In re the Marriage of: Jan H. Kehlenbeck v. Kurt H. Kehlenbeck

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2033
In re the Marriage of:
Jan H. Kehlenbeck, petitioner,
Appellant,
vs.
Kurt H. Kehlenbeck,
Respondent.
Filed July 7, 2014
Affirmed
Toussaint, Judge*
Hennepin County District Court
File No. 27-FA-000296474
Kathryn A. Graves, Henson & Efron, PA, Minneapolis, Minnesota (for appellant)
Kurt H. Kehlenbeck, Golden Valley, Minnesota (pro se respondent)
Considered and decided by Schellhas, Presiding Judge; Halbrooks, Judge; and
Toussaint, Judge.
UNPUBLISHED OPINION
TOUSSAINT, Judge
Appellant Jan H. Kehlenbeck challenges a district court order denying her post-
dissolution custody-modification motion and reducing her child-support obligation for
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
her two children. She alleges that the district court made errors of law and abused its
discretion in declining to modify custody of her children and in reducing, rather than
eliminating, her child-support obligation. We affirm because we observe no error in the
district court’s findings or conclusions.
DECISION
Custody modification. A district court may not modify a custody order unless
there has been a change in the child’s circumstances and modification is necessary to
serve the child’s best interests. Minn. Stat. § 518.18(d) (2012). “The party requesting
modification of a child custody order has the burden of proving on a preliminary basis
that a significant change in circumstances has occurred.” Englund v. Englund, 352
N.W.2d 800, 802 (Minn. App. 1984) (citing Nice-Petersen v. Nice-Petersen, 310 N.W.2d
471, 472 (Minn. 1981)). When a change in circumstances has been shown, the district
court must retain the original custody arrangement unless, among other reasons, “the
child has been integrated into the family of the petitioner with the consent of the other
party[.]” Minn. Stat. § 518.18(d)(iii). To initiate a motion to modify custody, a movant
must submit an affidavit asserting facts upon which the motion is based. Minn. Stat.
§ 518.185 (2012); Szarzynski v. Szarzynski, 732 N.W.2d 285, 291 (Minn. App. 2007).
This court reviews for abuse of discretion the district court’s determination as to the
existence of a prima facie case for custody modification. Boland v. Murtha, 800 N.W.2d
179, 185 (Minn. App. 2011).
Appellant asserts that the district court ignored two affidavits she offered to
support her motion to modify child custody. One affidavit claims that as of 2011, the
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parties two children, C.K. and K.K., spent the majority of their time at her home, and the
other affidavit asserts that for about three years both children “spen[t] 50% or more” of
their time with her, with respondent Kurt H. Kehlenbeck’s consent.
Appellant has failed to establish a significant change in circumstances for custody-
modification purposes. The current custody arrangement permits appellant liberal
visitation, and the parenting-time order in effect permits appellant 45.1-50% parenting
time with C.K. and 10-45% parenting time with K.K. The purpose of the requirement of
a substantial change in circumstances is “to impart finality and stability into child custody
determinations.” Englund, 352 N.W.2d at 802. Because appellant has alleged only that
the children are spending slightly more time with her than they are permitted to spend by
court order, she has not established a prima facie case of a change in circumstances
justifying custody modification.
Child-Support Modification. Appellant next argues that the district court abused
its discretion by refusing to rule that she satisfied her child-support obligation by
providing for her children while they were living with her, based upon the assertion that
the children were integrated into her home with respondent’s consent. Minn. Stat.
§ 518A.38, subd. 3 (2012), provides, “The court may conclude that an obligor has
satisfied a child support obligation by providing a home, care, and support for the child
while the child is living with the obligor, if the court finds that the child was integrated
into the family of the obligor with the consent of the obligee . . . .”
As evidentiary support for this claim, appellant submitted a copy of a calendar that
she purportedly began to keep in 2011 to document when K.K. was with her. She did not
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keep a calendar for C.K. until the summer of 2013 because C.K.’s “schedule was not in
dispute.” The district court rejected the evidentiary value of the calendar for several
reasons, including that the calendar does not state where the children stayed overnight, is
incomplete, is inconsistent about where the children stayed, includes entries of a sexual
relationship that gave rise to concerns about whether staying with appellant would be in
the children’s best interests, and, based upon a six-month average, does not establish that
the children stayed with appellant a majority of time.1 Further, the district court did not
find that C.K. was integrated into appellant’s home for custody-modification purposes,
and respondent’s flexibility in the exercise of parenting time, short of amounting to a
change in circumstances, should not be used to demonstrate integration for purposes of
modifying child support. Cf. Geiger v. Geiger, 470 N.W.2d 704, 706 (Minn. App. 1991)
(stating that liberal visitation does not result in de facto joint physical custody), review
denied (Minn. Aug. 1, 1991). Because appellant has not established a prima facie case to
show that the children were integrated into her home, the district court did not abuse its
discretion by refusing to rule that appellant’s support obligation was satisfied by the time
the children spent in her home.
Appellant also claims that the district court abused its discretion by merely
reducing, rather than eliminating, her basic child support obligation. The district court
reduced appellant’s monthly child-support obligation from $687 to $200 after application
1
The district court properly considered the most recent six-month period in determining
whether the children were integrated into appellant’s home. The custody-modification
statute permits consideration of facts supporting modification “that have arisen since [a]
prior court order[.]” Minn. Stat. § 518.18(d).
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of Minn. Stat. § 518A.39, subd. 2 (2012). As we have upheld the district court’s decision
rejecting appellant’s argument that the children were integrated into her family, we
decline to address it further other than to note that we observe no abuse of discretion in
the district court’s decision to reduce appellant’s support obligation from $687 to $200.
See Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002) (stating that district court has broad
discretion in modifying child-support order and that order will be reversed only if the
district court “abused its broad discretion by reaching a clearly erroneous conclusion that
is against logic and the facts on record”); Scott v. Scott, 373 N.W.2d 652, 654 (Minn.
App. 1985) (noting that child-support proceedings are equitable in nature and permit the
district court to grant relief “to justly deal with the interests of the parties”); Minn. Stat.
§ 518A.43, subd. 1 (2012) (permitting a deviation from presumptive guidelines obligation
to “encourage prompt and regular payments of child support and to prevent either parent
or the joint children from living in poverty”).
Affirmed.
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