone contact with appellant.  The court found that respondent had the child's interests in mind during this period.  It also noted that respondent was concerned about her ailing mother in California and had a husband whose employment had recently taken him to Arizona.  It was not an abuse of discretion to conclude that respondent had not acted simply to interfere with appellant's parenting rights.

Absent a showing of endangerment or intentional interference with parenting time, the court properly allowed the move and adjusted the parenting schedule to accommodate appellant by increasing summer and holiday parenting time.  The court's decision to make its order without an evidentiary hearing was within its discretion.

Affirmed.