Marriage of Goldman v. Greenwood

OPINION

Appellant Mark Greenwood challenges the decision of the court of appeals reversing the district court’s denial of respondent Deborah Goldman’s motion to remove the parties’ minor child out of state. Appellant argues that the court of appeals erred in ruling that Minn.Stat. § 518.175, subd. 3 (2006), rather than Minn.Stat. § 518.18(d) (2006), governs respondent’s motion for removal and in ruling that respondent is entitled to an evidentiary hearing. We agree, and we reverse the decision of the court of appeals and reinstate the district court’s order.

Appellant and respondent were married on January 16, 1993; together they have one son, I.G., born on January 30, 1996. While the parties’ dissolution proceedings were pending, respondent received a job offer from an employer in Boston and moved the district court to permit her to move out of state with I.G. In October 2000, the district court denied respondent’s motion for permission to remove I.G. out of state but awarded her temporary sole legal and physical custody of I.G. In a September 2001 memorandum decision, the district court denied another request by respondent to remove I.G. from the state. The parties agree that the district court awarded respondent sole physical custody contingent on her remaining in Minnesota.1 The district court indicated that imposition of the locale restriction was in I.G.’s best interests, and it suggested that it would award custody to appellant in the absence of the restriction:

If for any reason the LaChapelle locale restriction is found wanting, this [cjourt would award sole physical custody to father. It would award sole physical custody to father to ensure that [I.G.] continues to prosper from his intimate relationships with father [and father’s other children], does not have to suffer yet another major change in his young life, and could continue with his existing school and religious arrangements.2

*281The parties entered an oral stipulation to a negotiated settlement in June 2002, incorporating the locale restriction. On July 11, 2002, the district court dissolved the parties’ marriage and granted respondent sole physical custody of I.G. subject to reasonable parenting time by appellant. The court stated that neither party could remove I.G. from the state for the purpose of changing his residence -without the written consent of the other party or a court order. Additionally, the court clarified that it had addressed respondent’s request to remove I.G. from the state in its September 2001 memorandum decision, which it “incorporated by reference as if fully set forth herein.”

In February 2006, shortly after I.G.’s tenth birthday, respondent moved the district court to eliminate the locale restriction from the custody order and to permit her to move with I.G. to New York City, the home of respondent’s fiancé. In the alternative, she moved the court to order a “relocation evaluation” and hold an eviden-tiary hearing. Respondent submitted 15 affidavits in support of her motion. In her own affidavit, she alleged that changes in circumstances rendered the locale restriction “contrary to [I.G.j’s best interests” and a danger to I.G.’s “emotional, spiritual, and academic development.” She particularly emphasized the superior opportunities in New York City for I.G. to grow in his Orthodox Jewish faith, noting that there are no Orthodox Jewish schools in Minnesota that offer education beyond the eighth grade and that New York City has a thriving Orthodox Jewish community. The other affidavits attest to respondent’s love for I.G., her good character, and the academic and spiritual benefits I.G. would experience as a result of relocating to New York City. Appellant opposed respondent’s motion, expressing his concern that the move would harm his relationship with I.G. and arguing that respondent failed to make a prima facie case for modification of the “conditional custody award.”

The district court denied respondent’s motion to eliminate the locale restriction from the custody order, for permission to remove I.G. to New York, and to order a relocation evaluation and hold an eviden-tiary hearing. The court applied section 518.18(d), which governs modification of custody orders, not section 518.175, subd. 3, which governs a custodial parent’s relocation of a child to another state, to respondent’s motion, reasoning that a locale restriction “is an integral part of the prior ‘custody order’.” In applying section 518.18(d), the court concluded that respondent failed to make a prima facie case of changed circumstances, of endangerment, and that the benefits of the move outweighed its detriments.

Respondent appealed the district court’s ruling. The court of appeals held that the district court erred in applying section 518.18(d) and reversed and remanded for an evidentiary hearing to consider I.G.’s best interests under section 518.175, subd. 3. In re Marriage of Goldman, 725 N.W.2d 747, 753, 761 (Minn.App.2007). Both parties filed petitions for review, and we granted review of appellant’s petition in full and of respondent’s petition in part.3

I.

As a threshold issue, we consider whether the locale restriction in the district court’s custody order is valid. “Appellate review of custody determinations is limited to whether the district court *282abused its discretion by making findings unsupported by the evidence or by improperly applying the law.” In re Custody of N.A.K, 649 N.W.2d 166, 174 (Minn.2002). District courts have “broad discretion in determining custody matters,” Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn.1989), and we agree with the recognition of the court of appeals in Dailey v. Chermak “that there is no absolute prohibition under Minnesota law against awarding child custody on the condition of maintaining a specific geographic residence for the child, as long as that residence is shown clearly and genuinely to serve the child’s best interests,” 709 N.W.2d 626, 630 (Minn.App. 2006), rev. denied (Minn. May 16, 2006).

Respondent, who stipulated to the incorporation of the locale restriction into the district court’s order, argues that the restriction is nevertheless void because it provides for an automatic transfer of custody in the event that she moves out of state. The district court explained that “[i]f for any reason the LaChapelle locale restriction is found wanting, this [c]ourt would award sole physical custody to father.” The district court’s use of the language “found wanting” implies that a hearing would precede any subsequent custody transfer. Furthermore, in its denial of respondent’s motion for removal in 2006, the district court suggested that its analysis might change once I.G. completes eighth grade and is no longer able to attend Orthodox Jewish school in Minneapolis. We do not interpret the district court’s locale restriction as foreclosing future reassessment of I.G.’s best interests.4

We leave for another day the determination of the validity of a locale restriction that does provide for the automatic transfer of custody upon the sole physical custodian’s relocation. Because the district court acted within the scope of its discretion, the locale restriction in respondent’s custody order is valid.

II.

Having determined that the locale restriction in this case is valid, we next consider whether section 518.18(d) or section 518.175, subd. 3, governs respondent’s motion for removal. The district court applied section 518.18(d), but the court of appeals reversed, holding that section 518.175, subd. 3, is the governing statute. Determination of the applicable statutory standard, Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn.1993), and the interpretation of statutes, In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn.1999), are questions of law that we review de novo.

The modification of custody orders is governed by MinmStat. § 518.18(d), which states in pertinent part as follows:

[T]he court shall not modify a prior custody order or a parenting plan provision which specifies the child’s primary residence unless it finds * * * 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. In applying these standards the court shall retain the custody arrangement or the parenting plan provision specifying the child’s primary residence that was established by the prior order unless:

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*283(iv) the child’s present environment endangers the child’s physical or emotional health or impairs the child’s 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.

Minnesota Statutes § 518.175, subd. 3, governs a custodial parent’s relocation of a child to another state, providing as follows:

(a) The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree. * ⅜ * *

(b) The court shall apply a best interests standard when considering the request of the parent with whom the child resides to move the child’s residence to another state. * * * *

(c) The burden of proof is upon the parent requesting to move the residence of the child to another state * * *. According to the court of appeals, the

scope of section 518.18(d) “is confined to the change of provisions ‘specifying the child’s primary residence.’ ” Goldman, 725 N.W.2d at 753. But a careful reading of section 518.18(d) indicates that a motion for removal filed by a sole physical custodian subject to a locale restriction falls within the ambit of the statute. Section 518.18(d) refers to (1) modifications to “a prior custody order or a parenting plan provision which specifies the child’s primary residence,” (2) retaining “the custody arrangement or the parenting plan provision specifying the child’s primary residence,” and (3) “a change in the custody arrangement or primary residence.” Minn.Stat. § 518.18(d) (emphasis added). Because we normally interpret the conjunction “or” as disjunctive rather than conjunctive, Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 385 (Minn.1999), the phrases “custody order” and “custody arrangement” stand alone and should not be confused with the statute’s references to a child’s “residence.”

It should also be noted that Minn.Stat. § 518.18(d)® addresses situations where “the court finds that a change in the custody arrangement or primary residence is in the best interests of the child.” The interpretation of the court of appeals, which limits the applicability of section 518.18(d) to the change of provisions specifying a child’s primary residence, renders the phrase “custody arrangement” superfluous, violating the rule of statutory construction that “the legislature intends the entire statute to be effective and certain,” Minn.Stat. § 645.17(2) (2006).

Finally, the defining feature of a locale restriction is that it is included in the custody order and thus cannot be eliminated unless a party meets the heightened standard for custody order modification under section 518.18(d). By evaluating respondent’s motion for removal under section 518.175, subd. 3 (the standard that governs a custodial parent’s relocation of a child to another state in the absence of a locale restriction), the court of appeals implicitly invalidated the restriction. Such an effect is at odds with our recognition of the validity of locale restrictions.5 Section 518.18(d), not section 518.175, subd. 3, governs a motion for removal brought by a sole physical custodian subject to a locale *284restriction. We therefore reverse the decision of the court of appeals.

III.

Respondent contends that the district court erred in denying her an eviden-tiary hearing on her motion for removal. The district court declined to grant respondent an evidentiary hearing because it found that she failed to make a prima facie case under section 518.18(d) of changed circumstances, of endangerment, and that the benefits of the move outweighed its detriments.6 The court of appeals did not address whether respondent made a prima facie case under section 518.18(d), as it concluded that section 518.175, subd. 3, governs her motion for removal. Our resolution of this issue determines whether we remand the case for an evidentiary hearing or simply reverse the court of appeals and reinstate the district court order.

A district court is required under section 518.18(d) to conduct an evidentiary hearing only if the party seeking to modify a custody order makes a prima facie ease for modification. See Silbaugh v. Silbaugh, 543 N.W.2d 639, 642 (Minn.1996); Morey v. Peppin, 375 N.W.2d 19, 25 (Minn.1985); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981). To be entitled to a hearing, respondent must establish the following four elements of a prima facie case under section 518.18(d): (1) a change in her own circumstances or those of I.G. or appellant, (2) that modification is necessary to serve I.G.’s best interests, (3) that I.G.’s present environment endangers his physical health, emotional health, or emotional development, and (4) that the benefits of the move outweigh the detriments with respect to I.G. See Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999), superseded in part on other grounds by Act of Apr. 27, 2000, ch. 444, art. 1, § 5, 2000 Minn. Laws 980, 984-85 (codified at Minn.Stat. 518.18(d)(i)), as recognized in In re Comm’r of Pub. Safety, 735 N.W.2d 706, 711 (Minn.2007); Szarzynski v. Szarzynski, 732 N.W.2d 285, 291-92 (Minn.App.2007).

Appellate review of custody modification and removal cases is limited to considering “ ‘whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.’ ” Silbaugh, 543 N.W.2d at 641 (quoting Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985)). Appellate court’s 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. Minn. R. Civ. P. 52.01; Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988). Findings of fact are clearly erroneous where an appellate court “is left with the definite and firm conviction that a mistake has been made.” Peterson v. Peterson, 308 Minn. 297, 306 n. 4, 242 N.W.2d 88, 94 n. 4 (1976).

Changed Circumstances. When a party seeks modification of a custody order, “the burden is upon the movant to establish satisfactorily on a preliminary basis that there has occurred a significant change of circumstances from the time when the original or amended custody order was issued.” Nice-Petersen, 310 N.W.2d at 472. The district court found that respondent “has not presented a pri-ma facie case that the requisite change of circumstances has occurred,” dismissing respondent’s engagement as “a change in [her] circumstances, but not [I.G.J’s.” Ac*285cording to the district court, “the question here is whether there has been a substantial change in circumstances that impacts [I.G.], not whether there has been a change that impacts or will impact [respondent].”

Because section 518.18(d) provides that the changed circumstances can relate to “the child or the parties,” the district court erred in not giving more weight to respondent’s engagement in the change-of-circumstances analysis. But the district court’s error does not require reversal of its denial of respondent’s motion, because the district court correctly concluded that respondent failed to make a prima facie case of other elements of section 518.18(d). See Minn. R. Civ. P. 61 (requiring courts to disregard harmless error).

Endangerment. “The concept of ‘endangerment’ is unusually imprecise,” but a party must demonstrate “a significant degree of danger” to satisfy the endangerment element of section 518.18(d)(iv).7 Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App.1991); see also Johnsonr-Smolak v. Fink, 703 N.W.2d 588, 591 (Minn.App. 2005). The district court found that I.G.’s current custodial environment does not endanger his physical or emotional health or impair his emotional development, noting that instead of presenting a prima facie case of endangerment, respondent merely emphasized “the opportunities that will be available to [I.G.] if she is allowed to move him to New York.” In fact, respondent admitted that I.G. has a good relationship with appellant and that I.G. has adjusted well to the many changes in his life. The district court did not abuse its discretion in concluding that respondent failed to make a prima facie case of endangerment under section 518.18(d)(iv).

The dissent concludes that respondent made a prima facie case of endangerment, reasoning that I.G. may be endangered by “geographical separation” from respondent. But the endangerment element of section § 518.18(d)(iv) is concerned with whether “the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development,” Minn.Stat. § 518.18(d)(iv) (emphasis added), not whether the child may be endangered by future events. The policy-based argument advanced by the dissent regarding when to measure the endangerment to the child is not without merit, but such a determination belongs to the legislature, not to this court. The effect of the dissent’s proposed outcome here, carried to its logical conclusion, is that a prima facie case of endangerment is made anytime a custodial parent seeks to move out of state in the face of a locale restriction, because any such move would result in “geographical separation” from the child. This approach would gut locale restrictions of much of their effect because, as we noted earlier, the defining feature of a locale restriction is that it is included in the custody order and thus cannot be eliminated unless a party meets the section 518.18(d) standard for custody order modification.

Benefits and Detriments. The district court also found that respondent failed to make a prima facie case that the benefits of the move outweighed its detriments with respect to I.G. The court stated that although the benefits of the move were described in a number of affidavits, “[n]o witness has proffered a competent opinion *286that the advantages of moving to New York City outweigh the harm associated with the move.” The dissent does not support its conclusion that respondent made a prima facie case of this element, but simply notes that “the benefits and detriments of the move have not been weighed.” We reiterate that it is the party seeking modification of a custody order who bears the burden of making a prima facie case of the section 518.18(d) elements. The district court did not abuse its discretion in concluding that respondent failed to make a prima facie case that the benefits of the move outweighed its detriments with respect to I.G.

We hold that because respondent failed to make a prima facie case under section 518.18(d), the district court did not abuse its discretion in denying respondent’s motion for an evidentiary hearing. We therefore reverse the decision of the court of appeals and reinstate the district court’s order denying respondent’s motion to remove I.G. from the state without an evi-dentiary hearing.

Reversed and district court order reinstated.