In re the Marriage of: Brett William Leschinsky, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0475

In re the Marriage of:
Brett William Leschinsky, petitioner,
Appellant,

vs.

Sarah Elizabeth Leschinsky,
Respondent.

Filed January 14, 2019
Affirmed
Stauber, Judge*

Hennepin County District Court
File No. 27-FA-07-1926

Amanda A. Bloomgren, Katie C. Hanson, Bloomgren Hanson Legal, PLLC, Hopkins,
Minnesota (for appellant)

Marian E. Saksena, Dewalt, Chawla + Saksena, LLC, Minneapolis, Minnesota (for
respondent)

Considered and decided by Bjorkman, Presiding Judge; Worke, 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
STAUBER, Judge
Appellant father challenges the district court’s denial of his motion to modify
parenting time, arguing that the district court erred: (1) in applying the best-interests factors
in granting mother’s motion to modify parenting time and denying his motion ; (2) in
treating his motion as a de facto motion to modify the child’s primary residence, and that
even if it was a motion to modify the child’s primary residence, he was entitled to an
evidentiary hearing; and (3) in refusing to consider father’s second affidavit. We affirm.
FACTS
Appellant Brett William Leschinsky (father) and respondent Sarah Elizabeth
Leschinsky (mother) married in June 2004. They are the parents of one joint minor child,
M.H.L., born in 2006. Mother obtained an Order for Protection against father in November
2007, due to domestic violence. Mother and father divorced i n 2008. They share joint
legal custody of M.H.L. The dissolution judgment and decree awarded mother sole
physical custody. Mother and father agreed to participate in mediation and use a parenting
time consultant (PC). The most recent formal parenting time schedule is from 2008, when
the parties agreed, through the PC, to father having every Tuesday and one overnight visit
per week.
From 2008 t o 2017, f ather continually requested that his parenting time be
increased, and mother and father have come to informal agreements that increased father’s
parenting time. In 2009, they agreed to a schedule where father had parenting time
overnight on Tuesdays a nd Fridays. In 2016, mother and father agreed to increase

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parenting time so that M.H.L. would spend three nights per week with father. Mother
reported that she agreed to some of these requests by father because she “feared his
reaction” if she did not agree to his demands. In 2017, father remarried, and he now lives
in a home with his wife and her daughters from a previous relationship. M.H.L. is now 12
years old and in middle school.
In the fall of 2017, father filed a motion asking the district court to modify t he
parenting time schedule. S pecifically, asking for overnight visits every other day during
the week and every other weekend. He stated that the basis for this request was that the
current schedule was outdated, they need a set schedule because working out new
schedules every month “has been a huge source of conflict,” and M.H.L had requested
equal time spent with each parent.
Mother opposed this request, and , in her response, proposed an alternative
modification to the parenting time schedule. Mother proposed a schedule wherein father
would have overnight parenting time every Tuesday, and every other weekend. This
represented a decrease in parenting time for father from what the parties had been
following, but an increase from the last formal parenting-time schedule.
In its January 22, 2018 order, the district court denied father’s motion for increased
parenting time, granted mother’s proposed schedule, increased child support, and awarded
mother attorney fees. The district court found that “[f]ath er has failed to show why his
proposed schedule is in [M.H.L.]’s best interests” and that his proposed schedule was not
“child focused.” The district court was concerned that father appeared to be primarily
focused on achieving “equal” parenting time inst ead of working out a schedule that was

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best for M.H.L. The district court found that father failed to discuss M.H.L.’s church,
extracurricular activities, or when she would see her friends, and that his proposed schedule
would become even more problematic as M.H.L. got older and became involved in more
serious academics and more time intensive extracurricular activities.
In contrast, the district court found “[m]other’s proposed parenting time schedule to
be in the child’s best interest. It is child -focused and will maintain continuity during the
school year.” The district court found that mother’s proposed schedule would decrease
face-to-face contact between the parents, which the district court found would benefit the
child due the parties’ inability to co-parent.
Father appeals.
D E C I S I O N
A district court has broad discretion when deciding parenting-time matters. Hansen
v. Todnem, 908 N.W.2d 592, 596 (Minn. 2018). “Our review is limited to whether the
district court abused its discretion by making findings unsupported by the evidence or by
improperly applying the law .” Id. (quotation omitted). We review the district court’s
factual findings for clear error. Id. at 599.
Under Minn. Stat. § 518.175, subd. 5(b) (2018):
If modification would serve the best interests of the child, the
court shall modify the decision -making provisions of a
parenting plan or an order granting or denying parenting time,
if the modifica tion would not change the child’ s primary
residence. Consideration of a child’ s best interest includes a
child’s changing developmental needs.

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District courts are not required to make detailed findings on each best-interests factor under
Minn. Stat. § 518.17, subd. 1(a) (2018), when deciding parenting -time modification
motions; instead, district court s must consider only the relevant best-interests factors.
See id.
In evaluating the best interests of the child for purposes of determining issues of
parenting time, the district court must consider and evaluate all relevant factors, which may
include:
(1) a child’s physical, emotional, cultural, spiritual, and
other needs, and the effect of the proposed arrangements on the
child’s needs and development;
(2) any special medical, mental health, or educational
needs that the child may have that may require special
parenting arrangements or access to recommended services;
(3) the reasonable preference of the child, if the court
deems the child to be of sufficient ability, age, and maturity to
express an independent, reliable preference;
(4) whether domestic abuse . . . has occurred in the
parents’ or either parent’s household or relationship . . . ;
(5) any physical, mental, or chemical health issue of a
parent that affects the child’s safety or developmental needs;
(6) the history and nature of each parent’s participation
in providing care for the child;
(7) the willingness and ability of each parent to provide
ongoing care for the child; to meet the child’s ongoing
developmental, emotional, spiritual, and cultural needs; and to
maintain consistency and follow through with parenting time;
(8) the effect on the child’s well-being and development
of changes to home, school, and community;
(9) the effect of the proposed arrangements on the
ongoing relationships between the child and each parent,
siblings, and other significant persons in the child’s life;
(10) the benefit to the child in maximizing parenting
time with both parents and the detriment to the child in limiting
parenting time with either parent;
(11) except in cases in which do mestic abuse as
described in clause (4) has occurred, the disposition of each

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parent to support the child’s relationship with the other parent
and to encourage and permit frequent and continuing contact
between the child and the other parent; and
(12) the willingness and ability of parents to cooperate
in the rearing of their child; to maximize sharing information
and minimize exposure of the child to parental conflict; and to
utilize methods for resolving disputes regarding any major
decision concerning the life of the child.

Minn. Stat. § 518.17, subd. 1(a).
I. The district court did not abuse its discretion in granting mother’s motion
to modify parenting time and denying father’s motion.

Father argues that the district court did not consider all the relevant best-interests
factors when it granted mother’s motion and denied his motion to modify the parenting
time plan. We disagree.
In its decision on the parenting-time modification motions by mother and father, the
district court made detailed findings on the relevant best-interests factors: (1) the child’s
physical, emotional, cultural, spiritual, and other needs; (2) the effect on the child’s well -
being and development of changes to home, school, and community; (3) any physical,
mental, or chemical health issue of a parent that affects the child’s safety or developmental
needs; (4) the history and nature of each parent’s participation in providing care for the
child and; (5) the willingnes s and the ability of the parent s to cooperate in the rea ring of
their child. Minn. Stat. § 518.17, subd. 1(a).
The district court first considered how father’s proposed changes to M.H.L.’s home
and community would affect her well-being, as well as her emotional, cultural, and spiritual
needs. The district co urt was concerned that father’s proposed schedule would require
frequent transitioning between mother and father, which would impact M.H.L.’s

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participation in church and extracurricular activities. The district court explained that
M.H.L. “attends church with [m]other on a weekly basis and volunteers through the youth
program. Her long -time friends live in her neighborhood.” The district court noted that
father failed to address how, under his proposed schedule, M.H.L. would attend her church
and extracurricular activities and when she would be able to see her friends. Accordingly,
the district court found that these factors favored mother’s proposal because it more fully
addressed M.H.L.’s physical, emotional, and spiritual needs by providing continuity for
her in her school and social life.
The district court also addressed “any physical, mental, or chemical health issue of
a parent that affects the child’s safety or developmental needs,” by noting that it had
concerns about father’s failure to comply with the abstinence provisions in his original
parenting time order. Id. The district court noted that “[i]n an email to [M.H.L.]’s therapist,
[f]ather admits to having ‘too much to drink’ in early December 2017 and at Christmas
2017. This appears to have upset [M.H.L.] and caused her to be anxious.” The district
court considered this factor and found that father’s potential issue with substance abuse has
apparently had a negative impact on M.H.L.’s well-being.
The district court also considered “the history and nature of each parent’s
participation in providing care for the child.” Id. The district court acknowledged that
father’s participation in caring for M.H.L. has increased over time as the parties came to
several understandings that increased the number of days that she would spend with father.
However, the district court noted that mothe r had concerns with this evolving parenting
time schedule, stating that mother “does not believe [M.H.L.] has done well with this

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expanded schedule. Mother is concerned the ‘experimental’ expansion has caused
[M.H.L.] stress.”
Finally, the district cour t considered “the willingness and ability of the parents to
cooperate in the rearing of their child; to maximize sharing information and minimize
exposure of the child to parental conflict.” Id. The district court found that father’s
proposal would be “p roblematic because it would require a high level of co -parenting,
which is clearly not happening with these parents. Father’s plan would necessitate a high
number of weekly exchanges and constant communication to be effective. There is no
evidence that t his could be achieved in this case.” In contrast, the district court found
mother’s plan to be preferable with regards to this factor because the exchanges would take
place at school, which would decrease face -to-face interaction between the parents, and
decrease M.H.L.’s chance of being put in the middle of any conflict between her parents.
The district court made detailed findings in its consideration of five relevant best -
interests factors, explaining why they favored mother’s request to mod ify the par enting
time schedule. Therefore, the district court did not abuse its discretion in granting mother’s
motion to modify parenting time and denying father’s motion.
II. Father’s motion was a de facto motion for modification of M.H.L.’s primary
residence, and the district court did not err in denying him an evidentiary
hearing.

Father additionally argues that the district court erred in treating his motion as a
motion to modify M.H.L.’s primary residence, and that even if this court finds his request
to be a motion to modify M.H.L.’s primary residence, he was enti tled to an evidentiary
hearing. We are not persuaded.

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The supreme court has recently addressed the issue of when a motion to increase
parenting time constitutes a de facto motion to modify a child’s primary residence. In In
re Custody of M.J.H., the child’s father asked the district court to increase his parenting
time, and the mother objected. 913 N.W.2d 437, 439 (Minn. 2018) . The district court
found that his request was a de facto motion to modify physical custody and that it would
change the child’s primary residence. Id. The supreme court agreed, finding that the
father’s motion was a de facto motion to modify physical custody because his “proposed
modification is substantial.” Id. at 442.
The supreme court held that:
[W]hen determining whether a motion to modify parenting
time is a de facto motion to modify physical custody for
purposes of deciding whether the endangerment standard
applies, a court should consider the totality of the
circumstances to determine whether the proposed modification
is a substantial change that would modify the parties’ custody
arrangement. The factors considered may include the
apportionment of parenting time, the child ’s age, the child’s
school schedule, and the distance between the parties’ homes,
but these factors are not exhaustive.

Id.
In affirming the district court, the supreme court found that it had sufficiently
analyzed the child’s age, school, and the distance between the parents’ homes to conclude
that father’s motion was a substantial change that would modify the custody arrangement.
Id.
Similarly here, the district court examined the totality of the circumstances
surrounding M.H.L.’s custody. The district court considered the fact that her current home

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at her mother’s house is less than half a mile away from her school, and that she is very
involved in activities through her school and church that connect her to the community
around her mother’s house. The district court found t hat “there is no question that
[m]other’s home is [M.H.L.]’s primary residence. ” Because the totality of the
circumstances support that father’s proposed modification constitutes a substantial change,
the district court did not err in treating father’s motion as a de facto motion to modify the
child’s primary residence.
Once a motion is found to be a de facto motion to modify custody, the subsequent
decision on whether or not to modify custody is governed by Minn. Stat. § 518.18(d)
(2018). “A district court is required under section 518.18(d) to conduct an evidentiary
hearing only if the party seeking to modify a custody order makes a prima facie case for
modification.” Goldman v. Greenwood , 748 N.W.2d 279, 284 (Minn. 2008). To make a
prima facie case for modification, a party must first show a change in circumstances and
that modification is necessary to serve the child’s best interests. Minn. Stat. §518.18(d)
(2018). The party must then show that one of five statutory grounds supporting a
modification has been met, in this case that the child has been integrated into the party’s
family with the consent of the other party. Id. Any alleged change in circumstance “must
be a real change an d not a continuation of ongoing problems,” and the change “must be
significant.” Roehrdanz v. Roehrdanz , 438 N.W.2d 687, 690 (Minn. App. 1989), review
denied (Minn. Jun. 21, 1989). We review the district court’s determination as to whether
a prima facie case has been made for an abuse of discretion. Boland v. Murtha, 800 N.W.2d
179, 184-85 (Minn. 2011).

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Here, father’s affidavit asserts that the baseline custody and parenting time order is
“outdated,” that M.H.L is growing up, and that she wants to spend equal time with each
parent. However, nothing in his affidavit demonstrates a significant change in
circumstances. M.H.L. continues to live primarily with mother, and the parties’ issues with
parenting time constitute a “continuation of ongoing problems, ” not a significant change
in circumstances.
Furthermore, the district court found that father’s motion was not in M.H.L.’s best
interests. Given the district court’s analysis of the best-interests factors, it did not abuse its
discretion in finding that father did not meet his burden of demonstrating a prima facie case
for custody modification.
Father argues that his affidavits were sufficient to establish a prima facie case for
integration under Minn. Stat. § 518.18(d)(iii). The district court did not reach this issue
but we note briefly that father’s affidavit does not support a prima facie case for integration.
Father argues that M.H.L. has been integrated into his home with his new wife and her two
children “based upon a schedule that had been followed for four or five years.” However,
that schedule, while increasing his parenting time with M.H.L. from the original order, still
only allowed father a set number of nights with M.H.L. per week.
In cases where we have found integration, the child has more thoroughly transferred
to the residence of the non-custodial parent’s home. See Downey v. Zwigart, 378 N.W.2d
639, 642 (Minn. App. 1985) (finding integration where 5-year-old child had lived with the
non-custodial parent completely for all but 7 months of his life) . Here, M.H.L. may have
become more involved with father’s family, with her mother’s consent, but she did not

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become completely integrated within the meaning of the statute because she still maintains
and develops her life at her mother’s home. Mother consented to a series of increases in
parenting time for father, but M.H.L. continues to be in her mother’s primary care, going
to school from her mother’s house and attending church in her mother’s community.
Accordingly, even if father had established a prima facie showing of a significant
change in circumstances and that modification was in M.H.L.’s best interests, he would not
have been entitled to an evidentiary hearing because his affidavit did not demonstra te
integration.
III. It was not reversible error for the district court to decline to consider
father’s second affidavit.

Finally, father argues that the district court comm itted reversible error by refusing
to consider his second affidavit in its final written order, despite stating on the record that
it would accept the affidavit.
Father served his amended motion to modify parenting time, with an accompanying
affidavit. Mother timely served and filed a responsive motion asking the district court to
deny father’s motion and accept mother’s proposed modifications. Mother timely
submitted a supporting affidavit five days before the hearing. Father then submitted a
second affidavit, which the district court called a supplemental affidavi t, the night be fore
the hearing. The district court described this affidavit as being “very, very late.” The
district court nonetheless admitted the affidavit on the record, “just because I don’t think
it’s going to change anything.” However, in its written order, the district court declined to
consider the affidavit “due to the untimely filing.”

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Father argues that he should have been allowed to submit this supplemental affidavit
because mother’s motion proposing a modification to the parenting time schedule raised a
new issue, to which he was entitled to respond.
A responding party raising a new issue other than those raised in the initial motion
must serve and file its motion papers at least ten days prior to the hearing on the initial
motion. Minn. R. Gen. Prac. 303.03(a)(2). Here, mother’s responsive motion was filed
more than ten day s before the hearing, but her affidavit, which detailed her proposal to
modify parenting time, was filed five days before the hearing. However, this court has
determined, in unpubl ished cases, that when one parent raises the issue of modifying
parenting time in an initial motion, the other party does not raise a new issue by proposing
their own parenting time modification. Therefore, m other’s motion did not raise a new
issue, and father was not entitled to submit a supplemental affidavit in response.
Even if mother’s motion did raise a new issue and was therefore untimely, any error
in rejecting father’s supplemental affidavit was harmless. See Minn. R. Civ. P. 61
(requiring harmle ss error to be ignored). The district court read father’s supplemental
affidavit before the hearing and stated on the record that it would not affect the court’s
decision. Father’s supplemental affidavit included information about the distance between
father’s and mother’s homes, information about him being chemical -free, and texts from
M.H.L. indicating that she wanted to spend more time with him. None of that information
would change the analysis on whether father’s motion constituted a de facto motion to
modify M.H.L.’s primary residence or whether father was entitled to an evidentiary
hearing. Nor would it have made father’s proposed plan more “child focused” or reduced

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the high likelihood of conflict between the parents. Even i f the district court erred in
refusing to accept father’s supplemental affidavit, any error was harmless under rule 61.
Affirmed.