Darick Joseph Waguespack v. Jocelyn Alicia Merz ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0902
Darick Joseph Waguespack, petitioner,
Appellant,
vs.
Jocelyn Alicia Merz,
Respondent.
Filed January 19, 2016
Affirmed
Bjorkman, Judge
Hennepin County District Court
File No. 27-FA-08-1797
Craig E. Shriver, Law Office of Craig E. Shriver, White Bear Lake, Minnesota (for
appellant)
John C. Gunderson, Meier, Kennedy & Quinn, Chartered, St. Paul, Minnesota (for
respondent)
Considered and decided by Bjorkman, Presiding Judge; Smith, Judge; and
Klaphake, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the denial of his motions to modify child custody and to
compel discovery, arguing that he established a prima facie case for modification and that
discovery is necessary to determine whether his child is endangered. We affirm.
FACTS
Appellant Darick Joseph Waguespack and respondent Jocelyn Alicia Merz are the
parents of S.A.M., who was born on February 9, 2007. The parties have joint legal custody
and Merz has sole physical custody of S.A.M. pursuant to a June 8, 2012 stipulated
judgment. The judgment awards Waguespack parenting time during the spring, summer,
and holidays. Merz and S.A.M. live with Merz’s mother and step-father, Alicia and James
Calhoun, in St. Bonifacius. Waguespack resides in Texas with his wife and son.
In October 2014, Merz successfully completed a 21-day inpatient drug treatment
program, after which she spent approximately one month in a sober house. S.A.M.
continued to reside with the Calhouns during her absence. Upon learning of Merz’s
treatment, Waguespack moved the district court on March 5, 2015 to modify custody,
arguing that he had presented a prima facie case based on changed circumstances that
endangered S.A.M. Waguespack’s supporting affidavit stated:
I believe [Merz] has abused substances and relapsed multiple
times since the prior [o]rder. [Merz] is currently in a full
residential, secure treatment facility for drugs and/or alcohol
abuse. Her step-father, Mr. Calhoun, disclosed this
information to me . . . . [Merz] keeps relapsing and cannot
remain sober. . . .
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....
I am very concerned that one of these days, [Merz]’s
custodial environment is going to harm [S.A.M]. A sole
custodian of a child that can’t remain sober will expose the
child to a whole host of potential unsafe environments, such as
driving while impaired, exposing the child to drugs and
alcohol, leaving the child in an unsafe place, or simply making
a series of impaired judgments concerning the child’s general
safety and welfare. . . .
....
. . . [Merz]’s inability and failure to maintain sobriety is
detrimental to [S.A.M.’s] safety and welfare. . . .
....
. . . It is paramount to [S.A.M.’s] best interests that I be
awarded custody. It is contrary to the best interests of the child
and to the child’s safety and welfare to continue custody with
a parent that cannot remain sober and has relapse after
relapse. . . .
....
. . . [S.A.M.] is still fairly young and can adjust to her
new home where she will be safe and well cared for . . . . [T]he
benefit of removing [S.A.M.] from a parent that has a very
serious drug problem outweighs the harm that this emotional
discomfort will bring. . . .
Merz opposed the motion, submitting her own affidavit and affidavits of the
Calhouns. Those affidavits acknowledged Merz’s treatment program and return to the
Calhoun home. The Calhouns stated that S.A.M. remained in their home at all times and
that Merz’s relapse and treatment had little effect on S.A.M.’s day-to-day life.
On March 13, Waguespack moved the district court to compel discovery identifying
the treatment facility and its treatment summaries or recommendations. The district court
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denied both motions. In doing so, the court expressly credited Waguespack’s factual
allegations as true, but found that he failed to establish a prima facie case because he did
not specifically assert that the recent circumstances endangered S.A.M. Instead,
Waguespack only speculated about potential harm that could occur if Merz continued to
abuse controlled substances. The district court noted that it was aware of Merz’s substance-
abuse history when it awarded her sole physical custody of S.A.M. Waguespack appeals.
DECISION
I. Waguespack did not establish a prima facie case to modify custody.
A party seeking to modify a child-custody order must establish a prima facie case
by showing: (1) a change of circumstances; (2) modification is necessary to serve the
child’s best interests; (3) the child’s present environment endangers the child’s physical
health, emotional health, or emotional development; and (4) the benefits of the
modification outweigh the detriments with respect to the child. Goldman v. Greenwood,
748 N.W.2d 279, 284 (Minn. 2008). The moving party must submit an affidavit setting
forth facts supporting the requested modification, Minn. Stat. § 518.185 (2014), which the
district court must accept as true. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).
A moving party’s allegations are insufficient if they are conclusory or unsubstantiated. See
Szarzynski v. Szarzynski, 732 N.W.2d 285, 292 (Minn. App. 2007); Axford v. Axford, 402
N.W.2d 143, 144-45 (Minn. App. 1987) (holding that “an affidavit based almost entirely
on unsubstantiated allegations” is not sufficient to modify custody). Other parties may file
opposing affidavits, which the district court may consider if they provide context and are
not contrary to the moving party’s allegations. Minn. Stat. § 518.185; Szarzynski, 732
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N.W.2d at 292. Whether a district court properly credited a moving party’s affidavit is a
question of law that we review de novo. Boland v. Murtha, 800 N.W.2d 179, 185 (Minn.
App. 2011). But we review the district court’s determination of whether a prima facie case
for modification has been made for an abuse of discretion. Id.Waguespack first argues that the district court erred by failing to credit his
allegations as the law requires. We disagree. In his affidavit, Waguespack alleges that
Merz relapsed and entered a residential drug treatment facility,1 leading him to believe she
had relapsed multiple times since the 2012 custody order. Waguespack further alleges that
Merz’s ongoing drug use is a changed circumstance that creates the potential for harm to
S.A.M., and that it would be in S.A.M.’s best interests to be in his custody. Review of the
district court’s order demonstrates that the court expressly credited these allegations. But
the district court found the allegations insufficient to establish a prima facie case for
custody modification. A district court’s obligation to credit a moving party’s allegation
does not require the court to grant an evidentiary hearing where the allegations are
conclusory or lack specific evidentiary support. See In re Weber, 653 N.W.2d 804, 811
(Minn. App. 2002) (affirming district court’s rejection of moving party’s allegations when
those allegations were not supported by first-hand knowledge); Niemi v. Schachtschneider,
435 N.W.2d 117, 119 (Minn. App. 1989) (holding district court did not clearly err by
denying custody modification in absence of evidence of endangerment).
1
The district court did not expressly credit Waguespack’s allegation that Merz was
currently in a residential treatment facility. But Waguespack does not challenge this
omission. Waguespack’s affidavit was completed on December 5, 2014, and Merz was
physically present at the March 19, 2015 motion hearing.
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Waguespack next argues that the district court abused its discretion because he
established all four elements of his prima facie case. We address each element in turn.
First, Waguespack must show that there has been a significant change of circumstances
since the time of the last custody order. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690
(Minn. App. 1989), review denied (Minn. June 21, 1989). Waguespack contends that
Merz’s October 2014 inpatient treatment constitutes such a change, but the district court
was well aware of both parties’ substance-abuse issues when it issued the 2012 custody
order. The guardian ad litem also considered those issues when making her 2012
recommendations. While Waguespack alleges that Merz “keeps relapsing and cannot
remain sober,” his only specific assertion is that Merz entered treatment for 21 days in
October 2014. Merz’s brief relapse and stay in an inpatient treatment facility, all while
S.A.M. had a seemingly unaffected home life, do not constitute a significant change in
circumstances.
Second, Waguespack must show that custody modification is in S.A.M.’s best
interests. When determining a child’s best interests, courts consider any physical, mental,
or chemical health issue a parent may experience that affects the child’s safety or
developmental needs. Minn. Stat. § 518.17, subd. 1(a) (2014). Waguespack does not
allege that Merz’s relapse and treatment had any effect on S.A.M. He only speculates that
harm may occur, and argues that it is against S.A.M.’s best interests to be in the custody of
a parent who experiences “relapse after relapse.” We are not persuaded. Alicia Calhoun’s
affidavit shows that S.A.M. was healthy and safe in their home and maintained her
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education and extra-curricular activities during her mother’s October 2014 drug use and
treatment. And there is no record evidence that Merz had any other relapses since 2007.
Third, Waguespack must show that S.A.M.’s present environment endangers her
physical health, emotional health, or emotional development. Although the concept of
endangerment is imprecise, this element requires the moving party to demonstrate a
significant degree of danger. Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991)
(stating that “the legislature likely intended to demand a showing of a significant degree of
danger”); see, e.g., Harkema v. Harkema, 474 N.W.2d 10, 13-14 (Minn. App. 1991)
(holding that allegations of emotional abuse by stepfather who was “yelling, throwing
things, hitting walls, and driving the car like a maniac” were sufficient to show
endangerment). As noted above, Waguespack’s affidavit speaks only of potential danger
to S.A.M. occasioned by Merz’s drug use. The affidavit is devoid of specific allegations
of danger. In contrast, the Calhouns’ affidavits provide specific information regarding
S.A.M.’s current safety and welfare, and assure the court that S.A.M. is not in danger.
Finally, Waguespack must show that the benefits of custody modification outweigh
the detriments to S.A.M. Waguespack attempts to make this showing by alleging that
S.A.M. will benefit from moving to a home where she is safe and well cared for. But he
significantly discounts the negative impact on S.A.M. that would result from removing her
from the only home she has known. Waguespack contends that S.A.M. will be able to
adjust to a new home because she is still “fairly young” and will continue to have contact
with Merz. While he acknowledges the strong bond between Merz and S.A.M., he gives
it little weight. The responsive affidavits provide evidence of the significant strength of
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the maternal relationship, and provide information about S.A.M.’s connection to her
school, neighborhood, church, clubs, and teams.
On this record, we discern no abuse of discretion by the district court in determining
that Waguespack failed to establish a prima facie case to modify custody.
II. The district court did not abuse its discretion by denying Waguespack’s motion
to compel discovery.
We review a district court’s denial of a motion to compel discovery for an abuse of
discretion. Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987). When a party
seeking to modify custody has not established a prima facie case, he is not entitled to an
evidentiary hearing and discovery is inappropriate. Goldman, 748 N.W.2d at 284; see
Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981) (stating that a moving
party’s burden is to allege facts—rather than gather evidence—sufficient to justify
modification). Because Waguespack did not meet his prima facie burden, he is not entitled
to an evidentiary hearing for which discovery might otherwise lie.
Waguespack argues that the district court should nonetheless have permitted
discovery because the court had a special duty to investigate the allegations of potential
harm to S.A.M. This argument is unavailing. We have recognized such a duty in only rare
circumstances involving unrebutted allegations of abuse. In Baum v. Baum, we concluded
that “under special circumstances, the [district] court has an obligation to investigate
accusations that a child has been abused by the custodial parent.” 465 N.W.2d 598, 600
(Minn. App. 1991), review denied (Minn. Apr. 18, 1991); see, e.g., Lucas v. Lucas, 389
N.W.2d 744, 747 (Minn. App. 1986) (concluding district court was required to investigate
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unrebutted evidence that removal of children from state would be harmful to them); Murray
v. Antell, 361 N.W.2d 466, 470 (Minn. App. 1985) (concluding district court was required
to investigate unrebutted evidence of physical abuse). These special circumstances are not
present in this case. Waguespack has only speculated about harm that could occur if Merz
relapses when S.A.M. is in her custody. It is undisputed that S.A.M. lives with Merz in the
Calhoun home. And Waguespack has not alleged any specific harm or endangerment. We
conclude that Waguespack’s conclusory and unsupported allegations do not impose a
special duty on the district court to investigate. Accordingly, the district court did not abuse
its discretion in denying Waguespack’s motion to compel discovery.
Affirmed.
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