This opinion will be unpublished and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

A15-0460

In re the Marriage of:

David Allen Anderson, petitioner,

Respondent,

vs.

Lisa Marie Anderson n/k/a Lisa Marie Syverson,

Appellant.

Filed January 19, 2016

Affirmed in part, reversed in part, and remanded

Kirk, Judge

Clearwater County District Court

File No. 15-FA-11-289

Ronald S. Cayko, Fuller, Wallner, Cayko, Pederson & Huseby, Ltd., Bemidji, Minnesota 

(for respondent)

Thomas T. Smith, Smith Law Firm P.A., Bemidji, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Kirk, Judge. 

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

KIRK, Judge

In this marital-dissolution proceeding, appellant-mother argues that the district court 

abused its discretion by awarding the parties joint physical custody of their minor children, 

denying her motion to modify custody, and denying her attorney fees. We affirm in part, 

reverse in part, and remand.
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FACTS

In May 2011, respondent-father David Allen Anderson petitioned for dissolution of 

his 16-year marriage from appellant-mother Lisa Marie Syverson. At the time of the 

marital dissolution, the parties had four minor children. The district court granted the 

parties temporary joint legal and joint physical custody, and appointed a guardian ad litem 

(GAL) to represent the best interests of the children. After a two-day court trial in June 

2012, the district court entered a judgment and decree granting the parties joint legal and 

joint physical custody of the children. 

In January 2013, mother appealed the district court’s judgment and decree, arguing 

that it had erred in determining custody and court costs. In an unpublished decision, we 

reversed and remanded to the district court to provide a more detailed analysis explaining 

why it awarded the parties joint physical custody, but affirmed on the other issues. 

Anderson v. Syverson, No. A13-0097, 2013 WL 6839682, at *4 (Minn. App. Dec. 30, 

2013). 

In July, mother moved the district court to find father in constructive civil contempt 

on numerous grounds, including failing to comply with the six-hour right of first refusal, 

which required a parent to offer the other parent the opportunity to care for the children if 

he or she was unable to do so for more than six hours. Relevant to this appeal, mother 

alleged in her reply affidavit that father circumvented the six-hour right of first refusal by 

making the children travel to his work site three times per day, traveling a total of 

approximately 240 miles. After a hearing, the district court found father in constructive 

civil contempt for violating several provisions of the judgment and decree, including the 
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six-hour right of first refusal, and awarded mother compensatory parenting time. It ordered 

father to comply with the decree.

In June 2014, while the case was on remand for a determination of physical custody, 

mother moved to modify custody and requested an evidentiary hearing, alleging that the 

joint physical custody arrangement endangered the children’s emotional and physical 

health. Father filed a cross-motion opposing mother’s motion in its entirety, and in the 

alternative, moved the district court to eliminate the six-hour right of first refusal. 

At the July 17 motion hearing, the parties appeared with counsel. The parties 

stipulated that mother would have sole physical custody of F.A., their oldest child, but that 

they would share joint legal custody of him. 

On January 14, 2015, the district court filed an order and memorandum addressing 

the remaining remanded issue of physical custody of the three other children, as well as the 

parties’ cross-motions. In a detailed and thorough 32-page memorandum, the district court 

addressed all of the best-interests factors under Minn. Stat. § 518.17, subd. 1(a) (2014),

and the joint-custody factors enumerated in Minn. Stat. § 518.17, subd. 2(b) (2014). The 

district court granted the parties joint physical custody after weighing each factor and 

providing thorough reasoning in support of its findings and conclusions. The district court 

also denied mother’s custody-modification motion. 

Mother appeals.
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D E C I S I O N

I. The district court’s findings and conclusions on the best-interests and jointcustody factors are supported by the record.

“Appellate review of custody determinations is limited to whether the [district] 

court abused its discretion by making findings unsupported by the evidence or by 

improperly applying the law.” Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A 

district court’s findings of fact will be sustained unless they are clearly erroneous. Id. at 

710; see Minn. R. Civ. P. 52.01 (stating that findings of fact are not set aside unless clearly 

erroneous). The law “leaves scant if any room for an appellate court to question the 

[district] court’s balancing of best-interests considerations.” Vangsness v. Vangsness, 607 

N.W.2d 468, 477 (Minn. App. 2000). We need not “discuss and review in detail the 

evidence for the purpose of demonstrating that it supports the [district] court’s findings.” 

Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951). As an appellate court, 

our role is satisfied when we consider all of the evidence and conclude that the record 

“reasonably supports the findings.” Id. We also defer to district court credibility 

determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

A. Best-interests factors

A district court’s custody decision must be based on the child’s best interests. Minn. 

Stat. § 518.17, subd. 1(a). A district court must consider “all relevant factors,” including 

13 statutory factors relevant to a child’s best interests:
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(1) the wishes of the child’s parent or parents as to 

custody;

(2) the reasonable preference of the child, if the court 

deems the child to be of sufficient age to express preference;

(3) the child’s primary caretaker;

(4) the intimacy of the relationship between each parent 

and the child;

(5) the interaction and interrelationship of the child with 

a parent or parents, siblings, and any other person who may 

significantly affect the child’s best interests;

(6) the child’s adjustment to home, school, and 

community;

(7) the length of time the child has lived in a stable, 

satisfactory environment and the desirability of maintaining 

continuity;

(8) the permanence, as a family unit, of the existing or 

proposed custodial home;

(9) the mental and physical health of all individuals 

involved . . . ;

(10) the capacity and disposition of the parties to give 

the child love, affection, and guidance, and to continue 

educating and raising the child in the child’s culture and 

religion or creed, if any;

(11) the child’s cultural background;

(12) the effect on the child of the actions of an abuser, 

if related to domestic abuse, as defined in section 518B.01, that 

has occurred between the parents or between a parent and 

another individual, whether or not the individual alleged to 

have committed domestic abuse is or ever was a family or 

household member of the parent; and
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(13) except in cases in which a finding of domestic 

abuse as defined in [Minn. Stat. §] 518B.01 has been made, the 

disposition of each parent to encourage and permit frequent 

and continuing contact by the other parent with the child.

Id., subd. 1(a).

On appeal, mother challenges the district court’s findings on almost all of the bestinterests factors as they relate to its joint physical custody determination. After thoroughly 

reviewing both the district court’s findings and the record, we conclude that mother has not 

shown that the challenged findings are erroneous. We specifically examine some of her

arguments contesting the district court’s findings. 

Addressing the first factor, the record supports the district court’s determination that 

both parents want to spend time with the children. The GAL recommended that the parties 

share joint physical custody, and she testified that she believed that the children would lose 

their relationship with father if mother were granted sole physical custody. 

We reject mother’s challenge to the second factor. The GAL’s testimony supports 

the district court’s finding that the children, including L.A., lack the capacity to accurately 

weigh the temporary discomfort of adjusting to father’s home against the benefit of 

maintaining a close relationship with him. 

The district court did not clearly err in finding that the third factor weighed in favor 

of joint physical custody because, while mother was the primary caretaker as a stay-athome parent and father was the sole breadwinner, he remained a “constant presence and 

caretaker” for each of the children since birth. 
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In regard to the fourth and fifth factors, the record supports the district court’s 

findings that joint physical custody allows the children to maintain an emotional bond with 

both parents. Mother’s parents and father’s aunt and uncle testified to their close 

connection to the children, and the GAL testified that father’s bond to the children would 

be damaged if mother had sole physical custody. Mother provided no evidence to 

substantiate her claim that the joint physical custody arrangement has damaged her 

extended family’s connection to the children. 

Addressing the sixth, seventh, and eighth factors, mother argues that father’s 

personal circumstances have dramatically changed since the 2012 court trial, as he has 

purchased a home in Zerkel, remarried, and now has a stepson. Mother contends that these 

factors weigh in favor of sole physical custody because her home provides a more stable 

environment for the children. 

The district court concluded that these factors weighed in favor of joint physical 

custody because father’s residency in Zerkel did not constitute a significant upheaval in the 

children’s lives. The community setting in Zerkel is similar to Shevlin, where mother 

resides, and is close in proximity to mother’s residence. The children continued to attend 

public school in Bagley after father relocated to Zerkel. The district court found that any 

discomfort or boredom that the children experienced at father’s residence was negligible 

compared to the “immense importance of maintaining a close and frequent bond with” him. 

The record supports the district court’s findings, and we find no error.

Mother argues that the district court erred in concluding that the ninth factor 

weighed in favor of joint physical custody because neither party has any mental or 
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physical-health issues. Mother cites no law in support of her argument. An assignment of 

error in a brief based on “mere assertion” and not supported by argument or authority is 

waived “unless prejudicial error is obvious on mere inspection.” State v. Modern 

Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted). Therefore, 

we decline to address the matter. 

Likewise, mother contends that the district court erred in concluding that the tenth

factor weighed in favor of joint physical custody because both parties are able to provide 

love, affection, and guidance to the children, arguing that this factor does not favor one 

form of custody over another. Again, because mother cites no caselaw to support her 

argument, we decline to address the matter. Id. 

Regarding the twelfth factor, mother alleges that the district court erred in 

concluding that this factor supported joint physical custody because the court made no 

finding of domestic abuse, and there was possible abuse between father and L.A. 

The record amply supports the district court’s determination. While the district 

court did not find any domestic abuse, it noted that each party had alleged that the other

committed domestic abuse against him/her. In 2011, mother obtained an order for 

protection against father, but it was dismissed after a full evidentiary hearing. The district 

court noted that the GAL raised no concerns that any of the children were victims of 

domestic abuse as contemplated under Minn. Stat. § 518B.01. However, it was concerned 

that mother had acted inappropriately by involving F.A. in a domestic dispute between her 

and father. At trial, mother testified that, during an argument with father, he locked himself 

in the bedroom. Mother told F.A. to get a hammer in order to break down the door and 
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gain entry into the room in which father had locked himself. After F.A. could not find one, 

she used a hammer to try to break down the door. 

Addressing the thirteenth factor, mother contends that the district court erred in 

concluding that she should take an active role in promoting the children’s bond with father, 

and that father has inhibited her contact with the children. While the district court found

that this factor weighed in favor of joint physical custody, it expressed its concern regarding

mother’s “willingness to encourage the children to have frequent contact and foster a 

relationship with [father].” The GAL’s testimony supports the district court’s concern. 

In summary, the district court’s best-interests findings are not clearly erroneous. 

B. Joint-custody factors

Under Minn. Stat. § 518.17, subd. 2(b), the district court must analyze the jointcustody factors if either party or the court contemplates or seeks joint legal or joint physical 

custody. These factors are: (1) the parents’ ability to cooperate in rearing their child; 

(2) methods for resolving parenting disputes and the parties’ willingness to use them; 

(3) whether it would be detrimental to the child to give one parent sole authority; and 

(4) whether domestic abuse, as defined under Minn. Stat. § 518B.01, has occurred between 

the parents. Minn. Stat. § 518.517, subd. 2(b). 

The record supports the district court’s joint-custody findings. It found that, since 

they separated, the parties have been able to cooperate and resolve disputes, such as 

transitioning the children to public school. It also found, based on the GAL’s reports and 

testimony, that granting mother sole physical custody would substantially damage the 

children’s relationship with father. Finally, the district court found that no domestic abuse, 
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as defined in Minn. § 518B.01, has occurred. After weighing these factors, the district 

court did not err in concluding that joint physical custody was in the best interests of the 

children.

II. The district court did not err in denying mother an evidentiary hearing on 

her motion to modify custody. 

Under Minn. Stat. § 518.18(d)(iv) (2014), a party seeking to modify custody must 

establish: (1) a change in circumstances; (2) that modification would be in the best interests 

of the child; (3) that the child’s present environment endangers his physical or emotional 

health or emotional development; and (4) that the harm that might result from a change of 

environment is outweighed by the benefits of the proposed change. In re Weber, 653 

N.W.2d 804, 809 (Minn. App. 2002). 

In order to obtain an evidentiary hearing on a motion to modify custody, the moving 

party must make allegations that, if true, would allow the district court to grant the motion. 

Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). The party seeking 

modification of the custody order must submit affidavits that establish a prima facie case 

for modification. Szarzynski v. Szarzynski, 732 N.W.2d 285, 292 (Minn. App. 2007). 

When reviewing an order denying a motion to modify custody without an evidentiary 

hearing, this court: (1) reviews de novo whether the district court accepted the moving 

party’s allegations as true; (2) reviews for an abuse of discretion the district court’s 

determination as to whether a prima facie case exists for the modification; and (3) reviews 

de novo “whether the district court properly determined the need for an evidentiary 

hearing.” Boland v. Murtha, 800 N.W.2d 179, 185 (Minn. App. 2011). 
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In mother’s affidavit, she alleged that, other than the status of her professional 

training, her life is “pretty much the same” as it had been at trial in June 2012. Mother 

stated that the children are performing well academically at public school in Bagley. Her 

allegations of emotional endangerment were as follows: (1) the children’s continued 

objection to visiting father; (2) father violating the six-hour right of first refusal; (3) father’s 

withholding of medical information of a child’s medical condition; and (4) his interference 

with and denial of the children’s phone contact with mother. Mother also alleged, 

generally, that the children are in physical danger because of father’s drinking and anger 

issues.

We conclude that the district court properly denied mother’s motion to modify 

custody without an evidentiary hearing. See Boland, 800 N.W.2d at 185-86. Under these 

circumstances, the district court need not make particularized findings. See Abbott v. 

Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992) (holding that specific findings are 

unnecessary under Minn. Stat. § 518.18 when denying a custody-modification motion 

without an evidentiary hearing for failure to make a prima facie case). 

Mother admitted that there were no dramatic changes to the children’s lives since 

the judgment and decree. The GAL’s reports and testimony also provide relevant 

information concerning mother’s allegations. The GAL stated that the children’s 

relationship with father was improving since the divorce, and that the GAL discerned no 

evidence that father had a drinking problem. 

Moreover, the district court previously addressed the majority of mother’s 

allegations when it found father in contempt of the 2012 judgment and decree. While we 
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are concerned, as was the district court, that father exercised terrible judgment in requiring 

the children to travel up to 240 miles a day in order to circumvent the six-hour right of first 

refusal, the record supports the district court’s conclusion that father is now complying 

with the decree’s provisions. The district court did not abuse its discretion in concluding 

that mother failed to establish a prima facie case for the modification of custody. 

III. The district court erred in denying mother conduct-based fees for the 2013 

contempt motion without explanation.

Conduct-based attorney fees “are discretionary with the district court.” Szarzynski, 

732 N.W.2d at 295. The district court may award conduct-based attorney fees “against a 

party who unreasonably contributes to the length or expense of [a dissolution] proceeding.” 

Minn. Stat. § 518.14, subd. 1 (2014). 

Mother argues that the district court erred in denying her motion for conduct-based 

attorney fees incurred in bringing her 2013 contempt motion. The record shows that the 

district court found father in contempt for multiple violations of the dissolution decree. 

Mother’s counsel also submitted a timely affidavit concerning the fees associated with 

bringing the contempt motion. See Minn. R. Gen. Pract. 119.02. But in its January 2015 

order, the district court denied mother attorney fees without an explanation. We reverse 

and remand for further findings on this issue. 

Affirmed in part, reversed in part, and remanded.