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This opinion will be unpublished and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
A19-2056

In re the marriage of:

Aaron Peterson, petitioner,
Respondent,

vs.

Brandi Peterson,
Appellant.

Filed September 8, 2020
Affirmed
Cochran, Judge

Marshall County District Court
File No. 45-FA-16-123

Kerry S. Rosenquist, Rosenquist Law Office, Grand Forks, North Dakota (for respondent)

Kevin T. Duffy, Duffy Law Office, Thief River Falls, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Cochran, Judge; and
Slieter, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant challenges the district court’s order denying, without an evidentiary
hearing, her motion to modify child custody. She argues that she established a prima facie
case for modification based on endangerment. We affirm.

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FACTS
Appellant Brandi Peterson (mother) and respondent Aa ron Peterson (father) were
married in 2010. Mother and father have three children together, C.P., D.P., and S.P.
Both mother and father have full congenital hearing loss. Their youngest child, S.P.,
also has full congenital hearing loss. The middle child, D.P., has mild congenital hearing
loss in one ear. And, the oldest child, C.P., has no hearing loss.
Mother and father divorced in April 2016 pursuant to a stipulated judgment and
decree. At the time, the parties’ children were ages four years, two years, and nine months.
The parties agreed to share jo int legal custody of their minor children. The parties also
agreed that father would have sole physical custody and residential responsibility of the
minor children, subject to mother’s right of liberal, unsupervised parenting time. Under
the terms of the decree, mother had parenting time every weekend during the school year,
and every other week during the summer. The decree also specified that the parents would
alternate most holidays with th e children. According to th e divorce decree, both mother
and father lived in Warren, Minnesota, at the time of the divorce.
Just before the divorce, mother enrolled at a college in the Fargo-Moorhead area.
Mother subsequently moved to Fargo to attend college. At the time of the divorce, mother
planned to remain in Fargo for a maximum of two years. Mother moved back to Warren
in May 2018 after completing her degree.
Father and the children remained in Warren while mother lived in Fargo. Father
worked at his agricultural-avi ation business, a business that he has owned and operated

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since before the parties married . After the parties divorced, father hired nannies to help
with childcare.
In August 2019, mother moved the district court to modify the physical-custody and
parenting-time provisions of the stipulated divorce decree. Mother requested that the court
award her shared physical custody of the children. At that time, the children were ages
seven, five, and four. Mother asserted in her motion that a modification was appropriate
based on changed circumstances and beca use the existing cust ody arrangement and
parenting schedule endangered the children’ s physical, emotional, and psychological
well-being.
In a supporting affidavit, Mother identif ied a number of circumstances that she
claimed had changed since the divorce. First, mother alleged that she had moved back to
Warren after living in Fargo and, as a result , was now more able to be involved in the
children’s lives. Second, she alleged that fa ther had relied excessively on the help of
nannies to care for the children. Third, she alleged that, since moving back, she had become
very involved in the educatio n of the two youngest children, both of whom have hearing
loss.
With regard to endangerment, mother al leged that father was not meeting the
educational and developmental needs of the parties’ youngest child, S.P.—specifically that
S.P. was deprived of learning sign language. Mother also alleged that father was not
meeting the children’s emotional needs because the children were being cared for primarily
by nannies. And mother alleged that father has a drinking proble m that endangers the
children.

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Mother also addressed the best interests of the children. Moth er alleged that the
best interest factors favored modifying custo dy. She emphasized again that, in her view,
father was not meeting S.P.’s special needs related to hearing loss. She noted that the first
nanny that father hired did not know sign language. She acknowledged that father
ultimately fired the nanny because the nanny refused to learn sign language and hired a
new nanny. Mother recognized that the new nanny, although not fluent in sign language,
is learning and using signs with S.P. Mother also alleged that a custody modification was
in the children’s best intere sts because she had become ve ry involved in the children’s
education since returning to Warren. She stated that, as a result of her increased
involvement, S.P. has improved greatly in his sign-language skills. She noted that S.P. was
participating in early intervention educati on and that he surpassed the goals in his
individualized education plan (IEP) for the 2 018-19 school year. D.P. also met her IEP
goals for the school year. For these reasons, a nd others outlined in her affidavit, mother
alleged it was in the children’s best interests to modify custody.
Father opposed mother’s motion to modify custody and moved the district court to
deny mother’s motion because she failed to alle ge facts sufficient to satisfy the statutory
requirements. Father submitted two affidavits in support of his position—his own affidavit
and an affidavit of the children’s grandmother. Mother then filed two responsive affidavits.
The district court concluded that mothe r’s allegations, take n as true, did not
establish a prima facie case for modification under the custody-modification statute.

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Because mother failed to make a prima facie case for modification, the district court denied
her motion without an evidentiary hearing.1
Mother appeals.
D E C I S I O N
On appeal from the district court’s denial of her motion to modify custody, mother
argues that the district court erred when it concluded that she failed to make a prima facie
case for custody modification based on endangerment of the parties’ children. We are not
persuaded.
Custody modification based on e ndangerment is governed by Minn.
Stat. § 518.18 (d)(iv) (2018). Section 518.18(d )(iv) requires the district court to retain
the original custody arrangement unless “the child’s present environment endangers the
child’s physical or emotional health 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.”
“Under section 518.18, the district cour t must first determine whether the party
seeking to modify the custody arrangement in the judgment and decree has made a prima
facie case for modification.” Crowley v. Meyer, 897 N.W.2d 288, 29 3 (Minn. 2017). To
establish a prima facie case for custo dy modification based on an allegation of
endangerment, the moving party must allege that: “(1) the circumstances of the children or
custodian have changed; (2) modification would serve the children’s best interests; (3) the

1 The district court also denied mother’s motion for an evidentiary hearing on the issue of
restricting father’s parenting time. Mother does not challenge this ruling on appeal.

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children’s present environment endangers thei r physical health, emotional health, or
emotional development; and (4) the benefits of the change outweigh its detriments with
respect to the children.” Id. (citing Goldman v. Greenwood, 748 N.W.2d 279, 284
(Minn. 2008)). If the affidav its accompanying the motion for modification do not allege
facts sufficient to allow a court to make the required findings, the district court is required
to deny the motion and no evidentiary hearing is necessary. Englund v. Englund ,
352 N.W.2d 800, 802 (M inn. App. 1984) (citing Nice-Peterson v. Nice-Peterson ,
310 N.W.2d 471, 472 (Minn. 1981)).
On appeal from an order denying a motion to modify custody without an evidentiary
hearing, we review three discrete determinations. Boland v. Murtha, 800 N.W.2d 179, 185
(Minn. App. 2011). “First, we review de no vo whether the district court properly treated
the allegations in the moving party’s affidavits as true, disregarded the contrary allegations
in the nonmoving party’s affidavits, and considered only the explanatory allegations in the
nonmoving party’s affidavits.” Id. “Second, we review for an abuse of discretion the
district court’s determination as to th e existence of a prim a facie case for the
modification . . . .” Id. “Finally, we review de novo whether the district court properly
determined the need for an evidentiary hearing.” Id.
Accordingly, we first address whether the district court properly treated the
allegations in mother’s affidavits as true. In its order, the district court expressly stated
that it accepted the facts alleged in mother’s affidavits “as true.” And the district court
relied exclusively on the allegati ons in mother’s affidavits in reaching its decision. The
district court did not mention any contrary allegations in th e affidavits of father or

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grandmother in its order. We therefore conclude that the district court properly treated the
allegations in mother’s affidavits as true and disregarded the contrary allegations.
Having determined that the district court accepted mother’s affidavits as true, we
review “for an abuse of discretion the district court’s determination as to the existence of a
prima facie case for the modification.” Boland, 800 N.W.2d at 185. A district court abuses
its discretion if it misapplies the law or “resolves the matter in a manner that is contrary to
logic and the facts on record.” Sinda v. Sinda, __N.W.2d __, __ No. A19-1291, 2020 WL
4577462, at *2 (Minn. App. Aug. 10, 2020) (quotation omitted); see Dobrin v. Dobrin ,
569 N.W.2d 199, 202 (Minn. 1997). We “set as ide a district court’s findings of fact only
if clearly erroneous.” Goldman, 748 N.W.2d at 284.
A. Changed Circumstances
A district court “shall not modify” a custody order unless it first finds that a change
has occurred in the circumstances of the child or the parties. Minn. Stat. § 518.18(d)
(2018). The “change in circumstances must be significant.” Spanier v. Spanier , 852
N.W.2d 284, 288 (Minn. App. 2014) (quotation omitted). And “it cannot be a continuation
of conditions existing prior to the order.” Geibe v. Geibe, 571 N.W.2d 774 , 778 (Minn.
App. 1997).
In its order, the district court recognized that mother alleged a number of changed
circumstances, including that she moved back to the children’s hometown of Warren, that
she disagreed with father’s “use and choice of a nanny for the child ren,” and that she is
now more involved in educational services for the children. The district court concluded
that mother’s allegations failed to make a prima facie showing of changed circumstances

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for purposes of the custody-modification statut e. The district court noted that mother’s
relocation to Warren was anticipated and determ ined that none of mother’s allegations,
either in isolation or cumulatively, coul d reach the changed-circumstances “threshold
required under the Nice-Peterson framework.” See Nice-Peterson, 310 N.W.2d at 472
(requiring a moving party to es tablish “that there has occurre d a significant change of
circumstances”).
Mother argues that the district court abused its discretion when it concluded that she
failed to make a prima facie case of changed circumstances. Mother challenges the district
court’s determination that her return to Warren was anticipated by the parties and was not
a change of circumstances. But mother’s own affidavit supports the district court’s
determination that, at the time of the divorce, mother expected to return to Warren after
completing her college degree. In her affidavit, mother stated that she “planned to remain
in Fargo for a maximum of two (2) years” and that her “ultimate goal was to move back in
with [father] and the children.” Mother also stated in her affi davit that the parties agreed
at the time of the divorce that “it would not be in the children’s best interests to temporarily
move” with her to Fargo. (Emphasis added .) Because the facts alleged in mother’s
affidavit support the district court’s determination that mother’s relocation “back to Warren
was anticipated by the parties,” we discern no abuse of discretion by the district court in its
conclusion that mother’s move back to Warren did not constitute ch anged circumstances
for custody modification purposes.
Mother also argues that the district cour t abused its discretion when it determined
that father’s use of a nanny to help with childcar e was not a change of circumstances.

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Mother contends that father does not actively participate in parenting the children and that
deferring his parenting responsibilities to a nanny is a change of circumstances. We are
not persuaded. Father’s work schedule was known to the pa rties at the time they were
divorced and had not changed. The fact that father hired a nanny to help care with the
children is not a change of circumstances.
Lastly, mother argues that the district court abused its discretion by not considering
her increased involvem ent in the children’s educational services to be a change in
circumstances. While the distri ct court did not address this alleged change in detail, we
agree with the district court’s conclusion th at mother’s increased involvement is not a
significant change warranting a modification in custody. We recognize that the logistics
of being involved in the children’s educa tion may have been more challenging while
mother lived in Fargo, but mother points to no reason why she could not have been involved
in ensuring the children receiv ed adequate educational supp ort while she was living in
Fargo. Under the terms of the stipulated di vorce decree, mother has shared legal custody
of the children and the right to be involved in decisions relating to their education.
In sum, we discern no abuse of discretion by the district court in its determination
that mother failed to make a prima facie case of changed circumstances.
B. Endangerment
Even if we assume that mother alleged sufficient facts to establish a prima facie case
of changed circumstances, the district court did not abuse its discretion by concluding that
mother failed to make a showing of e ndangerment. To modify custody under
section 518.18(d)(iv), the district c ourt must determine that the child’s present

10
environment endangers the child physically, emotionally, or developmentally. A showing
of endangerment to support a custody modi fication requires a “significant degree of
danger.” Geibe, 571 N.W.2d at 778 (quotation omitted). Therefore, to obtain an
evidentiary hearing on an endangerment-based motion to modify custody, the moving party
must allege that the child’s current custodial arrangement puts the child in a significant
degree of danger. Id.
Mother argues that she made a prima facie case of endangerment because (1) father
has failed to address the children’s developm ental needs and (2) father has a drinking
problem. Taking mother’s alle gations to be true, the distri ct court determined that the
children’s development was not endangered because the children’s needs are presently
being met. The district court also conclude d that mother’s allegations about father’s
drinking failed to show that the children were in danger when father was drinking.
Mother first argues that she made a pr ima facie case of endangerment because
father’s neglect or minimization of a serious medical condition—S.P.’s language
development—supports a finding of endangermen t. To support this contention, mother
relies on Allen v. Allen, 626 P.2d 16 (Wash. Ct. App. 1981). 2 In Allen, a father appealed
from an order granting custody to the child’s non-biological stepmother. 626 P.2d at 18-19.
The child was profoundly deaf and the trial court awarded custody to the stepmother under
a “best interests of the child” standard. Id. at 22. The Washington Court of Appeals

2 We note that decisions from foreign ju risdictions are not binding precedent. See
Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861 (Minn. 1984) (concluding that foreign
cases are not binding precedent but may have persuasive value).

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affirmed because, among other reasons, placement with father would have “detrimentally
affected” the child’s development. Id. But mother’s reliance on Allen is misplaced. Allen
is an appeal from a custody determination, not from a motion to modify custody. And the
legal standard applied by the Washington state court to award custody is different than the
legal standard applied under Minn. Stat. § 518.18(d)(iv) for a modification of custody.
Compare id. at 21-22 (applying an actual-detriment test to award custody to a nonparent),
with Minn. Stat. § 518.18(d)(iv) (requiring a showing that the child’s present environment
endangers the child). The only similarity between Allen and this case is that both cases
involve a child who is profoundly deaf. Therefore, the analysis in Allen is not instructive
in this case.
Mother also relies on an unpublished decision of this court to argue that a parent’s
failure to address a medical condition is a sufficient basis to support a finding of
endangerment. See Hudson v. Hudson, No. A14-0004, 2014 WL 3397140, at *4 (Minn.
App. July 14, 2014) (affirmi ng district court’s custody modi fication where the custodial
parent failed to address the ch ronic constipation of the child), review denied (Minn.
Sept. 16, 2014). Mother’s reliance on this no n-precedential case is unpersuasive. While
we agree with mother that a parent’s neglect of a medical condition can be grounds for an
endangerment finding, the record in this case supports the district court’s determination
that mother failed to demonstrate that the parties’ hearing-impaired children are presently
endangered in terms of their speech and language development. As the district court noted,
mother expressly stated in her affidavit that “[D.P.’s] progress and goals for the [2018-19]
school year were on track and met. As for [S.P.], he surpassed our expectations and goals

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for the school year. He thrived because he has the access he needs at school.” And while
mother disagreed with father’s use of a nanny for childcare, mother concedes that father
fired the nanny who could not speak sign language, and that he subsequently hired a nanny
who is using sign language with S.P. Accordingly, mother’s allegations show the opposite
of endangerment—that S.P. is thriving and significantly improving in his current
environment and that D.P. is also doing well. We recognize and understand the importance
of speech and language development for hearing-impaired children, 3 but we cannot
conclude on the record before us that the district court abused its discretion when it
determined that mother failed to demonstrate that the parties’ children are endangered for
reasons related to their speech and language development.
Lastly, mother argues that the district court erred when it concluded that the children
are not endangered by father’s drinking. In her initial affida vit, mother alleged that the
children see father drink and “fetch beer” for him. And mother alleged that father has had
“one for the road” with the children present. But mother’s allegations are vague. They do
not describe when the events occurred or whether father was impaired at the time. In a
supplemental affidavit, mother also discusse d two separate marital incidents during hotel
stays when father became violent after the couple had been drinki ng. But there is no
allegation that the children were present during either altercation. Accordingly, we cannot

3 Mother also submitted an article on the effects of language deprivation for deaf children.
The article was not submitted to the distri ct court and we do not consider it. See In re
Welfare of Child of J.K.T. , 814 N.W.2d 76, 86-8 7 (Minn. App. 2012) (indicating that an
appellate court may not base its decision on matters outside the record on appeal, and
matters not produced and received in evidence below may not be considered).

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confidently conclude that the district court’s determination that mother failed to establish
that “the children were in danger when father was drinking” is erroneous.
In sum, mother’s affidavits fail to adequa tely allege that the children are presently
endangered. See M.J.H., 913 N.W.2d at 440 (indicating that the moving party must show
that “the children’s present environment endangers their physical health, emotional health,
or emotional development”); see also Ross v. Ross , 477 N.W.2d 753, 756 (Minn.
App. 1991) (requiring a “significant degree of danger” to show endangerment). And
because mother’s allegations regarding endangerment are inadequate, the district court did
not abuse its discretion when it determined that mother’s allegations failed to establish a
prima facie case of endangerment.
Finally, we review “de novo whether the district court properly determined the need
for an evidentiary hearing.” Boland, 800 N.W.2d at 185. Be cause the district court
concluded that mother failed to make a prim a facie case, and the court did not abuse its
discretion in reaching that conclusion, the district court properly denied the petition without
an evidentiary hearing. See Englund, 352 N.W.2d at 802 (“If the affidavits accompanying
the motion for modification do not allege sufficient facts to allow a [district] court to reach
the findings required by [section] 518.18, the [d istrict] court is required to deny the
motion.”).
Affirmed.