In re Weber, No. CX-02-791

• Citation: 653 N.W.2d 804
• Decision Date: 10 December 2002
• Docket Number: No. CX-02-791, No. C2-02-820.
• Parties: In re Alan Robert WEBER, Petitioner, Respondent, Beth Marie Dalbec, Respondent, v. W.P.W., Appellant, and In re Alan Robert Weber, Petitioner, Appellant, v. Beth Marie Dalbec, Respondent.
• Court: Court of Appeals of Minnesota

653 N.W.2d 804

In re Alan Robert WEBER, Petitioner, Respondent,

Beth Marie Dalbec, Respondent, v. W.P.W., Appellant, and In re Alan Robert Weber, Petitioner, Appellant, v. Beth Marie Dalbec, Respondent.

Nos. CX-02-791, C2-02-820.

Court of Appeals of Minnesota.

December 10, 2002.

S. Warren Gale, S. Warren Gale Law Office, P.A., Bloomington, MN, for respondent Alan Weber.

Jeffrey P. Hicken, Hicken, Scott & Howard, P.A., Anoka, MN, for respondent Beth Dalbec.

Stuart E. Gale, Stuart E. Gale Law Offices, Bloomington, MN, for appellant W.P.W.

Considered and decided by TOUSSAINT, Chief Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.

OPINION

HALBROOKS, Judge.

In this consolidated appeal, appellant W.P.W. disputes the district court's denial of his motion to appoint a guardian ad litem under Minn.Stat. § 525.6175 (2000), the statute governing the appointment of guardians in probate matters, and appellant Alan Weber challenges the district court's refusal to conduct an evidentiary hearing on his motion to modify custody. Because (1) Minn.Stat. § 525.6175 applies to the appointment of guardians in probate matters only, (2) Weber failed to establish a prima facie case for modification under the Nice-Petersen factors and Minn.Stat. § 518.18(d) (Supp.2001), (3) the district court's order did not violate W.P.W.'s right to counsel, and (4) the remaining issues raised do not provide a basis for relief, we affirm.

FACTS

This matter arises out of a very acrimonious custody battle. The marriage of appellant Alan Robert Weber and respondent Beth Marie Dalbec was dissolved on February 2, 1998. Following the parties' stipulation, the court awarded Dalbec sole legal and physical custody of the couple's children, appellant W.P.W. (now age 15) and C.W.W. (now age ten). Weber was granted reasonable and liberal visitation.

On December 21, 2001, W.P.W. brought a motion pursuant to Minn.Stat. § 525.6175 (2000) to appoint his maternal uncle, Bradley Dalbec, as his guardian ad litem (GAL). W.P.W.'s objective in making the motion was so that Bradley Dalbec could assist him with a motion for a change of custody to live with his father.

On January 22, 2002, Beth Marie Dalbec filed a motion, inter alia, to dismiss W.P.W.'s motion and to obtain supervised visitation between W.P.W. and Weber. In her responsive affidavit, Dalbec alleged that Weber manipulated and emotionally harmed W.P.W.

On February 14, 2002, W.P.W. filed a second motion that sought a change of permanent and temporary physical custody to his father subject to reasonable visitation with his mother. Weber simultaneously filed a motion, seeking, inter alia, to obtain permanent and temporary physical custody of both minor children and to appoint Bradley Dalbec as GAL for both minor children. Dalbec opposed both motions.

On March 8, 2002, the court issued an order denying, with prejudice, W.P.W.'s motion for the appointment of Bradley Dalbec as GAL and his motion for a change in custody. The court found that W.P.W. lacked standing to bring a motion for change of custody and that the procedure for appointment of a GAL in family law cases is properly set forth in Minn. R. Gen. Pract. 904.01 and not Minn.Stat. § 525.6175.

The court dismissed, without prejudice, Weber's motions for modification of custody and a finding that the property settlement was fully paid on the basis that the motions were untimely. The court ordered the appointment of a GAL and scheduled an evidentiary hearing for April 26, 2002, on the issues of whether or not Weber's visitation should be restricted and whether his child support obligation was commensurate with the child support guidelines. The court also ordered the GAL to issue a report on the visitation issue and ordered Weber to produce pertinent wage information before the hearing. Additionally, the court ordered that the attorney for W.P.W. and Weber's attorney should not meet with or discuss issues relating to the litigation with the children without first bringing a motion before the court. In a report dated April 10, 2002, the GAL expressed concern that, "Mr. Weber and [W.P.W.] use the exact same words and phrases [in reference to Dalbec and the court proceedings]," and that "[t]he parroting was incredible." The GAL also reported that W.P.W. said that Weber helped him to "set my mom up" and "encouraged" misbehavior to cause his mother to "throw" him out. The GAL noted that, "[n]either child indicated being in any type [of] emotional or physical danger or being neglected [by Dalbec]." The GAL concluded that, although Weber had endangered W.P.W.'s emotional health and impaired his emotional development by putting him in the middle of a bitter custody dispute, supervised or restricted parenting time would not benefit W.P.W. because of his age and his bond to his father. She recommended a 30-day break from visitation with Weber so that Dalbec could "regain control of her home" and that the parents communicate through the visitation expeditor and not through the children.

The court held the scheduled hearing on April 26, 2002. After reviewing the GAL's report and listening to counsel's arguments on the custody issue, the court determined that (1) there had been a significant change of circumstances based on W.P.W.'s change in preference to live with Weber, but that the change resulted from Weber's manipulation of W.P.W.; (2) Weber's insistence on involving W.P.W. in the custody dispute, despite a court order prohibiting such conduct; failure to hold W.P.W. accountable for bad behavior; and lack of support for W.P.W.'s ongoing involvement with Dalbec resulted in endangerment of W.P.W.'s emotional health and impairment of his emotional development; (3) there was no showing of endangerment of W.P.W. while in Dalbec's home; and (4) W.P.W. would be harmed by living with his father because of Weber's efforts to manipulate W.P.W. and alienate him from Dalbec. Weber's motion for an evidentiary hearing on the change-of-custody motion was denied on the ground that Weber had failed to establish a prima facie case.

ISSUES

1. Did the district court err in denying W.P.W.'s motion for the appointment of a guardian ad litem of his choice under Minn.Stat. § 525.6175 (2000), a probate statute?

2. Did the district court abuse its discretion by denying Weber an evidentiary hearing on his change-of-custody motion?

3. Did the district court improperly preclude the attorney for W.P.W. and the attorney for Weber to discuss any issue relating to the litigation, child custody, or visitation with W.P.W. without first obtaining the court's permission?

ANALYSIS

I. Guardian Ad Litem

Relying on Minn.Stat. § 525.6175 (2000), a probate statute, W.P.W. argues that the district court erred by failing to appoint the GAL of his choosing. Minn. Stat. § 525.6175 provides that the court shall appoint a guardian nominated by a minor in a probate proceeding, "if the minor is 14 years of age or older, unless the court finds the appointment contrary to the best interests of the minor."

W.P.W. cites Ross v. Ross, 477 N.W.2d 753, 756-57 (Minn.App.1991), in support of his argument that Minn.Stat. § 525.6175 applies in a custody proceeding. The issue before us in Ross was whether the father, the noncustodial parent, was entitled to an evidentiary hearing on his motion for modification of custody. Id. at 755. We concluded that the father's affidavit created a prima facie case of endangerment to the child's health or emotional well being that necessitated a hearing. Id. at 756. In reaching that conclusion, we relied, in part, on the age of that child (17) and noted that Minnesota law does sometimes give deference to the choice of an older teenager, citing Minn.Stat. § 525.6175. Id. But Ross does not stand for the proposition that Minn.Stat. § 525.6175 is applicable to a custody-modification proceeding in a family law context.

Indeed, Minn.Stat. § 525.6175 should not apply to the appointment of a GAL in a custody-modification proceeding because a guardian in a probate matter possesses significantly different powers and duties than a guardian in a family law matter. See Minn.Stat. § 525.619 (2000). The district court did not err in concluding that, "[t]he goal in [family law] cases is `the prompt appointment of an independent guardian ad litem to advocate for the best interests of the child.'" Minn. R. Gen. Pract. 904.03.

II. Custody Modification

Weber disputes the district court's denial of his motion to modify custody without conducting an evidentiary hearing. This court applies an abuse-of-discretion standard in reviewing a district court's decision to dismiss a custody-modification petition without an evidentiary hearing. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn.App. 1997). We defer to the opportunity of the trial court to assess the credibility of the witnesses. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988)

(citing Minn. R. Civ. P. 52.01).

The party seeking a custody modification must submit an affidavit asserting sufficient justification for the modification. Minn.Stat. § 518.185 (2000). To obtain an evidentiary hearing on a custody-modification petition, the moving party must establish the following four elements of 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 his 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. Geibe, 571 N.W.2d at 777-78.

In determining whether the moving party has established a prima facie case, the district court must accept the facts in the moving party's affidavit as true. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981). If the moving party's affidavit does not allege facts that, if true, would provide sufficient grounds for...