Geibe v. Geibe

• Decision Date: 02 December 1997
• Docket Number: No. C1-97-1098,C1-97-1098
• Citation: 571 N.W.2d 774
• Parties: Barbara GEIBE, petitioner, Appellant, v. Ma Donna GEIBE, Respondent.
• Court: Minnesota Court of Appeals

Page 774

571 N.W.2d 774

Barbara GEIBE, petitioner, Appellant, v. Ma Donna GEIBE, Respondent.

No. C1-97-1098.

Court of Appeals of Minnesota.

Dec. 2, 1997.

Syllabus by the Court

1. The district court did not abuse its discretion in denying, without an evidentiary hearing, a motion to transfer custody of a 17-year-old to the noncustodial father's widow.

2. A stepmother who has lived with a child only during visitation periods is not in loco parentis and therefore has no common law right to seek visitation.

Timothy L. Warnemunde, Montgomery, for Appellant.

Michael Ormond, Ormond Law Offices, Minneapolis, for Respondent.

Considered and decided by WILLIS, P.J., and SCHUMACHER and FOLEY, ^* JJ.

OPINION

WILLIS, Judge.

Barbara Geibe appeals the district court's denial, without an evidentiary hearing, of her petition for custody of her deceased husband's 17-year-old daughter and visitation with her husband's other children. We affirm.

FACTS

The marriage of Charles and respondent Ma Donna Geibe (Ma Donna) was dissolved in 1994. In 1995, Charles married appellant Barbara Geibe (Barbara). Charles died on January 23, 1997.

Charles and Ma Donna had a daughter, F.G., born March 5, 1980, and two younger sons, C.J.G. and A.G. The parents agreed to joint legal custody at the time of the dissolution, but disputed physical custody. The court granted physical custody of all three children to Ma Donna and granted Charles visitation on alternate weekends, certain holidays, half of winter and spring school vacations, and six weeks during summer vacation. Barbara asserts that she acted as primary caretaker during these periods and that she developed a close relationship with all three children, who call her "Mom."

Two months after Charles's death, Barbara filed a petition seeking custody of F.G. and visitation with the boys (and with F.G. if denied custody) on approximately the schedule Charles had been granted. Barbara alleges by affidavit that since Charles's death, Ma Donna has refused to permit the children to visit her or any of their paternal relatives. F.G.'s affidavit corroborates this claim, adding that her mother emotionally injured her by "verbally berating" her, regularly saying she was "too fat," and insulting her with increasing regularity since the death of her father. She also claims that in 1997 her mother physically assaulted her for the first time, on one occasion pushing her onto a bed, slapping her, and pulling her hair.

Ma Donna's affidavit characterizes the issue as a conflict between a headstrong 17-year-old and a religious, fairly strict mother, saying that F.G. found Barbara's home an attractive alternative because of her more liberal lifestyle. She also indicates a belief that Barbara has promised F.G. a share of Charles's life insurance proceeds for college if F.G. comes to live with her. Ma Donna denies ever insulting F.G. or calling her "too fat," noting that she, as a school nurse, regularly deals with teenagers with eating disorders. She also denies any intent to cut the children off from their paternal relatives.

Ma Donna admits to a physical confrontation with F.G. shortly before Charles's death, following 24 hours of arguments resulting from Ma Donna's refusal to allow F.G. to attend a house party with boys and no parents present. Ma Donna alleges that after the refusal, F.G. snuck out of the house and went to the home of a paternal relative, returning home only after a deputy sheriff was called in. The next morning, F.G. refused to attend church. Ma Donna continues,

[F.G.] knows that in our house Sunday church participation is expected. She started to get angry with me and started using foul language. I grabbed her T-shirt on the shoulder and pulled her toward me, telling her that I didn't appreciate her language. When the language continued, I covered her mouth with my hand. She bit me and pounded me several times on my upper arm. We struggled and she fell onto the bed on her side, continuing to swear at me. I'm embarrassed to say that I slapped her once on the buttocks. We were both upset and out of control. * * * To the best of my knowledge, I did not pull her hair.

The district court dismissed Barbara's petition without an evidentiary hearing, determining that Barbara had failed to state a prima facie case of endangerment to F.G. as required by Minn.Stat. § 518.18(d) and that she was not entitled to common-law stepparent visitation rights. Barbara appeals, and Ma Donna seeks payment of her attorney fees on appeal. We affirm the district court's decision and deny Ma Donna's request for fees.

ISSUES

1. Did the district court err in finding that Barbara failed to establish a prima facie case of endangerment sufficient to require an evidentiary hearing on modification of custody?

2. Did the district court err in holding that Barbara is not entitled to stepparent visitation under Minnesota common law?

ANALYSIS

I. Custody modification

Under Minnesota law,

the court shall not modify a prior custody order 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 established by the prior order unless:

* * *

(iii) 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) (1996).

The party seeking a modification of custody must submit an affidavit asserting the facts on which the motion is based. Minn.Stat. § 518.185 (1996). The court must determine whether the petitioner has established a prima facie case by alleging facts that, if true, would provide sufficient grounds for a modification. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981). For purposes of this determination, the court must accept the facts in the moving party's affidavits as true, and the allegations do not need independent substantiation. See Lilleboe v. Lilleboe, 453 N.W.2d 721, 723-24 (Minn.App.1990) (reversing where district court dismissed on ground that moving party's abuse allegations were not corroborated). But section 518.185 grants other parties to the proceeding the right to file opposing affidavits, and the court may consider evidence from sources other than the moving party's affidavits in making its determination. See Krogstad v. Krogstad, 388 N.W.2d 376, 383 (Minn.App.1986) (upholding dismissal for failure to make out prima facie case where children's behavior problems asserted in affidavit dated from visit with moving party).

If the moving party asserts facts sufficient to support a modification of custody, the court must hold an evidentiary hearing to determine the truth of the allegations. Taflin v. Taflin, 366 N.W.2d 315, 320 (Minn.App.1985). Evidentiary hearings are strongly encouraged where there are allegations of present endangerment to a child's health or emotional well-being. Ross v. Ross, 477 N.W.2d 753, 756 (Minn.App.1991).

A. Standard of review

In Nice-Petersen, the Minnesota Supreme Court concluded that "the trial court did not abuse its discretion in denying the motion on affidavits and in refusing to schedule an evidentiary hearing." Nice-Petersen, 310 N.W.2d at 472. Subsequent decisions by this court have applied an abuse of discretion standard to a district court's dismissal of a modification petition without an evidentiary hearing, relying on the court's general broad discretion in custody matters. See, e.g., Itasca Cty. Soc. Servs. ex rel. Hall v. David, 379 N.W.2d 700, 703 (Minn.App.1986).

Barbara relies on this court's decision in Ross, 477 N.W.2d at 755-56, in contending that denial of an evidentiary hearing should be reviewed de novo. Ross, however, does not address the supreme court's language in Nice-Petersen, and this court's subsequent opinions have applied an abuse of discretion standard. See, e.g., Smith v. Smith, 508 N.W.2d 222, 227 (Minn.App.1993); Weiler v. Lutz, 501 N.W.2d 667, 671 (Minn.App.1993), aff'd, Valentine v. Lutz, 512 N.W.2d 868, 872 (Minn.1994); Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn.App.1992). Moreover, the supreme court applied an abuse of discretion standard in affirming this court's Weiler decision. Valentine, 512 N.W.2d at 872. Because Nice-Petersen and Valentine indicate that the supreme court intends that an abuse of discretion standard apply, we apply that standard here.

B. Standards for custody modification

1. General standards

The moving party must establish four elements for a prima facie case: (1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child's present environment endangers her physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change. Abbott, 481 N.W.2d at 868. The standard is the same whether the moving party is a parent or non-parent. Westphal v. Westphal, 457 N.W.2d 226, 228 (Minn.App.1990).

A change in circumstances must be significant and must have occurred since the original custody order; it cannot be a continuation of conditions existing prior to the order. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn.App.1989), review denied (Minn. June 21, 1989). The best interests of the child are determined according to the factors listed in Minn.Stat. § 518.17 (1996). Abbott, 481 N.W.2d at 867. Endangerment requires a showing of a "significant degree of danger," Ross, 477 N.W.2d at 756, but the danger may be purely to emotional development. See Eckman v. Eckman, 410...