                          This opinion will be unpublished and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.

                         UNPUBLISHED OPINION

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.
                                        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


                                           2
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


                                             3
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


                                             4
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.

                                     DECISION

                                             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’


                                             5
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 best-

interests 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


                                             6
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


                                             7
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


                                             8
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 well-

being 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


                                              9
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.


                                             10
       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


                                            11
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).

                                              12
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”).


                                             13
       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,


                                             14
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.




                                            15
