                           This opinion will be unpublished and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
                                      A15-1471

                                    In the Marriage of:
                             Robert Peter Crowley, petitioner,
                                        Respondent,

                                            vs.

                                   Bridget Marie Meyer,
                                        Appellant.

                                 Filed October 11, 2016
                           Affirmed; motion to dismiss granted
                                     Bratvold, Judge

                               Olmsted County District Court
                                 File No. 55-FA-09-4712

Steven M. Dittrich, Dittrich & Lawrence, P.A., Rochester, Minnesota (for respondent)

Susan M. Gallagher, Gallagher Law Office, L.L.C., Eagan, Minnesota; and

Scott A. Wilson, Minneapolis, Minnesota (for appellant)


         Considered and decided by Peterson, Presiding Judge; Hooten, Judge; and Bratvold,

Judge.

                          UNPUBLISHED OPINION

BRATVOLD, Judge

         Appellant Bridget Meyer challenges the district court’s denial of her motions to

modify custody and to remove the parenting-time expeditor for exceeding his authority.
Because Meyer did not establish a prima facie case for modification of the existing custody

arrangement, we affirm. Additionally, we grant respondent Robert Crowley’s motion to

dismiss Meyer’s claim regarding the parenting-time expeditor’s authority because she

raises a new issue on appeal.

                                          FACTS

       This appeal arises from the parties’ ongoing dispute over the custody of their two

minor children following the dissolution of their marriage. Bridget Meyer and Robert

Crowley married in 1992. Crowley petitioned to dissolve the marriage in June 2009. The

relevant procedural history follows.

       In June 2010, consistent with the parties’ stipulation, the district court appointed a

parenting-time expeditor (PTE). In October 2011, the district court bifurcated the

dissolution proceeding by dissolving the marriage and reserving the issues of “custody,

care, and control of the minor children” pending further agreement of the parties or court

order. In June 2012, shortly before trial on the reserved issues, the parties reached an

agreement to share joint legal custody of their children, which was defined as “equal rights

and responsibilities, including the right to participate in major decisions determining the

children’s upbringing, including education, health care, and religious training.” They also

agreed to have joint physical custody of the children “on a schedule of alternating weeks

without further court proceedings.” The district court adopted this agreement, which it




                                             2
entered in its amended judgment and decree as to custody and parenting time in September

2012. 1

          In February 2013, Crowley moved for an emergency order to suspend the existing

custody arrangement and for immediate temporary sole “residential and physical custody”

of the children. He additionally requested that the order limit Meyer’s parenting time and

require that she refrain from consuming alcohol. In March 2013, Crowley cited new

concerns with Meyer’s behavior while caring for the children and again requested an

emergency order, which the district court granted, suspending Meyer’s parenting time

pending further court action. In April 2013, Crowley moved for, and received, an ex parte

harassment restraining order against Meyer on behalf of himself and the two children.

          In July 2013, the district court ordered that Crowley retain temporary “sole

residential and physical custody” of the children and that Meyer have supervised parenting

time. Following an August 2013 hearing, the district court noted in its resulting order that

Meyer and Crowley were making progress and “each ha[d] exhibited willingness to

compromise in the best interests of the children.” Between the July and August hearings,

Meyer had resumed unsupervised parenting time. Although the district court noted that the

parties’ goal was “to resume joint physical custody of the minor children,” the district court




1
  Among other conditions, the judgment and decree stated that, for up to one year from its
entry, the PTE “may require that [Meyer] undergo immediate and random alcohol/drug
testing during her parenting time and up to 12 hours prior to her parenting time.”
Additionally, it stated that Meyer “shall participate on a regular and ongoing basis with
concurrent counseling and/or program and she shall follow all recommendations of the
counselor or program. The [PTE] shall monitor her compliance.”

                                              3
ordered that Crowley retain temporary sole residential and physical custody. Meyer did not

challenge the August 2013 order.

       On January 15, 2015, Meyer moved to reinstate the original joint custody

arrangement set out in the September 2012 amended judgment, to remove the PTE from

the case, to remove a psychologist involved in the case, and to impose parenting-time

conditions. Crowley opposed the motion and submitted a responsive affidavit, in which he

detailed the children’s current status in his home, among other facts. On March 19, 2015,

after a nonevidentiary hearing, the district court denied Meyer’s motion in its entirety.

Among other things, the district court stated that Meyer “failed to set forth any evidence to

set the case for an evidentiary hearing.” Meyer moved for amended findings. On July 15,

2015, the district court denied Meyer’s motion to amend. On July 20, 2015, the district

court discharged the PTE from the case upon his request.

       Meyer appealed from the district court’s order denying her motions to “reinstate”

joint legal and physical custody and the order denying her motion for amended findings.

In September 2015, this court questioned whether it had jurisdiction over Meyer’s appeal.

In accepting jurisdiction, this court’s special-term panel held that, “the August 21, 2013

order that continued respondent’s temporary sole residential and physical custody of the

children was not a true temporary order, because the award of custody to respondent was

of indefinite duration,” and “it has now been in effect for more than two years.” We

therefore concluded, “in effect, appellant’s motion to reinstate the joint custody

arrangement sought modification of the orders awarding temporary residential and physical

custody to respondent.” Accordingly, the district court’s “March 19, 2015 order is


                                             4
appealable under Minn. R. Civ. App. P. 103.03(h) because the order denies appellant’s

motion to modify the de facto award of permanent physical custody of the children to

respondent.” This court also ruled that, while the July 2015 order denying Meyer’s motion

for amended findings was not independently appealable, it was within this court’s scope of

review on appeal from the March 2015 order. Additionally, this court referred to the merits

panel the question of “whether the arguments raised in section II of appellant’s brief are

properly before this court.”

                                     DECISION

       I.     Custody Modification

       As a preliminary matter, we assess the nature of Meyer’s January 2015 motion

because that assessment will affect our analysis of the district court’s decision on review.

Meyer described the January 2015 motion as one for reinstatement of the joint-custody

arrangement set out in the September 2012 amended judgment and decree. Yet, we are not

bound by the label given to a certain pleading and instead look to the substance. See Dale

v. Pushor, 246 Minn. 254, 261, 75 N.W.2d 595, 601 (1956) (“A label is of course not

necessarily determinative of the purpose and nature of a motion.”).

       Meyer’s use of the term “reinstatement” is not accurate. The district court’s multiple

orders in 2013 altered the original custody arrangement to grant Crowley sole residential

and physical custody of the minor children. Meyer took no action in the district court to

challenge these orders, nor did she appeal the orders. Over eighteen months passed before

Meyer challenged the modified custody arrangement. This court’s special-term panel held

that the August 2013 order continuing the temporary award of sole custody to Crowley


                                             5
“was not a true temporary order” because the award “was of indefinite duration.” Thus, the

special-term panel ruled that Meyer’s January 2015 motion was, in effect, a motion to

modify the de facto award of permanent physical custody of the children to Crowley. We

will not alter the special-term panel’s ruling. See In re Estate of Sangren, 504 N.W.2d 786,

788 n.1 (Minn. App. 1993) (declining to consider issue decided by special-term panel),

review denied (Minn. Oct. 28, 1993); Minn. R. Civ. App. P. 140.01 (prohibiting petitions

for rehearing in court of appeals). Given the procedural posture, this appeal seeks review

of the district court’s denial, without an evidentiary hearing, of Meyer’s motion to modify

what was, in effect, a final custody award.

       A district court has broad discretion to provide for the custody of the parties’

children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). To obtain an evidentiary

hearing on a motion to modify custody, the moving party must establish a prima facie case

for modification 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. Id. The moving party must

submit an affidavit setting forth facts supporting the requested modification. Minn. Stat.

§ 518.185 (2014).

       The district court must accept the moving party’s allegations as true. Geibe v. Geibe,

571 N.W.2d 774, 777 (Minn. App. 1997). 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 v. Szarzynski, 732 N.W.2d 285, 292


                                              6
(Minn. App. 2007). 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.

       On appeal, Meyer asserts that the March 2013 temporary order initially granting

Crowley sole residential and physical custody contained deficient findings and the district

court erred because it did not conduct an evidentiary hearing. The March 2013 order was

temporary and not appealable. Hennepin Cty. v. Griffin, 429 N.W.2d 283, 284 (Minn. App.

1988). However, as discussed above, the August 2013 order continued the temporary award

of sole custody to Crowley and was not temporary because the custody award was of

indefinite duration. If we construe Meyer’s argument to be a challenge of the August 2013

order, Meyer’s challenge is untimely. Meyer cites no legal authority for challenging the

August 2013 order at this late date, well after the time to appeal has expired. See Minn. R.

Civ. App. P. 104.01 (providing sixty days to appeal from an appealable order); Minn. R.

Civ. App. P. 103.03(h) (providing that an order modifying custody is appealable).

       Compliance with the rules of appellate procedure is required for an appellate court

to properly exercise jurisdiction. Marzitelli v. City of Little Canada, 582 N.W.2d 904, 907

(Minn. 1998). While it is troubling that custody was modified in this case without an

evidentiary hearing, Meyer did not challenge the modification or lack of an evidentiary

hearing for nearly two years. Justice requires stability and finality in custody

determinations. Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993); see also

Geibe, 571 N.W.2d at 780 (“Minnesota law rests on a presumption that stability of custody


                                             7
is in a child’s best interests.”). Meyer may not now challenge the August 2013 order when

she failed to do so consistent with the rules of appellate procedure. See Janssen v. Best &

Flanagan, LLP, 704 N.W.2d 759, 765 (Minn. 2005) (“It is axiomatic that a judgment or

appealable order becomes final if a timely appeal is not taken.”).

       Meyer next asserts that the district court erred in the March 2015 order by failing to

make particularized findings in response to her motion to reinstate joint custody. She does

not specify the deficiencies in the district court’s decision. Instead, she cites Abbott v.

Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992), for the principle that appellate courts

“unwaveringly remand[] decisions modifying custody when there have been inadequate

findings to demonstrate that the appropriate factors were considered.” Meyer’s argument

overlooks that the district court declined to modify custody in the order she appeals. In fact,

Abbott states that, if the district court “determines that the affidavit evidence submitted by

the moving party fails to make out a prima facie case for modification according to the

statutory factors,” the district court “need only state that such is the case, it need not make

specific findings on the statutory findings themselves.” Abbott, 481 N.W.2d at 868. Here,

because the district court ruled that Meyer failed to establish a prima facie case for

modification, it was not required to make particularized findings. Indeed, Meyer’s failure

to make a prima facie case to modify custody required the district court to deny her motion

without holding the evidentiary hearing that would have been a prerequisite for making

findings of fact. See Szarzynski, 732 N.W.2d at 292 (“Whether a party makes a prima facie

case to modify custody is dispositive of whether an evidentiary hearing will occur on the

motion.”).


                                              8
       Meyer next argues that the district court erred because it did not accept the assertions

in her affidavit as true. A comparison of her affidavit to the district court’s order belies this

argument. Her affidavit details her dissatisfaction with the current custody arrangement;

asserts facts that she believes warrant removal of her teenage daughter’s therapist; and

presents her requests for additional parenting time, parenting-time conditions, and to

remove the PTE. Notably, her affidavit does not address the statutory grounds for

modification: Meyer makes no mention of any change in circumstances; how modification

is necessary to serve the children’s best interests; how the children’s present environment

endangers their physical health, emotional health, or emotional development; nor whether

the benefits of the modification outweigh the detriments with respect to the children. See

Minn. Stat. § 518.185 (requiring moving party to set forth facts establishing custody-

modification factors in affidavit). Thus, Meyer’s affidavit does not contain assertions

which, if true, would allow the district court to make findings that would support a

modification of custody.

       Meyer relies on Hassing v. Lancaster in arguing that the district court erred by

failing to properly determine the children’s present environment. 570 N.W.2d 701 (Minn.

App. 1997). In Hassing, the district court found that the child was endangered in the

mother’s care and modified the mother’s sole legal and physical custody by removing the

child from the mother’s care and placing him with his father. Id. at 702. This court noted

that the district court’s modification order relied heavily on facts underlying the father’s

earlier motion to modify custody, which addressed facts between 1991 and 1996, but

disregarded improvements the mother made in the year before the custody-modification


                                               9
proceeding. Id. at 703. We clarified that although “the statutory concept of present

environment is a reference to the last judicially created environment,” the district court

must examine the child’s status in that environment at the time of the proposed

modification rather than simply the circumstances in previous years. Id. Because the

district court’s findings inadequately addressed the child’s current endangerment in the last

judicially created environment, this court reversed and remanded for “a redetermination of

the modification motion according to findings that address the question of whether [the

child] remained endangered in [the mother’s] care at the time of the modification hearing.”

Id. at 704. Hassing therefore holds that “present environment” means “the last judicially

determined custodial care arrangement and the safety of that environment at the time the

modification issue is determined by the trial court.” Id. at 702.

       Ignoring the fact that Meyer’s failure to make a prima facie case to modify custody

is independently fatal to her motion, her reliance on Hassing is misplaced for at least two

reasons. First, Hassing is inapposite to this case because the district court in Hassing

modified custody, whereas the district court in this case did not modify custody in the order

Meyer appeals. Second, even if the district court were required to consider the children’s

“last judicially determined custodial care arrangement and the safety of that environment

at the time the modification issue is determined,” id., this refers to the children’s custodial

placement with Crowley.

       Meyer additionally argues that the district court erred because “the absence of an

initial evidentiary hearing resulted in a temporary order modifying the stipulated agreement

to joint physical custody of the minor children and substantially limited her parenting time


                                              10
with the minor children.” At oral argument, Meyer acknowledged that she is not asking the

court to remand for an evidentiary hearing and instead asks the court to reinstate the

original custody arrangement.

       Importantly, “a proponent of change is entitled to an evidentiary hearing upon

showing a prima facie case for the requested modification.” See Nice-Peterson v. Nice-

Peterson, 310 N.W.2d 471 (Minn. 1982). However, as discussed above, Meyer’s affidavit

does not address the statutory factors required to support a change in custody and,

therefore, does not establish a prima facie case. See id. at 472 (“The burden is upon the

movant to establish satisfactorily on a preliminary basis that there has occurred a significant

change of circumstances from the time when the original or amended custody order was

issued,” and “the significant change of circumstances must endanger the child’s physical

or emotional health or the child’s development.” (citation omitted)). Therefore, the district

court did not abuse its discretion when it determined that Meyer was not entitled to an

evidentiary hearing in response to her January 2015 motion. See id. (noting that, because

father’s affidavit did not “set forth any change in circumstances sufficient to justify a

modification of the custody award,” the district court “did not abuse its discretion in

denying the motion on affidavits and in refusing to schedule an evidentiary hearing”).

       In sum, the district court properly concluded that Meyer failed to establish a prima

facie case to modify the current custody arrangement. Accordingly, the district court was

justified in denying her requests for an evidentiary hearing and modification of custody.




                                              11
       II.    Parenting-Time Expeditor

       We next address the issue that this court’s special-term panel referred to the merits

panel: “whether the arguments raised in section II of appellant’s brief are properly before

this court.” In section II of her brief, Meyer contends that the district court abused its

discretion by “appointing a PTE with authority to make decisions beyond the statutory

scope of authority,” and that the PTE’s decisions that go beyond his statutory authority are

accordingly invalid. She maintains:

              There is no authority in the PTE statute that authorizes a PTE
              to issue a decision to require alcohol testing, require chemical
              dependency treatment, require therapy, mental health
              assessments, to make decisions regarding the children’s
              extracurricular activities, to substantially or otherwise modify
              or alter parenting time, to make decisions affecting the custody
              of the children of the parties, or to make any findings related
              to endangerment, as the PTE decisions in this matter
              demonstrate.

       Crowley asserts that this portion of Meyer’s appeal should be dismissed because

Meyer seeks relief different from what she sought from the district court, effectively raising

a new issue on appeal. Crowley contends that Meyer’s sole request of the district court was

to dismiss the PTE. On appeal, Meyer maintains that she now seeks review of “the lower

court’s error in granting the PTE authority beyond the statute and the consequence of the

PTE’s many rulings in the exercise of (and in excess of) that authority.”

       We agree with Crowley that the issue Meyer raises on appeal is different from the

issue she raised to the district court. In her motion and supporting affidavit, Meyer asked

for the PTE’s removal. At the motion hearing, she stated she was seeking his removal for




                                             12
“good cause.” 2 Critically, the PTE’s removal is now moot, as Meyer conceded at oral

argument, because the PTE was discharged in July 2015. Meyer has not previously

challenged the June 2010 order appointing the PTE nor any of his decisions by making

appropriate motions in the district court. Because Meyer raises a new issue on appeal, we

need not consider her argument regarding the PTE’s authority. See Thiele v. Stitch, 425

N.W.2d 580, 582 (Minn. 1988) (precluding review of issues raised for the first time on

appeal). Accordingly, Crowley’s motion to dismiss is granted.

       We note that, even if we were to consider the argument’s merits, Meyer cannot

succeed. Meyer overlooks that Minnesota law authorized the PTE’s authority to issue the

very decisions she now contests. See Minn. Stat. § 518.1751, subd. 3 (c) (stating that the

PTE shall not make decisions inconsistent with an existing parenting-time order, “unless

the parties mutually agree”). Also, the parties stipulated to the PTE’s authority and the

stipulation was incorporated in the September 2012 judgment and decree regarding custody

and parenting time. See Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997) (noting that a

stipulation between the parties “merges” into the judgment when it is adopted by the district

court, and that after its adoption by the district court, the stipulation is no longer subject to




2
 Removal of a PTE is available where, like here, a PTE has been appointed indefinitely.
Minn. Stat. § 518.1751, subd. 5a (2014). (“If a parenting time expeditor has been appointed
on a long-term basis, a party or the expeditor may file a motion seeking to have the
expeditor removed for good cause shown.”).

                                               13
attack and relief must come from re-opening the judgment under section 518.145,

subdivision 2). We accordingly conclude that Meyer is not entitled to the relief she seeks.

       Affirmed; Motion to Dismiss Granted.




                                            14
