In re the Marriage of: Andrew Joseph Lee, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A21-1044

In re the Marriage of:
Andrew Joseph Lee, petitioner,
Appellant,

vs.

Brittany Kaye Lee, n/k/a Brittany Kay Moore,
Respondent.

Filed August 22, 2022
Affirmed
Segal, Chief Judge

Ramsey County District Court
File No. 62-FA-14-1297

Bridget R. Landry, Cordell Law, LLP, Edina, Minnesota (for appellant)

Jill M. Johnson Bigelbach, Johnson Bigelbach Law, PLLC, St. Paul, Minnesota (for
respondent)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and
Rodenberg, Judge.∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this custody -modification dispute, appellant argues that the record does not
support the district court’s findings on the factors required for an endangerment-based
modification of custody under Minn. Stat. § 518.18(d)(iv) (2020). We affirm.
FACTS
Appellant-father Andrew Joseph Lee and respondent-mother Brittany Kaye Moore
were married in May 2011 and have one minor child (the child) born in 2012. The parties
met and married in Texas but moved to Minnesota to live with father’s parents just prior
to the child’s first birthday. In April 2014, mother took the child to visit her family in
Texas. Father thought that mother and the child would be in Texas for two weeks, but
mother called father to tell him that she and the child would not be returning to Minnesota.
Mother subsequently filed for dissolution of the parties’ marriage in Texas. Father then
petitioned for dissolution of the parties’ marriage in Minnesota. In June 2014, the district
court in Minnesota determined that, for purposes of custody, Minnesota was the home state
for the child under Minn. Stat. § 518D.201 (2012) and that the Minnesota courts therefore
had jurisdiction over custody matters. The dissolution case proceeded in Minnesota and,
up to the entry of judgment in the case, the parties observed a “month on/month off”
parenting-time schedule.
Following a three-day trial, the district court entered a judgment and decree in
November 2015, dissolving the parties’ marriage. The district court determined that it was
in the best interests of the child that father be granted sole physical custody of the child
3
subject to mother’s parenting time. The district court’s best- interests findings noted that
the child had lived primarily with father and father’s parents in the parents’ home for almost
three years, the child had a strong bond with her paternal relatives, and father’s parents
provided a strong support system for the child. The schedule established in the original
custody order resulted in parenting time being split approximately 75%-25% between
father and mother, with the child spending the majority of the school year with father in
Minnesota and the majority of the summer with mother in Texas. The district court also
granted the parties joint legal custody of the child. The parties subsequently entered into
two binding mediated agreements that altered the parenting-time provisions and schedule
slightly but did not modify custody.
In July 2020, mother filed a motion to modify custody and grant mother sole
physical custody of the child on the grounds of endangerment under Minn. Stat.
§ 518.18(d)(iv). Mother also requested a modification of the parenting-time schedule so
that she would have the child for the school year and father would have the child for the
majority of the summer.
The evidence presented by mother in support of her motion included the fact that
father was convicted of two crimes involving alcohol. In 2017, father was convicted of
driving while impaired (DWI) and, in 2019, father was convicted of negligent storage of a
loaded firearm. Father was under the influence of alcohol during the second offense and a
young child (not the child in this case) was present with father at the time. In addition, in
the fall of 2018, father moved with the child into the home of a girlfriend (now his wife)
after dating her for two months. Following the move, the child’s contact with her paternal
4
grandparents was significantly reduced and father began to require that he supervise all
visits between the child and the grandparents. M other also discovered that the child had
accessed pornography on her iPad after father had removed the parental controls on the
device, and that father had been aware of this but had not told mother about it. Finally,
mother discovered that father had enrolled the child in therapy and then also changed
child’s therapist without notifying or consulting mother.
The district court determined that mother had alleged a prima facie case of
endangerment and modified custody on a temporary basis. Following a five-day contested
evidentiary hearing, the district court filed its findings of fact, conclusions of law, and order
granting mother’s motion and awarding mother sole physical custody of the child subject
to father’s parenting time. The district court determined that there had been a change in
circumstances that resulted in endangerment to the child, and that it was in the best interests
of the child that mother be awarded custody. Specifically, the district court found that, of
the twelve statutory best-interests factors enumerated in Minn. Stat. § 518.17, subd. 1(a)
(2020), nine of the factors favored awarding custody to mother, three were neutral, and
none favored father maintaining sole physical custody. The district court granted mother’s
motion and awarded her sole physical custody of the child subject to father’s parenting
time. Father appeals.
1

1 Mother initially filed a notice of related appeal, which she later voluntarily withdrew.
5
DECISION
We review a district court’s custody- modification decision for an abuse of
discretion. Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000), rev. denied (Minn.
Sept. 26, 2000). “A district court abuses its discretion by making findings of fact that are
unsupported by the evidence, misapplying the law, or delivering a decision that is against
logic and the facts on record.” Woolsey v. Woolsey, 975 N.W.2d 502, 506 (Minn. 2022)
(quoting Bender v. Bernhard, 971 N.W.2d 257, 262 (Minn. 2022)). We will sustain factual
findings unless they are clearly erroneous, Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.
1985), and we defer to the district court’s opportunity to assess witness credibility, Sefkow
v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
To modify custody on the basis of child endangerment, the district court must find
that four elements are established: “(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 physical health, emotional health, or emotional
development; and (4) the benefits of the change outweigh its detriments with respect to the
children.” Crowley v. Meyer, 897 N.W.2d 288, 293-94 (Minn. 2017); see also Minn.
Stat. § 518.18(d)(iv) (providing for the modification of custody based on endangerment).
The party seeking modification of custody has the burden to show that all elements are
met. Crowley, 897 N.W.2d at 293. Because father challenges the district court’s findings
regarding all four factors, we address each below.

6
I. Change in Circumstances
A change in circumstances under Minn. Stat. § 518.18(d) “must be significant and
must have occurred since the original custody order; it cannot be a continuation of
conditions existing prior to the order.” Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App.
1997). “What constitutes changed circumstances for custody -modification purposes is
determined on a case-by-case basis.” Sharp, 614 N.W.2d at 263 (quotation omitted). The
party seeking modification of custody must show that the change in circumstances has had
a direct effect on the child. Peterson v. Peterson, 365 N.W.2d 315, 318 (Minn. App. 1985),
rev. denied (Minn. June 14, 1985).
Father argues that the district court clearly erred by finding that there had been a
significant change in circumstances since the original custody order. The district court’s
determination that there had been a significant change in circumstances was based on
findings related to the following: (1) father’s criminal convictions, (2) the loss of familial
support and changes in the child’s behavior, (3) a breakdown in father’s communication
with mother evidenced by father’s failure to notify and discuss with mother his decision to
send the child to therapy and then to change therapists, and (4) the fact that the child had
searched sexually explicit material after father had removed the parental controls on her
iPad and that father did not disclose this to mother. Father challenges, in isolation, the
significance of each of the alleged changes. The district court, however, did not rely on
any one changed circumstance as justification. The district court based its determination
on “the totality of all the changes since the previous custody order.” And the record
7
supports that the totality of the changes since the original custody order is significant and
had a direct effect on the child.
Father argues that the criminal convictions are not relevant to the question of
changed circumstances because the child was not present during either of the offenses. The
district court, however, identified elements of the offenses, focusing in particular on the
2019 offense, that are legitimate areas of concern. For example, the district court noted,
with regard to the 2019 offense, that father had an alcohol concentration of 0.252 and had
an unsecured firearm in the presence of his three-year -old stepson. The district court also
made note of the fact that father “was charged with negligent storage of firearms and child
endangerment due to his inappropriate handling of his firearms” and that, while father
pleaded guilty to a lesser offense, that “does not excuse that a child, alcohol, and firearm
were involved.” 2 Finally, the district court noted that father was, at the time of the hearing,
still on probation and that both offenses involved the consumption of alcohol.
With regard to father’s change in residence, t he district court commented that the
initial decision to award sole physical custody to father was based in significant part on the
familial support he and the child received from his parents and that, since the original
custody order, the child had lost that support system. The di strict court noted that the

2 The record contains the following additional details concerning the 2019 offense. Father
was alone with his current wife’s three-year-old son at his family’s cabin when he became
intoxicated. The neighbors observed that he was intoxicated, and they were apparently so
concerned that they removed the stepson from father’s care and called the police. When
police responded, they discovered an AR-15 rifle left out, unsecured, in the kitchen and a
handgun in a holster in father’s vehicle. Father had other firearms, but they were properly
stored in locked cases.
8
child’s relationship with father’s parents and the support his parents provided was
referenced no fewer than 16 times in the original custody order awarding father sole
physical custody. In addition, t he record contains ample evidence that, at the time of the
original custody order, father’s parents were heavily involved in the child’s life. Father
and the child lived with his parents, his parents assisted with childcare, and the child
attended the school where father’s mother worked. The district court found that, since the
original custody order, “[t]here has been a breakdown in [father’s] relationship with his
parents.” Father moved out of his parents’ house and now lives with his current wife, their
joint child, and his wife’s children from a previous relationship.
The record shows and father admits that , while father lives near his parents, father
has restricted his parents’ contact with the child and insisted that he supervise any contact
between the child and father’s parents. Father’s parents also testified to changes in the
child’s behavior since father moved and reduced contact between the child and her
grandparents. The grandmother testified that the child demonstrated emotional distress and
anger by going through the grandparents ’ house, knocking things down and crying, a
behavior that the grandmother had never seen previously. She also testified that the child
would show up at their house without proper clothing, such as wearing a skirt with no
underwear or clothes that were too small. The grandmother noted in her testimony that the
most recent contact between the grandparents and the child had been facilitated by mother,
not father. And while father’s parents testified in support of father having sole physical
custody at the time of the original custody determination, they both testified in support of
9
mother being awarded sole physical custody of the child in the current proceeding, even
though that would result in the child residing primarily in Texas.
Father argues that the child’s “change in relationship with her paternal grandparents
is the natural consequence of [father and the child] moving from [the grandparents’] home
as contemplated” by the original custody order. But while father did indicate during the
initial custody proceeding that he planned to eventually move out of his parents’ home, it
is clear that the district court nonetheless expected that the child would continue to have a
close relationship with father’s parents after the move. The ori ginal custody order states:
“[Father] testified that he does plan to eventually move after the Court’s decision is issued,
but that he will stay in the neighborhood so [the child] is in familiar surroundings and able
to see her paternal relatives on a regular basis.” The district court found, however, that
father had limited the child’s contact with her paternal grandparents, which has directly
affected the child’s support system and has harmed the child.
The district court also made findings , supported by the record, that father failed to
alert mother that the child had accessed sexually explicit material until a year later after
mother discovered additional searches on the child’s iPad. Another changed circumstance
found by the district court is that father enrolled the child in therapy, provided an inaccurate
medical history to the therapist, and then changed the child’s therapist, all without notifying
or consulting mother even though the parents had joint legal custody.
On this record, the district court did not err in determining that the totality of the
changes amount to a significant change in circumstances.

10
II. Best Interests of the Child
“A child’s best interests are the fundamental focus of custody decisions.”
Vangsness v. Vangsness, 607 N.W.2d 468, 476 (Minn. App. 2000). The district court’s
factual findings “regarding the best-interest factors are reviewed for clear error.” Hansen
v. Todnem, 908 N.W.2d 592, 599 (Minn. 2018). The clear -error standard of review “does
not permit an appellate court to weigh the evidence as if trying the matter de novo” or “to
engage in fact-finding anew.” In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221-22
(Minn. 2021) (quotations omitted). Rather, appellate courts “fairly consider[] all the
evidence” and determine whether “the evidence reasonably supports the [district court’s]
decision.” Id. at 222.
Minnesota statutes section 518.17, subdivision 1(a), provides that “[i]n evaluating
the best interests of the child for purposes of determining issues of custody . . . the [district]
court must consider and evaluate all relevant factors, including” the 12 factors enumerated
in the statute. Here, the district court conducted a thorough best-interests analysis and
determined that nine of the statutory factors favored mother, three were neutral, and none
favored father. The district court therefore found that it was in the best interests of the
child to modify custody.
Father challenges the district court’s findings regarding ten of the statutory best-
interests factors and the overall determination that it was in the best interests of the child
11
to award mother sole physical custody. 3 Many of father’s challenges, however, ask this
court to reweigh the evidence, a task we may not undertake under the clear -error standard
of review. For example, father argues that the child did not have any behavioral issues
after he and the child moved out of his parents’ house. He argues that there is no evidence
in the child’s therapy records to suggest that the move caused any emotional issues and
points out that, when the child was asked to draw a family picture, the child drew a picture
of herself with father, her stepmother, and her stepsiblings holding hands.
The district court, however, credited other testimony in the record. Here, father’s
parents and mother’s stepmother testified that they observed adverse behavioral changes
following the move. Mother also testified that, after the child stopped seeing father’s
parents, she observed that the child “wasn’t really like her —just her happy, bubbly self”
and mother “could tell she was struggling with some stuff” and “having a hard time with
some things.” The district court’s findings thus have support in the record.
Father also argues that the district court did not adequately credit his expert’s
testimony that the child’s internet searches for sexually explicit material reflected a natural
curiosity. But whether the child may have been curious about such material and whether
such curiosity is natural was not the focus of the district court’s findings. The court’s focus
was on the fact that father did not disclose this to mother and that father “should have taken
more active steps to parent the child for her emotional well-being.” In addition, the district

3 Father does not challenge the district court’s findings that the child was too young to
express a preference and that there were no allegations of domestic abuse, and that those
factors were therefore neutral.
12
court found that father provided inconsistent testimony about how he responded when he
initially made the discovery that the child had accessed the explicit material. This led the
district court to reject his testimony concerning his response as not credible.
Our role on appeal is to determine whether “the evidence reasonably supports the
[district court’s] decision.” Id. And here, the record supports the district court’s best-
interests findings. As discussed above, father’s parents played a significant role in the
child’s life prior to the breakdown in the relationship between father and his parents. As a
result of this breakdown, the relationship and contact between the child and her
grandparents has been severely strained to the point that father’s parents testified that they
now believe it would be in the best interests of the child for the child to live primarily with
mother in Texas. Mother and her stepmother similarly testified that father’s conduct has
resulted in a diminished and strained relationship between the child and members of her
extended family. This strain in relationships was highlighted in the district court’s best-
interests findings related to many of the statutory factors.
Additionally, the district court found that father’s conduct demonstrated “a lack of
willingness to co-parent, communicate respectfully, or work together.” The district court
found that mother “is in the best position to encourage these relationships and frequent
contact” and explicitly credited mother’s testimony that she intended to include father
when making decisions regarding the minor child. These findings also have support in the
record. There has plainly been a breakdown in communication, and father did not inform
mother of either of his convictions or that he had discovered that the child had searched for
13
sexually explicit material. Father also made unilateral decisions regarding the child’s
participation in therapy without communicating with mother.
Father argues that the district court clearly erred in determining that both parties
support the child’s participation in therapy because “[t]he record shows [mother] has not
followed through with meeting [the child’s] mental health needs whereas [father] has.”
The record, however, includes sworn testimony from mother that she would ensure the
child’s continued participation in therapy. The record also indicates that, while the child
was in father’s custody from September 2019 through February 2020, she attended five
individual therapy sessions. She attended four individual sessions while in mother’s
custody for a similar time period in the summer and fall of 2020. The child thus attended
one more therapy session while in father’s custody. This is not sufficient to persuade us
that the district court clearly erred in finding that both parties support the child’s
participation in therapy.
The record similarly supports the district court’s determination that father’s
chemical-health history weighed in favor of awarding custody to mother. As noted above,
father has been convicted of two crimes involving alcohol, including the July 2019 offense
in which he had an alcohol concentration of 0.252 with an unsecured AR- 15 rifle while
father was responsible for the care of his three-year-old stepson. As a result of the 2019
conviction, father was required to undergo a chemical-health assessment. And while father
is correct that his chemical-health assessment states that he “does not meet criteria for
alcohol use disorder,” the evaluator nonetheless recommended that father attend eight
group recovery sessions.
14
Father asserts that he continues to voluntarily attend a support group and is
committed to his sobriety, but we cannot say that this renders the di strict court’s finding
clearly erroneous. And his assertion that the July 2019 “incident was an isolated incident”
appears to ignore his 2017 DWI conviction. Finally, the district court is explicitly directed
to consider each parent’s “chemical-health issue[s]” when evaluating the best interests of
the child. Minn. Stat. § 518.17, subd. 1(a)(5).
III. Endangerment
A party must show “a significant degree of danger” to satisfy the endangerment
element. Goldman v. Greenwood, 748 N.W.2d 279, 285 (Minn. 2008) (quotation omitted).
“The existence of endangerment must be determined on the particular facts of each case.”
Sharp, 614 N.W.2d at 263 (quotation omitted). And the danger does not need to involve
physical harm, but rat her may affect only a child’s emotional development. Geibe, 571
N.W.2d at 778. This court has also observed that “[r]epeated, concrete efforts to prevent
contact” between a child and relatives “could reasonably impact emotional health.” Id. at
779-80.
The district court found “that the minor child’s living arrangements does endanger
her mental and emotional health and development” and that “[t]he totality of the changes
[since the original custody order] amount to an adverse effect on the child such that there
is a significant degree of danger to the child’s emotional health.” The district court noted
that mother discovered that the child had searched for sexually explicit material while in
the care of father, that father was dismissive o f mother when she attempted to discuss her
concerns over the search with him, that father was on probation, that the child exhibited
15
adverse behavioral issues after she and father moved, including “stress, anxiety, and
anger,” and that “[t]he child needs the paternal grandparents’ support or proper/adequate
support for her emotional health” but their support “no longer exists.”
Father argues that the district court erred “in finding [the child’s] mental and
emotional health and development were endangered in [his] care,” pointing to the fact that
there is no evidence that the child’s grades dropped and that her therapy notes ascribe her
stress and anxiety to various factors. But as previously noted, father’s parents, mother, and
mother’s stepmother all testified to negative changes in the child’s behavior following the
child’s move and reduction in contact with father’s parents. Thus, there is evidence to
support the district court’s finding that the child exhibited behavior suggesting an adverse
effect on her emotional health and well-being.
It is also significant that the district court noted that, as a result of father’s most
recent criminal conviction, he was required to “relinquish all firearms.” Father provided a
document to the effect that all his firearms were removed and were being stored at his
parents’ house. The district court noted, however, that father’s parents testified that they
did not have any of father’s firearms in their possession. The district court also noted that
father’s wife testified that she brought the firearms to her mother’s house. The district
court then stated that it was discrediting the testimony of both father and his wife regarding
the storage of firearms because of their inconsistent statements. The district court’s
credibility finding thus leaves open the question of whether father, in fact, complied with
this condition of his probation.
16
The district court’s findings about the breakdown in communication between father
and mother provide another factor concerning the well-being of the child. The district court
was concerned that father provided an inaccurate medical history to the child’s therapist,
which could impact the child’s receipt of proper mental-health services, and failed to
consult with mother when making decisions regarding the child’s mental-health treatment.
Father’s unwillingness to cooperate and consult with mother when making important
parenting decisions could also impact the child’s emotional development.
Finally, there is evidence to suggest that father and his new wife have made negative
remarks about mother and impeded the child’s relationship with mother’s extended family.
For example, father’s mother testified that the child would become upset when father and
his new wife would speak poorly about mother. She testified that there were days when
she would pick the child up from school, notice that the child was “very sad,” and that,
when she asked the child what was wrong , the child “would tell [her] things like, ‘Daddy
and [his new wife] were talking mean about Mommy and said that she was a bad person.’”
Attempting to diminish the relationship between the child and other parent or preventing
contact between the child and relatives can support a finding of endangerment. See
Amarreh v. Amarreh, 918 N.W.2d 228, 231-32 (Minn. App. 2018), rev. denied (Minn. Oct.
24, 2018); Geibe, 571 N.W.2d at 779-80. Accordingly, the record as a whole supports the
district court’s determination that the child’s emotional health and well-being were
endangered in father’s custody.

17
IV. Balance of Harms
Finally, to modify custody the district court must find that “the benefits of the
change outweigh its detriments with respect to the child[].” Crowley, 897 N.W.2d at 293.
This factor “may sometimes be implicit in the other factors.” Geibe, 571 N.W.2d at 778.
Here, the district court found that the harm caused by the change in custody would
be the reduction in time spent with father, but that this was outweighed by the benefits of
more appropriate supervision, reduction in anxiety and stress for the child, and continuation
of support from all grandparents. The district court again noted that the “child had a
support system that no longer exists” and that she is “experiencing stress, anxiety, and
anger” due to the change in her support system.
Father challenges the district court’s determination, noting that Minnesota law
establishes a presumption that stability in custody is in the best interests of the child. Weber
v. W.P.W., 653 N.W.2d 804, 811 (Minn. App. 2002). He also points out that, while the
district court determined that “a change in custody does not interrupt the child’s education
and mental health services,” the record suggests that a change here would result in the child
changing school districts and needing to find a new therapist.
We conclude, however, that the record supports the district court’s ultimate
determination that the harms caused by a change in custody are outweighed by the
advantages. Here, it is clear from the record that the child’s change in relationship with
father’s parents was of particular significance to the district court. The district court found
that a change in custody would result in the advantage of encouraging a strong relationship
between the child and her paternal grandparents and the restoration of a support system
18
that the child had lost. The district court also determined that mother was more likely to
communicate and cooperate with father to ensure that both parents were involved in
decisions regarding the child, which was another primary concern for the district court.
Additionally, the child had been participating in distance learning due to the COVID- 19
pandemic and father had already changed the child’s therapist at least once. This may help
lessen the degree of harm caused by a change in custody. The record therefore supports
the district court’s determination that the advantages of modifying custody outweigh the
potential harms caused by modification.
Because we discern no clear error in the district court’s findings of fact and the
findings support the district court’s determinations as to all four custody-modification
factors, we affirm the district court’s order granting mother’s motion to modify custody.
Affirmed.