In re the Marriage of: Denise Louise Spanier v. Terence Urban Spanier , 2014 Minn. App. LEXIS 77 ( 2014 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2175
In re the Marriage of:
Denise Louise Spanier, petitioner,
Appellant,
vs.
Terence Urban Spanier,
Respondent.
Filed August 18, 2014
Affirmed
Cleary, Chief Judge
Hennepin County District Court
File No. 27-FA-08-4988
Carla C. Kjellberg, Kjellberg Law Office, PLC, St. Paul, Minnesota (for appellant)
Elizabeth A. Schading, Barna, Guzy & Steffen, Ltd., Minneapolis, Minnesota (for
respondent)
Considered and decided by Cleary, Chief Judge; Larkin, Judge; and Klaphake,
Judge.
SYLLABUS
On a motion to modify custody under Minn. Stat. § 518.18(d) (2012), an order that
does not modify physical or legal custody is not a “prior order” for purposes of
determining whether a change of circumstances has occurred since the last custody order.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
OPINION
CLEARY, Chief Judge
In this child-custody dispute, appellant Denise Spanier appeals a district court’s
denial of her motion to modify custody without an evidentiary hearing. She argues that
the district court erred by holding that she did not allege facts constituting a change of
circumstances under Minn. Stat. § 518.18(d). Because the district court did not abuse its
discretion in concluding that appellant did not allege facts constituting a change of
circumstances, we affirm.
FACTS
Appellant and respondent Terence Spanier have three children. The two older
children were born to respondent and his now-deceased first wife, and they were later
adopted by appellant. The youngest child is the biological child of both parties and was
born during their marriage. In the present custody dispute, appellant seeks custody of the
two youngest children.
From the time the parties were married in 2001 until 2007, appellant was the
primary caretaker of the children. After joining the Navy Reserve on a part-time basis,
appellant was deployed abroad in 2007 and 2008, during which time respondent was the
primary caretaker of the children. Appellant subsequently enlisted full time in the Navy
Reserve and signed a contract to go to California in April 2008. However, prior to
moving, the parties’ marriage failed. They began living apart in September 2008, and
were divorced by order entered on October 20, 2009.
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The parties’ divorce decree granted them joint legal custody and respondent sole
physical custody of the children, subject to parenting time for appellant. At the time of
the divorce decree, respondent was living in Minnesota. Appellant was enlisted full time
in the Navy Reserve and was stationed in San Diego, California, with orders to deploy to
the Middle East. She was subsequently deployed to Jordan from August 2009 to March
2010.
In September 2010, appellant accepted an assignment in Minnesota. She filed a
motion to modify custody and parenting time in November 2010. Before the hearing on
appellant’s motion, the parties agreed to maintain the standing custody arrangement, and
respondent continued to have sole physical custody of the children. In addition, the
parties agreed to modify their respective parenting time. Specifically, they stipulated that
“[b]eginning January 15, 2011, for as long as [appellant] resides in Minnesota, the parties
will have” equal parenting time. An order was filed on December 23, 2010,
memorializing the parties’ agreement regarding parenting time. Appellant returned to
Minnesota in January 2011.
In September 2013, appellant brought the present motion to modify custody after
receiving orders to deploy to Arlington, Virginia, effective March 2014. Appellant
asserted that there had been a “change of circumstances” within the meaning of Minn.
Stat. § 518.18(d) because her “Minnesota tour of duty is ending and [she] now [has her]
next set of orders in Arlington, VA.” She also maintained that moving with her would be
in the best interests of the children. On October 15, 2013, the district court filed an order
denying appellant’s motion to modify custody. The district court determined that
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because appellant was on full-time duty in the Navy Reserve at the time of the parties’
divorce, and knew then that she could be deployed to other locations, the planned move
to Virginia did not constitute a change of circumstances under the statute. The district
court denied appellant’s motion without holding an evidentiary hearing. This appeal
followed.
ISSUE
Did the district court err by denying appellant’s motion to modify custody without
an evidentiary hearing?
ANALYSIS
Appellant challenges the district court’s denial, without an evidentiary hearing, of
her motion to modify custody under Minn. Stat. § 518.18(d). “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 case for modification.” Goldman v.
Greenwood, 748 N.W.2d 279, 284 (Minn. 2008). On appeal from a district court’s
denial, without an evidentiary hearing, of a motion to modify custody, we make three
determinations. First, “whether the district court properly treated the allegations in the
moving party’s affidavits as true, disregarded the contrary allegations in the nonmoving
party’s affidavits, and considered only the explanatory allegations in the nonmoving
party’s affidavits,” is reviewed de novo. Boland v. Murtha, 800 N.W.2d 179, 185 (Minn.
App. 2011). Second, the district court’s determination as to the existence of a prima facie
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case for modification is reviewed for an abuse of discretion. Id.1 Lastly, “we review de
novo whether the district court properly determined the need for an evidentiary hearing.”
Id. “Whether a party makes a prima facie case to modify custody is dispositive of
whether an evidentiary hearing will occur on the motion.” Szarzynski v. Szarzynski, 732
N.W.2d 285, 292 (Minn. App. 2007).
Minn. Stat. § 518.18(d) states that a court “shall not” modify a custody order
unless it finds, “upon the basis of facts . . . that have arisen since the prior order or that
were unknown to the court at the time of the prior order, that a change has occurred in the
circumstances of the child or the parties and that modification is necessary to serve the
best interests of the child.” Section 518.18(d) places the burden on a party seeking
modification of a custody order “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 v. Nice-Petersen, 310 N.W.2d
471, 472 (Minn. 1981). “The change in circumstances must be significant.” In re Child
of Evenson, 729 N.W.2d 632, 635 (Minn. App. 2007), review denied (Minn. June 19,
2007). Additionally, there “must be a real change and not a continuation of ongoing
problems.” Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review
denied (Minn. June 21, 1989). The change in circumstances “must have occurred since
1
Appellant asserts that we should conduct a de novo review of the district court’s denial
of her motion to modify custody, citing Ross v. Ross, 477 N.W.2d 753 (Minn. App.
1991). This reading of Ross, however, was rejected in Boland. See Boland, 800 N.W.2d
182, 184.
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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).
In its order, the district court made a number of factual findings before concluding
that appellant had not alleged facts that would establish that there has been a significant
change of circumstances. The district court first noted that the 2010 order provided that
parenting time would be equal “for as long as [appellant] resides in Minnesota” and that
respondent would retain sole physical custody of the children. The court also concluded
that appellant is on active duty in the Navy and that the children “have always lived,
attended school and participated in activities in Minnesota.” It also found that at the time
of the divorce decree, appellant was on full-time duty in the Navy Reserve, “with the
knowledge that she could be deployed to various locations under the terms of her
employment.” Based upon these determinations, the district court concluded that “the
same circumstances”—appellant’s service in the Navy and knowledge that she could be
deployed anywhere—were present when she returned to Minnesota in 2011, and were the
reason for the planned move to Virginia. The court held that “[t]here has been no change
in circumstances if the articulated change is her move to Arlington, Virginia as a result of
the same employment condition the parties were aware of in 2009 and 2010 and after.”
The parties first disagree as to which court order should be used as a basis for
determining whether there has been a change of circumstances. Under section 518.18(d),
a change-of-circumstances determination must be based on “facts . . . that have arisen
since the prior order.” Appellant maintains that the district court erred in failing to
consider the 2010 order, based on the parties’ stipulation to equal parenting time while
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she was living in Minnesota, as the “prior order” for purposes of a change-of-
circumstances analysis under section 518.18(d). Respondent asserts that the divorce
decree, entered when appellant was living in California, constitutes the prior order under
section 518.18(d).
Although the 2010 order is captioned “CUSTODY AND PARENTING TIME
ORDER,” it did not modify legal or physical custody of the children; it only modified
parenting time. There is no controlling case law addressing whether a custody order, that
does not modify physical or legal custody, should be considered a “prior order” under
section 518.18(d).
We are persuaded that under the language in section 518.18(d), “prior order” is
properly read as referring to either an original order granting custody or a subsequent
order modifying custody, and it does not include orders that modify parenting time only
and that do not modify custody. In interpreting statutes, our goal is to “ascertain and
effectuate the intention of the legislature.” Brua v. Minn. Joint Underwriting Ass’n, 778
N.W.2d 294, 300 (Minn. 2010) (quotation omitted). We interpret words and phrases
according to their plain and ordinary meaning. Fischer Sand & Aggregate, Inc. v. Cnty.
of Dakota, 771 N.W.2d 890, 892 (Minn. App. 2009). Preceding the reference to a “prior
order” in section 518.18(d), the provision states that a “court shall not modify a prior
custody order.” Minn. Stat. § 518.18(d) (emphasis added). A plain reading of this
provision indicates that “prior order” refers to a “prior custody order.” Although the term
“custody order” is not explicitly defined in chapter 518, it is generally understood to refer
to a court ruling that either alters an existing award or awards physical custody, legal
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custody, or both. See generally Minn. Stat. § 518.17, subd. 3(a) (2012) (captioned
“Custody order” and requiring dissolution judgments to address the legal and physical
custody of children and their support). But see Minn. Stat. § 645.49 (2012) (stating that
“[t]he headnotes printed in boldface type before sections and subdivisions in editions of
Minnesota Statutes are mere catchwords to indicate the contents of the section or
subdivision and are not part of the statute”). Physical and legal custody are concepts that
are separate and distinct from “parenting time.” See generally Minn. Stat. § 518.003,
subds. 3(a), (c), 5 (2012) (providing different definitions of “legal custody,” “physical
custody and residence,” and “parenting time”). Because they are separate and distinct
concepts, a “custody determination” in a “custody proceeding” that awards or modifies
“parenting time,” but does not award and does not modify physical custody, legal
custody, or both, is not a “custody order” for purposes of Minn. Stat. § 518.18(d). This
reading is consistent with the statutory scheme, in which modification of parenting time
and modification of custody are governed by different standards under different statutory
provisions. Compare Minn. Stat. § 518.175, subd. (5) (2012) (providing the
circumstances in which a court may modify parenting time), with Minn. Stat. § 518.18
(2012) (addressing motions to modify custody). Additionally, courts consistently rely on
the language in Nice-Petersen, stating that to obtain custody modification, the movant
must establish “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.”
310 N.W.2d at 472 (emphasis added); see, e.g., Goldman, 748 N.W.2d at 284 (quoting
Nice-Petersen). Because “prior order” in section 518.18(d) is properly read as referring
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to either an original order granting custody or a subsequent order modifying custody, and
does not include orders that modify parenting time only, the district court did not err in
evaluating the claim of changed circumstances by comparing the present circumstances
to those in place at the time of the original custody order in 2009.
Appellant argues that in focusing on the circumstances of her employment in the
Navy, the district court “ignored the actual change of circumstances, the move away from
the residency of the children, the significant reduction of parenting time[,] and the loss of
regular contact with the children.” Appellant maintains that the court applied something
resembling a foreseeability standard, i.e., that if the change in circumstances was
foreseeable, it does not constitute a change in circumstances. In support of her argument,
appellant cites Larson v. Larson, 400 N.W.2d 379 (Minn. App. 1987). Larson involved
the denial of a motion to modify custody, in which there were allegations against the
custodial parent of cohabitation, frequent changes of residence, and drug use. 400
N.W.2d at 380. Similar allegations had been made in a previous unsuccessful motion for
a change of custody brought by the noncustodial parent. Id.2 In reversing the district
court’s order finding that there was no significant change of circumstances, we held that
“while requiring recent evidence, [the statute] does not bar evidence of a similar nature.”
Id. at 381-82. The court observed that an evidentiary hearing was justified “in light of the
[custodial parent’s] possibly escalating drug use and continuing changes of residence and
male occupants, all having increasingly harmful effects on the children.” Id. at 381.
2
The court did not decide whether a “prior order” under section 518.18(d) includes “a
prior order denying a modification.” 400 N.W.2d at 381.
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Appellant’s reliance on Larson is misplaced. The relevant change of
circumstances in Larson related to the behavior of the custodial parent. Here, appellant
requests that the panel consider her own continued employment necessitating periodic
relocations as a change of circumstances. This is significantly different from evaluating
the escalation of dubious behavior of a custodial parent on a motion brought by the
noncustodial parent, as was the case in Larson.
Appellant also asserts that Larson stands for the proposition that courts focus on
“the real change of circumstances including the increased impact of the mother’s lifestyle
on the children’s life.” Appellant is essentially asserting that the district court should
have considered the consequences of her move to Virginia when analyzing whether a
significant change of circumstances has occurred. Her assertions as to the consequences
of her move to Virginia are more appropriately characterized as proffered reasons for
why she believes it would be in the best interests of the children to live with her in
Virginia. Such a characterization is supported by her articulation of the consequences she
alleges will result from her move to Virginia under a heading in her affidavit entitled
“Best Interest of the Children.” However, appellant must also allege facts that constitute
a significant change in circumstances. She has failed to do so.
When the parties divorced and physical custody was granted to respondent,
appellant was enlisted full time in the Navy Reserve, living in another state, and had
orders to deploy abroad. Appellant’s articulated change of circumstances—her move to
Virginia because of her service in the Navy Reserve—presents the same situation as at
the time of the original custody order. Before the parties’ divorce, appellant chose to join
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the Navy Reserve on a full-time basis, and her employment has continued to the present
day. As the district court determined, appellant has been aware of the fact that her
employment could result in deployment to locations away from the children. Her move
to Virginia is a consequence of the circumstances of her employment, which have
remained unchanged since the original custody order. Because appellant has not shown
changed circumstances since the entry of the divorce decree and because changed
circumstances are a necessary element of a prima facie case to modify custody, the
district court did not abuse its discretion in determining that appellant has failed to allege
a prima facie case to modify custody.
DECISION
On a motion to modify custody under Minn. Stat. § 518.18(d), an order that does
not modify physical or legal custody is not a “prior order” for purposes of determining
whether a change of circumstances has occurred. Here, the district court did not err in
evaluating the facts that have arisen since the parties’ original custody order, rather than
those that have occurred since the 2010 order modifying parenting time, and did not
abuse its discretion in concluding that appellant has not alleged facts constituting a
change of circumstances.
Affirmed.
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