In re the Marriage of: David Brian Toft, 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This opinion will be unpublished and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
A18-0528

In re the Marriage of:
David Brian Toft, petitioner,
Appellant,

vs.

Arirat Toft,
Respondent.

Filed April 15, 2019
Affirmed
Ross, Judge

Ramsey County District Court
File No. 62-FA-11-1673

Brian K. Lewis, Francis White Law, P.L.L.C., Woodbury, Minnesota (for appellant)

Karen A. Cooper, St. Paul, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
In this child-custody dispute, we hold that the district court did not abuse its
discretion by denying father’s motion to modify custody without holding an evidentiary
hearing because father failed to present a prima facie case of endangerment on speculation
that mother is plotting to remove the child from the country.
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Arirat Toft (now Arirat Lason) and David Toft’s 2012 divorce decree granted Lason
sole physical and legal custod y of their minor son and established a parenting-time
schedule. In 2015, the parties agreed to adjust the parenting time to be divided about evenly
and to appoint a parenting-time consultant to help resolve parenting issues.
Toft moved to modify custody in 2018. He premised the motion on his affidavit
alleging that he had recently learned that Lason, who was previously a citizen of Thailand
and whose mother lives in Germany, had obtained a passport for their 9- year-old son.
Toft’s affidavit also asserted that, “in the past,” Lason threatened to remove the boy from
the country and not return. Toft asked the district court to grant him joint legal and physical
custody and order Lason to surrender the child’s passport.
The district court conducted a motion hearing during which Toft argued that
modification was necessary to avoid child endangerment, citing Minnesota Statutes,
section 518.18(d)(iv) (2018). The district court rejected the argument, concluding that Toft
had alleged insufficient facts to warrant an evidentiary hearing because his affidavit failed
to establish “that the only logical explanation for getting a passport is to abduct the child
and relocate out of the country.” The district court held that Toft failed to present a prima
facie case that the child faced a present and ongoing danger and failed to present any
credible threat that Lason would abscond with the child.
Toft challenges that holding. Our review of modification orders is limited to
considering whether the district court “abused its discretion by making findings of fact
unsupported by the evidence or by improperly applying the law. ” In re Marriage of
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Goldman, 748 N.W.2d 279, 284 (Minn. 2008) (quotations omitted). We see no abuse of
discretion here.
We examine “three discrete determinations” when we review an order denying a
motion to modify custody without an evidentiary hearing. Boland v. Murtha, 800 N.W.2d
179, 185 (Minn. App. 2011). We first review de novo whether the district court properly
treated the allegations in the movant’s affidavits as true and disregarded any conflicting
allegations except to the extent they are explanatory rather than contradictory. Id. We next
consider whether the district court’s determination reflects an abuse of discretion as to
whether a prima facie case exists for modification. Id. And we then “review de novo
whether the district court properly determined the need for an evidentiary hearing.” Id.
To present a prima facie case of endangerment-based modification, Toft needed to
identify facts that reveal a significant change in circumstances that occurred after the extant
custody order; that show that modification would serve the child’s best interests; that
establish that the child’s present environment endangers his physical or emotional health;
and that would prove that a change in environment will benefit more than harm him.
See Minn. Stat. § 518.18(d)(iv). Toft failed to show that the child is endangered. An
endangerment finding requires a showing of a “significant degree of danger.” Ross v. Ross,
477 N.W.2d 753, 756 (Minn. App. 1991). The undisputed clarifying facts about Toft ’s
representations about the passport and the threat to leave the country reveal that his
allegations fall short of showing endangerment.
Our conclusion assumes that a current plan for one parent to abscond with a child
would constitute endangerment. But Toft’s affidavit, informed by the clarifying facts in the
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record and the undisputed facts presented by Lason, fails to reveal any current plan or
suggest any danger. Toft’s temporally vague affidavit statement, “In the past, [Lason] has
made threats to me that she would take the minor child to Thailand and not return to the
United States,” does not show a present danger because it is detached from any context as
to circumstance or time. If the alleged statement and the obtaining of the passport were
recent, contemporaneous events, Toft’s allegations might imply a plan. But he made no
attempt to inform the court how far “in the past” the alleged threat occurred, and the district
court could draw no inference about its timing.
The district court knew of other information rendering Toft’s speculation
unreasonable. Among other things, it had access to the parties’ stipulated judgment and
decree. In that stipulation, Toft and Lason contemplated international travel with the child,
agreeing that “[i]f either parent plans to travel out of the United States for vacation, a copy
of the round trip ticket and travel itinerary must be provided to the other parent.” Given
that the parties made this agreement simultaneously with their agreement that Lason would
have sole legal custody, the parties actually or constructively also knew that Lason could,
and potentially would, obtain a passport for the child to travel abroad. And the court learned
from Lason’s responsive affidavit that Lason became an American citizen in 2014 and that
she then updated her own passport and obtained one for the child. She submitted a copy of
the child’s passport card, which confirmed that she has had the child’s passport since 2014.
Her affidavit also asserted—again without dispute—that, although Lason hopes one day to
be able to afford to visit Germany with her son, she has not taken the child out of the
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country in the four years since she obtained a passport for him and has no intention to live
anywhere other than Minnesota.
In this context, Toft’s affidavit gave the district court no reason to convene a hearing
to explore his speculation. Although he focuses on the recency of his learning of the
passport, the district court relevantly focused instead on the lengthy period of its existence.
So do we. Because the child’s four- year-old passport does not evidence any current plan
by Lason to take him permanently from the country, Toft has not established a prima facie
case of endangerment. When the moving party fails to make out a prima facie case, no
evidentiary hearing is necessary. Szarzynski v. Szarzynski, 732 N.W.2d 285, 292 (Minn.
App. 2007); see also Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987) (finding
no requirement for an evidentiary hearing when “[a]ppellant’s affidavit was devoid of
allegations supported by any specific, credible evidence”). Because the district court did
not abuse its discretion by concluding that Toft failed to present a prima facie case of
endangerment, it did not abuse its discretion by denying Toft’s motion without an
evidentiary hearing.
Affirmed.