In re the matter of: Michael John Hernandez, 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This opinion will be unpublished and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
A18-2068

In re the matter of: Michael John Hernandez, petitioner,
Appellant,

vs.

Jodie Marie Haaland,
Respondent.

Filed January 27, 2020
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-PA-FA-15-359

Margaret M. Murphy, Windhorse Law, P.A., Oakdale, Minnesota (for appellant)

Emily Cooper, Cooper Law, LLC, Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Slieter,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
In this ongoing child-custody dispute, a ppellant challenges the district court’ s
summary denial of his motions to modify custody and change his child’s daycare provider.
We affirm.

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FACTS
In December 2014, L.T. was born to a ppellant-father Michael John Hernandez and
respondent-mother Jodie Marie Haaland. Mother and father were not married to each other
when L.T. was born. In November 2015, the district court adjudicated father’s paternity
of L.T. In November 2016, pursuant to the parties’ partial stipulation regarding custody
and interim parenting t ime, the district court granted the parties joint physical and joint
legal custody of L.T.
In September 2017, the district court issued an order denying father’s motion to
modify custody. The order established a permanent parenting-time schedule, the parties’
child-support obligations, and drug-testing requirements for mother. Paragraph six of the
order explained that “[u]ntil December 1, 2017, Mother shall continue to submit to random
drug urinalysis testing . . . two (2) times a month” and that “[a]ny missed testing will be
treated as a positive test result.” The order also provided that
Father may request urinalysis and nail testing at any time he
has reasonable suspicion that Mother is under the influence of
a controlled substance or alcohol. If the test is negative, Father
shall reimburse Mother for the test cost within one (1) week.
If the test is positive, Mother’s parenting time shall be
suspended until further Court Order or agreement of the
parties.

In August 2018, father moved the district court to immediately grant him sole
physical and sole legal custody based on endangermen t resulting from mother’s alleged
drug use. He also asked the district court to suspend mother’s parenting time until she
proved her sobriety. Lastly, he asked the district court to change the child’s daycare to a
“provider who accepts children for less than full time and reduces the price accordingly.”

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In a supporting affidavit, father claimed that on July 4, 2018, he suspected that
mother had been using drugs, so he “drafted a notice to report for drug testing and attached
page 18 from the Court’ s September 2017 order.” On July 8, 2018, he again “strongly
suspected that [mother] was using drugs, so [he] handed her the [notice to report for drug
testing] document.” He asserted that because mother did not test within 24 hours of his
request, she had “failed the test,” and that her parenting time therefore should be suspended.
His affidavit also included a comparison of daycare rates and a daycare attendance log
regarding L.T.
Mother responded that father provided her with the drug -test request on July 8 at
approximately 6:00 p.m. and “[a]t that time the testing facility was closed.” Mother
explained that father “demanded [ that she] test within 24 hours,” that she “called the lab
and it takes its last appointment at 4:30 p.m.,” and that she was working on July 9 and
therefore was unable to arrive at the facility by 4:30 p.m. She explained that she “presented
[herself] at the testing facility the morning of July 10, 2018 first thing” and was told that
father had cancelled the test . She also responded that the September 2017 order does not
require her to test immediately upon demand.
Father submitted an affidavit in response, along with documentation showing that
he notified mother of his drug-test request through the “OurFamilyWizard” messaging
system at 4:09 p.m. on July 8 and that he gave mother the notice to report for drug testing
at 4:59 p.m. that same day. Father also provided information rega rding L.T.’s daycare
attendance and a letter from father’s proposed lower-cost daycare provider confirming that
it could hold a spot for L.T. pending the outcome of the custody -modification hearing .

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Mother responded, denying that she had used illegal drugs and asking the court “to issue
an order that will deter [father] from continuing to come back on the same topics that have
already been rehashed.”
The district court held a hearing on father’s motion and summarily denied his
requests to modify custody and change the child’s daycare provider. In its order, the district
court noted its “concerns . . . about Father’s attempts to serially re -litigate some of the se
issues.” As to father’s custody -modification request, the district court found, “Neither
party provides any information warranting a claim that the child’s health or well -being is
endangered or impaired in either party’s care . Father asks the Court to speculate that the
child is endangered by his unsubstantiated claims of Mother’s drug use. ” As to father’s
allegation that mother had failed a drug test, the district court found:
Father provided Mother with a written demand for drug testing
on July 8, 2018, at around 6:00 p.m. Father demanded testing
within 24 hours. Mother did not go to testing the next day,
asserting she could not afford to miss work to test by the 4:30
p.m. closing time at the testing facility. Mother instead went
to the facility on the morning of July 10, 2018, only to be told
Father had cancelled the testing.

The district court acknowledged that its September 2017 order included a provision
that “Father may request urinalysis and nail testing if he h as a reasonable suspicion that
Mother is under the influence of a controlled substance or alcohol” and that if the test was
positive, “Mother’s parenting time shall be suspended until further Court Ord er or
agreement of the parties.” However, the district court clarified that the testing provision
“[did] not contain the condition pertaining to Mother’s pre -December 1, 2017, random
testing requirement that any missed testing will be treated as a positiv e test result.” The

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district court therefore rejected father’s allegations regarding mother’s drug use,
explaining, “Simply put, there is no persuasive evidence indicating that Mother is abusing
drugs at this time.”
As to father’s request to change the child’s daycare provider, the district court
determined that father “fail[ed] to offer sufficient, credible information that Mother is being
overcharged” for daycare and offered “no authority for the proposition that child care
support must be restrained by a website list of purportedly average child care costs.” The
district court modified its drug-test requirements for mother , ordering that father could
continue to request drug tests, but that he is to “prepay for the test” and if the test is positive,
mother is “required to reimburse Father for the test cost within one (1) week.” The district
court also ordered that the testing “be performed through Minnesota Monitoring ,” which
is “[o]pen 24 hours a day for most services.”
Father appeals.
D E C I S I O N
I.
Father contends that the district court erred by denying his endangerment-based
motion to modify custody without first holding an evidentiary hearing . Minn. Stat.
§ 518.18(d)(iv) (2018) governs such a motion and “requires a court to retain the custody
arrangement that was established 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)), review denied (Minn. Oct. 24, 2018). “The existence of endangerment

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must be determined on the particular facts of each case.” Sharp v. Bilbro, 614 N.W.2d
260, 263 (Minn. App. 2000) (quotation omitted), review denied (Minn. Sept. 27 , 2000).
“While the concept of endangerment is unusually imprecise, in the context of child custody,
the legislature likely intended to demand a showing of a significant degree of danger.” Id.
(quotation omitted).
To make a prima facie case for an end angerment-based custody modification, the
moving party must allege: “(1) the circumstances of the children or custodian have
changed; (2) modification would serve the children’s best interests; (3) the children’s
present environment endangers their physic al health, emotional health, or emotional
development; and (4) the benefits of the change outweigh its detriments with respect to the
children.” Amarreh, 918 N.W.2d at 230 (quotation omitted). “If the party establishes a
prima facie case, the district co urt must then hold an evidentiary hearing to consider
evidence on each factor.” M.J.H., 913 N.W.2d at 440. But if the affidavits accompanying
the motion for modification do not allege sufficient facts to allow a court to make the
required findings, the district court should deny the motion without an evidentiary hearing.
Englund v. Englund, 352 N.W.2d 800, 802 (Minn. App. 1984).
“When this court reviews an order denying a motion to modify custody . . . without
an evidentiary hearing, we review three discrete determinations.” Amarreh, 918 N.W.2d
at 230 (quotation omitted). First, “we review de novo whether the district court properly
treated the allegations in the moving party’s affidavits as true, disregarded the contrary
allegations in the nonmovin g party’s affidavits, and considered only the explanatory
allegations in the nonmoving party’s affidavits.” Boland v. Murtha, 800 N.W.2d 179, 185

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(Minn. App. 2011). Next, we review the district court’s determination of whether the
moving party has made a prima facie case for an abuse of discretion. Id. “Finally, we
review de novo whether the district court properly determined the need for an evidentiary
hearing.” Id.
Father argues that the district court erred because, “The proof [of endangerment] is
a failed drug test. That dirty test, taken in the context of the case as a whole, shows serious
endangerment. Drugs, by their very nature are dangerous.” Father’s sole current allegation
of endangerment is based on the incorrect premise that mother faile d his requested drug
test because she did not take it within 24 hours . But a s the district court explained, the
relevant testing provision “[did] not contain the condition . . . that any missed testing will
be treated as a positive test result.” See LaChapelle v. Mitten, 607 N.W.2d 151, 162 (Minn.
App. 2000) (stating that this court defers to a district court’s interpretation of its own order),
review denied (Minn. May 16, 2000) . Indeed, t he order governing father’s demand for a
drug test did not contain a requirement that mother test within 24 hours, nor did it provide
that a missed test would be treated as a positive result. Thus, there was no evidence of a
positive drug test.
Father also argues that “a child is endangered if he is near drugs.” The district court
found that “[n]either party provide[d] any information warranting a claim that the child’s
health or well -being is endangered or impaired in either party’s care” and reasoned that
“Father [was asking] the Court to speculate that the child is endangered by his
unsubstantiated claims of Mother’s drug use.” Because mother’s failure to test d id not
constitute a positive test, the district court did not abuse its discretion in determining that

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father did not make a prima facie case warranting an evidentiary hearing before denial of
his motion for a change in custody.
Lastly, father argues that the district court clearly erred by finding that mother “had
been served around 6:00 p.m.” because he “showed [the district court] pictures of when he
notified [mother] of the test via Our Family Wizard at 4:09 p.m. and pictures of [mother]
receiving the notice at 4:59 p.m. at the exchange.” Even if father’s evidence showed that
mother received the no tice before 6:00 p.m., any error in the district court ’s finding
regarding the time was harmless because it does not impact the district court’s conclusion
that mother’s failure to test was not a positive test . See Minn. R. Civ. P. 61 (stating that
harmless error is to be ignored) ; see also Goldman v. Greenw ood, 748 N.W.2d 279, 285
(Minn. 2008) (concluding that district court’s error did not require reversal because its
ultimate conclusion “that respondent failed to make a prima facie case of other elements of
section 518.18(d)” was correct and noting that un der rule 61 courts are to disregard
harmless error).
In sum, the district court did not reversibly err in summarily denying father’s motion
to modify custody.
II.
Father contends that the district court erred by denying his request to change the
child’s daycare provider because he “showed that there were day care options, of equally
high quality, in a better neighborhood, that would have sav ed the family $110 per week.”
Father does not cite legal authority indicating that the district court was required to change
the child’s daycare provider. “An assignment of error based on mere assertion and not

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supported by any argument or authorities in appellant’s brief is waived and will not be
considered on appeal unless prejudicial error is obvious on mere inspec tion.” State v.
Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted); see
also Szarzynski v. Szarzynski , 732 N.W.2d 285, 295 -96 (Minn. App. 2007) (citing to
Modern Recycling and concluding that because the father’s argument on appeal was not
specific, he waived the issue).
The district court found that father failed to offer “sufficient, credible information
that Mother is being overcharged” or “authority for the proposition that child care support
must be restrained by a websi te list of purportedly average child care costs.” The district
court also found, “The child attends an established child care facility, Kinder Care, which
operates a number of locations in the Twin Cities. Father provided no persuasive
information that the Court must direct a new child care provider by judicial fiat.”
Because father does not provide legal authority to support his assertion that the
district court erred by refusing to change the child’s daycare provider and prejudicial error
is not obvious, he is not entitled to relief. See Loth v. Loth , 35 N.W.2d 542, 546 (Minn.
1949) (stating that error on appeal is never presumed and it “must be made to appear
affirmatively before there can be reversal,” and “the burden of showing error rests upon
the one who relies upon it” (quotation omitted)).
Affirmed.