In re the Marriage of: Maria Rothen, petitioner, Respondent,

This opinion will be unpublished and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
A18-1161

In re the Marriage of:
Maria Rothen, petitioner,
Respondent,

vs.

Jason David Rothen,
Appellant.

Filed February 19, 2019
Reversed and remanded
Cleary, Chief Judge

Fillmore County District Court
File No. 23-FA-14-914

Maria Rothen, Lanesboro, Minnesota (pro se respondent)

Jason David Rothen, Rushford, Minnesota (pro se appellant)

Considered and decided by Roden berg, Presiding Judge; Cleary, Chief Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Jason David Rothen (fa ther) challenges the district court’s order denying
his motion to modify child custo dy without affording him an evi dentiary hearing. We

2
conclude that he made a prima facie showing to modify custody b ased on endangerment
and therefore reverse and remand for an evidentiary hearing.
FACTS
In November 2015, father and re spondent Maria Rothen (mother) were divorced.
Pursuant to a stipulation, mother was granted sole physical cus tody of the couple’s four
children: H.M.R., J.D.R., M.E.R., and J.J.R. The parties were granted joint legal custody,
but in the event of a disagreement, mother was authorized to make decisions independently.
In early March 2018, H.M.R., 14 years old at the time, moved i nto father’s house
and, according to father, refused to continue living with mothe r and expressed a desire to
move in with father. Shortly thereafter, father filed a motion for emergency temporary
custody of H.M.R. In an accompanying affidavit, father alleged that mother physically and
emotionally abuses the children and neglects their medical needs. Father also alleged that
J.D.R. is failing his classes.
Father also filed affidavits fro m H.M.R. and M.E.R. These affidavits repeated many
of the same allegations as father. H.M.R. accused mother of excessive drinking. She also
alleges that, when mother drinks, she physically abuses the children, hitting J.D.R. with a
vacuum cord and throwing M.E.R. against a wall. H.M.R. also averred that mother refused
to take her to the doctor when she had strep throat. Finally, H.M.R. discussed the children’s
declining grades and asserted that she wanted to live with father. M.E.R.’s affidavit alleged
that mother threw her against a wall, failed to take her to a d entist to treat her cavities,

3
refused to provide adequate clothing, and refused to feed her one night. M.E.R., 11 years
old, also stated that she wanted to live with father.
Father then moved for sole phys ical and legal custody of the c hildren based on
endangerment. Father filed more affidavits repeating many of h is previous reasons for
modifying custody: abuse by mot her; mother’s excessive drinking ; neglecting medical
needs; the children’s preference; and the children’s declining grades. Mother denied some
allegations, contextualized other s, and requested that the dist rict court deny father’s
motions. Each party accused the other of manipulating the chil dren and turning them
against the other parent.
The district court declined to order an evidentiary hearing as to J.D.R., M.E.R., and
J.J.R., finding that father’s affidavits failed to make a prima facie case showing “that
circumstances have arisen since the prior order or that were un known to the court at the
time of the prior order, that a change has occurred in the circ umstances of the child or the
parties and the modification is necessary to serve the best interests of the minor children.”
However, the court did find that father had made a prima facie case for the modification of
the custody of H.M.R., and ordered an evidentiary hearing solely as to her custody.
Prior to that evidentiary hearing, the parties reached an agre ement as to the custody
of H.M.R. Father was granted sole physical custody and the par ties continued to share
joint legal custody. The provision which authorized mother to make decisions
independently in the event of a d isagreement was removed. Father then filed this appeal,

4
challenging the district court’s decision that an evidentiary hearing on custody modification
for J.D.R., M.E.R., and J.J.R. was not warranted.
D E C I S I O N
When deciding whether to order an evidentiary hearing on child -custody
modification, the district court must first take the facts in t he moving party’s affidavits as
true, disregard the contrary alle gations in the nonmoving party ’s affidavits, and consider
the allegations in the nonmoving party’s affidavits only to the extent they explain or
contextualize the moving party’s allegations. Boland v. Murtha , 800 N.W.2d 179, 183
(Minn. App. 2011). Next, the district court must determine whether the moving party has
made a prima facie showing for the modification. Id. If the party establishes a prima facie
case, then the district court must hold an evidentiary hearing. Id.
Father argues that the district court erred by failing to take his affidavits as true, and
by considering mother’s contrary allegations. We review de novo whether the district court
has properly treated the allegations in the parties’ affidavits. Id. at 185.
We conclude that the district court properly took father’s aff idavits as true and
disregarded the contrary allegations in mother’s affidavits. I n its order, the district court
acknowledged that it was required to take father’s affidavits a s true and stated that “the
moving party’s affidavit evidence, taken as true , failed to make a prima facie case.”
(Emphasis added.) Although the matter settled before a hearing was necessary, the district
court did order an evidentiary hearing as to one of the children which indicates that it took
father’s allegations as true. F ather does not explain why we s hould conclude that the

5
district court failed to take his allegations as true. Accordi ngly, we conclude that the
district court properly treated the parties’ allegations.
Next, father argues that the district court erred when it determined that father failed
to make a prima facie showing for an endangerment-based motion to modify custody.
Endangerment-based motions to modi fy custody are made under Min n. Stat.
§ 518.18(d)(iv) (2018). That statute “requires a [district] co urt to retain the custody
arrangement that was establishe d by the prior order unless the party seeking the
modification makes a prima facie case for modification.” Amarreh v. Amarreh , 918
N.W.2d 228, 230 (Minn. App. 2018) (quoting In re Custody of M.J.H., 913 N.W.2d 437,
440 (Minn. 2018)). To make a prima facie case for an endangerm ent-based motion to
modify custody, the moving party “must allege: (1) the circumst ances 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 outwe igh its detriments with
respect to the children.” M.J.H., 913 N.W.2d at 440 (quotation omitted). “If the party
establishes a prima facie case, the district court must then ho ld an evidentiary hearing to
consider evidence on each factor.” Id. But if the moving party’s affidavits do not allege
facts sufficient 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).

6
Here, the district court denied father an evidentiary hearing a s to J.D.R., M.E.R.,
and J.J.R. because it found that father’s affidavits failed to sufficiently allege that the
circumstances of the children or t he custodians have changed si nce the prior order and
modification would be in the child ren’s best interests. We rev iew the district court’s
determination that father has not made a prima facie showing fo r an abuse of discretion.
Boland, 800 N.W.2d at 185.
We first consider whether the district court abused its discre tion when it determined
that father’s affidavits, taken as true, fail to establish a ch ange in circumstances from the
2015 dissolution judgment establishing custody. 1 “What constitutes changed
circumstances for custody-modification 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 significant.” Spanier v. Spanier, 852 N.W.2d 284, 288
(Minn. App. 2014) (quotation omitted). There must be a real change and not a continuation
of ongoing problems. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989),
review denied (Minn. June 21, 1989).
We conclude that the district court abused its discretion when it found that father’s
affidavits failed to allege a change in circumstances. Father’ s affidavits allege several

1 Father previously moved for a modification of custody in 2017, and the district court
denied his motion. Because that order did not modify custody, it is not considered a “prior
order” for purposes of child custody modification under Minn. Stat. § 518.18(d). Spanier
v. Spanier, 852 N.W.2d 284, 288-89 (Minn. App. 2014).

7
instances of physical abuse, mental abuse, and neglect. Specif ically, the affidavits allege
that mother whipped J.D.R. with a vacuum cord, forced J.D.R. to stand outside in the winter
without adequate clothing as a punishment, and grabbed M.E.R.’s neck and threw her
against a wall. Father alleges mother has threatened J.D.R., saying she will cut off his head
and that she swears at the children. Father provided several examples of times when mother
allegedly neglected the children’s medical needs, including fai ling to seek medical
attention for the children’s cav ities, J.D.R.’s fractured finge r, and H.M.R.’s strep throat.
Father also alleges that J.D.R. is failing most of his classes and mother is not attempting to
provide academic assistance. These allegations were not before the district court at the
time of the previous order esta blishing custody. The affidavit s also allege that mother’s
drinking habits have taken a turn for the worse, and M.E.R. and H.M.R. are scared as a
result. There were allegations of mother’s alcohol abuse befor e the district court when it
entered its prior custody order. However, there is no indicati on that the children were
scared of mother when she drinks until now.
While the district court must take these allegations as true a nd disregard any
contrary allegations, it may cons ider mother’s allegations that explain the circumstances
surrounding the accusations. Tarlan v. Sorenson, 702 N.W.2d 915, 922 (Minn. App. 2005).
Here, mother explains that she did not intentionally hit J.D.R. with the vacuum cord; her
statement that she would cut off J.D.R.’s head was taken out of context; she sent J.D.R.
outside briefly to separate him from M.E.R. when they were phys ically fighting; and she

8
had set an appointment to treat M.E.R.’s cavities but the appointment had to be rescheduled
because the dentist had an emergency.
Despite mother’s explanations, father has sufficiently alleged a change in
circumstances. In Larson v. Larson, this court held that allegations of “mother’s possibly
escalating drug use and continuing changes of residence and mal e occupants” established
a change in circumstances that warranted an evidentiary hearing . 400 N.W.2d 379, 381-
82 (Minn. App. 1987). As in Larson, it appears that mother’s drinking habits have evolved,
and two of the children are now concerned about mother’s habit. In Tarlan, this court
concluded that a significant cha nge in circumstances occurred w hen father began to
regularly weigh his daughter at home, which caused concern over the daughter’s emotional
health. Tarlan, 702 N.W.2d at 923. Here, father discusses several instances where mother
neglected the children’s medical needs and allegedly threw a ch ild into a wall. These
circumstances raise concerns over the children’s physical health. Additionally, father has
alleged that the children’s grades are declining in mother’s care, raising concerns over the
children’s educational needs. T hese allegations were not befor e the district court at the
time of the dissolution judgment and, if true, they would estab lish a change in
circumstances.
Next, we consider whether the district court abused its discre tion in determining that
father’s affidavits failed to allege that modification is necessary to serve the children’s best
interests. M.J.H., 913 N.W.2d at 440. A child’s best interests are determined according to
the factors listed in Minn. Stat. § 518.17, subd. 1 (2018). One best-interest factor includes

9
consideration of the child’s p hysical and emotional needs, and the effect of the proposed
arrangements on the child’s needs. Minn. Stat. § 518.17, subd. 1(a)(1). Other best interest-
factors include consideration of domestic abuse that affects the child, the physical, mental,
or chemical health of a parent that affects the child’s safety or developmental needs, the
willingness and ability of each par ent to meet the child’s ongo ing developmental needs,
and the reasonable preference of a child. Minn. Stat. § 518.17, subd. 1(a)(3), (4), (5), (7).
Father alleges mother’s drinking habits are negatively affecti ng the children, mother
is abusing the children, and mother is unwilling to care for th e children’s medical and
educational needs, as seen by the children’s neglected cavities a n d J . D . R . ’ s d e c l i n i n g
grades. Additionally, M.E.R. has stated that she would like to live with father. Father has
stated that the children will be safe from abuse in his home, a nd he is willing to care for
the children’s medical and educational needs. Taken as true, these allegations preliminarily
establish that modifying custody is in the best interests of the children.
The third prong of the analysis is endangerment. 2 M.J.H., 913 N.W.2d at 440. “The
existence of endangerment must be determined ‘on the particular facts of each case.’”
Sharp, 614 N.W.2d at 263 (quoting Lilleboe , 453 N.W.2d at 724). “The concept of
endangerment is unusually imprecise” but, in child custody, “the legislature likely intended

2 The district court did not rule on, and it appears that mother does not challenge, the
endangerment or the benefits-of-change prongs. Father therefore has satisfied these prongs
as a matter of law for the purposes of holding an evidentiary h earing. See Amarreh, 918
N.W.2d at 232 n.2 (“We note that the district court did not rul e on, and mother does not
challenge, the other factors required for an endangerment-based custody modification.
Father therefore has satisfied t hese elements for the purposes of holding an evidentiary
hearing as a matter of law.” (citation omitted)).

10
to demand a showing of a significant degree of danger.” Ross v. Ross, 477 N.W.2d 753,
756 (Minn. App. 1991) (quotation omitted). “Evidentiary hearings are strongly encouraged
in the custody-modification cont ext if there are allegations of present endangerment to a
child’s health or emotional well-being.” Tarlan, 702 N.W.2d at 922. Endangerment
requires an actual adverse effect on the children. In re Weber, 653 N.W.2d 804, 811 (Minn.
App. 2002).
As noted above, father has alleged several instances of physic al and verbal abuse
which endanger the children’s well-being. See id. (“Allegations of physical and emotional
abuse are indicators of endangerment, but only when the degree of danger is significant.”).
Further, father has alleged neglect of the children’s medical needs which has caused them
pain. And father has alleged mother neglected the children’s education and J.D.R. is failing
seventh grade, indicating endangerment. See id. (stating behavioral problems and poor
school performance are indicators of endangerment). Fear of a parent is also a sign of
endangerment, and M.E.R. states in her affidavit that she is af raid of mother’s drinking
habits. Harkema v. Harkema, 474 N.W.2d 10, 13-14 (Minn. App. 1991) (concluding father
was entitled to an evidentiary hearing when affidavits alleged that the children were afraid
of stepfather due to his yelling, throwing things, hitting walls, and driving like a maniac).
T h e f i n a l f a c t o r f a t h e r m u s t s u f f i c i e n t l y a l l e g e i s t h a t t h e b enefits of the change
outweigh its detriments with respect to the children. M.J.H., 913 N.W.2d at 440.
“Minnesota law presumes that stability in custody is in a child ’s best interests.” Weber,
653 N.W.2d at 811. In his affidavits, father claims that the children feel safe in his home,

11
but not in mother’s home. He al so claims that he can and will provide for the children’s
educational needs in a way tha t mother cannot or will not. Fin ally, he alleges that he is
willing to care for the children’s medical needs. Taken as true, these allegations establish
that the benefit of change would outweigh the harms.
We conclude that the district co urt abused its discretion when it found that father
failed to demonstrate a prima facie case for child custody modi fication based on
endangerment. Accordingly, the d istrict court erred in failing to order an evidentiary
hearing on father’s motion. M.J.H., 913 N.W.2d at 440 (“If the party establishes a prima
facie case, the district court must then hold an evidentiary hearing to consider evidence on
each factor.”). We therefore reverse the district court’s deni al of father’s motion and
remand for an evidentiary hearing.3
Reversed and remanded.

3 Father briefly argues that the d istrict court judge is biased against him and asks that the
judge be removed on remand. It appears father’s accusations are based solely on the district
court’s denial of his motion. Because “adverse rulings are not a basis for imputing bias to
a judge,” father’s argument fails. Ag Servs. of Am., Inc. v. Schroeder , 693 N.W.2d 227,
236-37 (Minn. App. 2005).