Elgard v. Dudley

471 N.W.2d 681, 1991 Minn. App. LEXIS 598, 1991 WL 97097
CourtCourt of Appeals of Minnesota
DecidedJune 11, 1991
DocketNo. C3-90-2715
StatusPublished

This text of 471 N.W.2d 681 (Elgard v. Dudley) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elgard v. Dudley, 471 N.W.2d 681, 1991 Minn. App. LEXIS 598, 1991 WL 97097 (Mich. Ct. App. 1991).

Opinions

OPINION

FOLEY, Judge.

Appellant Cheryl Elaine Dudley challenges the trial court’s application of Minn. Stat. § 518.18 (1990) to her motion for modification of joint physical custody and the trial court’s refusal to hold an evidentiary hearing. We reverse and remand.

FACTS

Dudley (now age 24) and respondent Tracy Lee Elgard (now age 29) met in a halfway house when they were being treated for chemical dependency. They are the unmarried parents of a son who was born [683]*683on September 18, 1983. In 1987, they broke off a live-in relationship.

Dudley and Elgard each make allegations about the other’s past and present involvement with chemical dependency. Additionally, by affidavit, Elgard’s mother, respondent Jan Morrison, has corroborated Dudley’s allegations that Elgard physically assaulted Dudley when Dudley and Elgard lived together.

Morrison has been a part of the child’s life since he was born. When Elgard has custody, the child often stays with Morrison, who lives near Elgard’s home. Morrison has also provided advice and counseling to Dudley and Elgard.

On March 5, 1987, Dudley admitted service by Elgard of his summons and complaint to determine paternity. That same day, Dudley and Elgard stipulated in writing that (1) Elgard fathered Dudley’s son, (2) Dudley and Elgard would have joint legal and physical custody of the child and (3) the child would live with Dudley for three consecutive days and with Elgard for the next three consecutive days. Dudley waived her right to counsel and agreed Elgard could proceed by default. A judgment and decree approving the stipulation was entered on July 21, 1987.

On July 5, 1988, Dudley filed a notice of motion for physical custody to be solely with her and for child support. On August 17,1988, Elgard filed a notice of motion for physical custody to be solely with him and for child support. Morrison filed a notice of motion to intervene on August 23, 1988.

Hearing was had on August 30, 1988. On September 1, 1988, the trial court filed an order finding:

That the parties have * * * agreed that there has been no showing of integration of the child into one of the parties’ homes and there has been no written agreement regarding a change of custody and therefore the only criteria for change of custody will be endangerment.

Pursuant to the parties’ stipulation, the trial court reserved ruling on Morrison’s motion to intervene and continued the hearing on the cross-motions for change of custody.

The trial court ordered custody and chemical dependency evaluations. After another hearing, the trial court filed an order on January 5, 1989 that Elgard and Dudley cooperate in completion of the chemical dependency evaluations. A custody evaluation was completed on April 24, 1989.

Morrison filed a notice of motion to be admitted to the proceedings consistent with the custody evaluation on September 8, 1989. Morrison also requested an order establishing the school district for the minor child and an order for an evidentiary hearing on Elgard’s custody motion. On September 8, 1989, the trial court filed an ex parte order that the child attend elementary school in the district in which Morrison lives pending an October 2, 1989 hearing.

On September 21, 1989, Dudley filed a notice of motion to amend the July 21, 1987 judgment and decree to give her sole custody and child support. Dudley also sought to have the child attend school where Dudley lives, asserting that attendance at that school had been prevented by an ex parte order issued at Morrison’s request when she was not yet a party to the proceedings.

The trial court ordered on October 5, 1989 that the October 2 hearing be continued to October 11 because Morrison’s attorney was in trial on another matter. The trial court heard the pending motions on October 11, 1989.

The trial court issued an order on October 12, 1989 granting Morrison’s motion to intervene, finding there must be an eviden-tiary hearing, ordering further custody and chemical dependency evaluations to include assessment of Morrison and ordering that the child stay in school in Morrison’s school district. The trial court also ordered El-gard’s custodial time be conditioned on his remaining chemically free for 12 hours pri- or to and during custody. It directed the assignment office to place the issue of custody on for a two-day trial.

On November 9, 1989, the case was reassigned to a different trial court judge. An order was filed on February 5, 1990 scheduling a custody pretrial conference for [684]*684March 6, 1990. The matter was rescheduled several times due to the death of Morrison’s brother and scheduling conflicts. A notation dated May 31, 1990 in the trial court file index indicates an order regarding the pretrial conference was filed but the order is missing from the file. On June 4,1990, an assignment office notice of hearing for July 5, 1990 was filed. The hearing was subsequently continued several times because of scheduling conflicts.

Dudley filed an amended motion to vacate the decree, or, in the alternative, to amend the custody and support provisions of the decree on September 4, 1990. On September 6, 1990, Elgard filed a notice of motion to strike the evidentiary hearing set for September 18, 1990 on the ground Dudley had not made out a prima facie case of endangerment for change of custody.

A hearing was held on November 26, 1990. On November 30, 1990, an order was filed dismissing the custody motions and denying all other motions. Dudley appeals.

ISSUES

1. Did the trial court err in finding Dudley’s motion for a change in custody was barred by Minn.Stat. § 518.18(b) and (c)?

2. Did the trial court err in finding Minn.Stat. § 518.18(d) rather than Minn. Stat. § 518.17 (1990) applies in modifications of joint physical custody?

ANALYSIS

A trial court’s determination in custody matters will not be reversed unless an abuse of its broad discretion is found. Englund v. Englund, 352 N.W.2d 800, 802 (Minn.App.1984). An abuse of discretion will be found if the trial court makes findings unsupported by the evidence or improperly applies the law. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988).

1. The trial court correctly found Dudley’s original motion was brought “less than two years after custody was originally determined.” The trial court erred, however, in finding that, under Minn.Stat. § 518.18(b) and (c), such a motion can go forward only if there has been an interference with visitation or the present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.

Minn.Stat. § 518.18 provides in pertinent part:

(a) Unless agreed to in writing by the parties, no motion to modify a custody order may be made earlier than one year after the date of the entry of a decree of dissolution or legal separation containing a provision dealing with custody, except in accordance with paragraph (c).

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Related

Marriage of Sydnes v. Sydnes
388 N.W.2d 3 (Court of Appeals of Minnesota, 1986)
Marriage of Sefkow v. Sefkow
427 N.W.2d 203 (Supreme Court of Minnesota, 1988)
Marriage of Keith v. Keith
429 N.W.2d 276 (Court of Appeals of Minnesota, 1988)
Marriage of Englund v. Englund
352 N.W.2d 800 (Court of Appeals of Minnesota, 1984)
Klecker v. Klecker
454 N.W.2d 264 (Court of Appeals of Minnesota, 1990)

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Bluebook (online)
471 N.W.2d 681, 1991 Minn. App. LEXIS 598, 1991 WL 97097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elgard-v-dudley-minnctapp-1991.