In re the Marriage of:

This opinion will be unpublished and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
A18-1004

In re the Marriage of:

David Jeffrey Stoeger,
Appellant,

vs.

Shara Marie Porter-Stoeger, n/k/a Shara Marie Porter-Casper,
Respondent.

Filed January 7, 2019
Reversed and remanded
Rodenberg, Judge

Fillmore County District Court
File No. 23-FA-10-603

Jill I. Frieders, O’Brien & Wolf, L.L.P., Rochester, Minnesota (for appellant)

Shara Marie Porter-Casper, Winona, Minnesota (pro se respondent)

Considered and decided by Cleary, Chief Judge; Bjorkman, Judge ; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant-father David Stoeger challenges the district court’s o r d e r d e n y i n g h i s
motion to modify child custody without affording him an evident iary hearing. He argues

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that he made a prima facie case to modify custody based on endangerment and integration.
We agree, and therefore reverse and remand.
FACTS
During their marriage, father and respondent-mother Shara Port er-Casper had one
child, E.P-S., in 2010. Father and mother divorced when daughter was seven months old.
The parties’ decree provided that father and mother shared legal custody of daughter, and
mother was granted sole physical custody subject to father’s re asonable and liberal
parenting time. On May 1, 2018, father moved the district cour t to modify the custody
provision of the decree and grant him sole legal and physical custody of daughter. Father
alleged by affidavit that daught er had been physically abused b y mother’s former
significant other in 2013, suffe red an unexplained rib fracture in 2014, and was being
locked in her bedroom during 2015. Father also alleged that daughter had an inappropriate
sexual encounter in 2015 with another child in the household an d that she was sharing a
bedroom with that child and another half-sibling. Additionally, father alleged that daughter
was not performing well in school, and was repeatedly absent or tardy in 2015 and 2016.
Father’s affidavit stated that daughter was forced to share a s ingle-serving meal with her
half-sister, and that the power at mother’s home was turned off due to nonpayment.
Father’s affidavit also indicated that daughter began living with him in July of 2017
and that she was thriving in his care. After father moved to modify custody and made his
affidavit in support of his custody-modification motion, daughter was returned to mother’s
custody. Following a hearing, the district court denied father ’s motion without an

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evidentiary hearing, concluding t hat father failed to make a pr ima facie case for
modification.
This appeal by father followed.
D E C I S I O N
A district court “is accorded broad discretion in its consideration and disposition of
a motion to modify an award of child custody made incident to a judgment and decree of
marital dissolution.” Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 471 (Minn. 1981).
A district court shall not modify a prior custody order unless it finds “that a change has
occurred in the circumstances of the child or the parties and t hat the modification is
necessary to serve the best int erests of the child.” Minn. Sta t. § 518.18(d) (2018). In
applying these standards the district court shall retain the ex isting custody arrangement
unless:
(i) the court finds that a change in the custody
arrangement or primary residence is in the best interests of the
child and the parties previously agreed [to application of the
best-interests standard to custody-modification motions];
(ii) both parties agree to the modification;
(iii) the child has been integrated into the family of
the petitioner with the consent of the other party;
(iv) the child’s present environment endangers the
child’s physical or emotional he alth 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 a
change to the child; or
(v) the court has denied a request of the primary
custodial parent to move the resi dence of the child to another
state, and the primary custodial parent has relocated to another
state despite the court’s order.

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Minn. Stat. § 518.18(d). If the affidavits accompanying the motion for modification do not
allege sufficient facts to allow a court to reach the required findings, the district court
should deny the motion and no evidentiary hearing is needed. Englund v. Englund, 352
N.W.2d 800, 802 (Minn. App. 1984). “If the party establishes a p r i m a f a c i e c a s e , t h e
district court must then hold an evidentiary hearing to conside r evidence on each factor.”
In re Custody of M.J.H., 913 N.W.2d 437, 440 (Minn. 2018).
Multiple determinations are required of a district court consid ering a motion to
modify custody, and they are subject to different standards of review. Boland v. Murtha,
800 N.W.2d 179, 183 (Minn. App. 2011). First, “we review de no vo whether the district
court properly treated the allegations in the moving party’s af fidavits as true, disregarded
the contrary allegations in the nonmoving party’s affidavits, a nd considered only the
explanatory allegations in the nonmoving party’s affidavits.” Id. at 185. Next, we review
the district court’s determination of whether the moving party has made a prima facie case
for the modification for an abuse of discretion. Id. “Finally, we review de novo whether
the district court properly determined the need for an evidentiary hearing.” Id.
The district court succinctly stated its reasoning for denying father’s motion to
modify custody as follows:
While [father’s] affidavit alleges matters involving the child
from 2013 to 2016 that were of concern and may have had an
effect on the child, no motions were filed for change of custody
for those incidents at that time. The incidents alleged by
[father’s] affidavit for 2017 and 2018 [are insufficient] to find
t h a t a p r i m a f a c i e c a s e h a s b e e n p r e s e n t e d f o r t h i s C o u r t t o
order an evidentiary hearing. The child is residing with
[mother] and attending school in Winona.

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Father’s argument is two-fold. F irst, he argues that the distr ict court believed
endangerment was the only standard that applies and that it fai led to consider whether
daughter had been integrated into his home. Second, father arg ues that the district court
erred in determining that father had not made a prima facie case of endangerment because
the district court limited its inquiry to a 16-month period in which daughter spent over nine
months living with father.
The district court denied father’s motion without an evidentiar y hearing because it
found that father’s affidavit evid ence, taken as true, failed t o show a change in
circumstances of the daughter or parents and that modification is necessary to serve
daughter’s best interests. We ag ree with father that the distr ict court failed to address
whether father made a prima facie showing that daughter had been integrated into father’s
home. We also conclude that the district court did not adequat ely address whether
daughter’s physical or emotional health was endangered.
The burden is on the moving party to first establish on a preli minary basis that a
change of circumstances has occurred and that modification is necessary to serve the best
interests of the child. See Nice-Petersen, 310 N.W.2d at 472. Next, that parent must satisfy
any one of the conditions described in parts (ii) through (v) o f Minn. Stat. § 518.18(d).
Pfeiffer v. Pfeiffer, 364 N.W.2d 866, 868 (Minn. App. 1985). Accordingly, we first address
whether father preliminarily est ablished that a change of circu m s t a n c e s h a s o c c u r r e d
making modification of the decree necessary to serve the best interests of the child, and, if
so, whether father has also preliminarily established either in tegration under Minn. Stat.
§ 518.18(d)(iii) or endangerment under Minn. Stat. § 518.18(d)(iv).

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Change in Circumstances
“What constitutes changed circum stances for custody-modificati on purposes is
‘determined on a case-by-case basis.’” Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App.
2000) (quoting Lilleboe v. Lilleboe , 453 N.W.2d 721, 723 (Minn. App. 1990)), review
denied (Minn. Sept. 26, 2000). “The change in circumstances must be s ignificant.”
Spanier v. Spanier, 852 N.W.2d 284, 288 (Minn. Ap p. 2014) (quotation omitted). T here
must be a real change and not a c ontinuation of ongoing problem s. Roehrdanz v.
Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).
Father alleged several changes in circumstances, including: ( 1) daughter was
physically assaulted by mother’s former significant-other in 2013; (2) daughter suffered an
unexplained broken-rib injury in 2014; (3) a sexual encounter i n 2015 between daughter
and another child in mother’s home that resulted in daughter de veloping a preoccupation
with certain sexual activity; (4) daughter began receiving coun seling for post-traumatic
stress disorder (PTSD) and anxiety-related issues in 2015; (5) in 2016, daughter’s half-
sister expressed that there was not enough food in the house, and this issue was addressed
in a December 2017 child -protection report; (6) daughter missed 16.5 days of school in
kindergarten, and another 10 days of school in first grade, but missed only one school day
in the last year during which da ughter was living with father; (7) mother allowed her
troubled co-worker to live at her already-crowded home with mot her’s husband and four
children; and (8) mother is verbally abusive to daughter and loses control when she is upset
and worried. While a district court must accept these allegations as true and disregard any
contrary evidence, a district court may nevertheless use an affidavit from the non-moving

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parent to explain the circumstances surrounding the accusations. Tarlan v. Sorenson, 702
N.W.2d 915, 922 (Minn. App. 2005).
Mother’s affidavit explained se veral of father’s allegations b y stating that:
(1) mother’s former partner was charged with the 2013 assault a nd no longer has “any
contact with any party involved”; (2) daughter did not fracture a r i b , b u t f r a c t u r e d h e r
collarbone after jumping off a couch and a child-protection investigation revealed no threat
of child abuse or maltreatment; (3) child-protection workers fo und the sexual encounter
between daughter and another child to be consistent with the ex ploratory ages of the
children; (4) daughter’s absences from school were related to a plethora of winter-related
illnesses; and (5) daughter shares a room with only one other child.
I n Larson v. Larson, we held that an evidentiary he aring was justified “in light o f
the mother’s possibly escalati ng drug use and continuing change s of residence and male
occupants, all having increasingly harmful effects on the children.” 400 N.W.2d 379, 381
(Minn. App. 1987). In Tarlan, the district court found a significant change in
circumstances where, regardless o f specific timing, respondent’ s concern about his
daughter’s weight had escalated in recent years and father bega n to regularly weigh his
daughter at home. 702 N.W.2d at 923. Father’s affidavit here alleges several instances of
apparent parental neglect, changes in the emotional health of b oth mother and daughter,
and changed housing circumstan ces since the previous custody or der. Despite mother’s
affidavit providing some context to father’s concerns, father’s affidavit sufficiently
establishes a change in circumstances under Minn. Stat. § 518.18(d).

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Best Interests
A child’s best interests are de termined according to the factors listed in Minn. Stat.
§ 5 1 8 . 1 7 ( 2 0 1 8 ) . O n e b e s t - i n t e r e s t f a c t o r i n c l u d e s t h e c h i l d ’ s physical and emotional
needs, and the effect of the proposed arrangements on the child ’ s n e e d s . M i n n . S t a t .
§ 518.17, subd. 1(a)(1). Other best interest factors include domestic abuse that affects the
child, the physical or mental health of a parent that affects t he child’s safety or
developmental needs, and the history and nature of each parent’s participation in providing
care for the child. Minn. Stat. § 518.17, subd. 1(a)(1)-(12). Father’s affidavit alleged that
mother and daughter both suffer from PTSD, daughter has been ph ysically and sexually
abused, and daughter had been pe rforming poorly in school befor e moving into father’s
care. Taking these allegations as true, as we must in this pro cedural posture, these
allegations suffice to preliminarily establish that modifying custody is in the best interests
of the child.
Integration
Father alleged in his affidavit da ted May 1, 2018, that daughte r resided with him
from July 2017 until his motion was made. Daughter returned to mother’s home “a couple
of weeks” before the district court heard father’s motion for c ustody transfer on May 15,
2018. Whether a child has been integrated into a parent’s home with the consent of the
other parent presents a question of fact. Greenlaw v. Greenlaw , 396 N.W.2d 68, 71 n.1
(Minn. App. 1986).
In Peterson v. Peterson , we affirmed a district court’s denial of an evidentiary
hearing on a claim that a child had been integrated into the father’s home when the minor

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child had lived with the father for less than two of the nine y ears since dissolution. 365
N.W.2d 315, 318 (Minn. App. 1985), review denied (Minn. June 14, 1985). We noted that
“we cannot ignore the fact that father’s motion for custody was b r ou g ht , n ot w hi l e t he
minor child was residing with him, but five months after [the c hild] had returned to her
mother’s home, and then only in r esponse to mother’s request for increased child support
and support arrearages.” Id. In Pfeiffer, we affirmed the district court’s determination that
the child had been integrated in to the father’s home when the c hild had spent one year
living with the father and mother following their divorce, and father had spent over half of
the time taking care of the children. 364 N.W.2d 868-69. We s tated in Pfeiffer that
“[c]hanging physical custody to [father] was a recognition of t he status quo and
enforcement of his custodial rights.” Id.
In Downey v. Zwigart, we held that the district court erred in denying an evidentiary
hearing to modify custody based on a change in circumstances and that the child had been
substantially integrated into the moving party’s home. 378 N.W .2d 639, 642-43 (Minn.
App. 1985). We noted that the moving party had made a prelimin ary showing that the
child had been integrated into her home when the five-year-old child had lived with the
moving party for all but seven months of his life. Id. at 642. In Englund, we determined
that a two-month period where the child lived with the moving party was not sufficient to
establish an “integration peri od” when there was no evidence th at the nonmoving party
consented to the integration. 352 N.W.2d at 803.
Although the facts here do not fall neatly within any of the p recedential cases,
father’s affidavit provides enough evidence that a court could conclude that daughter had

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been integrated into father’s home with the consent of mother. Daughter had been living
with father for an entire school year when father moved the dis trict court to modify the
custody order, and daughter ret urned to mother’s care only afte r father’s motion. An
evidentiary hearing would resolve the factual issue of whether daughter was integrated into
father’s home with mother’s consent. Because father’s affidavi t m a d e a s u f f i c i e n t
preliminary showing of a change in circumstances since the prev ious order, that
modification of the previous custody order would serve daughter’s best interests, and that
daughter had been integrated into father’s home, father made a prima facie case for
modification. Consequently, the district court erred by denying father’s motion without an
evidentiary hearing.
Endangerment
To make a prima facie case for an endangerment-based motion to modify custody,
the moving party must allege that “(1) the circumstances of the children or custodian have
changed; (2) modification would serve the children’s best inter ests; (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.” M.J.H., 913 N.W.2d at 440 (quotation om itted). As discussed above, f ather’s
affidavit established the first two elements.
Emotional abuse alone may amount to endangerment, and “when an allegation of
such abuse is supported by some evidence, an evidentiary hearing is appropriate.” Tarlan,
702 N.W.2d at 923-24 (citing Abbott v. Abbott , 481 N.W.2d 864, 868-69 (Minn. 1992)
(reversing denial of an evidentiary hearing when mother’s history of throwing children out

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of house created stress and anxiety in anticipation of being thrown out again in the future);
Harkema v. Harkema , 474 N.W.2d 10, 14 (Minn. App. 1991) (reversing denial of an
evidentiary hearing where appellant made allegations of emotional abuse by stepfather who
would yell and throw objects); Lilleboe, 453 N.W.2d at 724 (reversing denial of an
evidentiary hearing where facts alleged might have established endangerment of child’s
emotional health or development)). “[B]ehavioral problems and poor school performance
by the child have served as indications of endangerment to a child’s physical and emotional
health.” In re Weber, 653 N.W.2d 804, 811 (Minn. App. 2002).
As previously noted, mother’s affidavit provided context and ex plained why some
of father’s allegations are no longer a concern. The district court determined that father’s
affidavit alleges matters involving daughter from 2013 to 2016, but that the incidents from
2017 and 2018 are insufficient to find that a prima facie case has been made to warrant an
evidentiary hearing. While the supreme court has made clear th a t t h e e n d a n g e r m e n t
element of Minn. Stat. § 581.18( d)(iv) is concerned with whethe r the child’s present
environment endangers the child’s physical or emotional health, the supreme court has not
held that an endangerment finding cannot be based on evidence o f an anticipated adverse
effects of a child’s present environment. Goldman v. Greenwood, 748 N.W.2d 279, 285
(Minn. 2008). Indeed, we have upheld an endangerment finding b ased on evidence of
anticipated adverse effects of the current custodial environmen t. See Sharp, 614 N.W.2d
at 263-64 (concluding that record supported finding of endanger ment when it contained
testimony that mother’s alleged present conduct “ will cause emotional psychological
damage to her child,” and absent suggested therapy, “would pose emotional damage to her

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child”); see also Johnson-Smolak v. Fink , 703 N.W.2d 588, 591 (Minn. App. 2005)
(“Endangerment implies a significant degree of danger or likely harm to the child’s physical
or emotional state.” (Emphasis added.)). Accordingly, the matt ers of concern relating to
daughter alleged by father to have occurred between 2013 and 2016 while daughter was in
mother’s care are relevant conce rning whether the present envir onment is likely to
endanger daughter’s physical or emotional state.
Despite many of the events occu rring several years before this motion, father’s
affidavit also alleges ongoing issues with both mother and daug hter. Father alleged that
mother is verbally abusive to da ughter and that daughter’s emot ional health and
development have been a concern due to daughter’s PTSD. Father also alleged that, in
2017, daughter engaged in very inappropriate sexual conduct (the details of which there is
no need to recite here). Moreover, father alleged that daughter has been to the emergency
room on thirteen occasions while she was living with mother. Taking father’s allegations
as true, as we must, father provided sufficient evidence to dem onstrate on a preliminary
basis that daughter’s physical health, emotional health, or emo tional development are
endangered. See Harkema, 474 N.W.2d at 14 (“Where some dispute exists as to whether
the present environment endangers the [children’s] emotional development, an evidentiary
hearing would be helpful and is justified.”).
In order to obtain an evidentiary hearing based on an allegatio n of endangerment,
father must show that the advant ages of changing the child’s en vironment outweigh the
harm likely to be caused by the change. Tarlan, 702 N.W.2d at 924. Here, father has
alleged and documented daughter’s positive strides academically , socially, and

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emotionally while residing in fat her’s home. Daughter’s teache r has confirmed that
daughter’s academic and social performance improved during the last year while she was
living with father. Taking these allegations as true, again as we must, father has adequately
made a prima facie showing under Minn. Stat. § 518.18(d)(iv).
We therefore reverse the district court’s denial of father’s motion and remand for an
evidentiary hearing.
Reversed and remanded.