In re: the Custody of the Minor Child V. E.; Ricardo Elizondo, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1890

In re: the Custody of the Minor Child V. E.;
Ricardo Elizondo, petitioner,
Appellant,

vs.

Katie Irene Halvorson,
Respondent.

Filed August 13, 2018
Affirmed
Peterson, Judge

Norman County District Court
File No. 54-FA-07-477

Sarah Gereszek, Kalash & Pettit, Grand Forks, North Dakota (for appellant)

Leah Sonstelie Warner, Vogel Law Firm, Fargo, North Dakota (for respondent)

Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Stauber,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from a district court order that denies his motion to modify child
custody, appellant-father argues that he established a prima facie case for modification and
the district court erred by failing to hold an evidentiary hearing. We affirm.
FACTS
Appellant-father Ricardo Elizondo and respondent-mother Katie Irene Halvorson
are the parents of V.E., who was born in 2004. The parties never married, but father signed
a recognition of parentage on the day after V.E. was born. For reasons not specified in the
record, mother’s mother (grandmother) was appointed as mother’s legal guardian and
conservator in 2004.
In 2006, mother obtained an order for protection (OFP) against father. A second
OFP application was denied in 2007. Nothing in the file reflects further incidents between
the parties. In 2007, father sought joint legal custody of V.E., with sole physical custody
in mother. In October 2007, the district court granted mother sole legal and physical
custody, subject to father’s reasonable visitation rights.
In 2017, f ather moved to modify custody, asking that the parties share joint legal
custody of the child, with sole physical custody in father. Father alleged that V.E. lived
“on and off” with mother between 2010 and 2013, depending on mother’s health. Mother
was civilly committed for a short time in 2013. After mother’s commitment, V.E. li ved
with grandmother until grandmother died in 2017. Father allege d that mother visited but

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did not live with V.E. Mother d id not deny this, but averred generally that the child lived
with her, grandmother, and mother’s brother and sister-in-law since the 2007 custody order.
After grandmother’s death in June 2017, V.E. lived with father in North Dakota
until mother’s brother (uncle) brought V.E. back to live with his family. Uncle had been
appointed as mother’s successor legal guardian and conservator. V.E. now lives with uncle
and his family, not with mother. Father states that 12-year-old V.E. expressed a preference
to live with father.
The district court held a motion hearing, but no testimony was taken. The district
court denied the modification motion and made the following finding: “[Father] has failed
to allege a prima facie case justifying modification of custody. [Father] conceded at the
hearing that his claims of endangerment to the child are speculative at this point.” 1 The
district court made no other findings. Father appeals.
D E C I S I O N
Minn. Stat. § 518.18 (2016) governs the modification of a custody order. A court
may not modify a custody order that specifies the child’s primary residence unless it finds
“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.” Minn. Stat. § 518.18(d).

1During the motion hearing, t he district court asked, “In terms of the prima facie case,
what’s the danger in the present environment?” Father’s counsel answered, “Your Honor,
unfortunately it is a little speculative right now as to whether or not there’s endangerment
um, because the child hasn’t been living with [mother] for three to four years. So it’s not
quite certain um, what the endangerment may be but there is concern that ah, [mother] is
not able to meet the needs of the child emotionally, physically um, spiritually, what have
you, based um, on her limitations.”

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The change in circumstances must be significant, must have occurred sin ce the original
custody order, and “must be a real change and not a continuation of ongoing problems” or
“conditions existing prior to the [original] order.” Spanier v. Spanier , 852 N.W.2d 284,
288 (Minn. App. 2014) (quotations omitted).
“In applying these standards the court shall retain the custody arrangement . . . that
was established by the prior order” unless at least on e of certain statutorily listed
circumstances is present. Minn. Stat. § 518.18(d). One of the statutory circumstances
supporting modification is that “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 the
change to the child.” Id. (d)(iv). The party seeking modification has the burden of proof.
Crowley v. Meyer, 897 N.W.2d 288, 293 (Minn. 2017).
Father argues that the district court erred by refusing to hold an evidentiary hearing.
A district court must hol d an evidentiary hearing on a modification motion if a party
establishes a prima facie case for modification. Id. at 293-94.
To establish a prima facie case [for an endangerment -based
custody modification], the party seeking custody modification
must allege that: (1) the circumstances of the children or
custodian have changed; (2) modification would serve the
children’s best interests; (3) the children’s present environment
endangers their physical health, emotional health, or emotional
development; and (4) the benefits of the change outweigh its
detriments with respect to the children.

Id. at 293 (citation omitted).

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We consider three things when reviewing a district court’s decision to deny
modification without an evidentiary hearing:
First, whether the district court properly treated the allegations
in the moving party ’s affidavits as true, disregarded the
contrary allegations in the nonmoving party ’s affidavits, and
considered only the explanatory allegations in the nonmoving
party’s affidav its, is reviewed de novo. Second, the district
court’s determination as to the existence of a prima facie case
for modification is reviewed for an abuse of discretion. Lastly,
we review de novo whether the district court properly
determined the need for an evidentiary hearing . Whether a
party makes a prima facie case to modify custody is dispositive
of whether an evidentiary hearing will occur on the motion.
Spanier, 852 N.W.2d at 287 (footnote omitted) (quotations and citation omitted).
In his affidavit, father alleged that a change in circumstances had occurred because
mother had been civilly committed since the original order, grandmother had been
appointed as mother’s legal guardian and conservator, grandmother had died, and the child
was now living wit h mother’s successor guardian and conservator. Mother expla ined in
her affidavit that grandmother was appointed her legal guardian in 2004, prior to the
original custody order. With respect to endangerment, father alleged:
I’m not sure if [mother] can provide for [V.E.’s] needs given
her current status or how having a guardian and conservator
would play a role in providing for [V.E.’s] care. . . .

. . . .

. . . [V.E.] has expressed a desire to live with me. She
hasn’t lived with her mother in quite some time. . . .

. . . .

. . . I’m concerned about [mother’s] physical and mental
fitness to care for [V.E. Mother] is unable to provide for her

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own care which necessitated a guardian and conservator be
appointed.

. . . .

I don’t know what will happen if [V.E.] is to be in
[mother’s] primary care. I don’t know the extent of her mental
or physical condition or how that would impact her willingness
to follow through with my parenting time. . . .

. . . .

. . . [V.E.] is not living with [mother] but living with
[uncle] and his family. [Uncle] is still appointed as the
guardian and conservator over [mother]. The relationship
between [uncle, uncle’s wife], and [V.E.] has become strained
since [grandmother] passed away. [Uncle] cancelled a trip that
[grandmother] set up for [V.E.] because [V.E.] chose not to go
to [grandmother’s] wake. . . . [V.E.] has been living with
[uncle] and spending days with [mother]. [V.E.] has told me it
is a very uncomfortable situation and frequently sends me
messages wanting to live with me. . . .

. . . I’m concerned [uncle] will try to control the
situation and my ability to see [V.E.]

If father’s allegations are treated as true and mother’s allegations, other than her
explanatory allegation that grandmother was appointed mother’s legal guardian prior to the
original custody order ,2 are disregarded, the district court did not abuse its discretion in
determining that father failed to establish a prima facie case for modification because
father’s allegations do not establish that V.E.’s present environment endangers her physical
health, emotional health, or emotional development.

2 During the hearing on father’s motion, father’s attorney acknowledged that mother was
under guardianship at the time of the original custody order in 2007.

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Father’s allegations establish that V.E. is uncomfortable in her present environment
and that father is concerned about the possibility of endangerment, but they do not establish
a prima facie case for modification. Mother was under a guardianship and conservatorship
at the time of the original custody order, and the allegations do not show that the
appointment of a successor guardian has been a significant change in circumstances.
Father alleges that mother could be an inappropriate caregiver because of her mental
illness, pointing to mother’s commitment in 2013 , but his allegations do not identify any
inappropriate care.
As an alternative basis for finding endangerment, father alleged that V.E. expressed
a preference to live with him rather than uncle.
A child’s preference has been found relevant to three of
four modification factors. A child’s strong preference to
change residence after a custody decree can constitute a change
in circumstances. The child’s reasonable preference is also one
of the statutory factors for the court to weigh in determining a
child’s best interests.

Where the child is a teenager, Minnesota courts have
taken preference into account in determining emotional
endangerment.

Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997) (quotation and citation omitted).
But this court has explained that a child’s preference “alone do[es] not provide sufficient
evidence of endangerment to mandate a hearing.” Id. A child’s preference is of more
importance when an evidentiary hearing is held “rather than in determining whether a
prima facie case has been made.” Id. at 778-79.

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Because the district court did not abuse its discretion in determining that father did
not establish a prima facie case for modification , it did not err by failing to hold an
evidentiary hearing.
Affirmed.