Opinion
No. A06-2096.
Filed: May 8, 2007.
Appeal from the Hennepin County District Court, File No. 46225/PA 53889.
Ronald Resnik, 6200 Shingle Creek Parkway, MN (for appellant).
Roselyn J. Nordaune, Nordaune Friesen, Metropoint, St. Louis Park, MN (for respondent).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
In this appeal from an order denying appellant father's motion to modify child custody, father argues that, based upon the moving papers and supporting documents, the district court should have found that a prima facie case of endangerment of the children was shown, and the district court abused its discretion by not appointing a guardian ad litem or ordering an updated custody evaluation. Because father's motion and supporting affidavit did not set forth facts that establish that a significant change in circumstances has occurred since the prior order, we affirm.
In his brief, father identifies additional issues, but the issues are not addressed in the analysis portion of father's brief. Because no prejudicial error is obvious on mere inspection, the issues that are not addressed in father's brief are waived. See Schoepke v. Alexander Smith Sons Carpet Co., 290 Minn. 518, 519-20; 187 N.W.2d 133, 135 (1971) (stating "[a]n assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection").
FACTS
Appellant-father James H. Paden and respondent-mother Sandra Wald have never been married. Father initiated child-support proceedings in 2002, and mother defaulted. In May 2005, father filed a motion requesting temporary and permanent physical and legal custody. Father filed an affidavit and other documents to support his motion. Mother again defaulted and based upon the default, the district court issued a temporary order on June 17, 2005. After receiving the June 17 order in the mail, mother retained counsel. In April 2006, the parties stipulated to an agreement regarding custody of their two children, and the district court incorporated the stipulation into an order that granted the parties joint legal custody, granted mother sole physical custody, and granted father parenting time. Four months later, on August 1, 2006, father brought a motion to modify custody, requesting that the district court (1) grant him immediate temporary physical and legal custody, (2) order a custody evaluation, (3) conduct an in camera interview of the children, and (4) modify his child-support obligation and forgive child-support arrearages.
Father attached an affidavit to his motion in which he stated that he had agreed to the stipulation in April because he was hopeful that "the communication between [mother] and myself would improve, and in the hopes that she would `change' the environment, and that things would `work out'. Simply put, they have not." Father also attached to his motion the same supporting documents that he had attached to his May 2005 motion, including his affidavit, information regarding mother's significant other, the children's school records, and a transcript of a conversation with mother.
The district court denied father's motions without conducting an evidentiary hearing. This appeal followed.
DECISION
Whether a party makes a prima facie case to modify custody dictates whether an evidentiary hearing will occur on the motion. See Morey v. Peppin, 375 N.W.2d 19, 25 (Minn. 1985) (stating "an evidentiary hearing shall be scheduled" if moving party makes prima facie case to modify custody); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981) (stating if moving party fails to make prima facie case, district court is required to deny motion). A district court, however, has discretion in deciding whether a moving party has made a prima facie case to modify custody. See Geibe v. Geibe, 571 N.W.2d 774, 780 (Minn.App. 1997) (holding district court did not abuse discretion in ruling moving party failed to make prima facie case to modify custody).
If the court has jurisdiction to determine child custody matters, the court shall not modify a prior custody order or a parenting plan provision which specifies the child's primary residence unless it finds, upon the basis of facts . . . that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement or the parenting plan provision specifying the child's primary residence that was established by the prior order unless: . . .
(iv) the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child[.]
Minn. Stat. § 518.18(d) (2006).
"A party seeking . . . modification of a custody order shall submit together with moving papers an affidavit setting forth facts supporting the requested . . . modification. . . ." Minn. Stat. § 518.185 (2006). Because the party seeking modification has the burden of establishing that a significant change in circumstances has occurred since the prior order, a district court does not abuse its discretion by denying a modification motion on affidavits and refusing to schedule an evidentiary hearing when the affidavits accompanying the motion do not set forth a change in circumstances sufficient to justify a modification. Nice-Petersen, 310 N.W.2d at 472.
Father attached to his modification motion the same supporting documentation that he had attached to his May 2005 motion for custody, and his new affidavit acknowledged that father had hoped that the environment would change, but it had not. The same supporting documentation that had been submitted before the prior order and father's affidavit acknowledging that the environment had not changed did not meet father's burden of establishing that a substantial change in circumstances had occurred since the prior order. Therefore, the district court did not abuse its discretion in ruling that father failed to make a prima facie case for modification and denying father's motion for modification without conducting an evidentiary hearing.