Minnesota Supreme Court, 1981 The Minnesota Supreme Court affirmed a trial court's denial of a modification motion for child custody without holding an evidentiary hearing, finding the accompanying affidavits insufficient to establish the required significant change of circumstances.

The Minnesota Supreme Court affirmed a trial court's denial of a modification motion for child custody without holding an evidentiary hearing, finding the accompanying affidavits insufficient to establish the required significant change of circumstances.

Marriage of Nice-Petersen v. Nice-Petersen
Minnesota Supreme Court · Decided September 25, 1981 · Yetka
310 N.W.2d 471 (North Western Reporter, Second Series)

Outcome: Affirmed for respondent.

AI-enhanced analysis. Verify before relying in legal proceedings.

Marriage of Nice-Petersen v. Nice-Petersen

What happened

The facts of the case, in plain language.

Under the judgment and decree of marital dissolution dated April 4, 1979, custody of the 3-year-old daughter Nicole was granted to respondent Pamela Nice-Petersen.

The appellant's visitation rights were supervised by the Department of Court Services, and disputes thereafter arose regarding the visitation schedule.

On July 7, 1980, the appellant filed a motion for joint custody accompanied by affidavits and requested an evidentiary hearing to cross-examine reports introduced by the respondent.

The affidavits accompanying the appellant's motion did not set forth any change in circumstances sufficient to justify a modification of the custody award.

What the court decided

The appellant sought to modify an original child custody award granted to the respondent in a 1979 marital dissolution judgment. The appellant filed a motion for joint custody, supported by affidavits, and objected to certain reports introduced by the respondent. He requested an evidentiary hearing to cross-examine the authors of those reports. The trial court denied the modification motion and refused to schedule an evidentiary hearing. On appeal, the Minnesota Supreme Court held that Minnesota Statute § 518.185 requires a party seeking custody modification to submit affidavits establishing facts supporting modification. The burden is on the movant to show a significant change of circumstances that endangers the child's health or development. The Court found the affidavits insufficient and affirmed the trial court's denial without abuse of discretion.

  1. Under Minn. Stat. § 518.185, a trial court must deny a motion for modification of a child custody order unless the accompanying affidavits set forth sufficient justification—assuming the facts alleged therein are true—for the requested modification. (*472)
  2. A party seeking modification of a child custody order bears the burden of establishing on a preliminary basis that a significant change of circumstances has occurred since the original or amended custody order was issued, and that the change endangers the child's physical or emotional health or development. (*472)
  3. A trial court does not abuse its discretion in denying a custody modification motion and refusing to schedule an evidentiary hearing when the movant's supporting affidavits fail to set forth a change in circumstances sufficient to justify modification. (*472)

How the court reached its decision

The court's reasoning, step by step.

Whether the trial court erred in denying a motion to modify child custody without holding an evidentiary hearing. The court reviewed the several affidavits accompanying the appellant's modification motion and found they did not set forth any change in circumstances sufficient to justify a modification of the custody award. Because the affidavits were insufficient to satisfy the preliminary threshold established by § 518.185, the trial court did not abuse its discretion in denying the modification motion on affidavits and in refusing to schedule an evidentiary hearing.

Key quotes from the opinion

Notable passages from the opinion, in the court's own words.

“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.”
Standard requiring significant change of circumstances for modification — *472
“Minn.Stat. § 518.185 (1980) requires a party seeking a modification of a custody order to submit together with his moving papers an affidavit setting forth facts in support of the modification and further directs that notice be provided to all other parties to the proceedings to facilitate their filing of opposing affidavits.”
Statutory requirement for modification motion — *472
“the trial court did not abuse its discretion in denying the motion on affidavits and in refusing to schedule an evidentiary hearing.”
Key holding that trial court's denial without hearing was not an abuse of discretion — *472
“We affirm.”
Disposition — *472

Cases the court relied on

Earlier decisions the court cited as authority for its ruling.

  • Peterson v. Peterson (308 Minn. 297, 242 N.W.2d 88 (1976)) — Established that the movant seeking custody modification bears the burden of demonstrating on a preliminary basis a significant change of circumstances since the original custody order was issued—the standard directly applied by the court in affirming denial of the modification motion.

Full opinion

The complete text of the court's opinion as published.

Opinion

*472 YETKA, Justice.

Perry W. Nice-Petersen seeks review of an order of the Hennepin County District Court denying his motion for a modification of an original award of child custody made incident to the judgment and decree of marital dissolution of the parties on April 4, 1979. His primary assignment of error is that the trial court, failed to schedule an evidentiary hearing to consider the competing positions of the parties. We affirm.

By the terms of the judgment and decree of marital dissolution, the custody of the parties’ 3-year-old daughter Nicole was granted to the respondent Pamela Nice-Petersen. The appellant’s visitation rights were to be supervised by the Department of Court Services. Although the parties entered into a stipulation governing visitation which was approved by the court, disputes arose thereafter relating to the visitation schedule. On July 7, 1980, the appellant filed a motion with the court for an order granting the parties joint custody of their child. The motion stated that it was “made upon the attached affidavits, upon all the files, records and proceedings herein, and upon the statutes of the State of Minnesota.” A hearing was conducted in the district court to consider the parties’ motions and the guardian ad litem’s motion for an order adopting her recommendation that there be no change in custody. The appellant objected to the inclusion in the record of the guardian’s report and respondent’s attempt to introduce reports prepared by a psychiatrist and an employee of the Department of Court Services. Appellant therefore moved the court for an evidentiary hearing to allow his cross-examination of the authors of the reports. The order denying the evidentiary hearing and refusing to modify the original custody award is the subject of this appeal.

The focal question on appeal is whether the trial court erred in denying the appellant’s motion to modify the child custody award without providing him an evidentia-ry hearing.

Minn.Stat. § 518.185 (1980) requires a party seeking a modification of a custody order to submit together with his moving papers an affidavit setting forth facts in support of the modification and further directs that notice be provided to all other parties to the proceedings to facilitate their filing of opposing affidavits. This section does not specifically authorize the trial court to make findings based upon the affidavits. It is our view that a reasonable construction of the statute would be to require the trial court to deny a motion for modification of a custody order unless the accompanying affidavits set forth sufficient justification, if the facts alleged therein are true, for the modification. This interpretation is wholly consistent with section 410 of the Uniform Marriage and Divorce Act, from which section 518.185 was largely taken.

As a practical matter, 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. Peterson v. Peterson, 308 Minn. 297, 308, 242 N.W.2d 88, 95 (1976). Moreover, the significant change of circumstances must endanger the child’s physical or emotional health or the child’s development. See Minn.Stat. § 518.18(d)(iii) (1980).

A review of the several affidavits accompanying the appellant’s motion indicates that they do not set forth any change in circumstances sufficient to justify a modification of the custody award. Therefore, the trial court did not abuse its discretion in denying the motion on affidavits and in refusing to schedule an evidentiary hearing. As our resolution of this question is disposi-tive of the appeal, we do not address the other issues raised by the appellant.

Affirmed.

This page includes AI-generated summaries and analysis based on the full opinion text and citing cases. We believe the summaries are accurate, but you should always verify the holdings, quotes, and treatment data against the original opinion before relying on them in legal proceedings.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.