Hennepin County District Court File No. 27-FA-08-5698
John T. Burns, Jr., Burns Law Office, Burnsville, Minnesota (for appellant).
Michael C. Black, Michael C. Black Law Office, Ltd., St. Paul, Minnesota (for respondent).
Considered and decided by Cleary, Presiding Judge; Connolly, Judge; and Larkin, Judge.
In a child-custody dispute, a district court is not required to hold an evidentiary hearing before ruling on the merits of a removal motion under Minnesota Statutes section 518.175, subdivision 3 (2012).
In this child-custody appeal, appellant Anh Phuong Le challenges the district court's denial of her motion requesting leave to move her children from Minnesota to California. On appeal, appellant argues that the district court (1) was required to hold an evidentiary hearing prior to ruling on the merits of her removal motion and (2) erred in ruling that she failed to show that removal is in the best interests of her children. We affirm.
Appellant and respondent Cary Dale Holter were married on April 20, 2001. On July 22, 2009, their marriage was dissolved by stipulated decree. The parties were granted joint legal custody, and appellant was granted sole physical custody of their two minor children. The decree stipulates that respondent has parenting time on alternating weekends and every Wednesday from 5:00 p.m. until 7:30 a.m. Thursday morning. The decree provides that "[n]either party shall move the residence of the minor children of the parties from Minnesota except upon order of the court or with the consent of the other party."
On July 16, 2012, appellant filed a motion to relocate the children to the San Diego area of California, or in the alternative, to order Hennepin County Family Court Services to perform an evaluation as to the children's best interests regarding the proposed move. Appellant's motion also asked for a revision in the parenting schedule based on removal of the children. The motion was accompanied by an affidavit explaining appellant's reasons for removal. On July 27, 2012, respondent filed a responsive motion requesting that appellant's motion be denied. Respondent's motion was also accompanied by an affidavit addressing appellant's motion and assertions in her affidavit. On July 30, 2012, both parties attended a hearing on the motion in district court. Each party was represented by counsel and presented arguments for and against the motion. However, neither party was called as a witness.
In her affidavit supporting her removal motion, appellant asserted that she has struggled to find work and that she was receiving unemployment compensation for an undisclosed period of time. Although she acknowledged that she was retained for contract work, that work purportedly ended in September 2012. Additionally, appellant claimed that her unemployment income was to run out after her contract work ended, leaving her unable to provide for her children and forcing her to apply for welfare benefits. Her affidavit stated that she applied for and was rejected from employment in Minnesota and that her chances of securing employment in California were greater than in Minnesota. Although she did not identify specific job prospects in California, appellant indicated in her affidavit that she had leads on a few jobs and a stronger opportunity to gain employment through family and friends in California. Appellant also maintained that living near her family in California would benefit the children by exposing them to her Vietnamese cultural traditions.
The district court denied appellant's motion to relocate the children. In determining that appellant had not met her burden of proof that moving the children to California is in their best interests, the court made findings as to each of the eight factors delineated in the removal statute, Minn. Stat. § 518.175, subd. 3(b) (2012). Chief among the court's findings is that appellant's primary motive for seeking relocation was a strong desire to be close to her family members. The district court ultimately determined that a move to California would have a significant negative effect on the children's relationship with respondent and held that appellant had failed to sustain her burden of proof for removal. Appellant filed a notice of appeal with this court.
I. Was the district court required to hold an evidentiary hearing before ruling on the merits of ...