In re the Marriage of: Thomas M. Dillahunt v. Tami L. Dillahunt, n/k/a Tami L. Mitchell

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1859

In re the Marriage of:
Thomas M. Dillahunt, petitioner,
Respondent,

vs.

Tami L. Dillahunt,
n/k/a Tami L. Mitchell,
Appellant.

Filed August 11, 2014
Affirmed
Hudson, Judge

Hennepin County District Court
File No. 27-FA-06-4968

Deborah N. Dewalt, Dewalt Law Office, Burnsville, Minnesota (for respondent)

Christopher Zewiske, Ormond & Zewiske, Minneapolis, Minnesota (for appellant)

Considered and decided by Smith, Presiding Judge; Halbrooks, Judge; and

Hudson, Judge.

UNPUBLISHED OPINION

HUDSON, Judge

In this custody dispute, appellant challenges the district court’s determination that

she did not make a prima facie showing for custody modification and the denial of her

motions to compel discovery and for attorney fees. We affirm.
 FACTS

This appeal arises from the ongoing dispute over the custody of 11-year-old D.D.

following the marriage dissolution of her parents: appellant-mother Tami Mitchell

(formerly Dillahunt) and respondent-father Thomas Dillahunt. Mitchell now lives in

North Carolina, Dillahunt remains in Minnesota, and both have remarried. The March

2008 judgment and decree dissolving the marriage awarded the parties joint legal and

physical custody of D.D. Dillahunt has custody during the school years, Mitchell during

the summers.

Mitchell moved the district court to award her sole legal and physical custody of

D.D. Mitchell alleged that Dillahunt and his wife had deprived her of court-ordered

parenting time, and moved the district court to enforce the parenting-time agreement.

Mitchell also moved the district court to compel Dillahunt to respond to discovery

requests related to her motions. In response, Dillahunt moved the district court to deny

Mitchell’s discovery requests entirely and dismiss her motions with prejudice. Both

parties sought attorney fees.

The district court initially scheduled a May 2013 hearing on Mitchell’s discovery

motion and a July 2013 hearing on her motions related to custody and parenting time.

But the district court later determined that Mitchell had to make “a prima facie showing

for a change of custody . . . before discovery would be proper,” and thus instructed the

parties to argue the prima-facie-case issue at the May hearing. After the hearing, the

district court ruled that Mitchell failed to make a prima facie case to modify custody and

denied her motions to compel discovery and modify custody. The district court also

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denied both requests for attorney fees. The district court also ordered that the parties

“respond to each other’s requests in a timely manner,” and that Dillahunt “promptly”

enroll D.D. in therapy. This appeal follows.

DECISION

Mitchell argues that the district court erred by failing to hold an evidentiary

hearing on her custody and parenting-time motions and abused its discretion by

(1) failing to modify custody based on Dillahunt’s denial of court-ordered parenting time,

(2) denying her motion to compel discovery, and (3) failing to award attorney fees.

I

Mitchell challenges the district court’s failure to hold an evidentiary hearing on

her motion to be awarded sole custody of D.D.1 To establish an endangerment-based

prima facie case for the modification of custody, a party must show that (1) the

circumstances of the child or parties have changed, (2) the modification is necessary to

serve the best interests of the child, (3) the current environment endangers the child’s

physical or emotional health, and (4) the benefits of the change outweigh the harms.

Minn. Stat. § 518.18(d)(iv) (2012). To be entitled to an evidentiary hearing, a party must

make a prima facie case by alleging facts that, if true, would show the existence of all

four factors, Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008), by submitting

an affidavit setting forth facts that support the requested modification of custody, Minn.

1
In the alternative, Mitchell moved the district court to change the parenting-time
arrangement so that D.D. resided with Mitchell during the school year. Because Mitchell
did not brief this issue on appeal, we considered it waived. See Melina v. Chaplin, 327
N.W.2d 19, 20 (Minn. 1982).

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Stat. § 518.185 (2012). When determining whether a moving party has made a prima

facie case to modify custody, a district court must accept all facts contained in the

affidavit as true. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).

On review from an order denying a motion to modify custody without an

evidentiary hearing, this court applies three discrete stages of review. We first review de

novo “whether the district court properly treated the allegations in the moving party’s

affidavits as true.” Boland v. Murtha, 800 N.W.2d 179, 185 (Minn. App. 2011). Second,

we review for an abuse of discretion the district court’s determination of the existence of

a prima facie case for custody modification. Id. “Finally, we review de novo whether the

district court properly determined the need for an evidentiary hearing.” Id.

Facts accepted as true

The district court was required to accept the facts stated in Mitchell’s affidavit as

true. See Geibe, 571 N.W.2d at 777. But “conclusory allegations do not support a prima

facie case” for custody modification, In re Welfare of Children of L.L.P., 836 N.W.2d

563, 571 (Minn. App. 2013), and “do not require an evidentiary hearing,” Szarzynski v.

Szarzynski, 732 N.W.2d 285, 292 (Minn. App. 2007). We review de novo the district

court’s interpretation of Mitchell’s affidavit. See Boland, 800 N.W.2d at 185.

The district court credited all of the main factual assertions in Mitchell’s affidavit:

that D.D. is increasingly distraught when she has to leave Mitchell; that Dillahunt and his

wife interfere with D.D.’s video-chat time with Mitchell; that Dillahunt and his wife do

not cooperate with Mitchell’s reasonable requests to modify pick-up or drop-off

arrangements; that Dillahunt’s apartment is messy and not large enough for D.D. to live

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in; that Dillahunt has anger issues toward Mitchell; that Dillahunt has an arrest record;

and that Dillahunt and his wife reneged on agreements to allow D.D. to see her maternal

grandparents and took away gifts that Mitchell’s family gave D.D. Although the district

court characterized Mitchell’s statements as “assert[ions]” or “alleg[ations]” and did not

explicitly state that it accepted them, the language of the order clearly indicates that the

district court understood its obligation to credit Mitchell’s factual assertions, and we are

satisfied that the district court met that requirement.

The district court, however, determined that several of Mitchell’s assertions were

conclusory or speculative. Mitchell alleged that “something is amiss about [Dillahunt’s]

behaviors around [D.D.],” and that Dillahunt’s wife “does not trust him to behave

appropriately if left alone with [D.D.].” The district court ruled that these assertions were

conclusory and did not credit them. Mitchell also claimed that Dillahunt and his wife

have mental-health issues that led to an “overly-rigid, authoritarian parenting style.” The

district court did not credit this assertion because it is conclusory and speculative.

Mitchell asserted that Dillahunt’s criminal record, including an alleged arrest for DUI and

an arrest warrant for unpaid fines, evinces a danger to D.D.; the district court credited the

factual claims about Dillahunt’s arrest record, but disagreed with Mitchell’s conclusion

that Dillahunt’s record constitutes any danger to D.D. And the district court rejected

Mitchell’s assertion that Dillahunt’s hostility toward her also extends to D.D. as “pure

conjecture.”

The district court was required to credit Mitchell’s factual assertions, and it did.

But it was under no obligation to credit Mitchell’s conclusions or speculations. See

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Szarzynski, 732 N.W.2d at 292. The district court did not err in its interpretation of

Mitchell’s affidavit.

Prima facie case for an evidentiary hearing

A party seeking to make a prima facie case for modification of custody must

allege the existence of four factors. Goldman, 748 N.W.2d at 284. The district court

ruled that Mitchell failed to allege facts that, if true, were sufficient to show the existence

of two of those factors: that D.D.’s or the parties’ circumstances have changed, and that

D.D.’s present environment endangers her physical or emotional health. We review for

an abuse of discretion a district court’s decision on whether a party made a prima facie

case for modification. See Boland, 800 N.W.2d at 185.

The district court ruled that “there ha[d] been little change in circumstances” since

the issuance of the judgment and decree. Although the district court stated that it was

“concern[ed]” with the actions of Dillahunt and his wife, it characterized those actions as

a continuation of the ongoing arguments between the parties and not a true change in

circumstances. The record indicates that Mitchell has previously raised the same facts

and pattern of behavior on which her current motion is based. The district court did not

abuse its discretion when it declined to credit Mitchell’s assertion that circumstances had

changed. The district court did not abuse its discretion by ruling that the current dispute

is a continuation of an ongoing custody dispute rather than the statutorily required change

in circumstances necessary to support a modification of custody.

The district court also ruled that a second prima-facie-case factor was not met

because “the facts alleged by [Mitchell] do not rise to the level of endangerment in the

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child’s present environment.” The endangerment requirement contemplates “a

significant degree of danger.” Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).

Even when one parent “intentionally and systematically interfered” with the other’s

parenting time, the endangerment requirement of a prima facie case is not satisfied unless

the moving party alleges serious endangerment to the child’s physical or emotional

welfare. Dabill v. Dabill, 514 N.W.2d 590, 595–96 (Minn. App. 1994). Here, the district

court ruled that, although Dillahunt had interfered with Mitchell’s video-chat time,

Mitchell did not allege facts demonstrating that the interference constitutes significant

endangerment to D.D. The district court noted that nothing in Mitchell’s affidavit

suggested serious emotional danger to D.D. that could not be attributed to the ongoing

conflict between the parties. Furthermore, the district court did not ignore Mitchell’s

concerns. Instead, its order credited and directly addressed those concerns by ordering

Dillahunt to be reasonable about pick-up and drop-off times, to respond to Mitchell’s

requests in a timely manner, and to promptly enroll D.D. in counseling. On this record,

the district court did not abuse its discretion by ruling that the relevant allegations in

Mitchell’s affidavit, even if accepted as true, fail to allege the changed circumstances and

endangerment prongs required to establish a prima facie case.

Because Mitchell did not establish two elements of her prima facie case, the

district court did not err by denying an evidentiary hearing. See Goldman, 748 N.W.2d at

284.

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 II

Mitchell argues that, under Minn. Stat. § 518.18(d) (2012), willful denial of or

interference with parenting time is an alternate basis for modifying custody. But in that

statute, willful denial of or interference with parenting time is not an alternate basis for

modifying custody, but a specific factual basis upon which a district court may find a

change in circumstances under the four-factor framework discussed above. See Minn.

Stat. § 518.18(d). In short, although “deprivation of parenting time may be considered in

addressing motions to modify custody, it is not an independently sufficient basis to

modify custody.” Szarzynski, 732 N.W.2d at 293. Because the district court did not

abuse its discretion by concluding that Dillahunt’s behavior does not constitute a change

in circumstances, an evidentiary hearing on Mitchell’s motion to modify custody is not

warranted.

III

Mitchell challenges the district court’s denial of her motion to compel discovery

prior to the May hearing. The district court concluded that a party may use only

affidavits to establish a prima facie case and denied the motion. We review a district

court’s denial of a motion to compel discovery for an abuse of discretion. Erickson v.

MacArthur, 414 N.W.2d 406, 407 (Minn. 1987).

A party seeking a modification of custody must submit “an affidavit setting forth

facts supporting the requested . . . modification.” Minn. Stat. § 518.185 (2012). If the

affidavit “set[s] forth sufficient justification, if the facts alleged therein are true, for the

[custody] modification,” it is sufficient to establish a prima facie case, and the party is

8
entitled to an evidentiary hearing. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472

(Minn. 1981).

Once a party submits an affidavit sufficient to trigger an evidentiary hearing,

discovery is appropriate, because the need to discover evidence prior to such a hearing is

obvious. If an evidentiary hearing has not been set, discovery is not appropriate, because

a party’s burden is not to gather evidence supporting a proposed custody modification,

but to allege facts in an affidavit that, if true, would be sufficient to require modification.

See Nice-Petersen, 310 N.W.2d at 472. The district court did not abuse its discretion by

denying Mitchell’s motion to compel discovery.

IV

Mitchell argues that the district court abused its discretion by failing to award her

conduct-based attorney fees. In family-law proceedings under chapter 518, a district

court may, in its discretion, award conduct-based attorney fees “against a party who

unreasonably contributes to the length or expense of the proceeding.” Minn. Stat.

§ 518.14, subd. 1 (2012). The district court’s sole finding on the attorney-fee issue was

that “[t]here is an insufficient basis for an award of attorneys’ fees.” We review a district

court’s decision on an award of attorney fees for an abuse of discretion. Gully v. Gully,

599 N.W.2d 814, 825 (Minn. 1999).

When denying conduct-based attorney fees under Minn. Stat. § 518.14, a district

court must make findings sufficient “to permit meaningful appellate review on the

question [of] whether attorney fees are appropriate because of a party’s conduct.”

Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992). Specifically enumerated

9
findings are not necessary if “the language used by the [district] court reasonably

implies” the substance of a finding that would provide an adequate basis for the district

court’s conclusion. Gully, 599 N.W.2d at 825.

Here, the district court’s sole finding under the heading of “Attorneys’ Fees” was

that there was an insufficient basis for the award of fees. But the district court made

thorough, detailed findings of the procedural history of this motion and prior motions

arising from the same custody dispute between the parties. These findings include that

“[t]he parties have been back in court numerous times on custody and parenting time

issues,” that both parties sought attorney fees on the motion, and that both parties “have

behaved unreasonably at times” by “continu[ing] their conflict and repeatedly engag[ing]

in unnecessary arguments.”

These findings lead us to infer that the district court denied an award of attorney

fees to both parties because it concluded that both have engaged in behavior that

contributed to the length and expense of the proceedings. Although the district court

made a single finding under the heading of “Attorneys’ Fees,” it made enough related

findings to permit meaningful appellate review of its denial of Mitchell’s motion. See

Kronick, 482 N.W.2d at 536. On review, the district court’s findings provide an adequate

basis for its denial of attorney fees, and therefore, that denial was not an abuse of the

district court’s discretion.

Affirmed.

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