Nice-Petersen v. Nice-Petersen, 51795.

• Decision Date: 25 September 1981
• Docket Number: No. 51795.,51795.
• Citation: 310 NW 2d 471
• Parties: In re the Marriage of Pamela NICE-PETERSEN, Petitioner, Respondent, v. Perry W. NICE-PETERSEN, Appellant.
• Court: Minnesota Supreme Court

310 N.W.2d 471 (1981)

In re the Marriage of Pamela NICE-PETERSEN, Petitioner, Respondent, v. Perry W. NICE-PETERSEN, Appellant.

No. 51795.

Supreme Court of Minnesota.

September 25, 1981.

Jack S. Jaycox, Edina, for appellant.

Lauhead & Morrow, Minneapolis, for petitioner, respondent.

Considered and decided by the court en banc without oral argument.

YETKA, Justice.

Perry W. Nice-Petersen seeks review of an order of the Hennepin County District Court denying his motion for a modification of an original award of child custody made incident to the judgment and decree of marital dissolution of the parties on April 4, 1979. His primary assignment of error is that the trial court failed to schedule an evidentiary hearing to consider the competing positions of the parties. We affirm.

By the terms of the judgment and decree of marital dissolution, the custody of the parties' 3-year-old daughter Nicole was granted to the respondent Pamela Nice-Petersen. The appellant's visitation rights were to be supervised by the Department of Court Services. Although the parties entered into a stipulation governing visitation which was approved by the court, disputes arose thereafter relating to the visitation schedule. On July 7, 1980, the appellant filed a motion with the court for an order granting the parties joint custody of their child. The motion stated that it was "made upon the attached affidavits, upon all the files, records and proceedings herein, and upon the statutes of the State of Minnesota." A hearing was conducted in the district court to consider the parties' motions and the guardian ad litem's motion for an order adopting her recommendation that there be no change in custody. The appellant objected to the inclusion in the record of the guardian's report and respondent's attempt to introduce reports prepared by a psychiatrist and an employee of the Department of Court Services. Appellant therefore moved the court for an evidentiary hearing to allow his cross-examination of the authors of the reports. The order denying the evidentiary hearing and refusing to modify the original custody award is the subject of this appeal.

The focal question on appeal is whether the trial court erred in denying the appellant's motion to modify the child custody award without providing him an evidentiary hearing.

Minn.Stat. § 518.185 (1980) requires a party seeking a modification of a custody order to submit together with his moving papers an affidavit setting forth...