In re the Marriage of: Jaclyn Ann Stevens, 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This opinion is nonprecedential except as provided by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
A20-0848

In re the Marriage of: Jaclyn Ann Stevens, petitioner,
Respondent,

vs.

Gordon Michael Stevens,
Appellant.

Filed May 10, 2021
Affirmed in part and reversed in part
Slieter, Judge

Stearns County District Court
File No. 73-FA-15-9212

Betsey Lund Ross, Lund Ross, P.A., St. Cloud, Minnesota (for respondent-mother)

Edward R. Shaw, Brainerd, Minnesota (for appellant-father)

Considered and decided by Hooten, Pres iding Judge; Johnson, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this child-custody-modification dispute, appellant-father Gordon Stevens argues
that the district court abused its discretion by awarding respondent-mother Jaclyn Stevens
sole legal and sole physical custody of the child . The record supports the district court’s
factual finding of endangerment of emoti onal harm for purposes of modifying legal
custody and we affirm that part of the decision. However, because those same facts do not

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support the district court’s factual finding of endangerment of emotional harm for purposes
of modifying physical custody, we reverse that part of the decision.
FACTS
Father and mother’s marriag e was dissolved in 2017. Pursuant to the dissolution
decree, the parties were awarded joint legal and joint physical custody of their minor child,
L.S., with equal parenting time.
In 2018, father moved for sole legal custody based upon endangerment. The district
court held a Nice-Peterson1 hearing, concluded father alleged a prima facie showing for
modification of legal custody, and scheduled an evidentiary hearing. The district court
stated: “[A]n evidentiary hearing is necessary to determine whether the allegations made
by the parties are true and whether it is in the Child’s best interests to modify legal
custody.” In an order appointing a guardian ad litem (GAL), the district court checked
three separate boxes directing the GAL to submit a report regarding “Permanent legal
custody of the child(ren),” “P ermanent physical custody of the child(ren),” and “Long-
range parenting time.” The GAL filed a report recommending that the court award mother
sole legal and sole physical custody of L.S. Following receipt of the GAL report, mother
moved for sole legal custody.

1 Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Mi nn. 1981) (stating that party
seeking modification must “establish satisfact orily on a preliminary basis that there has
occurred a significant change of circumstances ” that endangers the child’s physical or
emotional health or development).

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The district court held a five-day eviden tiary hearing beginning in August 2019.
The district court heard testimony from, among others, father, mother, the GAL, and L.S.’s
therapist.
The district court, in a detailed 99-page order, awarded mother sole legal and sole
physical custody of L.S. and modified pare nting time to a “week-on/week-off” schedule.
Father appeals.
DECISION
A district court has “broad discretion in determining custody matters.” Goldman v.
Greenwood, 748 N.W.2d 279, 282 (Minn. 2008) (quotation omitted).
Appellate review of custody modification and removal cases is
limited to considering whether th e [district] court abused its
discretion by making findings unsupported by the evidence or
by improperly applying the law. Appellate courts set aside a
district court’s findings of fact only if clearly erroneous, giving
deference to the district court’s opportunity to evaluate witness
credibility. Findings of fact ar e clearly erroneous where an
appellate court is left with the definite and firm conviction that
a mistake has been made.

Id. at 284 (quotations and citations omitted). “When determining whether findings are
clearly erroneous, an appellate court views th e record in the light most favorable to the
[district] court’s findings.” In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).
A district court may not modify a prio r custody order unless it finds, upon facts
developed after the prior order or facts that were unknown at the time of the prior order,
that “a change has occurred in the circumstances of the child or the parties and that the
modification is necessary to serve the best interests of the child.” Minn. Stat. § 518.18(d)
(2020). In reviewing an endangerment-based custody-modification motion, the district

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court must retain the prior custody arrange ment unless: (1) the circumstances have
changed; (2) a change in custody would serve the child’s best intere sts; (3) the child’s
present environment endangers his physical health, emotional health, or emotional
development; and (4) the benefits of the change outweigh its detriments with respect to the
child. Id. Appellant solely contests element thr ee—endangerment. Our court has held
that the endangerment standard, though “impre cise,” requires “a showing of a significant
degree of danger.” Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991); see Goldman,
748 N.W.2d at 285 (quoting these aspects of Ross).
“Legal custody” is defined as “the ri ght to determine the child’s upbringing,
including education, health care, and religious training.” Minn. Stat § 518.003, subd. 3(a)
(2020). “Physical custody and residence” is defined as “the routine daily care and control
and the residence” of the child. Id., subd. 3(c).
It is important to note that neither party moved for modification of physical custody
and that neither party challenged the district court’s sua sponte consideration of this
question. Additionally, the district court’s Nice-Peterson order identified that there existed
a prima facie basis to proceed to an evidentiary hearing solely on the issue of legal custody.
The first reference to physical custody wa s noted by the judge’s checkmark in a form
“Order Appointing Guardian ad Litem.” Finally, the written report of the guardian ad litem
as referenced by the district court’s findings primarily focused on factors of legal custody.2

2 The GAL also did not apply the best-interes ts factors of Minn. St at. § 518.17, subd. 1
(2020) in reaching her reco mmendation and no custody in vestigation was performed
pursuant to Minn. Stat. § 518.167 (2020).

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Legal Custody
Addressing the endangerment factor relate d to legal custody, the district court
determined from the record that:
 “[T]he parties have continu ously experienced exceedingly
high conflict and placed [L.S.] in the center of those disputes,”
which included the “appropriate medical care for [L.S.] (i.e.,
ADHD medication, therapy, assessments, ear plugs) as well as
extra-curricular activities (i.e ., the frequency of Chinese
tutoring, violin lessons, invol vement in Cub Scouts and
baseball)”;

 “[S]ome of [the parties’] disput es have occurred in front of
[L.S.]”;

 “[T]he parties have had disputes over therapy appointments as
well as the use of in-home therapy, with appointments being
made and cancelled, in addition to disputes over [L.S.’s] use of
ADHD medication”; and

 L.S.’s “present environment— specifically, that the parties
presently share joint legal cu stody of him—endangers his
emotional health and impairs th is emotional development, as
required by Minn. Stat. § 518.1 8(d).”

We have held that evidence of disa greements between parents which endanger a
child’s emotional health is sufficient to modify legal custody. See Andros v. Andros, 396
N.W.2d 917, 922-23 (Minn. App. 1986) (stating that disputes “over the children’s religious
upbringing endangers the children’s emotio nal well being by placing them in the middle
of a ‘tug-of-war’”). We have also held that intense conflict between the parents that causes
problems with a joint legal custody arrangeme nt by placing the child in the middle of the
conflict can constitute emotional endangerment. Andersen v. Andersen, 360 N.W.2d 644,
646 (Minn. App. 1985).

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The district court’s findings to modify legal custody based upon emotional
endangerment are supported by the record. Th e district court made detailed findings of
intense and ongoing disputes between the parents, and the potential risk to L.S. with joint
legal custody. The district court found that L.S. had witnessed this conflict between his
parents. The district court’s thorough and well-detailed factual findings are supported by
the record and are not clearly erroneous. The district court did not abuse its discretion by
granting mother sole legal custody.
Physical Custody
The party requesting modifica tion of physical custody mu st present evidence that
the conduct of the other parent puts the child at a “degree of danger” that is “significant,”
and that the child suffers actual adverse effect s from such conduct. In re Weber , 653
N.W.2d 804, 811 (Minn. App. 2002).
First, the district court’s findings which lead to its conclusion to modify physical
custody appear to derive from the same findings which support its legal-custody-
modification conclusion. However, these findings address factors related to legal custody
but not those of physical custody. Second, a careful review of the record, which is reflected
in the district court’s findings, does not su pport modifying joint ph ysical custody. The
following are examples of such findings:
 “As far as [L.S.’s] emotional need s, as noted by the Guardian
ad Litem in her [] report, both parties show love and affection
towards [L.S.], both parties praise [L.S.’s] abilities and want to
support him to succeed”;

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 “Both [father] and [mother] are willing and able to provide care
for [L.S.]”;

 “Both parents love and care for [L.S.] wholeheartedly and his
physical, emotional, spiritual and other needs are being met at
each parties’ homes. All involved agree that [L.S.] benefits
from both parents being involve d in his life and would be
suited to an equal parenting time schedule. Both [father] and
[mother] are highly involved in [L.S.’s] development and
education”;

 “[L.S.] has a good relationship with [father] and [mother].
[Father], [mother], and the Guardian ad Litem all recommend
that [L.S.] have an equal parenting time schedule”; and

 “[T]he Court finds that it is in [L.S.’s] best interests to modify
the parenting time schedule so that the parties have parenting
time on a week-on/week-off basis.”

The record does not reflect, and hence th e district court made no findings, that
continued joint physical custody would jeopardize L.S.’s physical or emotional well-being.
This is in contrast to the findings and record which indicate that L.S. experiences emotional
harm in a joint-legal-custody arrangement. Because the district court’s findings related to
a modification of physical custody are not supported by the record , they are clearly
erroneous and the district court abused its discretion by modifying physical custody.
Affirmed in part and reversed in part.