In re the Marriage of: John Edward Warrington, petitioner, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0440

In re the Marriage of:
John Edward Warrington, petitioner,
Respondent,

vs.

Karen Lee Warrington,
Appellant.

Filed March 1, 2021
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Hennepin County District Court
File No. 27-FA-16-3836

Anne M. Honsa, Deborah M. Gallenberg, H onsa Mara Landry, Minneapolis, Minnesota
(for respondent)

Matthew J. Gilbert, Gilbert Alden Barbosa PLLC, Burnsville, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Je sson, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant challenges the district court’s decisions (1) denying her motion to modify
custody, (2) denying her motion to compel discovery of respondent’s flight schedule (he is
a FedEx pilot), and (3) granting respondent conduct-based attorney fees. Because appellant
failed to allege a prima facie case to modify custody and disc overy of respondent’s flight

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schedule is unnecessary, we affirm the district court on the first two issues. However,
because the district court failed to issue factual findings to enable our review of its award
to respondent of conduct-based attorney fees, we reverse and remand the third issue.
FACTS
Appellant Karen Warrington and respondent John Warrington are the parents of one
child, J.W. The parties’ marriage was dissolved by order of the district court in July 2017.
The court awarded the parties joint legal and joint physical custody of J.W., subject to each
party’s parenting time.
In September 2017, appellant unilaterally unenrolled J.W. from his school in
Minnesota and enrolled him in a boarding school in New Hampshire. As a result of this
decision by appellant, respondent served a contempt motion on appellant and a hearing was
held during which respondent withdrew his motion upon learning that J.W. did not wish to
see him—respondent indicated that he would not force such visits. Respondent has not
had parenting time since J.W. was enrolled in boarding school.
On November 21, 2019, appellant filed a motion to modify custody seeking sole
legal and sole physical custody and for parenting time “as agr eed upon by the parties.”
Appellant additionally requested that respondent be ordered to present to appellant his
flight schedules from the time of the marriage dissolution to present. Respondent opposed
these motions and requested conduct-based attorney fees from appellant.
The district court concluded that appellant had “failed to establish a legal or factual
basis for modifying custody a nd parenting time,” that respo ndent’s flight schedule was
“irrelevant,” and that a conduct-based attorney-fees award against appellant was warranted

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as her motion “forced [respondent] to incur u nnecessary legal costs.” The district court
granted respondent conduct-based attorney fees. This appeal follows.
DECISION
I. The district court did not abuse its di scretion by concluding that appellant
failed to allege a prima facie basis for custody modi fication based upon
endangerment.

Appellant’s affidavit, alon g with her other filings in the district court, sought
modification of custody of J.W. based on endangerment, pursuant to Minn. Stat.
§ 518.18(d)(iv) (2020).1 The proper appellate standard of review was set forth by this court
in Amarreh:
[W]hen this court reviews an order denying a motion to modify
custody or restrict parenting time without an evidentiary hearing, we review
three discrete determinations. 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 nonmoving party’s affidavits, and
considered only the explanatory a llegations in the nonmoving party’s
affidavits. Second, we review for an abuse of discretion the district court’s
determination as to the existence of a prima facie case for the modification
or restriction. Finally, we review de novo whether the district court properly
determined the need for an evidentiary hearing.

918 N.W.2d at 230-31 (alteration in original ) (quotation omitted). Appellant does not
contest that the district court correctly treated the allegations in appellant’s affidavits as

1 Appellant now argues she alleged sufficient facts to justify modification of custody based
upon integration of J.W. into her home, pur suant to Minn. Stat. § 518.18(d)(iii) (2020).
However, appellant’s initial affidavit relied so lely upon endangerment. Therefore, the
district court did not err in declining to consider the integration argument, and we need not
consider it on appeal. See Amarreh v. Amarreh, 918 N.W.2d 228, 231 (Minn. App. 2018)
(district court determines whether a party has stated a claim for modification of custody by
examining the “moving party’s affidavits.”); see also Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988) (stating that, generally, appella te courts consider only those questions
previously presented to and considered by the district court).

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true, and the record demonstrates that it did do so. Furthermore, whether a party alleges a
prima facie case to modify custody is dispositive of whether an evidentiary hearing must
occur on the motion. Id. at 230. As such, the dispositiv e issue we review is whether the
district court properly exercised its discretion in concluding that appellant failed to allege
a prima facie case for modification.
To allege a prima facie case for endangerment-based custody modification pursuant
to section 518.18, appellant is required to allege facts whic h, if taken as true, would
establish “(1) the circumstances of th e children or custodian have changed;
(2) modification would serve the children’s be st interests; (3) th e children’s present
environment endangers their physical health, emotional health, or emotional development;
and (4) the benefits of the change outweigh it s detriments with resp ect to the children.”
Crowley v. Meyer , 897 N.W.2d 288, 293 (Minn. 2017). Evidence of all four of these
elements must be produced in order to form a prima facie case sufficient to justify an
evidentiary hearing on an endangerment-based modification motion. See id. However, we
limit our analysis to the third element, endangerment, because, for purposes of this appeal,
it is dispositive.
The district court concluded that “there is no evidence in [appellant]’s affidavit that
[J.W.] is endangered in any way.” Appellant disagrees and argues that endangerment exists
because denying her motion to modify custody would force J. W. to remain in a joint
custody and parenting time arrangement against his wishes.

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Appellant’s submissions, even if viewed as true, failed to allege endangerment of
J.W. Therefore, the district court correctly determined that appellant had failed to state a
prima facie case for an endangerment-based modification of custody.
We first note that the standard for enda ngerment-based modification of custody is
that “the child’s present environment endangers the child’s physical or emotional health.”
Minn. Stat. § 518.18(c) (2020) (emphasis a dded). Appellant has alleged prospective
endangerment—what might occur if her custod y motion is not grante d. This allegation
does not satisfy the statutory requirement be cause respondent is not currently compelling
unwanted parenting time with J.W. and there is no indication that he would seek to do so
if that order was continued.
Furthermore, while it is well established th at a teenaged child’s preference is highly
relevant to a claim of potential emotional endangerment, such endangerment must be
“significant.” Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997). It is undisputed
that, regardless of the outcome of appellant’s custody motion, J.W. will continue to attend
boarding school. It is also undisputed that, despite the awards in this case of joint legal and
physical custody to this respondent, that J.W. both will continue to be parented solely by
appellant when not at school, and will have limited or no contact with respondent. Given
the record above, it was not an abuse of discretion for the district court to conclude that
appellant failed to allege a prima facie claim of endangerment. This conclusion justified
dismissal of appellant’s claim wi thout an evidentiary hearing. Amarreh, 918 N.W.2d at
231.

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II. The district court did not abuse its di scretion by denying appellant’s discovery
of respondent’s flight schedule.

Appellant next challenges the district court’s denial of her motion to compel
discovery of respondent’s flight schedule. Appellant argues that respondent’s flight
schedules would help demonstrate respondent’s inability and unwillingness to exercise
parenting time and that respondent has misrepre sented his flight sche dule in the past to
manipulate parenting time.
A district court has wide discretion in issuing discovery orde rs, and will not be
reversed absent an abuse of discretion. In re Comm’r of Pub. Safety, 735 N.W.2d 706, 711
(Minn. 2007). “[Appellate courts] review a district court’s order for an abuse of discretion
by determining whether the district court made findings unsupported by the evidence or by
improperly applying the law.” See id.
The district court, in the parties’ disso lution decree, set forth a detailed parenting
time schedule which specifically considered res pondent’s flight schedule as a pilot with
FedEx, which prevented him from having a predictable monthly schedule. As a solution,
the court found it “appropriate to adopt a hybrid protocol that [would] give [appellant]
priority during six months of the year and [respondent] scheduling priority during [the other
six months].” Respondent was ordered by the court to send his flight schedules to appellant
so as to facilitate scheduling of parenting time during his “priority” months.
In its order denying appellant’s discovery request, the district court concluded that
respondent’s “flight schedule is currently irrelevant” because J.W. did not wish to see

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respondent and respondent indicat ed that he was therefore w illing to decline his right to
exercise parenting time.
It is undisputed that parenting time betw een respondent and J.W. is not occurring.
Therefore, respondent’s flight schedule is not relevant. The district court did not abuse its
discretion in declining to compel such discovery.
III. The district court made insufficient fi ndings of fact to allow appellate review
of its grant of conduct-based attorney fees.

Finally, appellant challenges the district court’s grant to respondent of conduct-
based attorney fees. “A condu ct-based attorney-fee award is reviewed for an abuse of
discretion.” Sanvik v. Sanvik, 850 N.W.2d 732, 737 (Minn. App. 2014).
The district court ordered conduct-based attorney fees be pa id to respondent by
appellant in the amount of $11,081. The district court’s award was made pursuant to Minn.
Stat. § 518.14, subd. 1 (2020), which states th at a district court has discretion to award
“additional fees, costs, and disbursements against a party who unreasonably contributes to
the length or expense of the proceeding.”
“The district court must make findings to explain an award of conduct-based
attorney fees, whether in the dissolution proceedings or in a legitimate ancillary
proceeding.” Brodsky v. Brodsky, 733 N.W.2d 471, 477 (Minn. App. 2007). The district
court, explaining its award of attorney fees, repeated the language of its findings regarding
the denial of appellant’s modification of cu stody and discovery mo tions. These findings
do not separately address how appellant “u nreasonably contributed to the length and
expense of the proceedings.” Minn. Stat. § 518.14, subd. 1.

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On remand, whether to reop en the record shall be disc retionary with the district
court. Additionally, if the district court exercises its discretion to order conduct-based
attorney fees, it should issue findings of fact pursuant to Minn. Stat. § 518.14, subd. 1.
Affirmed in part, reversed in part, and remanded.