This opinion will be unpublished and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

A14-2006

In re the Marriage of: Tamara Eileen Goemaat, petitioner,

Respondent,

vs.

Andrew Joel Goemaat,

Appellant.

Filed August 24, 2015

Affirmed

Hooten, Judge

Olmsted County District Court

File No. 55-FA-10-8809

Carl F. Anderson, Rochester, Minnesota (for respondent)

David L. Liebow, Restovich Braun & Associates, Rochester, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and 

Hooten, Judge. 

U N P U B L I S H E D O P I N I O N

HOOTEN, Judge

On appeal from the district court’s denial of his custody modification and 

contempt motion, appellant argues that the district court erred by denying his custody

modification motion without an evidentiary hearing and by denying his contempt motion 

because appellant failed to schedule a show-cause hearing. We affirm.
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FACTS

Appellant Andrew Joel Goemaat and respondent Tamara Eileen Goemaat were 

married on September 2, 2000. Appellant and respondent are the parents of three minor 

children. On November 10, 2010, respondent filed a petition for dissolution of the 

parties’ marriage. After extensive litigation, the parties entered a mediated settlement 

agreement establishing custody and parenting time regarding their minor children, which 

was memorialized by the district court as part of a bifurcated judgment and decree on 

February 20, 2013. Among other things, this judgment provided that the parties would 

share joint legal custody, “mean[ing] that both parents have equal rights and 

responsibilities in major decisions determining their children’s upbringing, including 

education, health care and religious indoctrination.” After holding a five-day trial, the 

district court entered another judgment and decree addressing the remaining issues in the 

dissolution proceeding on May 21, 2013.

On March 6, 2014, appellant moved the district court to: (1) modify the February 

2013 judgment and decree “to incorporate clarifying provisions and standard child 

custody and parenting time provisions” and prohibit the parties from having “unrelated 

person[s] of the opposite sex” stay overnight in the same residence as the children; (2) 

schedule an evidentiary hearing on the issue of modifying the parties’ custody 

arrangement; (3) order respondent or both parties to undergo a psychological or 

psychiatric evaluation; and (4) hold respondent in contempt for violating the custody 

provisions in the February 2013 judgment and decree and property distribution in the 

May 2013 judgment and decree. Appellant later clarified to the district court that he was 
3

seeking sole physical and sole legal custody in his motion. In support of his motion, 

appellant attached an affidavit alleging various violations by respondent of the physical 

and legal custody portions of the February 2013 judgment and decree. Among other 

things, appellant claimed that respondent violated the custody order by frivolously 

requesting orders for protection (OFPs) against appellant, making unsubstantiated 

complaints of child abuse, frequently contacting law enforcement to supervise exchanges 

of the minor children, choosing daycare providers for the parties’ youngest son without 

appellant’s consent, both signing another son up for Cub Scouts and then pulling him out 

of the program without appellant’s consent, unilaterally making healthcare decisions for 

the children, and bringing the children to stay overnight at her boyfriend’s house, which 

led appellant to believe that respondent was going to relocate to that residence. He also 

alleged that respondent had failed to return to him certain nonmarital furniture as required 

by the May 2013 judgment and decree.

The district court initially set the matter for a motion hearing on March 20, but 

then cancelled that hearing and instead scheduled an evidentiary hearing for May 6. At 

the May 6 hearing, the parties did not formally present evidence, testimonial or 

otherwise, regarding appellant’s motion. Rather, appellant’s counsel suggested that the 

district court first needed to hold a “first stage hearing” to resolve any pre-hearing issues 

in relation to the motion, including whether appellant had made the threshold showing for 

an evidentiary hearing. The district court agreed and, after informally questioning the 

parties regarding the allegations in appellant’s motion affidavit, directed the parties to 

submit supplemental briefing on the legal standard applicable to appellant’s request for 
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an evidentiary hearing on his custody modification motion. The district court further 

indicated that upon a request by appellant’s counsel, it could schedule oral argument on 

the issue of whether appellant had sufficiently presented a prima facie case for custody 

modification. The district court also directed respondent to file a responsive affidavit to 

appellant’s motion.

Respondent filed her responsive affidavit on May 14, and soon thereafter the 

parties each filed supplemental letter briefs. On October 1, appellant further moved the 

district court for the appointment of a custody evaluator, the establishment of a 

scheduling order for pre-hearing deadlines and the evidentiary hearing, and modification 

of appellant’s child support obligation. Respondent moved for denial of this motion in its 

entirety.

On October 15, the district court held another hearing on these pending motions. 

The parties focused their arguments on appellant’s motion for a custody evaluation and 

did not further address the issue of the prima facie threshold for an evidentiary hearing on 

custody modification or appellant’s contempt motion. At the hearing, the district court 

noted that even though it had invited appellant’s counsel to schedule oral argument on the 

issue of whether appellant had presented sufficient evidence to establish a prima facie 

case for modification, appellant had failed to do so. The district court indicated that an 

order on the issues addressed at the May 6 hearing would be forthcoming.

The district court filed its order on October 21. Noting that the parties had reached 

an agreement on an issue regarding parenting time exchanges and that the youngest of the 

parties’ children had started all-day kindergarten, the district court concluded that the 
5

portion of appellant’s motion seeking modification of physical custody was no longer 

relevant. Regarding appellant’s claim for modification of legal custody, the district court 

concluded that his claims were insufficient to establish a prima facie case that 

modification of legal custody would be in the best interests of the parties’ minor children. 

The district court further denied appellant’s motion to have respondent held in contempt 

because appellant “never scheduled a show cause hearing on his motion” as required by 

civil contempt caselaw. This appeal followed.

D E C I S I O N

I.

Appellant first challenges the district court’s denial, without an evidentiary 

hearing, of his motion to modify legal custody under the prior custody order. Typically, a 

party moving to modify a prior custody order may prevail if he or she shows: (1) that a 

change has occurred in the circumstances of the child or the parties; (2) that a 

modification would serve the best interests of the child; (3) that the child’s present 

environment endangers her physical or emotional health or emotional development; and 

(4) that the harm to the child likely to be caused by the change of environment is 

outweighed by the advantage of the change. Minn. Stat. § 518.18(d)(iv); see In re Weber, 

653 N.W.2d 804, 809 (Minn. App. 2002). However, “[i]n deciding whether to modify a 

prior joint custody order, the court shall apply the standards set forth in paragraph (d) 

unless . . . the parties agree in writing to the application of a different standard.” Minn. 

Stat. § 518.18(e) (2014) (emphasis added). In the February 2013 judgment and decree 

setting forth the parties’ custody arrangement, the district court noted the parties’ 
6

agreement that “future modification of custody . . . shall be based on a best interest[s] 

standard found at [section] 518.17, rather than the endangerment standard[] found at 

518.18(d).” This statutory best-interests standard provides 13 factors used in assessing 

whether an action is in the best interests of the child, with an additional four factors that 

are considered “where either joint legal or joint physical custody is contemplated or 

sought.” Minn. Stat. § 518.17, subds. 1(a), 2(b) (2014).

The parties disputed before the district court whether this application of the section 

518.17 best-interests standard still required appellant to make a prima facie case under 

the standards set forth in section 518.18(d). The district court concluded that the parties’ 

stipulation to use section 518.17 “supplant[ed] all of the standards of [section] 518.18(d)” 

and that appellant therefore needed to make a prima facie showing only that modification 

was in the best interests of the parties’ minor child to obtain an evidentiary hearing. As 

the parties agree on appeal with the district court’s determination that only the bestinterests standard under section 518.17 is applicable in this case, the issue before this 

court is whether appellant made a sufficient prima facie showing under section 518.17 to 

receive an evidentiary hearing on his modification motion.

District courts are required to hold an evidentiary hearing on a motion for 

modification of custody if the party seeking modification makes a prima facie case for 

modification. See Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn. 2008). On 

appeal from a district court’s denial, without an evidentiary hearing, of a motion to 

modify custody, this court makes three determinations. Boland v. Murtha, 800 N.W.2d 

179, 185 (Minn. App. 2011). “First, we review de novo whether the district court 
7

properly treated the allegations in the moving party’s affidavits as true, disregarded the 

contrary allegations in the nonmoving party’s affidavits, and considered only the 

explanatory allegations in the nonmoving party’s affidavits.” Id. Second, we review the 

district court’s determination of whether the moving party has made a prima facie case 

for the modification for an abuse of discretion. Id. Finally, whether the district court 

properly determined the need for an evidentiary hearing is reviewed de novo. Id.

Appellant first argues that the district court erred by “granting” appellant an

“evidentiary” hearing on May 6 and later denying him an evidentiary hearing in its 

October 21 order. Appellant claims that by scheduling and then canceling a motion 

hearing, followed by its scheduling of the May 6 “evidentiary” hearing before respondent 

filed a responsive motion, the district court made an “implicit finding” that appellant’s 

allegations “were sufficient not only to make a prima facie showing for modification of

custody, but . . . were so strong that no response by [r]espondent could possibly negate 

that showing.” In support of his argument, appellant cites Harkema v. Harkema, in 

which this court held that “[w]here the [district] court has issued an order for an 

evidentiary hearing, it cannot then sua sponte deny the evidentiary hearing without first 

giving the parties a chance to argue the case.” 474 N.W.2d 10, 13 (Minn. App. 1991).

We are not persuaded. In Harkema, the district court denied an evidentiary 

hearing after it had already found that the movant had alleged a change in circumstances 

and that a custody change would serve the children’s best interests, and had thus ordered 

an evidentiary hearing before later cancelling it. Id. at 13–14. Here, there was no district 

court ruling that the prima facie case threshold had been met before its scheduling of the 
8

May 6 “evidentiary” hearing—rather, the district court simply issued a notice of an 

“evidentiary” hearing. At that hearing, it was appellant’s counsel that raised the issue of 

having a “threshold hearing” before an evidentiary hearing could be held. The district 

court then ordered the parties to submit briefing on the legal standard that needed to be 

met in order for the district court to hold an evidentiary hearing, and it further invited 

appellant’s counsel to schedule oral argument on the issue of whether appellant had 

presented sufficient evidence to establish a prima facie case for modification. The parties 

submitted the requested briefing, but appellant failed to schedule oral argument. Nothing 

in this record supports appellant’s assertion that the district court’s initial decision to 

schedule what it called an “evidentiary” hearing was, in fact, an “implicit” ruling that an 

evidentiary hearing was warranted when appellant’s counsel himself noted at that very 

hearing that the district court needed to rule on the threshold issue, and the district court 

then did so.

Appellant further argues that the district court erred by determining that his 

allegations failed to make a prima facie case to modify legal custody. The district court 

ruled that appellant had failed to make a prima facie case for several reasons: 

(1) allegations relating to one of the children’s participation in Cub Scouts, and an OFP 

filing which stemmed therefrom, occurred prior to the February 2013 judgment and 

decree and were therefore “moot”; (2) many of his allegations were too vague and 

unsubstantiated to support modification; (3) the allegation relating to daycare was 

deemed to be irrelevant because respondent’s investigation of a potential daycare 

provider was not a violation of the custody order; and (4) that the remaining allegations 
9

failed to show that a modification of the custody order would be in the children’s best 

interests, as required by section 518.17, subdivision 1. We review the district court’s 

determination as to whether a prima facie case exists for an abuse of discretion. Boland, 

800 N.W.2d at 185. A district court abuses its discretion “by making findings 

unsupported by the evidence or by improperly applying the law.” In re M.R.P.-C., 794 

N.W.2d 373, 378 (Minn. App. 2011) (quotation omitted).

Appellant asserts that the district court “badly misconstrued” the evidence and 

“elevate[d] form over substance” by failing to grant an evidentiary hearing given 

appellant’s general claim that the actions of respondent had “consistently endangered” his 

children’s emotional health, their relationship with appellant, and their “overall wellbeing by putting them in the middle of the issues” between appellant and respondent. 

But, appellant does not demonstrate how this conclusory assertion is supported by the 

remaining allegations that he raised in his affidavit. 

First, the district court must deny an evidentiary hearing when the allegations 

raised by the movant are conclusory, vague, or otherwise unsupported. Szarzynski v. 

Szarzynski, 732 N.W.2d 285, 292 (Minn. App. 2007); see also Axford v. Axford, 402 

N.W.2d 143, 145 (Minn. App. 1987) (“Appellant’s affidavit was devoid of allegations 

supported by any specific, credible evidence.”). For example, the district court found that 

the custody order was not violated by respondent’s actions in taking one of the children 

to visit a daycare provider. Appellant claims that this finding is erroneous because his 

affidavit conclusively established that respondent “unilaterally enrolled the parties’ child 

in a new daycare” in violation of the order. However, the district court may refer to the 
10

explanations provided by respondent in her responsive affidavit if they do not conflict 

with appellant’s allegations. Boland, 800 N.W.2d at 185. Appellant alleged that he had 

questioned the daycare provider and that she had told him that his child “was to start with 

her the following day.” In her affidavit and an affidavit from the daycare provider, 

respondent clarified that the child was going there the next day for a trial visit before the 

child formally enrolled at the daycare, and that the daycare provider cancelled that visit 

after being visited by appellant. Based on the context provided by respondent’s affidavit, 

the record supports the district court’s finding that respondent merely investigated the 

daycare provider and did not violate the joint custody order. 

A number of appellant’s other allegations were similarly tenuous and based on 

appellant’s “belie[f]” that respondent was taking certain actions, such as removing the 

oldest child from Cub Scouts, “attempting to shut [appellant] out of” making healthcare 

decisions for the youngest child, and moving in permanently with her new partner. 

Appellant claims that the district court erred by failing to treat these allegations as true, 

because it characterized these allegations as “purely speculative” or supported by “no 

evidence whatsoever.” But, earlier in the order, the district court correctly indicated that 

it accepted appellant’s allegations as true and provided a detailed summary of each of 

appellant’s allegations. Then, in analyzing the sufficiency of the allegations to make a 

prima facie showing, the district court was entitled to refer to responsive affidavits for 

context. Boland, 800 N.W.2d at 185. Even taking appellant’s allegations as true, 

respondent’s affidavit provided additional context that supported the district court’s 

finding that, on this record, these allegations were vague and conclusory. 
11

The district court also did not err by failing to consider appellant’s allegation 

regarding an altercation between the parties at a Cub Scouts meeting in early 2013. The 

district court found that this incident occurred after the parties reached an agreement 

regarding joint custody but before the district court entered its judgment and decree

regarding custody. Appellant argues that consideration of these facts would be allowed if 

the parties were proceeding under section 518.18(d) and that these facts should have been 

considered under the parties’ stipulated best-interests standard. But, appellant is 

incorrect: under Minn. Stat. § 518.18(d), the moving party must show a change in 

circumstances that “occurred since the original custody order; it cannot be a continuation 

of conditions existing prior to the order.” Geibe, 571 N.W.2d at 778 (emphasis added). 

Moreover, as found by the district court, appellant “had ample opportunity to raise these 

issues prior to the entry of” the February 2013 judgment and decree. To the extent 

appellant sought modification based on conduct that occurred before the order he now 

wishes to modify, the record supports the district court’s determination that it could not 

consider these allegations.

The district court determined that appellant “fail[ed] to establish on a preliminary 

basis—or even argue—that modifying the joint legal custody order on the basis of these 

allegations to grant [appellant] sole legal custody would be in the children’s best 

interests.” This determination is supported by the record. Even assuming that respondent 

did violate the parties’ joint legal custody arrangement by making some unilateral 

decisions regarding the children’s healthcare and childcare, appellant does not 

specifically allege how it would accordingly be in the children’s best interests to end the 
12

parties’ joint custody arrangement and award him sole legal custody. On this record, we 

cannot say that the district court abused its discretion in denying appellant’s request for 

an evidentiary hearing on his custody modification motion.1

II.

Appellant further argues that the district court abused its discretion by refusing to 

hold respondent in civil contempt of court for allegedly violating both the custody order 

and a provision in the final judgment and decree that awarded appellant certain items of 

nonmarital household furniture. The district court denied the portion of the contempt 

motion pertaining to nonmarital property because appellant failed to specify the property 

in his affidavit and because the trial exhibit upon which he based his claim, consisting of 

his handwritten notes, had been destroyed. The district court denied the remainder of

 

1 Appellant also asserts that the district court erred by failing to address his allegations 

concerning respondent’s alleged conduct in contacting law enforcement, filing OFP

petitions, and submitting child protection complaints about appellant. The district court 

expressly noted in its order that, because the parties had resolved the physical custody 

portion of appellant’s motion, it would only be addressing appellant’s allegations 

concerning respondent’s violations of the joint legal custody order, which appellant 

placed in his motion affidavit under the heading “Joint Legal Custody.” At best, the 

affidavit was unclear whether the other allegations therein applied only to the physical 

custody portion of his motion or also applied to appellant’s legal custody argument. 

Parties have an affirmative obligation to clearly explain to a court the relief they seek and 

upon what basis they seek that relief. Cf. Antonson v. Ekvall, 289 Minn. 536, 538–39, 

186 N.W.2d 187, 189 (1971) (holding that a claim was not before the district court when 

“the pleadings were general enough to have possibly made out a claim on that theory, 

[but] there was no language in the complaint that would alert anyone to a claim” based on 

that theory). And, given that many of these allegations predate the February 2013 

judgment and decree and mainly concern respondent’s supposed pattern of making 

unsubstantiated complaints of domestic abuse by appellant, which does not appear to 

impact the best interests of the children, it is clear that remand of this issue to the district 

court would not lead to a different result. Cf. Grein v. Grein, 364 N.W.2d 383, 387 

(Minn. 1985) (refusing to remand when the record made clear that the district court 

would comport with the statutory language in further proceedings).
13

appellant’s contempt motion because appellant “never scheduled a show cause hearing on 

his motion,” as required by Mower Cnty. Human Servs. v. Swancutt, 551 N.W.2d 219, 

223 (Minn. 1996). We review a district court’s use of contempt powers for an abuse of 

discretion, In re Welfare of J.B., 782 N.W.2d 535, 538 (Minn. 2010), and give de novo 

review to its interpretation of statutes and procedural rules, In re Conservatorship of 

Smith, 655 N.W.2d 814, 817 (Minn. App. 2003).

Several requirements must be met in order for the district court to hold a party in 

civil contempt, including “a hearing, after due notice, to give the nonperforming party an 

opportunity to show compliance or the reasons for failure.” Mower Cnty., 551 N.W.2d at 

223. Appellant acknowledges that the district court correctly cited these requirements, 

but contends that the district court wrongly required him to schedule a “show cause 

hearing” as opposed to an ordinary motion hearing.

Appellant is correct that an order to show cause is not specifically required under 

the contempt statute or the relevant general rules of practice. See Minn. R. Gen. Pract. 

309.01(a) (“Contempt proceedings shall be initiated by notice of motion and motion or by 

an order to show cause . . . .”); see also Minn. Stat. § 588.04(a) (2014) (providing that a 

contempt proceeding may be initiated “upon notice, or upon an order to show cause”). 

But, the law does require that a hearing be held at which “[t]he alleged contemnor . . . 

appear[s] in person before the court to be afforded the opportunity to respond to the 

motion for contempt by sworn testimony.” Minn. R. Gen. Pract. 309.02; see Minn. Stat. 

§ 588.09 (2014) (providing that, at a contempt hearing, the district court “shall investigate 

the charge by examining the person and the witnesses for and against the person”). 
14

We construe the district court’s reference to the lack of a “show cause hearing” to 

be a determination that no contempt hearing had taken place. The record supports this 

determination. Although appellant’s March 6 notice of motion and motion clearly 

indicated that appellant requested that the district court schedule a hearing on his motion 

for March 20, the district court cancelled that hearing and scheduled the May 6 

“evidentiary” hearing in its place. From this point forward, appellant’s counsel never 

again raised the issue of a contempt hearing with the district court after appearing at the 

May 6 hearing and requesting that the district court first consider the threshold issue 

regarding his custody modification motion. While the issue of whether an evidentiary 

hearing should be held was discussed at length by counsel and the district court regarding 

custody modification, the record supports the district court’s finding that appellant “did 

not raise the contempt portion of his motion . . . at the hearing.” He further failed to 

request a contempt hearing at any point after this hearing or during another motion 

hearing that was held before the district court on October 15.

On appeal, appellant does not claim that he attempted to schedule another 

contempt hearing or that either of the hearings held by the district court after his motion 

were sufficient to satisfy the hearing requirement of a contempt motion; rather, he asserts 

that, given this sequence of events, “it is nearly unfathomable to hold [him] responsible 

for having failed to schedule enough hearings.” But, appellant cites no authority 

providing that it is the responsibility of the district court to ensure that a proper hearing, 

with notice to the accused contemnor, is held after a party moves for contempt. 

Accordingly, we deem this argument waived. See In re Estate of Rutt, 824 N.W.2d 641, 
15

648 (Minn. App. 2012) (“An assignment of error based on mere assertion and not 

supported by any argument or authorities in appellant’s brief is waived and will not be 

considered on appeal unless prejudicial error is obvious on mere inspection.” (quotation 

omitted)), review denied (Minn. Jan. 29, 2013). It was not an abuse of discretion for the 

district court to decline to hold respondent in contempt when the contempt hearing 

required by statute, rule, and caselaw had not been held.

Moreover, appellant’s motion for contempt regarding the alleged non-return of his 

nonmarital property was inadequately supported in his motion and affidavit. The rules 

require that a contempt motion and affidavit specify “the alleged failures to comply,” 

Minn. R. Gen. Pract. 309.01(b), and appellant’s affidavit fails to specify what nonmarital 

furniture was allegedly not returned to him. As noted by the district court, the trial 

exhibit evidencing this property was destroyed on September 19, 2013. Therefore, we

conclude that the district court did not abuse its discretion by denying appellant’s 

contempt motion.

Affirmed.