In re the Marriage of: Rachel Ann Hughes, 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This opinion will be unpublished and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
A18-0185

In re the Marriage of:
Rachel Ann Hughes, petitioner,
Appellant,

vs.

Brian Patrick Selmser,
Respondent

Filed August 13, 2018
Affirmed
Worke, Judge

Itasca County District Court
File No. 31-FA-15-2236

Ellen E. Tholen, Grand Rapids, Minnesota (for appellant)

Christina C. Huson, Jennifer J. Grembowski, Maplewood, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Stauber,
Judge.*

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

2
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court abused its discretion by (1) failing to recuse
based on a conflict of interest and exhibiting bias, (2) denying her request for sole legal
custody of the parties’ children, (3) replacing the parties’ parenting-time schedule with its
own, and (4) failing to interview the parties’ daughter to ascertain her parenting preference.
We affirm.
FACTS
Appellant-mother Rachel Ann Hughes and respondent-father Brian Patrick Selmser
dissolved their marriage by stipulated judgment in 2015. The parties agreed to joint legal
custody of their children while mother retained sole physical custody. The parties
stipulated to a parenting-time schedule that would accommodate father’s uneven work
schedule.
In 2016, the parties’ eldest daughter was diagnosed with various health concerns
and began therapy when it became cl ear that a source of these concerns was the parties’
divorce. The parties disagreed on the best course of treatment for their daughter. The
parties also disagreed on the best way to implement the parenting-time schedule. Father
alleged that mother refused to cooperate with the schedule, which affected how often he
saw the children and which disrupted the children’s routines. Mother countered that it was
father’s erratic work schedule frustrating the parenting-time schedule. But at a hearing for
parenting-time assistance, the district court found that it was mother’s “refusal to cooperate
consistently with [f]ather and to make the accommodations required” by his work schedule

3
that primarily hindered father’s parenting time. The district court attempted to resolve the
parenting-time dispute in an order following the hearing.
In August 2017, mother filed a motion to remove the district court judge, to modify
the parenting-time schedule, and to grant her sole legal custody of the children. Mother’s
request to remove the district court judge was based on a potential conflict of interest
because mother was employed as a guardian ad litem in the Ninth Judicial District where
this case was being heard.1
The district court denied mother’s remov al request as well as her request for sole
legal custody of the children, finding that mother failed to show that it would be in the
children’s best interests to modify custody. The district court also noted that the parenting-
time schedule was “not working” and that “changes need[ed] to be made—both to reduce
the on -going disputes and name -calling between the parents . . . [and] to bring more
predictability to the [children].” Although the district court acknowledged that parties
agreed to the schedule, it found that maintaining the arrangement was not in the children’s
best interests. The district court modified the parenting-time schedule sua sponte. Mother
appeals.
D E C I S I O N
Removal

Mother first argues that the district court abused its discretion by denying her recusal
motion based on a conflict of interest . Denial of a recusal motion is within the district

1 Four judges recused themselves from this matter before it was assigned to the Honorable
Paul T. Benshoof. Neither party previously objected to Judge Benshoof’s assignment.

4
court’s discretion and should not be reversed absent a clear abuse of that discretion.
Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug.
20, 1986).
Mother’s claim is that her employment as a guardian ad litem for the judicial district
created a conflict of interest with the judge. But , as the district court stated, mother is
employed by the Stat e of Minnesota, not the Ninth Judicial District and her argument
“would disqualify every judge in the state.” We agree that mother fails to show a conflict
of interest warranting removal , and for this reason, the district court did not abuse its
discretion in denying her motion for recusal.2
Legal custody

Mother next argues that the district erred by failing to schedule an evidentiary
hearing on her motion to modify custody. Whether to hold an e videntiary hearing on a
custody-modification motion depends on whether the moving party has made a prima facie
showing that modification is warranted. Szarzynski v. Szarzynski , 732 N.W.2d 285 , 292
(Minn. App. 2007). A prima facie case to modify c ustody based on endangerment of a
child requires four elements:
(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.

2 On appeal, mother also argues that the district court exhibited bias against he r. Mother
did not raise this claim in district court and appellate courts generally do not consider
matters not argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988). For this reason, we decline to consider mo ther’s claim of bias because
it is being raised for the first time on appeal.

5

Geibe v. Geibe , 571 N.W.2d 774, 778 (Minn. App. 1997). A district court’s decision
regarding whether a party made a prima facie case to modify c ustody is within the district
court’s discretion. Boland v. Murtha , 800 N.W.2d 179, 183, 185 (Minn. App. 2011),
review denied (Minn. Oct. 21, 2008). If the moving party fails to make a prima facie case
for modification, the district court is required to deny the motion. Nice-Petersen v. Nice-
Petersen, 310 N.W.2d 471, 472 (Minn. 1981).
The district court determined that mother’s request for sole legal custody was based
on the parties’ disagreement about the best way to treat their daughter’s medical
condition—far short of the prima facie standard of showing a change in circumstances
warranting modification. We agree. In support of her claim, mother cited her
disagreements with father over their daughter’s medications and an appropriate therapist.
Mother did not make a prima facie showing of a change in circumstances, nor did she make
a prima facie case that a modification would be in the children’s best interests, nor did she
make a prima facie case that her daughter’s present environment endangered her physical
or emotional well -being. Mother’s request for sole legal custody was based on
disagreements with father, but general disagreements do not meet the burden required to
modify custody. Because the district court did not abuse its discretion by ruling that mother
failed to make a prima facie case, it was required to deny mother’s request to modify
custody. Boland, 800 N.W.2d at 186.
Parenting-time schedule

Mother also argues that the district court erred by modifying the parties’ parenting-
time schedule sua sponte. The district court has broad discretion in deciding parenting -

6
time questions and will not be reversed absent an abuse of discretion. Shearer v. Shearer,
891 N.W.2d 72, 75 (Minn. App. 20 17). “Reversible abuses of discretion include
misapplying the law or relying on findings of fact that are not supported by the record.”
Id. (quotation omitted). A district court’s findings of fact, on which a parenting -time
decision is based, will be upheld unless they are clearly erroneous. Griffin v. Van Griffin,
267 N.W.2d 733, 735 (Minn. 1978). “It is well established that the ultimate question in all
disputes over [parenting time] is what is in the best interest of the child.” Clark v. Clark,
346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984).
The original stipulation attempted to accommodate father’s erratic work schedule,
but the district court found that the schedule was “not working” for either of the children.
The district court acknowledged that it had unsuccessfully tried to address these problems
in a previous order and that the parties’ eldest daughter continued to struggle emotionally,
which required a change in the status quo. The district court concluded that “changes
need[ed] to be made” to reduce disputes and disruptions and to gain predictability. The
district court altered the parenting -time schedule on its own accord to address ongoing
issues.
Mother claims that there was “nothing unconscionable” about the existing
parenting-time schedule and, therefore, the district court should not have replaced it with
its own. But , as the district court stated , the overriding issue in this case is “not just a
question of hours and days and overnights;” the issue is how to keep the children “safe and
healthy.” Neither party disputes that their eldest daughter experiences ongoing health
issues and that father’s work schedule is irregular, meaning that the district court’s findings

7
of fact on these points are not clearly erroneous. Although mother exto ls the benefits of
the original parenting-time schedule, she does little to address the district court’s findings
and conclusions that the schedule, in practice, was not working in the parties’ or the
children’s best interests. Considering that the district court replaced the schedule out of
concern for the best interes ts of the children —the principal concern in parenting-time
disputes—we conclude that the district court did not misapply the law nor did it rely on
facts unsupported by the record in crafting its own schedule, and therefore, did not abuse
its discretion.
Interviewing the child

Mother finally argues that the district court abused its discretion by not interviewing
their eldest daughter to determine her parenting preference. A child’s reasonable
preference is one of many factors courts should take into account when resolving custody
and parenting -time disputes. Minn. Stat. § 518.17, subd. 1 (2016). Courts are free to
interview a child to ascertain the child’s preference, but an interview is not the only way to
gauge this preference. Madgett v. Madgett , 360 N.W.2d 411, 413 (Minn. App. 1985 ).
Therefore, the decision to interview a child is discretionary for the district court, which we
review for an abuse of discretion. Id.
The district court declined to interview the parties’ eldest daughter because it
believed that mother was exerting “significant negative pressures” on the children. We
have previously stated that a child’s preference should be given only limited weight whe n
it is influenced by a parent . Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App.
1989), review denied (Minn. June 21, 1989). In Roehrdanz, we wrote that the children’s

8
affidavits contained “statutory language not consistent with most teenagers’ vocabularies,”
and we used this determination, in part, to affirm that no change of circumstances
warranting custody modification had been demonstrated. Id.
Here, the district court cited language by the parties’ daughter that it believed was
influenced by mother, determining that the daughter’s “affidavit contains expressions and
words that are simply not the language of a thirteen year old, but instead evidence [ her
daughter was] aping what she has undoub tedly heard a nd learned from [mother]. ” The
district court provided a list of expressions in the affidavit that it found suspicious ,
including repeated use of the phrases “putting us [the children] first” and “put our best
interests first.” The district court also noted the repeated reference to the children’s “best
interests.” The district court believed that these phrases were unusual for a thirteen-year-
old girl, but commonly encountered in mother’s profession as a guardian ad litem.
Based on our review of the record, w e do not believe that the district court abused
its discretion by declining to interview the parties’ eldest daughter, who provided an
affidavit to the district court explaining her preference. It would be unlikely that
interviewing her would reveal new information not already expressed in her affidavit .
Further, the district court’s decision not to interview the parties’ daughter based on
suspicions about her vocabulary was not an abuse of discretion. The language used in the
affidavit is repetitious and specialized. Combining these suspicions with the fact that the
daughter’s affidavit clearly outlined her preferences, we conclude that the district court did

9
not abuse its discretion by declining to interview the parties’ daughter to ascertain those
same preferences.3
Affirmed.

3 Mother also argues that the district court abused its discretion by relying on secondary
sources when it declined to interview the daughter —particularly when the district court
discussed its suspicions that mother exerted some form of control over the daughter. We
do not comment on the district court’s use of these sources but instead, we note that our
discussion highlights a sufficient justification for the district court’s de cision to not
interview the daughter, and that this decision was not an abuse of the district court’s
discretion.