                       This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2014).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A15-0902


                       Darick Joseph Waguespack, petitioner,
                                    Appellant,

                                        vs.

                                Jocelyn Alicia Merz,
                                    Respondent.


                              Filed January 19, 2016
                                     Affirmed
                                 Bjorkman, Judge


                           Hennepin County District Court
                              File No. 27-FA-08-1797

Craig E. Shriver, Law Office of Craig E. Shriver, White Bear Lake, Minnesota (for
appellant)

John C. Gunderson, Meier, Kennedy & Quinn, Chartered, St. Paul, Minnesota (for
respondent)

      Considered and decided by Bjorkman, Presiding Judge; Smith, Judge; and

Klaphake, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges the denial of his motions to modify child custody and to

compel discovery, arguing that he established a prima facie case for modification and that

discovery is necessary to determine whether his child is endangered. We affirm.

                                        FACTS

      Appellant Darick Joseph Waguespack and respondent Jocelyn Alicia Merz are the

parents of S.A.M., who was born on February 9, 2007. The parties have joint legal custody

and Merz has sole physical custody of S.A.M. pursuant to a June 8, 2012 stipulated

judgment. The judgment awards Waguespack parenting time during the spring, summer,

and holidays. Merz and S.A.M. live with Merz’s mother and step-father, Alicia and James

Calhoun, in St. Bonifacius. Waguespack resides in Texas with his wife and son.

      In October 2014, Merz successfully completed a 21-day inpatient drug treatment

program, after which she spent approximately one month in a sober house. S.A.M.

continued to reside with the Calhouns during her absence. Upon learning of Merz’s

treatment, Waguespack moved the district court on March 5, 2015 to modify custody,

arguing that he had presented a prima facie case based on changed circumstances that

endangered S.A.M. Waguespack’s supporting affidavit stated:

             I believe [Merz] has abused substances and relapsed multiple
             times since the prior [o]rder. [Merz] is currently in a full
             residential, secure treatment facility for drugs and/or alcohol
             abuse.     Her step-father, Mr. Calhoun, disclosed this
             information to me . . . . [Merz] keeps relapsing and cannot
             remain sober. . . .



                                            2
                     ....

                      I am very concerned that one of these days, [Merz]’s
              custodial environment is going to harm [S.A.M]. A sole
              custodian of a child that can’t remain sober will expose the
              child to a whole host of potential unsafe environments, such as
              driving while impaired, exposing the child to drugs and
              alcohol, leaving the child in an unsafe place, or simply making
              a series of impaired judgments concerning the child’s general
              safety and welfare. . . .

                     ....

                    . . . [Merz]’s inability and failure to maintain sobriety is
              detrimental to [S.A.M.’s] safety and welfare. . . .

                     ....

                     . . . It is paramount to [S.A.M.’s] best interests that I be
              awarded custody. It is contrary to the best interests of the child
              and to the child’s safety and welfare to continue custody with
              a parent that cannot remain sober and has relapse after
              relapse. . . .

                     ....

                     . . . [S.A.M.] is still fairly young and can adjust to her
              new home where she will be safe and well cared for . . . . [T]he
              benefit of removing [S.A.M.] from a parent that has a very
              serious drug problem outweighs the harm that this emotional
              discomfort will bring. . . .

       Merz opposed the motion, submitting her own affidavit and affidavits of the

Calhouns. Those affidavits acknowledged Merz’s treatment program and return to the

Calhoun home. The Calhouns stated that S.A.M. remained in their home at all times and

that Merz’s relapse and treatment had little effect on S.A.M.’s day-to-day life.

       On March 13, Waguespack moved the district court to compel discovery identifying

the treatment facility and its treatment summaries or recommendations. The district court


                                              3
denied both motions. In doing so, the court expressly credited Waguespack’s factual

allegations as true, but found that he failed to establish a prima facie case because he did

not specifically assert that the recent circumstances endangered S.A.M.             Instead,

Waguespack only speculated about potential harm that could occur if Merz continued to

abuse controlled substances. The district court noted that it was aware of Merz’s substance-

abuse history when it awarded her sole physical custody of S.A.M. Waguespack appeals.

                                     DECISION

I.     Waguespack did not establish a prima facie case to modify custody.

       A party seeking to modify a child-custody order must establish a prima facie case

by showing: (1) a change of circumstances; (2) modification is necessary to serve the

child’s best interests; (3) the child’s present environment endangers the child’s physical

health, emotional health, or emotional development; and (4) the benefits of the

modification outweigh the detriments with respect to the child. Goldman v. Greenwood,

748 N.W.2d 279, 284 (Minn. 2008). The moving party must submit an affidavit setting

forth facts supporting the requested modification, Minn. Stat. § 518.185 (2014), which the

district court must accept as true. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).

A moving party’s allegations are insufficient if they are conclusory or unsubstantiated. See

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

N.W.2d 143, 144-45 (Minn. App. 1987) (holding that “an affidavit based almost entirely

on unsubstantiated allegations” is not sufficient to modify custody). Other parties may file

opposing affidavits, which the district court may consider if they provide context and are

not contrary to the moving party’s allegations. Minn. Stat. § 518.185; Szarzynski, 732


                                             4
N.W.2d at 292. Whether a district court properly credited a moving party’s affidavit is a

question of law that we review de novo. Boland v. Murtha, 800 N.W.2d 179, 185 (Minn.

App. 2011). But we review the district court’s determination of whether a prima facie case

for modification has been made for an abuse of discretion. Id.

       Waguespack first argues that the district court erred by failing to credit his

allegations as the law requires. We disagree. In his affidavit, Waguespack alleges that

Merz relapsed and entered a residential drug treatment facility,1 leading him to believe she

had relapsed multiple times since the 2012 custody order. Waguespack further alleges that

Merz’s ongoing drug use is a changed circumstance that creates the potential for harm to

S.A.M., and that it would be in S.A.M.’s best interests to be in his custody. Review of the

district court’s order demonstrates that the court expressly credited these allegations. But

the district court found the allegations insufficient to establish a prima facie case for

custody modification. A district court’s obligation to credit a moving party’s allegation

does not require the court to grant an evidentiary hearing where the allegations are

conclusory or lack specific evidentiary support. See In re Weber, 653 N.W.2d 804, 811

(Minn. App. 2002) (affirming district court’s rejection of moving party’s allegations when

those allegations were not supported by first-hand knowledge); Niemi v. Schachtschneider,

435 N.W.2d 117, 119 (Minn. App. 1989) (holding district court did not clearly err by

denying custody modification in absence of evidence of endangerment).


1
  The district court did not expressly credit Waguespack’s allegation that Merz was
currently in a residential treatment facility. But Waguespack does not challenge this
omission. Waguespack’s affidavit was completed on December 5, 2014, and Merz was
physically present at the March 19, 2015 motion hearing.

                                             5
         Waguespack next argues that the district court abused its discretion because he

established all four elements of his prima facie case. We address each element in turn.

First, Waguespack must show that there has been a significant change of circumstances

since the time of the last custody order. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690

(Minn. App. 1989), review denied (Minn. June 21, 1989). Waguespack contends that

Merz’s October 2014 inpatient treatment constitutes such a change, but the district court

was well aware of both parties’ substance-abuse issues when it issued the 2012 custody

order.    The guardian ad litem also considered those issues when making her 2012

recommendations. While Waguespack alleges that Merz “keeps relapsing and cannot

remain sober,” his only specific assertion is that Merz entered treatment for 21 days in

October 2014. Merz’s brief relapse and stay in an inpatient treatment facility, all while

S.A.M. had a seemingly unaffected home life, do not constitute a significant change in

circumstances.

         Second, Waguespack must show that custody modification is in S.A.M.’s best

interests. When determining a child’s best interests, courts consider any physical, mental,

or chemical health issue a parent may experience that affects the child’s safety or

developmental needs. Minn. Stat. § 518.17, subd. 1(a) (2014). Waguespack does not

allege that Merz’s relapse and treatment had any effect on S.A.M. He only speculates that

harm may occur, and argues that it is against S.A.M.’s best interests to be in the custody of

a parent who experiences “relapse after relapse.” We are not persuaded. Alicia Calhoun’s

affidavit shows that S.A.M. was healthy and safe in their home and maintained her




                                             6
education and extra-curricular activities during her mother’s October 2014 drug use and

treatment. And there is no record evidence that Merz had any other relapses since 2007.

       Third, Waguespack must show that S.A.M.’s present environment endangers her

physical health, emotional health, or emotional development. Although the concept of

endangerment is imprecise, this element requires the moving party to demonstrate a

significant degree of danger. Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991)

(stating that “the legislature likely intended to demand a showing of a significant degree of

danger”); see, e.g., Harkema v. Harkema, 474 N.W.2d 10, 13-14 (Minn. App. 1991)

(holding that allegations of emotional abuse by stepfather who was “yelling, throwing

things, hitting walls, and driving the car like a maniac” were sufficient to show

endangerment). As noted above, Waguespack’s affidavit speaks only of potential danger

to S.A.M. occasioned by Merz’s drug use. The affidavit is devoid of specific allegations

of danger. In contrast, the Calhouns’ affidavits provide specific information regarding

S.A.M.’s current safety and welfare, and assure the court that S.A.M. is not in danger.

       Finally, Waguespack must show that the benefits of custody modification outweigh

the detriments to S.A.M. Waguespack attempts to make this showing by alleging that

S.A.M. will benefit from moving to a home where she is safe and well cared for. But he

significantly discounts the negative impact on S.A.M. that would result from removing her

from the only home she has known. Waguespack contends that S.A.M. will be able to

adjust to a new home because she is still “fairly young” and will continue to have contact

with Merz. While he acknowledges the strong bond between Merz and S.A.M., he gives

it little weight. The responsive affidavits provide evidence of the significant strength of


                                             7
the maternal relationship, and provide information about S.A.M.’s connection to her

school, neighborhood, church, clubs, and teams.

      On this record, we discern no abuse of discretion by the district court in determining

that Waguespack failed to establish a prima facie case to modify custody.

II.   The district court did not abuse its discretion by denying Waguespack’s motion
      to compel discovery.

      We review a district court’s denial of a motion to compel discovery for an abuse of

discretion. Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987). When a party

seeking to modify custody has not established a prima facie case, he is not entitled to an

evidentiary hearing and discovery is inappropriate. Goldman, 748 N.W.2d at 284; see

Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471, 472 (Minn. 1981) (stating that a moving

party’s burden is to allege facts—rather than gather evidence—sufficient to justify

modification). Because Waguespack did not meet his prima facie burden, he is not entitled

to an evidentiary hearing for which discovery might otherwise lie.

      Waguespack argues that the district court should nonetheless have permitted

discovery because the court had a special duty to investigate the allegations of potential

harm to S.A.M. This argument is unavailing. We have recognized such a duty in only rare

circumstances involving unrebutted allegations of abuse. In Baum v. Baum, we concluded

that “under special circumstances, the [district] court has an obligation to investigate

accusations that a child has been abused by the custodial parent.” 465 N.W.2d 598, 600

(Minn. App. 1991), review denied (Minn. Apr. 18, 1991); see, e.g., Lucas v. Lucas, 389

N.W.2d 744, 747 (Minn. App. 1986) (concluding district court was required to investigate



                                            8
unrebutted evidence that removal of children from state would be harmful to them); Murray

v. Antell, 361 N.W.2d 466, 470 (Minn. App. 1985) (concluding district court was required

to investigate unrebutted evidence of physical abuse). These special circumstances are not

present in this case. Waguespack has only speculated about harm that could occur if Merz

relapses when S.A.M. is in her custody. It is undisputed that S.A.M. lives with Merz in the

Calhoun home. And Waguespack has not alleged any specific harm or endangerment. We

conclude that Waguespack’s conclusory and unsupported allegations do not impose a

special duty on the district court to investigate. Accordingly, the district court did not abuse

its discretion in denying Waguespack’s motion to compel discovery.

       Affirmed.




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