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STATE OF MINNESOTA IN COURT OF APPEALS A10-1794 In re the Marriage of: Elizabeth Ann Murtha Boland a/k/a Elizabeth Ann Boland, petitioner, Appellant, vs. Thomas Francis Murtha, IV a/k/a Thomas Francis Murtha, Respondent. Filed June 6, 2011 Remanded; motion denied Hudson, Judge Stearns County District Court File No. 73-F6-04-005138 William D. Siegel, Douglas G. Sauter, Barna, Guzy & Steffen, Ltd., Minneapolis, Minnesota (for appellant) Gary A. Debele, Walling, Berg & Debele, P.A., Minneapolis, Minnesota (for respondent) Considered and decided by Hudson, Presiding Judge; Johnson, Chief Judge; and Toussaint, Judge. SYLLABUS On appeal of the denial of a motion to modify custody or restrict parenting time without an evidentiary hearing, this court (1) reviews de novo whether the district court properly considered the allegations in the moving party`s affidavits; (2) reviews for an abuse of discretion the district court`s determination of whether a prima facie case for

modification or restriction exists; and (3) reviews de novo whether an evidentiary hearing is required. OPINION HUDSON, Judge Appellant-mother challenges the district court`s denial of her motion to restrict respondent-father`s parenting time without an evidentiary hearing. We remand because it appears that the district court failed to treat the allegations in mother`s affidavits as true and to disregard assertions to the contrary in father`s affidavits. We also deny father`s motion for attorney fees on appeal because mother`s appeal did not unreasonably contribute to the length or expense of the proceeding. FACTS The parties were married on October 31, 1998, and their marriage was dissolved by judgment on January 11, 2005. The parties have joint legal custody of a daughter, K.M.M., who was born on October 25, 2000. Mother, who lives in St. Cloud, has sole physical custody of K.M.M. Father, who lives in Duluth and has a second home near Aitkin, initially agreed to reasonable parenting time to be arranged by the parties. But after the dissolution, mother significantly limited father`s access to K.M.M., generally not allowing his visits to exceed five hours and permitting him only one overnight visit in four years. In December 2008, father moved to modify the judgment to allow him to exercise overnight parenting time at the Aitkin home. Mother objected, asserting that father did not understand the severity of K.M.M.`s asthma and allergies and that father`s Aitkin 2

home is not safe for K.M.M. The district court found that mother`s concerns were largely unfounded; it awarded father overnight parenting time during certain weekends, holidays, and school vacations. It also ordered father to meet with K.M.M.`s physicians and purchase any prescribed equipment and medications. The record does not show that mother appealed this order. Slightly more than one year after the district court granted father`s motion, mother moved the district court to appoint a parenting-time expeditor to investigate parenting time; to restrict father`s parenting time pending the investigation; and for an evidentiary hearing on her motion. Mother submitted five affidavits in support of her motion: one from herself, one from K.M.M.`s therapist, and three from mother`s acquaintances. Mother`s affiants alleged that father endangered K.M.M. because he left K.M.M. alone in public places, including a public restroom and his car; he exposed K.M.M. to cats and ragweed, to which K.M.M. is allergic; and he has become angry with K.M.M., made her feel stupid, and minimized her feelings when she has expressed fears and concerns regarding her visits to the Aitkin home. Mother`s affiants also allege that K.M.M is exhibiting signs of emotional harm in that she has become extremely difficult and stressed; she has hyperventilated prior to visits with father; and she once threatened to run away to avoid a visit with father. Father submitted six opposing affidavits from himself, his wife, his brothers, his sister-in-law, and his mother-in-law. Father`s affiants deny that father has left K.M.M. alone in public places. Father`s affiants also deny that father has exposed K.M.M. to cats or ragweed. Father admits that he took K.M.M. to two homes where the owners had cats 3

and that he took K.M.M. on a walk during which they saw ragweed, but he denies that K.M.M. was in direct contact with cats or ragweed. Father`s affiants further deny that father has become angry with K.M.M., demeaned her, or minimized her fears. Father admits that he and his wife have different approaches to discipline and parenting from mother, which may have led to K.M.M.`s complaints about parenting time. Father`s affiants describe K.M.M. as a happy child, and father posits that if K.M.M. is experiencing any emotional or behavioral problems, they are not a result of any mistreatment during parenting time, but are instead a consequence of mother sharing unfounded concerns about father and father`s home with K.M.M. The district court considered the parties` affidavits and concluded that mother failed to establish a prima facie case for restriction of father`s parenting time and was not entitled to an evidentiary hearing. The district court stated that generally each allegation made by [mother] is denied and refuted by [father]. The district court noted that mother`s allegations are informed by mother`s history of significantly overreacting to rather common emotional upsets by [K.M.M.], and overanalyzing those upsets. The district court further noted that, although K.M.M.`s therapist raised a number of concerns regarding K.M.M.`s well-being, her affidavit deserved little weight because [she] had no input whatsoever from [father], and made no effort to contact him. This appeal follows. ISSUES I. What are the proper standards for this court`s review of the district court`s

denial of mother`s motion?

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II.

Did the district court properly consider mother`s allegations in determining

that mother had not established a prima facie case for the restriction of father`s parenting time and that she was not entitled to an evidentiary hearing? III. Should father be awarded attorney fees on appeal? ANALYSIS I This appeal involves mother`s motion to restrict father`s parenting time. A district court may restrict parenting time if parenting time is likely to endanger or impair the child`s physical or emotional health, and the restriction of parenting time is in the child`s best interests. Minn. Stat.

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