Marriage of Peterson v. Peterson

365 N.W.2d 315, 1985 Minn. App. LEXIS 3989
CourtCourt of Appeals of Minnesota
DecidedApril 2, 1985
DocketC6-84-1369
StatusPublished
Cited by8 cases

This text of 365 N.W.2d 315 (Marriage of Peterson v. Peterson) 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
Marriage of Peterson v. Peterson, 365 N.W.2d 315, 1985 Minn. App. LEXIS 3989 (Mich. Ct. App. 1985).

Opinion

OPINION

HUSPENI, Judge.

This is an appeal from an order that denied appellant father’s motion for a custody hearing, that increased child support, that required payment of child support ar-rearages, and required payment of one-half of respondent mother’s attorney’s fees. We affirm.

FACTS

Father and mother were divorced on July 24,1974, after a five-year marriage and the birth of a daughter, born September 11, 1969. By stipulation, physical custody of the minor child was granted to mother. Father was to pay $175 per month child support, which would be reduced to $125 per month if mother remarried. Both parties remarried. Father’s second marriage is presently being dissolved.

The minor child lived with mother until October 1981, when she went to live with father. In June 1983, she returned to mother’s home. In September 1983, mother petitioned the court for child support arrearages and for increased future child support. Father responded with a motion seeking custody of the minor child.

Between September 1983 and May 1984, the relationship between the parties became acrimonious. There were several court appearances. There has been little cooperation with scheduling discovery and other matters. Certain details of this activity are discussed under the appropriate issue.

Ultimately an evidentiary hearing commenced January 6, 1984, resulting in the order which is the focus of this appeal. That order required father to pay $750 child support arrearages and child support of $550 per month. It required him to pay $2,911.50, representing one-half of mother’s attorney’s fees. Father’s request for a custody hearing was denied on grounds that the threshold requirements of Minn. Stat. § 518.18 had not been met. Finally, the court declined to consider a supplementary affidavit and certain of father’s motions that were filed late.

Father requested a new trial and amended findings. His motions were denied and this appeal ensued.

ISSUES

1. Did the court err by denying father a custody hearing?

2. Did the court err by limiting an evi-dentiary hearing on child support to one hour?

3. Did the court err in increasing child support payments and in refusing to consider father’s motion to terminate support at age 18?

4. Did the court err in awarding child support arrearages?

5. Was the award of temporary child support increases reasonable for appeal?

6. Did the court err by awarding attorney’s fees to mother?

ANALYSIS

1. Custody may not be modified unless the court finds:
that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custodian established by the prior order unless:
(i) The custodian agrees to the modification;
(ii) the child has been integrated into the family of the petitioner with the consent of the custodian; or
(iii) the child’s present environment endangers his physical or emotional *318 health or impairs his 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.

Minn.Stat. § 518.18(d) (1984). Ordinarily this requires a petitioner to make a prima facie showing by affidavit that there has been an adverse change in circumstances affecting the child.

It is our view that a reasonable construction of the statute would be to require the trial court to deny a motion for the modification of a custody order unless the accompanying affidavits set forth sufficient justification * * * for the modification.

Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn.1981); see also Gottenborg v. Gottenborg, 343 N.W.2d 674, 676 (Minn.Ct.App.1984).

Father’s November 22, 1983 motion for change in custody was accompanied by an affidavit that indicated the minor child had lived with father as recently as five months earlier. The trial court concluded that the threshold requirement of section 518.18 had not been met. We find no error in that determination. Father’s affidavit did not address any adverse change in the minor child’s circumstances. Neither did it suggest that modification was necessary to serve the best interests of the minor child. See Chapman v. Chapman, 352 N.W.2d 437 (Minn.Ct.App.1984).

On December 30, 1983, father filed, along with other papers, a supplementary affidavit to his motion for custody modification. That affidavit failed to comply with requirements of an interim order issued by the family court which contained certain time limitations for the filing of papers. 1

In his supplementary affidavit, father makes the following allegations: that the minor child started to live with him at a time when she was not on good terms with her mother; that the father-daughter living arrangement ended after the minor child had a violent confrontation with her father’s new wife; that the minor child had become integrated into father’s home; that since her return to mother’s home, visitation has been obstructed; that father believes that, because mother remarried someone younger than herself, this relationship is detrimental to the minor child; and that the minor child has attended school in father’s school district since 1981.

We find no error in the trial court’s refusal to consider late affidavits. Father was aware of the court’s previous order regarding timely filing. Given the protracted and acrimonious nature of this matter, it was reasonable for the court to issue such a restrictive order and enforce it.

The minor child had lived with husband for less than two of nine years since the dissolution. That living arrangement ended abruptly five months before father brought his motion for custody modification. These facts do not constitute the integration contemplated by Section 518.-18(d)(ii). Moreover, the allegations suggesting an adverse change in the minor child’s living arrangements are too vague to meet the threshold requirements of section 518.18(d)(iii). That mother has remarried someone younger than she is not per se detrimental to the minor child. Further, we cannot ignore the fact that father’s motion for custody was brought, not while the minor child was residing with him, but five months after she had returned to her mother’s home, and then only in response to mother’s request for increased child support and support arrearages.

2. Father next contends that he was entitled to an unrestricted evidentiary hearing on the issue of child support. The law provides:

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Bluebook (online)
365 N.W.2d 315, 1985 Minn. App. LEXIS 3989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-peterson-v-peterson-minnctapp-1985.