author: ANDERSON, G. BARRY, Justice. ANDERSON, PAUL H., Justice

text:
    In re the MARRIAGE OF Deborah A. GOLDMAN, f/k/a Deborah A. Greenwood, Respondent, v. Mark E. Greenwood, Appellant.
    No. A06-1110.
    Supreme Court of Minnesota.
    March 27, 2008.
    Rehearing Denied May 14, 2008.

      Suzanne Marie Edminston, Michael D. Dittberner, Clugg, Linder, Dittberner & Edminston, Ltd., Edina, for appellant.
    Richard D. Goff, Minneapolis, Felipe Or-ner, Flushing, NY, for respondent.
    Heard, considered, and decided by the court en banc.
   OPINION

ANDERSON, G. BARRY, Justice.

Appellant Mark Greenwood challenges the decision of the court of appeals reversing the district court’s denial of respondent Deborah Goldman’s motion to remove the parties’ minor child out of state. Appellant argues that the court of appeals erred in ruling that Minn.Stat. § 518.175, subd. 3 (2006), rather than Minn.Stat. § 518.18(d) (2006), governs respondent’s motion for removal and in ruling that respondent is entitled to an evidentiary hearing. We agree, and we reverse the decision of the court of appeals and reinstate the district court’s order.

Appellant and respondent were married on January 16, 1993; together they have one son, I.G., born on January 30, 1996. While the parties’ dissolution proceedings were pending, respondent received a job offer from an employer in Boston and moved the district court to permit her to move out of state with I.G. In October 2000, the district court denied respondent’s motion for permission to remove I.G. out of state but awarded her temporary sole legal and physical custody of I.G. In a September 2001 memorandum decision, the district court denied another request by respondent to remove I.G. from the state. The parties agree that the district court awarded respondent sole physical custody contingent on her remaining in Minnesota. The district court indicated that imposition of the locale restriction was in I.G.’s best interests, and it suggested that it would award custody to appellant in the absence of the restriction:

If for any reason the LaChapelle locale restriction is found wanting, this [cjourt would award sole physical custody to father. It would award sole physical custody to father to ensure that [I.G.] continues to prosper from his intimate relationships with father [and father’s other children], does not have to suffer yet another major change in his young life, and could continue with his existing school and religious arrangements.

The parties entered an oral stipulation to a negotiated settlement in June 2002, incorporating the locale restriction. On July 11, 2002, the district court dissolved the parties’ marriage and granted respondent sole physical custody of I.G. subject to reasonable parenting time by appellant. The court stated that neither party could remove I.G. from the state for the purpose of changing his residence -without the written consent of the other party or a court order. Additionally, the court clarified that it had addressed respondent’s request to remove I.G. from the state in its September 2001 memorandum decision, which it “incorporated by reference as if fully set forth herein.”

In February 2006, shortly after I.G.’s tenth birthday, respondent moved the district court to eliminate the locale restriction from the custody order and to permit her to move with I.G. to New York City, the home of respondent’s fiancé. In the alternative, she moved the court to order a “relocation evaluation” and hold an eviden-tiary hearing. Respondent submitted 15 affidavits in support of her motion. In her own affidavit, she alleged that changes in circumstances rendered the locale restriction “contrary to [I.G.j’s best interests” and a danger to I.G.’s “emotional, spiritual, and academic development.” She particularly emphasized the superior opportunities in New York City for I.G. to grow in his Orthodox Jewish faith, noting that there are no Orthodox Jewish schools in Minnesota that offer education beyond the eighth grade and that New York City has a thriving Orthodox Jewish community. The other affidavits attest to respondent’s love for I.G., her good character, and the academic and spiritual benefits I.G. would experience as a result of relocating to New York City. Appellant opposed respondent’s motion, expressing his concern that the move would harm his relationship with I.G. and arguing that respondent failed to make a prima facie case for modification of the “conditional custody award.”

The district court denied respondent’s motion to eliminate the locale restriction from the custody order, for permission to remove I.G. to New York, and to order a relocation evaluation and hold an eviden-tiary hearing. The court applied section 518.18(d), which governs modification of custody orders, not section 518.175, subd. 3, which governs a custodial parent’s relocation of a child to another state, to respondent’s motion, reasoning that a locale restriction “is an integral part of the prior ‘custody order’.” In applying section 518.18(d), the court concluded that respondent failed to make a prima facie case of changed circumstances, of endangerment, and that the benefits of the move outweighed its detriments.

Respondent appealed the district court’s ruling. The court of appeals held that the district court erred in applying section 518.18(d) and reversed and remanded for an evidentiary hearing to consider I.G.’s best interests under section 518.175, subd. 3. In re Marriage of Goldman, 725 N.W.2d 747, 753, 761 (Minn.App.2007). Both parties filed petitions for review, and we granted review of appellant’s petition in full and of respondent’s petition in part.

I.

As a threshold issue, we consider whether the locale restriction in the district court’s custody order is valid. “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.” In re Custody of N.A.K, 649 N.W.2d 166, 174 (Minn.2002). District courts have “broad discretion in determining custody matters,” Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn.1989), and we agree with the recognition of the court of appeals in Dailey v. Chermak “that there is no absolute prohibition under Minnesota law against awarding child custody on the condition of maintaining a specific geographic residence for the child, as long as that residence is shown clearly and genuinely to serve the child’s best interests,” 709 N.W.2d 626, 630 (Minn.App. 2006), rev. denied (Minn. May 16, 2006).

Respondent, who stipulated to the incorporation of the locale restriction into the district court’s order, argues that the restriction is nevertheless void because it provides for an automatic transfer of custody in the event that she moves out of state. The district court explained that “[i]f for any reason the LaChapelle locale restriction is found wanting, this [c]ourt would award sole physical custody to father.” The district court’s use of the language “found wanting” implies that a hearing would precede any subsequent custody transfer. Furthermore, in its denial of respondent’s motion for removal in 2006, the district court suggested that its analysis might change once I.G. completes eighth grade and is no longer able to attend Orthodox Jewish school in Minneapolis. We do not interpret the district court’s locale restriction as foreclosing future reassessment of I.G.’s best interests.

We leave for another day the determination of the validity of a locale restriction that does provide for the automatic transfer of custody upon the sole physical custodian’s relocation. Because the district court acted within the scope of its discretion, the locale restriction in respondent’s custody order is valid.

II.

Having determined that the locale restriction in this case is valid, we next consider whether section 518.18(d) or section 518.175, subd. 3, governs respondent’s motion for removal. The district court applied section 518.18(d), but the court of appeals reversed, holding that section 518.175, subd. 3, is the governing statute. Determination of the applicable statutory standard, Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn.1993), and the interpretation of statutes, In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn.1999), are questions of law that we review de novo.

The modification of custody orders is governed by MinmStat. § 518.18(d), which states in pertinent part as follows:

[T]he court shall not modify a prior custody order or a parenting plan provision which specifies the child’s primary residence unless it finds * * * that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement or the parenting plan provision specifying the child’s primary residence that was established by the prior order unless:
(iv) the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

Minnesota Statutes § 518.175, subd. 3, governs a custodial parent’s relocation of a child to another state, providing as follows:

(a) The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree. * ⅜ * *
(b) The court shall apply a best interests standard when considering the request of the parent with whom the child resides to move the child’s residence to another state. * * * *
(c) The burden of proof is upon the parent requesting to move the residence of the child to another state * * *. According to the court of appeals, the

scope of section 518.18(d) “is confined to the change of provisions ‘specifying the child’s primary residence.’ ” Goldman, 725 N.W.2d at 753. But a careful reading of section 518.18(d) indicates that a motion for removal filed by a sole physical custodian subject to a locale restriction falls within the ambit of the statute. Section 518.18(d) refers to (1) modifications to “a prior custody order or a parenting plan provision which specifies the child’s primary residence,” (2) retaining “the custody arrangement or the parenting plan provision specifying the child’s primary residence,” and (3) “a change in the custody arrangement or primary residence.” Minn.Stat. § 518.18(d) (emphasis added). Because we normally interpret the conjunction “or” as disjunctive rather than conjunctive, Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 385 (Minn.1999), the phrases “custody order” and “custody arrangement” stand alone and should not be confused with the statute’s references to a child’s “residence.”

It should also be noted that Minn.Stat. § 518.18(d)® addresses situations where “the court finds that a change in the custody arrangement or primary residence is in the best interests of the child.” The interpretation of the court of appeals, which limits the applicability of section 518.18(d) to the change of provisions specifying a child’s primary residence, renders the phrase “custody arrangement” superfluous, violating the rule of statutory construction that “the legislature intends the entire statute to be effective and certain,” Minn.Stat. § 645.17(2) (2006).

Finally, the defining feature of a locale restriction is that it is included in the custody order and thus cannot be eliminated unless a party meets the heightened standard for custody order modification under section 518.18(d). By evaluating respondent’s motion for removal under section 518.175, subd. 3 (the standard that governs a custodial parent’s relocation of a child to another state in the absence of a locale restriction), the court of appeals implicitly invalidated the restriction. Such an effect is at odds with our recognition of the validity of locale restrictions. Section 518.18(d), not section 518.175, subd. 3, governs a motion for removal brought by a sole physical custodian subject to a locale restriction. We therefore reverse the decision of the court of appeals.

III.

Respondent contends that the district court erred in denying her an eviden-tiary hearing on her motion for removal. The district court declined to grant respondent an evidentiary hearing because it found that she failed to make a prima facie case under section 518.18(d) of changed circumstances, of endangerment, and that the benefits of the move outweighed its detriments. The court of appeals did not address whether respondent made a prima facie case under section 518.18(d), as it concluded that section 518.175, subd. 3, governs her motion for removal. Our resolution of this issue determines whether we remand the case for an evidentiary hearing or simply reverse the court of appeals and reinstate the district court order.

A district court is required under section 518.18(d) to conduct an evidentiary hearing only if the party seeking to modify a custody order makes a prima facie ease for modification. See Silbaugh v. Silbaugh, 543 N.W.2d 639, 642 (Minn.1996); Morey v. Peppin, 375 N.W.2d 19, 25 (Minn.1985); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981). To be entitled to a hearing, respondent must establish the following four elements of a prima facie case under section 518.18(d): (1) a change in her own circumstances or those of I.G. or appellant, (2) that modification is necessary to serve I.G.’s best interests, (3) that I.G.’s present environment endangers his physical health, emotional health, or emotional development, and (4) that the benefits of the move outweigh the detriments with respect to I.G. See Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999), superseded in part on other grounds by Act of Apr. 27, 2000, ch. 444, art. 1, § 5, 2000 Minn. Laws 980, 984-85 (codified at Minn.Stat. 518.18(d)(i)), as recognized in In re Comm’r of Pub. Safety, 735 N.W.2d 706, 711 (Minn.2007); Szarzynski v. Szarzynski, 732 N.W.2d 285, 291-92 (Minn.App.2007).

Appellate review of custody modification and removal cases is limited to considering “ ‘whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.’ ” Silbaugh, 543 N.W.2d at 641 (quoting Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985)). Appellate court’s set aside a district court’s findings of fact only if clearly erroneous, giving deference to the district court’s opportunity to evaluate witness credibility. Minn. R. Civ. P. 52.01; Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988). Findings of fact are clearly erroneous where an appellate court “is left with the definite and firm conviction that a mistake has been made.” Peterson v. Peterson, 308 Minn. 297, 306 n. 4, 242 N.W.2d 88, 94 n. 4 (1976).

Changed Circumstances. When a party seeks modification of a custody order, “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.” Nice-Petersen, 310 N.W.2d at 472. The district court found that respondent “has not presented a pri-ma facie case that the requisite change of circumstances has occurred,” dismissing respondent’s engagement as “a change in [her] circumstances, but not [I.G.J’s.” According to the district court, “the question here is whether there has been a substantial change in circumstances that impacts [I.G.], not whether there has been a change that impacts or will impact [respondent].”

Because section 518.18(d) provides that the changed circumstances can relate to “the child or the parties,” the district court erred in not giving more weight to respondent’s engagement in the change-of-circumstances analysis. But the district court’s error does not require reversal of its denial of respondent’s motion, because the district court correctly concluded that respondent failed to make a prima facie case of other elements of section 518.18(d). See Minn. R. Civ. P. 61 (requiring courts to disregard harmless error).

Endangerment. “The concept of ‘endangerment’ is unusually imprecise,” but a party must demonstrate “a significant degree of danger” to satisfy the endangerment element of section 518.18(d)(iv). Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App.1991); see also Johnsonr-Smolak v. Fink, 703 N.W.2d 588, 591 (Minn.App. 2005). The district court found that I.G.’s current custodial environment does not endanger his physical or emotional health or impair his emotional development, noting that instead of presenting a prima facie case of endangerment, respondent merely emphasized “the opportunities that will be available to [I.G.] if she is allowed to move him to New York.” In fact, respondent admitted that I.G. has a good relationship with appellant and that I.G. has adjusted well to the many changes in his life. The district court did not abuse its discretion in concluding that respondent failed to make a prima facie case of endangerment under section 518.18(d)(iv).

The dissent concludes that respondent made a prima facie case of endangerment, reasoning that I.G. may be endangered by “geographical separation” from respondent. But the endangerment element of section § 518.18(d)(iv) is concerned with whether “the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development,” Minn.Stat. § 518.18(d)(iv) (emphasis added), not whether the child may be endangered by future events. The policy-based argument advanced by the dissent regarding when to measure the endangerment to the child is not without merit, but such a determination belongs to the legislature, not to this court. The effect of the dissent’s proposed outcome here, carried to its logical conclusion, is that a prima facie case of endangerment is made anytime a custodial parent seeks to move out of state in the face of a locale restriction, because any such move would result in “geographical separation” from the child. This approach would gut locale restrictions of much of their effect because, as we noted earlier, the defining feature of a locale restriction is that it is included in the custody order and thus cannot be eliminated unless a party meets the section 518.18(d) standard for custody order modification.

Benefits and Detriments. The district court also found that respondent failed to make a prima facie case that the benefits of the move outweighed its detriments with respect to I.G. The court stated that although the benefits of the move were described in a number of affidavits, “[n]o witness has proffered a competent opinion that the advantages of moving to New York City outweigh the harm associated with the move.” The dissent does not support its conclusion that respondent made a prima facie case of this element, but simply notes that “the benefits and detriments of the move have not been weighed.” We reiterate that it is the party seeking modification of a custody order who bears the burden of making a prima facie case of the section 518.18(d) elements. The district court did not abuse its discretion in concluding that respondent failed to make a prima facie case that the benefits of the move outweighed its detriments with respect to I.G.

We hold that because respondent failed to make a prima facie case under section 518.18(d), the district court did not abuse its discretion in denying respondent’s motion for an evidentiary hearing. We therefore reverse the decision of the court of appeals and reinstate the district court’s order denying respondent’s motion to remove I.G. from the state without an evi-dentiary hearing.

Reversed and district court order reinstated.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

ANDERSON, PAUL H., Justice

(dissenting).

I respectfully dissent. While I agree that Minn.Stat. § 518.18(d) (2006) is the applicable statute, unlike the majority, I conclude that respondent Deborah Goldman’s motion for an evidentiary hearing on custody should have been granted under the statute. Therefore, I would affirm the court of appeals decision to reverse the district court and remand this case to the district court for an evidentiary hearing.

Appellant Mark Greenwood (father) and respondent Deborah Goldman f/k/a Deborah Greenwood (mother) were married on January 16, 1993. I.G., the one child of this marriage, was born on January 30, 1996. On December 6, 1999, mother filed for dissolution of the marriage and moved for sole legal and physical custody of I.G. In 2001, the court temporarily awarded mother sole physical custody of then 5 year old I.G. but denied her request to move to Boston with I.G. to be closer to her family and to seek better employment. More specifically, the court imposed a “La-Chapelle locale restriction,” which granted mother sole physical custody “as long as mother remains available to parent [I.G.] in Minnesota.” At the time, the court reserved the issue of legal custody for a decision at a later date. In July 2002, the court entered its decree dissolving the marriage. In the decree, the court granted mother sole physical custody subject to the locale restriction on removal from the state that the court included in its 2001 order.

In February 2006, shortly after I.G.’s tenth birthday, mother brought a motion in district court to eliminate the LaCha-pelle locale restriction and for permission to remove I.G. to New York City. She also moved that the district court both undertake a relocation evaluation and hold an evidentiary hearing if it decided not to grant her motion immediately.

Mother submitted 15 affidavits in support of her motion. In her own affidavit, she disclosed that she was engaged to be married to a man living in New York City and alleged that changes in circumstances rendered the court’s locale restriction “contrary to I.G.’s best interests” and a danger to “[I.G.j’s emotional, spiritual, and academic development.” She noted that all of father’s other children were now out of the home or would soon be leaving the home, that I.G. had adjusted well to the changes in his life, and that members of her extended family lived on the East Coast. Mother emphasized the superior opportunities in New York City for I.G. to grow in his Orthodox Jewish faith, stating that there are no Orthodox Jewish schools in Minnesota that offer education beyond the eighth grade and that New York City has a thriving Orthodox Jewish community. The other 14 affidavits were by persons who attested to mother’s love for I.G., her good character, and that the move to New York City would benefit I.G. academically and spiritually.

At the March 2006 hearing on mother’s motion for removal, the district court stated that because it had actually said that it would award custody to father were it not for the relocation restriction, “I think [the locale restriction] was stronger than just LaChapelle.” The court subsequently denied mother’s motion, rejecting her request to eliminate the restriction and to permit the removal of I.G. The court also refused to order a “relocation evaluation” followed by an evidentiary hearing. The court determined that the custody modification standard of section 518.18(d), not the removal standard of Minn.Stat. § 518.175, subd. 3, (2006), governed mother’s motion “because a locale condition is an integral part of the prior ‘custody order.’ ” The court concluded that because the initial grant of sole physical custody was explicitly subject to mother remaining in Minnesota, her motion was in effect a motion to modify custody and therefore was governed by section 518.18.

The district court proceeded to distinguish this case from that presented in Auge v. Auge, 334 N.W.2d 393 (Minn. 1983). In Auge we said that a custodial parent is presumptively entitled to remove a child from the state and the burden of proof is on the party opposing such a move (hence the term “Auge ” presumption). Id. at 397. But the district court stated that this case is different because the initial custody award in Auge was not restricted by locale. In addition, the court relied on the reasoning of the court of appeals in Swarthout v. Siroki, No. C9-00-2219, 2001 WL 766870 (Minn.App. July 10, 2001), in which the award of sole physical custody to the mother was similarly conditioned on her remaining in Minnesota, which in turn led the court of appeals in Swarthout to construe the mother’s motion to remove the child from the state as a request for modification of custody.

Under section 518.18(d), a district court is not to modify a custody order unless it finds “that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.” Even if the petitioner makes out a prima facie case of changed circumstances, the court is to retain the existing custody arrangement unless, among other possibilities, “the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.”

The district court compared I.G.’s circumstances, as outlined in its 2001 memorandum decision denying mother’s first request to remove the child, and concluded that although mother’s circumstances had changed, the child’s circumstances had not. The court further concluded that mother had not shown that the child’s present environment endangered his physical or emotional health or impaired his emotional development. Nor, the court concluded, had mother shown that the advantages of moving I.G. to New York City outweighed the harm likely to be caused by the move. The court emphasized that there was no evidence that I.G. wanted to move or that he could not “continue living and learning as an Orthodox Jew in Minneapolis.” The court deemed premature mother’s argument that I.G.’s Orthodox Jewish schooling in Minneapolis would end after eighth grade, noting that I.G. could continue to attend his current school “for the next few years.” Because the court concluded mother had not made out a prima facie case, it denied the motion without considering the other factors under section 518.18, citing Sjodin v. Sjodin, A05-1445, 2006 WL 44351, at *2 (Minn.App. Jan.10, 2006). In Nice-Petersen we held that a district court did not abuse its discretion when it denied a motion for modification of custody without an evidentiary hearing when the moving party failed to make out a prima facie case of changed circumstances that endangered the child’s physical or emotional health or the child’s development. Nice-Petersen, 310 N.W.2d at 472.

Shortly before mother appealed, the legislature amended section 518.175, subd. 3, by instructing district courts to apply a “best interests standard” to a request for an out-of-state move, by listing the factors a court is to consider in applying the “best interests standard,” and by placing the burden of proof on the parent requesting to move the residence of the child to another state. Act of May 31, 2006, ch. 280, § 13, 2006 Minn. Laws 1103, 1110-11 (codified at Minn.Stat. § 518.175, subd. 3(b), (c) (Supp.2008)). Placing the burden of proof on the parent seeking to remove the child from the state directly conflicts with our decision in Auge, where we put the burden on the party opposing the out-of-state move. 334 N.W.2d at 397.

Like the district court, the first issue addressed by the court of appeals was whether to apply section 518.18 or section 518.175. The court of appeals applied section 518.175, concluding that the reach of section 518.18 is limited to “a change in placement, a change in physical custody from one household to another” and to “the change of provisions ‘specifying the child’s primary residence.’ ” In re Marriage of Goldman, 725 N.W.2d 747, 753 (Minn.App.2007) (citing Minn.Stat. § 518.18(d)). Not only did the court apply section 518.175, it applied section 518.175 as amended in 2006. The court did so on the grounds that appellate courts generally apply the law “ ‘as it exists at the time they rule on a case.’ ” Goldman, 725 N.W.2d at 751 (quoting Interstate Power Co. v. Nobles Co. Bd., 617 N.W.2d 566, 575-76 (Minn.2000)).

The court of appeals then explained the relationship between the 2006 revisions to section 518.175 and Auge. Although the legislature has removed the Auge presumption in favor of the custodial parent, the court concluded that “when the district court denies a proposal to remove that prompts a change in the physical custody of the child, portions of the Auge holding remain intact,” Id. at 757-58. In particular, the court said “ ‘[i]f denial of the motion will likely result in a modification of custody, the [district] court must consider the negative effects of separating the child and the [primary caretaker].’” Id. at 757 (quoting Auge, 334 N.W.2d at 399). As a result, the court of appeals concluded that, the statutory revisions notwithstanding, Auge nevertheless continues to require an evidentiary hearing that fully addresses the child’s best interests before the district court can deny a motion by the custodial parent to remove the child from the state. Id. at 758.

The court of appeals thus reversed the district court’s denial of mother’s motions and remanded the matter to the district court with instructions to hold an eviden-tiary hearing. At that hearing, as the court of appeals envisioned it, “[mother’s] reasons for the proposed move will be advanced under the statutory mandate to determine the child’s best interests.” Id. at 756. In addition, the court of appeals directed the district court to consider, under the auspices of section 518.18, “in the interests of the child, the impact on the child of what would functionally be a modification of custody.” Id. at 757. Finally, the court appeared to question the validity of any LaChapelle restrictions when it said: “We find no basis for departing from the foregoing statutory scheme to permit court-imposed limits on removal that put that relief beyond the reach of sole physical custodians in circumstances such as [mother’s].” Id. at 753.

I agree with the majority that the district court acted within the scope of its discretion when it included the locale restriction in its custody order. Therefore, to the extent the court of appeals either explicitly or implicitly invalidated LaCha-pelle restrictions, that part of its opinion is rejected. I also agree that Minn.Stat. § 518.18(d), not MinmStat. § 518.175, subd. 3, governs mother’s motion to remove I.G. to New York City. But I disagree with the majority’s conclusion that mother failed to establish a prima facie case for modification that would entitle her to have an evidentiary hearing. Accordingly, I conclude that the district court abused its discretion when it denied mother an evidentiary hearing, and I would reverse and remand for an evidentiary hearing.

To be entitled to an evidentiary hearing, mother must make a prima facie showing of the four elements listed in section 518.18(d). These four elements as properly listed by the majority are: (1) a change in her own circumstances or those of I.G. or father; (2) modification is necessary to serve I.G.’s best interests; (3) I.G.’s present environment endangers his physical health, emotional health or emotional development; and (4) benefits of the move outweigh the detriments with respect to I.G. See Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn.1999), superseded in part on other grounds by Act of Apr. 27, 2000, ch. 444, art. 1, § 5, 2000 Minn. Laws 980-84 (codified at Minn.Stat. § 518.18(d)(i) (2006)), as recognized in In re Comm’r of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007); Szarzynski v. Szarzynski, 732 N.W.2d 285, 291-92 (Minn.App.2007).

The majority correctly notes that the district court erred with respect to the first element — changed circumstances. Mother is engaged to a man who lives in New York and indicated that she had plans to marry him and live with him in New York. She also indicated that I.G. enjoys the company of mother’s fiancé and his family. Mother has sole physical custody of I.G. If she marries and decides to move to New York the existing court order mandates that sole physical custody of I.G. will be transferred from her to father. It is difficult to understand why the district court concluded that evidence of such a dramatic change in circumstances with respect to all three parties — mother, father and I.G. — did not establish a prima facie case of changed circumstances. We have a long history in Minnesota of protecting established relationships between par-entis) and child and may not treat changes in such relationships as lacking significance or substance. See Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn.1988) noting that we have “emphasized the importance of stability in custody determinations” and reaffirming our statement in Pikula v. Pikula, 374 N.W.2d 705, 711 n. 1 (Minn. 1985), that four of the nine best interests criteria in Minn.Stat. § 517.17, subd. 1, “rest on the centrality of continuity of care and environment.”

Further, the failure of the district court to address this inevitable change in custody in a substantive manner leads directly to the second element — I.G.’s best interests. It is now over fíve-and-one-half years since the final decree dissolving the parents’ marriage was entered, and over six-and-one-half years since the LaCha-pelle locale restriction was imposed. Further, I.G. has been in mother’s sole physical custody since 1999. I.G.’s age has more than doubled since that date, and father’s other children are out of his home or may soon be. Moreover, mother represents in her affidavit that I.G. wants to move to New York with mother to benefit from his continuing relationship with her and the more diverse educational opportunities that are available to him there. Whether these assertions will hold up at a hearing is not known, but surely they are sufficient to establish a prima facie case and cannot be summarily dismissed by the court by stating, “The only person I’ve got telling me that is [mother] as far as the want goes.” Goldman, 725 N.W.2d at 760. While I conclude that mother’s sole physical custody and impending move are enough to establish a prima facie case that modification may be in I.G.’s best interests under Minn.Stat. § 518.18(d), these additional factors make the call on the second element just that much easier.

For many of the foregoing reasons, I also disagree with the majority’s analysis as to elements three and four — the impact on I.G.’s emotional health and emotional development and the weighing of the benefits and detriments to I.G. I find it difficult to question how a significant geographical separation from a parent, especially a parent who has sole physical custody for several years, does not at least amount to a prima facie showing that the separation may have an emotional impact on the child. If anything, we should start from the point that such a geographical separation from the parent who has had sole physical custody for over the past half-dozen years will have an emotional impact. Further, I disagree with the majority’s assertion that the statutory endangerment element only addresses the child’s present environment not future events that the petitioner asserts will most likely happen. I conclude that it would be an absurd result to require I.G.’s mother to move to New York and inflict emotional harm on I.G. before she can have a hearing to determine whether I.G. may move with her when mother’s marriage and move to New York is imminent and the danger of harm is apparent.

While the amended statute and our opinion today move us away from our holding and some of our conclusions in Auge, this separation from Auge does not, as the court of appeals properly concluded, undermine our conclusion that a denial of the primary caretaker’s request for removal may have “ ‘ “negative effects” and that district courts must consider the negative effects of separating the child and the [primary caretaker].’ ” Goldman, 725 N.W.2d at 757. (quoting Auge, 334 N.W.2d at 399). I.G. was born on January 30, 1996, the parties filed for dissolution of the marriage in December 1999, mother has had sole physical custody of I.G. since he was five-and-one-half years old, and he has spent the intervening time in the sole physical custody of mother. I.G. is now 12 years old.

As indicated earlier, I am not able to conclude from this record whether it is in I.G.’s best interests to go to New York to live with mother or to stay here with father. That is the problem — without an evidentiary hearing, there is no record. What I do know from this record is that there has been a prima facie showing that circumstances have changed for all parties since 1999 and 2001; I.G.’s emotional health and emotional development may be endangered by mother’s move and change in his physical custody; the benefits and detriments of the move have not been weighed; and in the end, I.G.’s best interests appear to be at stake. For me the threshold question in this case — whether mother has established a prima facie case for an evidentiary hearing under section 518.18(d) — is an easy call. I conclude that she has met that burden. Therefore, I would hold that the district court abused its discretion when it denied mother an evidentiary hearing and by so holding would affirm the result reached by the court of appeals to reverse and remand for an evidentiary hearing.

      . The district court reserved the issue of legal custody in its September 2001 memorandum decision.

      . The district court’s reference to "the LaChapelle locale restriction” is derived from the decision of the court of appeals in LaChapelle v. Mitten, 607 N.W.2d 151 (Minn.App.2000) (upholding an award of physical custody conditioned on the custodian residing in the state), rev. denied (Minn. May 16, 2000).

      . Appellant filed a motion to supplement the record on appeal, which we previously deferred. Appellant's motion is granted.

      . The district court did state in 2006 that the locale restriction "was stronger than just La-Chapelle.” But the court clarified that statement by asking, "Instead of just saying * * * she gets custody if she stays here, didn’t I say that if I didn't put the * * * restriction on, that he would have got custody?” Thus, the district court regarded its conditional language as merely reflecting what the court would have done had it not imposed the locale restriction.

      . We note that our ruling in Auge v. Auge, 334 N.W.2d 393 (Minn.1983), has no remaining vitality because it has been superseded in its entirety by statute. Act of May 31, 2006, ch. 280, § 13, 2006 Minn. Laws 1103, 1110-11 (codified at Minn.Stat. § 518.175, subd. 3(b), (c)).

      . The district court did not analyze whether modification of the custody order was necessary to serve I.G.’s best interests because it found that respondent failed to make a prima facie case of the other elements of section 518.18(d).

      . Likewise, the Uniform Marriage and Divorce Act permits modification of a child’s custodian where "the child’s present environment endangers seriously his physical, mental, moral, or emotional health.” Unif. Marriage & Divorce Act § 409(b)(3), 9A U.L.A. 439 (1998) (emphasis added).


source: Caselaw Access Project

author: /s/Alan C. Page Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Roxanne R. HEINRICH, a Minnesota Attorney, Registration No. 171864.
    No. A06-2339.
    Supreme Court of Minnesota.
    May 5, 2008.
   ORDER

On December 12, 2006, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent Roxanne R. Heinrich committed professional misconduct warranting public discipline, namely, failure to cooperate with a disciplinary investigation into allegations that respondent attempted to swindle and coerce another, in violation of Minn. R. Prof. Conduct 8.1(b) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). Because respondent could not be found in the state to respond to the disciplinary petition, on January 3, 2007, we issued an order indefinitely suspending respondent under Rule 12(c)(1), RLPR, and allowing respondent one year in which to move to vacate the suspension and for leave to answer the petition for disciplinary action.

Respondent did not move to vacate her suspension. By order filed on January 18, 2008, we allowed respondent and the Director to file written memoranda as to what action the court should take against respondent based on the allegations of the petition. No memorandum was received from respondent.

Based on all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Roxanne R. Heinrich is indefinitely suspended from the practice of law. The reinstatement hearing provided for by Rule 18(a)-(d), RLPR, is not waived.

BY THE COURT:

/s/Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION against Larry MARTIN JENNINGS, a Minnesota Attorney, Registration No. 202630.
    No. A07-1614.
    Supreme Court of Minnesota.
    May 6, 2008.
   On May 26, 2005, this court placed respondent Larry Martin Jennings on unsupervised probation for a period of two years, subject to certain conditions. The Director of the Office of Lawyers Professional Responsibility has filed a petition and an amended petition for revocation of that probation, alleging that respondent committed professional misconduct warranting public discipline, namely, failure to comply with the terms of his probation, neglect of client matters, failure to communicate with a client, and failure to notify a client of his change of address, in violation of Minn. R. Prof. Conduct 1.3, 1.4(a), 1.4(b), and 8.1(b), and failure to cooperate with a disciplinary investigation, in violation of Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits the allegations of the amended petition and waives his procedural rights under Rule 14, RLPR. Respondent has entered into a stipulation with the Director under which they jointly recommend that the appropriate discipline is a 60-day suspension, stayed on condition that respondent provide the Director with a current address, and two years of further probation subject to the same conditions imposed in the May 26, 2005, order.

The court has independently reviewed the file and approves the jointly recommended disposition as modified.

Based on all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Larry Martin Jennings is suspended from the practice of law for a period of 60 days from the date of filing of this order. Such suspension is stayed on condition that respondent provide the Director with a current address for service of process within 14 days of the date of filing of this order. The stay shall be lifted, and respondent shall be suspended immediately, upon the Director’s Office’s filing of an affidavit stating that respondent has failed to provide an address for service within the required time. If the stay is lifted, respondent may apply for reinstatement pursuant to Rule 18(f), RLPR.

Respondent is hereby placed on probation for a period of two years from the date of the filing of this order, subject to the following conditions:

(a) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation, shall respond to the Director’s correspondence by the due date, and shall provide progress reports as may be reasonably requested. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(c) During the term of this probation, respondent shall not engage in the practice of law except as an employee of a law firm in which he is subject to direct supervision by a licensed Minnesota lawyer. Upon engaging in the practice of law, respondent shall initiate and maintain office procedures which ensure prompt responses to correspondence, telephone calls, and other important communications from clients, courts, and other persons interested in matters that respondent is handling, and which ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis. Within 30 days of the commencing the practice of law pursuant to this paragraph, respondent shall provide to the Director a written plan outlining these office procedures.
(d) Respondent shall continue current treatment by a licensed consulting psychologist or other mental health professional acceptable to the Director, and shall complete all therapy programs recommended by the therapist. Respondent shall continue his participation in Lawyers Concerned for Lawyers. Upon request, respondent shall provide to the Director medical authorizations sufficient to authorize the Director to obtain his treatment records and reports and to discuss his treatment with the treatment providers.
(e) Respondent shall notify the Director of any change in his address for service of process. Pursuant to the terms of the parties’ stipulation, delivery of the Director’s correspondence to the last such address provided by respondent shall be deemed receipt of the correspondence by respondent.

Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Alan C. Page Associate Justice


author: RUSSELL A. ANDERSON, Chief Justice.

text:
    John Steven MARTIN, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-2150.
    Supreme Court of Minnesota.
    May 8, 2008.

      John Steven Martin, Stillwater MN, Appellant Pro Se.
    Lori Swanson, Minnesota Attorney General, St. Paul MN, and Thomas H. Pertler, Carlton County Attorney, Nichole Jean Carter, Assistant County Attorney, Carlton MN, for Respondent.
   OPINION

RUSSELL A. ANDERSON, Chief Justice.

Appellant John Steven Martin appeals the district court’s summary denial of his petition for postconviction relief. We affirm.

Martin was convicted in 1999 of the August 28, 1996, murder of 17-year-old Paul Antonich. On direct appeal, he argued (1) that his right to equal protection was violated by the State’s peremptory strike of the only African American in the jury pool; (2) that the district court abused its discretion in excluding testimony of a defense witness; and (8) that the district court abused its discretion by denying him a Schwartz hearing to evaluate allegations of jury misconduct. State v. Martin, 614 N.W.2d 214, 221 (Minn.2000). We affirmed his conviction. Id. at 218.

In 2007, Martin filed a petition for post-conviction relief with the Carlton County District Court. The district court summarily denied relief. Martin now appeals. He argues first that he received ineffective assistance of trial counsel because his attorney failed to object to crime scene video and photos, failed to object to the use of a police report to refresh the recollection of the officer who heard Martin’s testimony, failed to assert the claims Martin raises in his postconviction petition, and breached his fiduciary duty by talking to the press after the trial concluded. Second, he argues that the district court violated his right to be present when it received the jury’s request to meet with the victim’s family. Finally, he generally alleges pros-ecutorial misconduct and trial court bias.

I.

“On review of a postconviction court’s denial of relief, we ‘extend a broad review of both questions of law and fact.’ ” Spann v. State, 740 N.W.2d 570, 572 (Minn.2007) (quoting Butala v. State, 664 N.W.2d 333, 338 (Minn.2003)). This court reviews legal issues de novo and factual issues for sufficiency of the evidence. Id. “A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant relief.” Ferguson v. State, 645 N.W.2d 437, 442 (Minn.2002). “Allegations in a postconviction petition must be ‘more than argumentative assertions without factual support.’ ” Id. at 446 (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)). A petitioner is entitled to an evidentiary hearing if he has alleged “facts that would, if proved by a fair preponderance of the evidence, entitle him to relief.” Id.

“[W]here direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Claims otherwise barred by Knaffla will be considered only under either of two circumstances: where a claim’s legal basis is so novel that it was not reasonably available on direct appeal or where fairness so requires and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal. Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007) (internal quotation marks omitted).

We conclude that all of Martin’s claims are proeedurally barred. All of Martin’s claims were known at the time of direct appeal. They are not legally novel. Martin offers no explanation for his failure to raise them at the time of direct appeal. Accordingly, we hold Martin’s claims to be barred by Knaffla. Further, we observe that Martin has failed to allege facts that would, if proved, entitle him to relief. As such, even if his claims were not procedurally barred, summary denial of his petition would be proper.

Affirmed.


author: PETERSON, Judge.

text:
    NORTHERN REALTY VENTURES, LLC, Appellant, v. MINNESOTA HOUSING FINANCE AGENCY, Respondent.
    No. A07-0800.
    Court of Appeals of Minnesota.
    April 15, 2008.

      Kirk M. Anderson, John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., St. Paul, MN, for appellant.
    Lori Swanson, Attorney General, Thomas K. Overton, Darryl Henchen, Assistant Attorney Generals, St. Paul, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge; SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

PETERSON, Judge.

In this appeal from summary judgment, appellant Northern Realty Ventures, LLC argues that the district court erred in determining that respondent Minnesota Housing Finance Agency is the fee owner of certain property because respondent substantially and sufficiently complied with the requirements to redeem the property following a mortgage-foreclosure sale, and, by notice of review, respondent argues that the district court erred in determining that appellant was entitled to redeem the property following the foreclosure sale. Because we conclude that the district court incorrectly interpreted thé redemption statute, we reverse the determinations that respondent substantially and sufficiently complied with the requirements of the redemption statute and that appellant was entitled to redeem, and remand for further proceedings.

FACTS

In July 2001, Jendayi Place, Inc. granted Western Bank a mortgage on a parcel of property in St. Paul, and the mortgage was recorded with the Ramsey County Recorder. Jendayi granted Community Loan Technologies a second mortgage on the property in March 2002, and the mortgage was recorded with the Ramsey County Recorder on April 4, 2002. On December 18, 2002, Jendayi granted a third mortgage on the property to respondent Minnesota Housing Finance Agency (MHFA) to secure a loan in the amount of $263,725. The mortgage was recorded with the Ramsey County Recorder on January 2, 2003.

On December 27, 2002, which was after Jendayi granted MHFA the third mortgage, but before that mortgage was recorded, a $17,523.85 judgment against Jen-dayi in favor of Staffing, Training and Alternative Resources, Inc. was docketed in the Ramsey County District Court. The judgment was later assigned to appellant Northern Realty Ventures, LLC.

Jendayi defaulted on its mortgage to Community Loan Technologies, and Community Loan Technologies foreclosed. On October 25, 2005, the property was sold for $96,518.36 at a sheriffs sale, and the sheriffs certificate of sale was recorded with the county recorder. Jendayi, as mortgagor, had the right to redeem the property from the sheriffs sale within six months after the sale. See Minn.Stat. § 580.23, subd. 1 (2006). Jendayi did not exercise its right to redeem, and the redemption period expired April 25, 2006. Because Jendayi did not redeem, the six-month redemption period was followed by a series of seven-day periods during which creditors with liens on the property subsequent to the foreclosed mortgage could redeem. See Minn.Stat. § 580.24(a) (2006). The creditor whose lien had the highest priority could redeem during the first seven-day period, and in the order of the priority of their liens, each additional creditor had a seven-day period during which the creditor could redeem. See id. To be entitled to redeem, a creditor needed to record certain documents and deliver copies of the recorded documents to the sheriff during Jendayi’s six-month redemption period. See id.

On March 8, 2006, MHFA filed with the county recorder a notice of intention to redeem the property from the foreclosure sale. On April 11, 2006, MHFA delivered a copy of its recorded notice of intention to redeem and a copy of its recorded mortgage to the sheriff.

On April 24, 2006, Northern Realty filed in the Ramsey County District Court its assignment of the judgment against Jen-dayi, and the assignment was docketed. On April 25, 2006, Northern Realty filed with the county recorder a notice of intent to redeem from the Community Loan foreclosure sale based on the assignment of judgment. The same day, Northern Realty delivered to the sheriff copies of the notice of intent to redeem based on the assignment of judgment, a certified copy of the notice of entry and statement of judgment, and a certified copy of the assignment of judgment. Also on April 25, 2006, Northern Realty filed with the county recorder an additional lien on the property in the amount of $1,591.32, which was based on the payment of property taxes by Northern Realty, and a second notice of intent to redeem based on the additional lien and then delivered to the sheriff a copy of the additional lien for payment of property taxes and a copy of the notice of intent to redeem based on the additional lien.

Because Jendayi’s redemption period expired on April 25, 2006, the redemption period for the creditor whose lien had the highest priority subsequent to the foreclosed mortgage expired seven days later on May 2, 2006, and the redemption period for the next creditor expired on May 9, 2006. On April 27, during the first seven-day redemption period, the sheriff determined that even though Northern Realty was the senior creditor, it did not have the right to redeem because it had not filed with the sheriff documents that showed that the December 27, 2002 judgment against Jendayi in favor of Staffing, Training and Alternative Resources, Inc. and the assignment of that judgment to Northern Realty had been filed with the Ramsey County Recorder. The sheriff then informed MHFA that it was the senior creditor with the right to redeem, and on April 28, 2006, which was still within the first seven-day redemption period, MHFA delivered to the sheriff the payment for redemption and an affidavit showing the amount due on MHFA’s lien and required to be paid in order to redeem from MHFA. The sheriff issued a certifícate of redemption to MHFA, and MHFA filed the certificate of redemption and the affidavit of additional amounts due on redemption with the county recorder.

On May 2, 2006, the final day of the first seven-day redemption period, Northern Realty attempted to redeem as senior creditor by delivering to the sheriff a payment and an affidavit stating the amount due on Northern Realty’s lien and required to be paid in order to redeem from Northern Realty. Based upon the previous determination that Northern Realty was not entitled to redeem, the sheriff refused to accept the payment and affidavit. On May 9, 2006, the final day of the second seven-day redemption period, Northern Realty’s attorney wrote to the sheriff and to the Ramsey County Attorney, stating that Northern Realty would bring an action for a writ of mandamus if it was not allowed to redeem from the Community Loan foreclosure. On May 12, 2006, which was after the second seven-day redemption period had expired, the sheriff changed his earlier decision and determined that Northern Realty was entitled to redeem as senior creditor; accepted payment from Northern Realty; issued to Northern Realty a certificate of redemption, which Northern Realty filed on that same day; and informed MHFA that it was entitled to redeem as junior creditor after Northern Realty. Also on May 12, 2006, MHFA tendered to the sheriff a payment to redeem from Northern Realty, and the sheriff issued to MHFA a revised certificate of redemption, which MHFA filed with the county recorder.

On May 15, 2006, Northern Realty filed with the county recorder an affidavit showing the amount required to be paid in order to redeem from Northern Realty, and on May 16, 2006, which was the last day of the third seven-day redemption period, Northern Realty made a payment to the sheriff in an effort to redeem from itself based on its additional lien for payment of property taxes. By letter dated May 17, 2006, Northern Realty refused to accept the payments tendered to the sheriff by MHFA to redeem from Northern Realty. On May 18, 2006, Northern Realty filed with the county recorder a certificate of redemption from foreclosure sale by a holder of a sheriffs certificate.

While the foreclosure and redemption procedures related to Jendayi’s second mortgage on the property were occurring, Jendayi also defaulted on its first mortgage to Western Bank, and Western Bank began foreclosure proceedings. On December 14, 2005, the property was sold at a sheriffs sale to Western Bank. Based on their attempts to redeem following the foreclosure of the second mortgage, both Northern Realty and MHFA claimed to own the property, and both attempted to redeem as fee owners following the sheriffs sale to Western Bank. The sheriff refused to allow redemption by either party because he could not determine which party was the fee owner.

Northern Realty brought this action against MHFA seeking to quiet title to the property. The parties filed cross-motions for summary judgment and entered into a receivership agreement for management of the property pending the outcome of this action. The district court determined that because Northern Realty provided to the sheriff the documents required under Minn.Stat. § 580.24, Northern Realty had the right to redeem as senior creditor when it tendered payment to the sheriff on May 2, 2006, the last day of the first seven-day redemption period, and the sheriff refused to accept the payment. But even though MHFA was not the senior creditor when the sheriff had accepted payment from MHFA during the first seven-day redemption period and MHFA did not redeem from Northern Realty as a junior creditor until after the second seven-day redemption period expired, the district court determined that MHFA was the fee owner of the property because MHFA substantially and sufficiently complied with the redemption requirements. The district court explained:

The Sheriffs actions should not penalize MHFA so as to preclude their redemption after [Northern Realty’s] redemption payment was accepted. MHFA provided all of the statutorily required documents to the Sheriff in a timely fashion, and provided a payment to redeem in the amount due at the direction of the Sheriff at the time the Sheriff determined it to be the senior creditor. It cannot reasonably be expected that MHFA would refuse to redeem under these circumstances or that it had an obligation to persuade the Sheriff that his interpretation of statutory law may be wrong.

On this basis, the district court granted summary judgment for MHFA.

Northern Realty appeals from the summary judgment for MHFA. MHFA filed a notice of review challenging the district court’s determination that Northern Realty filed the documents required under Minn.Stat. § 580.24(a) in order to be entitled to redeem.

ISSUES

I. Did the district court err in determining that Northern Realty filed the documents required under Minn.Stat. § 580.24(a) (2006) in order to be entitled to redeem?

II. Did the district court err in determining that MHFA is the fee owner of the property because it substantially and sufficiently complied with the statutory redemption requirements?

ANALYSIS

On appeal from a summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court reviews de novo whether a genuine issue of material fact exists and whether the district court erred in applying the law. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn.2002). Statutory construction is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

I.

The validity of a redemption depends on whether the party redeeming has substantially complied with the statutory redemption procedures. To promote certainty in real-estate transactions, redemption statutes are interpreted strictly according to their terms. But strict construction does not preclude redemption when formal defects do not prejudice the rights of junior lienors. While the essential elements of the statute must be strictly adhered to, failure to comply with the more formal requirements may be overlooked.

TCM Properties, LLC v. Gunderson, 720 N.W.2d 344, 350 (Minn.App.2006) (quotation and citations omitted).

The statute that governs redemption following a foreclosure sale states:

If no redemption is made by the mortgagor, the mortgagor’s personal representatives or assigns, the most senior creditor having a legal or equitable lien upon the mortgaged premises, or some part of it, subsequent to the foreclosed mortgage, may redeem within seven days after the expiration of the redemption period determined under section 580.23 or 582.082, whichever is applicable; and each subsequent creditor having a lien may redeem, in the order of priority of their respective liens, within seven days after the time allowed the prior lienholder by paying the amount required under this section. However, no creditor is entitled to redeem unless, within the period allowed for redemption by the mortgagor, the creditor:
(1) records with each county recorder and registrar of titles where the foreclosed mortgage is recorded a notice of the creditor’s intention to redeem;
(2) records in each office where the notice is recorded all documents necessary to create the lien on the mortgaged premises and to evidence the creditor’s ownership of the lien; and
(3) after complying with clauses (1) and (2), delivers to the sheriff who conducted the foreclosure sale or the sheriffs successor in office a copy of each of the documents required to be recorded under clauses (1) and (2), with the office, date and time of filing for record stated on the first page of each document.

Minn.Stat. § 580.24(a) (2006).

Northern Realty argues that because it was the most-senior creditor in line to redeem when Jendayi’s six-month redemption period expired at midnight on April 25, 2006, it had seven days, or until May 2, 2006, to redeem the property from the sheriffs sale. Northern Realty contends that it redeemed on May 2, and MHFA then had seven days, or until May 9, to redeem from Northern Realty, but MHFA failed to do so. Northern Realty argues that because MHFA was not the most-senior creditor, its attempt to redeem on April 28 was premature, and because the seven-day period for MHFA to redeem as a junior creditor expired on May 9, MHFA’s attempt to redeem on May 12 was too late. Therefore, Northern Realty contends, the district court erred as a matter of law when it denied Northern Realty’s motion for summary judgment and granted MHFA’s motion for summary judgment.

MHFA concedes that because the judgment that was assigned to Northern Realty was docketed in the district court before MHFA’s mortgage was recorded in the county recorder’s office, Northern Realty was the most-senior creditor with a lien on the property subsequent to the foreclosed mortgage. See MinmStat. § 548.09, subd. 1 (2006) (stating that from time of docketing, a “judgment is a lien, in the amount unpaid, upon all real property in the county then or thereafter owned by the judgment debtor”). But MHFA argues that although Northern Realty was the most-senior creditor, Northern Realty was not entitled to redeem under the assignment of judgment because Northern Realty did not comply with the filing requirements of Minn.Stat. § 580.24(a).

Minn.Stat. § 580.24(a) unambiguously states that “no creditor is entitled to redeem unless, within the period allowed for redemption by the mortgagor, the creditor” records a notice of the creditor’s intention to redeem, records all documents necessary to create the creditor’s lien and to evidence the creditor’s ownership of the lien, and delivers to the sheriff copies of all of these documents that show when and where the documents were recorded. Under the plain meaning of this language, a creditor who fails to do the three required things during the mortgagor’s redemption period is not entitled to redeem. Therefore, if Northern Realty failed to do any of the three required things during the six months following the sheriffs sale, it was not entitled to redeem even if it was the most-senior creditor.

MHFA acknowledges that Northern Realty recorded a notice of its intention to redeem as required by the statute but argues that Northern Realty was not entitled to redeem because it did not record the judgment and assignment and did not deliver to the sheriff copies of the recorded judgment and assignment that showed where and when the documents had been recorded. Northern Realty argues that it was not required to record the judgment and assignment in the county recorder’s office because Minn.Stat. § 580.24(a)(2) required it to record “all documents necessary to create” its lien and to show its ownership of the lien. Northern Realty contends that its lien was created when the judgment was docketed in the district court and its ownership of the lien was shown when the assignment was filed in the district court. Consequently, Northern Realty concludes, recording the judgment and the assignment in the county recorder’s office was not necessary to create its lien and to show its ownership of the lien, and it was not required to record the judgment and the assignment.

The district court agreed with Northern Realty’s interpretation of the statute, and concluded that Northern Realty provided the required documents when it delivered to the sheriff a copy of the notice of intent to redeem based on the assignment of judgment, a certified copy of the notice of entry and statement of judgment that was filed in the district court, and a certified copy of the assignment of judgment that was filed in the district court. The district court stated:

Considering the pertinent redemption statute as a whole, Minn.Stat. § 580.24(a)(2) is reasonably construed to require a creditor to file with the County Recorder those documents that then create the lien, not those that have already created a lien. In other words, where a judgment and assignment have been properly filed and docketed by the court administrator, certified copies of those documents are sufficient for purposes of the requirements of the redemption statutes. (emphasis in original)

The district court interprets Minn.Stat. § 580.24(a)(2) to require a creditor to record a document with the county recorder only when recording the document is necessary to create a lien on the mortgaged property. Under this interpretation, if a lien has already been created, the documents that were needed to create the lien do not have to be recorded and copies of the documents showing that they have been recorded do not have to be presented to the sheriff during the mortgagor’s redemption period.

But MHFA presents a reasonable alternative interpretation of the statute in which the phrase “all documents necessary to create the lien” means the documents needed to create the lien regardless of when the lien was created. Under this interpretation, because the judgment needed to be filed in the district court to create the lien, the judgment is a document necessary to create the lien, and because the assignment is needed to show that Northern Realty became the owner of the lien, the assignment is a document necessary to evidence Northern Realty’s ownership. Therefore, to be entitled to redeem, Northern Realty needed to record both documents with the county recorder during Jendayi’s redemption period.

Statutory interpretation is a question of law subject to de novo review. Metro. Sports Facilities Comm’n v. County of Hennepin, 561 N.W.2d 513, 515 (Minn. 1997). The object of statutory interpretation is to determine and give effect to the legislature’s intent. Minn.Stat. § 645.16 (2006). When the words in a statute are clear and unambiguous, a court must give effect to the plain meaning of the language. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986). But when a statute is ambiguous, that is, when it is reasonably susceptible to more than one interpretation, the court must determine the probable legislative intent and construe the statute in a manner consistent with that intent. Astleford Equip. Co., Inc. v. Navistar Int’l Transp. Corp., 611 N.W.2d 33, 37 (Minn.App.2000), aff'd in part, rev’d in part, 632 N.W.2d 182 (Minn.2001).

When the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other matters:
(1) the occasion and necessity for the law;
(2) the circumstances under which it was enacted;
(3) the mischief to be remedied;
(4) the object to be attained;
(5) the former law, if any, including other laws upon the same or similar subjects;
(6) the consequences of a particular interpretation;
(7) the contemporaneous legislative history; and
(8) legislative and administrative interpretations of the statute.

MinmStat. § 645.16. Also, “when a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language.” Minn.Stat. § 645.17(4) (2006).

Our examination of Minn.Stat. § 580.24(a)(2) in light of these principles of statutory interpretation persuades us that the district court erred when it determined that Minn.Stat. § 580.24(a)(2) requires a creditor to record a document with the county recorder only when a lien has not already been created and recording the document is necessary to create a lien on the mortgaged property. Minn.Stat. § 580.24(a)(2) was added to the redemption statute in 2004. 2004 Minn. Laws ch. 234, § 4, at 724. Before this amendment, to be entitled to redeem after a mortgagor failed to redeem, a creditor only needed to file for record with the county recorder a notice of intention to redeem. Minn.Stat. § 580.24 (2002). But under Brady v. Gilman, 96 Minn. 234, 236, 104 N.W. 897, 897 (1905), a notice of intention to redeem is void unless it is filed after a lien on the property has been created. In Brady, a judgment creditor filed notice of his intention to redeem, but the creditor’s judgment was not docketed until four hours later on the same day. Id. at 235, 104 N.W. at 897. The supreme court held that the judgment creditor was not entitled to redeem and explained:

The judgment becomes a lien on the unexempted land of the judgment debtor only from the time of so docketing it. A creditor having a junior lien, legal or equitable, on mortgaged premises, may redeem from a foreclosure sale thereof, provided he files notice of his intention to do so within the year allowed for redemption. It is a condition precedent to the exercise of the right of such creditor to redeem that he file a notice of his intention to do so, and to entitle him to give the notice he must have a lien on the premises at the time he files his notice. Therefore a notice of an intention so to redeem, filed by an intended redemptioner before he is in fact a lien creditor, is void, even though by the docketing of his judgment he afterwards becomes such creditor before the year to redeem expires.

Id. at 236, 104 N.W. at 897 (emphasis added) (citations omitted).

This means that before the redemption statute was amended in 2004, a creditor could become entitled to redeem only by filing a notice of intention to redeem after a lien on the property had been created. Because a lien on the property needed to be created before a creditor was entitled to record a notice of intention to redeem, any documents that needed to be recorded in order to create the lien had to be recorded before the notice was recorded. Consequently, there was no need for the legislature to amend the statute to require a creditor recording a notice of intention to redeem to also record any documents that needed to be recorded in order to create the creditor’s lien. Under the previous statute, the creditor was already required to have a lien before recording the notice of intention to redeem.

Also, the contemporaneous legislative history of the enactment of Minn.Stat. § 580.24(a)(2) indicates that the recording requirement for “all documents necessary to create the lien” does not apply only to documents that must be recorded in order to create a lien. The legislation that became Minn.Stat. § 580.24(a)(2) was part of an amendment to H.F. No. 2419, which was a bill related to purchase-money mortgages. During the Senate debate on the amendment, the author of the amendment explained the amendment to the Senate as follows:

This amendment is intended to address a situation that has been causing the sheriffs a lot of problems. And that’s when there’s a mortgage foreclosure and redemption, at the end of that time period, the sheriff doesn’t know who the right person is to redeem or what order of creditor they are. You know, generally speaking, the owner gets the first right to redeem and then after that it’s a sequential order of the first senior, then the second, and third. There’s a little bit of a race, sometimes, to be the last person to redeem, and what this amendment would do is set up a process that’s more clear, particularly for the sheriffs. So it would require that in order to be a person who can redeem, you have to file your notice of intent to redeem, that’s current law. Number two, you have to make sure you file your actual mortgage or lien or judgment. Sometimes, people have them, but they don’t file them or record them with the county recorder. Thirdly, after you’ve done that, you have to deliver both of these documents to the sheriff. And the sheriff would be allowed to collect a fee of $100, and they’d keep these documents on record, and then they would know who the potential creditors are, junior creditors who would be eligible to redeem the property.

Senate Floor Debate on H.F. No. 2419 (May 11, 2004) (statement of Sen. Neuville).

The Senate adopted the amendment and passed H.F. No. 2419 as amended. State of Minnesota, Journal of the Senate, 83rd Sess. 4569 (May 11, 2004). H.F. No. 2419 was then returned to the House of Representatives, where the House author moved to concur in the Senate amendments and that H.F. No. 2419 be repassed as amended by the Senate. State of Minnesota, Journal of the House, 83rd Sess. 7615 (May 13, 2004). During the debate on the motion, the House author explained the Senate amendment as follows:

The amendment put on by the Senate was brought to Senator Neuville by the Sheriffs Association and essentially members what it does is it allows the sheriff to verify a creditor’s right to redeem in the priority level of various creditors. It is very technical but there was concern on the part of the sheriffs that when a redemption was going to occur or if a redemption is to occur, who has the priority rights; how those rights line up. That’s the amendment that was put on in the Senate.

House Floor Debate on H.F. No. 2419 (May 13, 2004) (statement of Rep. Kohls).

In response to a question, the author explained further:

That’s one of the concerns that the sheriffs have. They want to make sure that whoever is claiming they have a right to redeem the property that they actually do. And that’s why what this is doing it requires creditors to obtain documentation from the recorder’s office, provide that information to the sheriff so that, so that the sheriffs department knows who the creditors are, what the priorities are, and who has a right to the property.

Id.

The motion to concur in the Senate amendments to H.F. No. 2419 and to re-pass the bill as amended prevailed, and H.F. No. 2419 was repassed by the House. State of Minnesota, Journal of the House, 83rd Sess. 7615 (May 13, 2004).

The statements made by the authors of the 2004 legislation during debate reveal the legislature’s intent when it required a creditor to record all documents necessary to create the creditor’s lien. Following a sheriffs sale in a foreclosure proceeding, it is possible to have several creditors who are entitled to redeem. Therefore, to administer the redemption process, it is necessary to know the priority of each lien. The documents used to create individual liens are used to determine the priority order of competing liens. But, as the facts of this case illustrate, some liens are created by recording documents in the county recorder’s office and other liens are created by filing documents in other places, such as the district court. As a result, the sheriff responsible for administering the redemption process may have to determine the priority order of liens that were created by documents filed in different places.

The amendment to Minn.Stat. § 580.24 was enacted to reduce the difficulty of determining the priority of competing liens by requiring any creditor who wishes to become entitled to redeem to file in the county recorder’s office all documents necessary to create the creditor’s lien. Because the legislature’s intent was to reduce the difficulty that sheriffs were having when determining the priority of competing liens, we conclude that the requirement in Minn.Stat. § 580.24(a)(2) to record “all documents necessary to create the lien” applies to the documents necessary to create any creditor’s lien on the property, regardless of when the lien was created. If the requirement did not apply to all liens, the legislation would not accomplish its purpose because the sheriff would not receive the information needed to determine when each creditor’s lien was created, and without information about each lien, the sheriff could not determine the priority order of all of the creditors’ liens. Also, Minn.Stat. § 580.24(a)(3) (2006) requires creditors to deliver to the sheriff “a copy of each of the documents required to be recorded under clauses (1) and (2).” If the recording requirement under clause (2) did not apply to the documents necessary to create every creditor’s lien, the documents required to be delivered to the sheriff under clause (3) would not always include all of the information needed to administer the redemption process.

Because the recording requirement in Minn.Stat. § 580.24(a)(2) applies to the documents necessary to create every creditor’s lien, Northern Realty was not entitled to redeem based on the December 27, 2002 judgment unless it filed the judgment and assignment of judgment with the county recorder during Jendayi’s redemption period. In its memorandum, the district court found that “[t]he judgment and assignment were not filed with the County-Recorder.” In light of this finding, we conclude that the district court erred when it determined that Northern Realty had the right to redeem when it tendered payment to the sheriff on May 2, 2006. Therefore, Northern Realty should not have been permitted to redeem, and any payment that Northern Realty made to the sheriff to redeem based on the December 27, 2002 judgment should be refunded.

II.

After determining that Northern Realty had the right to redeem when it tendered payment to the sheriff on May 2, 2006, the district court went on to determine that MHFA substantially and sufficiently complied with the requirements for redeeming from Northern Realty and, therefore, MHFA is now the owner of the property. But because the district court incorrectly interpreted Minn.Stat. § 580.24(a)(2), its determination that MHFA substantially and sufficiently complied with the redemption requirements is based on an incorrect interpretation of the redemption statute. Therefore, we reverse the determination that MHFA is now the owner of the property and remand to permit the district court to determine whether MHFA complied with Minn.Stat. § 580.24(a) as we have interpreted the statute.

Finally, the district court did not address whether Northern Realty was entitled to redeem based on its additional lien for payment of property taxes. On remand, the district court should determine whether Northern Realty complied with the requirements for redeeming based on this hen.

DECISION

Because Northern Realty did not file the December 27, 2002 judgment and the assignment of that judgment with the county recorder during Jendayi’s redemption period as required under Minn.Stat. § 580.24(a)(2), Northern Realty was not entitled to redeem based on that judgment. The district court applied an incorrect interpretation of Minn.Stat. § 580.24(a)(2) when it determined that MHFA substantially and sufficiently complied with the requirements of the redemption statute. Therefore, we reverse the district court’s determinations that Northern Realty had the right to redeem when it tendered payment to the sheriff on May 2, 2006, and that MHFA is now the owner of the property. We remand to permit the district court to determine the amount of the payment that the sheriff must return to Northern Realty, to reconsider whether MHFA complied with the requirements of the redemption statute, and to determine whether Northern Realty complied with the requirements for redeeming based on its additional lien for payment of property taxes.

Reversed and remanded.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustees of Ameriquest Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Series 2003-13, a United States corporation, Appellant v. Deborah K. PETERSEN, Respondent, Guy L. Petersen, Respondent, Merchants Bonding Company, Respondent.
    No. A07-0210.
    Court of Appeals of Minnesota.
    April 22, 2008.

      Gary B. Bodelson, Minneapolis, MN, for appellant.
    Deborah K. Petersen, Guy L. Petersen, Ramsey, MN, pro se, respondents.
    Susan Sheely, Barna, Guzy <& Steffen, Ltd., Minneapolis, MN, for respondent, Merchants Bonding Company.

      Considered and decided by TOUSSAINT, Chief Judge; PETERSON, Judge; and CRIPPEN, Judge.

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

   OPINION

PETERSON, Judge.

In this priority dispute between a mortgagee and a judgment creditor whose judgment was docketed before the mortgage was recorded, the district court determined that because the judgment lien attached to the judgment debtors’ property when the judgment was docketed, the judgment has priority over the mortgage. We reverse and remand.

FACTS

In June 2001, respondent Deborah K. Petersen purchased a home in the City of Ramsey in Anoka County. She and her husband, respondent Guy L. Petersen (the homeowners), have resided in the home since June 2001. On August 11, 2003, respondent Merchants Bonding Company (Merchants) obtained a judgment against the homeowners in Hennepin County. On November 21, 2003, the homeowners executed and delivered a mortgage on the property in favor of Ameriquest Mortgage Company. The judgment against the homeowners was docketed in Anoka County on November 26, 2003, and the mortgage was recorded on December 8, 2003. The mortgage was later assigned to appellant Deutsche Bank National Trust Company (Deutsche Bank). The assignment and a notice of pendency of a proceeding to foreclose the mortgage were filed on February 16, 2005.

In October 2005, Deutsche Bank brought an action against the homeowners and Merchants seeking a determination that the mortgage is prior and superior to any interest that Merchants has in the property. Deutsche Bank moved for summary judgment, and the district court denied the motion after concluding that (a) at the time the judgment was docketed in Anoka County, the judgment attached to the property; (b) the homestead exemption is a protection provided to the homeowners, and as a creditor, Deutsche Bank cannot assert the homestead exemption; and (c) because the judgment lien was docketed before the mortgage was recorded, the judgment lien has priority over the mortgage. The district court later issued an amended order, directing that judgment be entered in favor of Merchants based on the court’s determination that Merchants’ judgment lien has priority over Deutsche Bank’s mortgage. This appeal followed.

ISSUES

I. Did Merchants’ judgment lien attach to the homeowners’ property when the judgment was docketed in Anoka County?

II. Could Deutsche Bank assert the homestead exemption as a basis for its priority claim?

III. Does Merchants’ judgment have priority over Deutsche Bank’s later-recorded mortgage?

ANALYSIS

On appeal from a summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court reviews de novo whether a genuine issue of material fact exists and whether the district court erred in applying the law. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn.2002). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, which this court reviews de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

I.

Subject to exceptions that do not apply here, “[f]rom the time of docketing [a judgment requiring the payment of money] is a lien, in the amount unpaid, upon all real property in the county then or thereafter owned by the judgment debtor.” Minn.Stat. § 548.09, subd. 1 (2006). Merchants obtained a judgment against the homeowners, and the judgment was docketed in Anoka County. Under the plain language of Minn.Stat. § 548.09, subd. 1, when the judgment was docketed, it became a lien upon the homeowners’ property.

But the fact that the judgment became a lien upon the property when it was docketed does not mean that the judgment has priority over the later-recorded mortgage. “The basic rule of lien priority law is simple and well-settled. That rule states that in disputes between creditors concerning a lien on the debtor’s property, the first creditor to perfect the lien shall prevail.” Oldewurtel v. Redding, 421 N.W.2d 722, 726 (Minn.1988). A judgment lien is not perfected until it attaches. NationsBanc Mortgage Corp. v. Sec. Bank & Trust, 600 N.W.2d 481, 483 (Minn.App. 1999), review denied (Minn. Dec. 14, 1999). Minnesota courts have long held that a judgment lien does not attach to exempt property. See, e.g., Eustice v. Jewison, 413 N.W.2d 114, 120 (Minn.1987) (holding that a judgment could attach only to the judgment debtor’s non-exempt property); Oxborough v. St. Martin, 142 Minn. 34, 35, 170 N.W. 707, 708 (1919) (holding that a judgment lien does not attach to homestead property until and unless the property ceases to be a homestead).

The legislature has enacted statutes that define exempt homestead property.

The house owned and occupied by a debtor as the debtor’s dwelling place, together with the land upon which it is situated to the amount of area and value hereinafter limited and defined, shall constitute the homestead of such debtor and the debtor’s family, and be exempt from seizure or sale under legal process on account of any debt not lawfully charged thereon in writing....

Minn.Stat. § 510.01 (2006). In 1993, the legislature limited the amount of the homestead exemption for non-agricultural homestead property to $200,000 of value. 1993 Minn. Laws ch. 79, § 2 (codified at Minn.Stat. § 510.02 (2006)). The value limitation on the homestead exemption applies to the homeowner’s equity, not to the market value of the home. Baumann v. Chaska Bldg. Ctr., Inc., 621 N.W.2d 795, 799 (Minn.App.2001.) There is also an area limitation on the homestead exemption, and the limit for a homestead within the laid-out or platted portion of a city is one-half acre.' Minn.Stat. § 510.02 (2006). If, as Deutsche Bank asserts, the property falls within this exemption, Merchants’ judgment lien did not attach.

The homestead exemption does not extend to any lawfully obtained mortgage on the homestead. Minn.Stat. § 510.05 (2006). Consequently, the homestead exemption does not prevent a mortgage lien from being perfected. In NationsBanc, this court addressed a priority dispute that involved a judgment lien and a later-recorded mortgage on homestead property. 600 N.W.2d at 482. The judgment lien was based on a judgment that had been docketed two months before the homestead was mortgaged. Id. Although the judgment was docketed before the mortgage was recorded, this court concluded that because the homestead exemption applied to the property, the judgment lien did not attach to the property before the mortgage was recorded. Id. at 483. Because the mortgage was perfected when it was recorded, the mortgage had priority over the unattached and unperfected judgment lien. Id.; see also Landers-Morrison-Christenson Co. v. Ambassador Holding Co., 171 Minn. 445, 449, 214 N.W. 503, 505 (1927) (stating that advances secured by mortgage have priority over mechanics’ liens that attached after the mortgage was recorded but before the advances were made); Landmark v. Schaefbauer, 41 B.R. 766, 770 (Bankr.D.Minn.1984) (determining that recording real estate mortgage perfects lien against property of bankruptcy estate).

The same principle applies to the present priority dispute. If the homeowners’ property was exempt homestead property, the judgment lien did not attach to the property when the judgment was docketed. If it did not attach, the judgment lien was not perfected when the mortgage was recorded. Therefore, because the mortgage was perfected when it was recorded, Deutsche Bank would be the first creditor to perfect its lien, and the mortgage would have priority over the judgment.

II.

The district court concluded that the homestead exemption is a protection provided to the homeowners, and as a creditor, Deutsche Bank cannot assert the homestead exemption. But the statutes that define the homestead exemption expressly extend its protection to a homestead-owner’s grantees. “The owner may sell and convey the homestead without subjecting it, or the proceeds of such sale for the period of one year after sale, to any judgment or debt from which it was exempt in the owner’s hands.... ” Minn. Stat. § 510.07 (2006). In interpreting the predecessor to this statute, the supreme court considered a claim that the homestead exemption can only be asserted by the homestead owner. Baldwin v. O’Laughlin, 28 Minn. 544, 549,11 N.W. 77, 79 (1881). In Baldwin, the homestead owner conveyed the homestead to an individual who was to assume and payoff the mortgages and overdue taxes on the property and then sell the property and pay to the original owner any surplus proceeds remaining after the encumbrances were paid. Id. at 547, 11 N.W. at 78. The homestead owner’s purpose in making the conveyance was to shield any surplus proceeds from his creditors. Id. When a judgment creditor, seeking to have the conveyance declared void, argued that the homestead exemption can only be asserted by the homestead owner, the supreme court rejected the argument and explained:

The [judgment creditor’s] position, that the homestead right is a personal right, which can only be asserted by the person whose homestead right it is, is utterly inconsistent with the decisions of this court.... If the owner of a homestead cannot sell and convey so that his grantee can avail himself of the fact that it was a homestead, against the grant- or’s creditors, what possible meaning can be attributed to the statute where it says that “the owner of a homestead, under the laws of this state, ... may sell and convey the same, and such ... sale and conveyance shall not render such homestead liable or subject to forced sale on execution or other process hereafter issued on any judgment or decree of any court of this state, or of the district court of the United States for the state of Minnesota, against such owner. Nor shall any judgment or decree of any such court, be a lien on such homestead for any purpose whatever?”
If this does not mean that the land constituting the homestead is as much protected in the hands of the grantee as it was in the hands of the grantor from the judgments and decrees mentioned, and that the former may assert his rights accordingly, it means nothing.

Id. at 549, 11 N.W. at 79 (second and third omissions in original) (quoting Minn. Gen. Stat. ch. 68, § 8 (1878) (predecessor to Minn.Stat. § 510.07)).

Furthermore, by enacting the homestead exemption, the legislature defined the interests that creditors may obtain in homestead property. As we have already stated, the legislature chose not to extend the homestead exemption to any lawfully obtained mortgage on a homestead, which means that Deutsche Bank’s interest in the homeowner’s property is not limited by the homestead exemption. But, as a judgment' creditor, Merchants’ interest in the property is limited by the homestead exemption. In arguing that its mortgage has priority over Merchants’ judgment because the mortgage lien was perfected before the judgment lien attached, Deutsche Bank was asserting its rights under the homestead-exemption statute; it was not asserting the homeowners’ rights. Therefore, the district court erred in determining that Deutsche Bank cannot assert the homestead exemption.

III.

Because the district court concluded that Deutsche Bank cannot assert the homestead exemption, the district court did not determine whether the homeowners’ property was exempt homestead property. Whether Merchants’ judgment has priority over Deutsche Bank’s mortgage depends on whether the judgment lien was perfected before the mortgage was recorded. Whether the judgment lien was perfected before the mortgage was recorded depends on whether the homeowners’ property was exempt homestead property. Therefore, because determining whether the homeowners’ property was exempt homestead property requires factual determinations regarding the value of the homeowners’ equity in the home and the size of the property, we reverse the judgment of the district court that the judgment has priority over the mortgage, and we remand so that the district court can determine whether the homeowners’ property was exempt homestead property and, based on its determination, decide whether the judgment or the mortgage has priority. On remand, the district court may, in its discretion, open the record to receive additional evidence.

DECISION

Because the priority of Deutsche Bank’s interest in the homeowners’ property depends on whether the property is exempt homestead property, Deutsche Bank may assert the homestead exemption as a basis for its priority claim. Because a judgment lien does not attach to exempt property, the district court could not correctly determine whether Merchants’ judgment has priority over Deutsche Bank’s mortgage without determining whether the homeowners’ property was exempt homestead property. Because determining whether the homeowners’ property was exempt homestead property requires factual findings regarding the value of the homeowners’ equity and the size of the property, the district court must make the necessary findings and determine whether the mortgage or the judgment has priority.

Reversed and remanded.

      . The statute provides further that a judgment "is not a lien upon registered land unless it is also recorded pursuant to sections 508.63 and 508A.63.” Minn.Stat. § 548.09, subd. 1. The homeowners’ property is not registered land.

      . In 2007, the legislature increased the value limit of the exemption for non-agricultural homestead property from $200,000 to $300,000. 2007 Minn. Laws ch. 105, § 2, 106 § 11 (codified at Minn.Stat. § 510.02, subd. 1 (Supp. 2007)). Our resolution of this case does not require us to determine which exemption limit applies. Because the 2007 amendments to chapter 510 do not affect our decision, for ease of reference, we cite to the 2006 version of chapter 510 throughout the opinion.

      . In 2007, the legislature removed the one-half-acre area limitation for a homestead within the laid-out or platted portion of a city. 2007 Minn. Laws ch. 105, § 2, 106 § 11 (codified at Minn.Stat. § 510.02, subd. 1 (Supp. 2007)).

      . Merchants argues that the homeowners waived their right to claim the homestead exemption in an indemnity agreement. It is undisputed that the alleged indemnity agreement was not submitted to the district court until after the summary judgment hearing. Minn. R. Gen. Pract. 115.03(b) requires that documents and exhibits used in opposing summary judgment be filed with the court administrator at least nine days before the hearing. Because the waiver issue was not properly before the district court, and the district court did not address it, we decline to address it on appeal. See Toth v. Arason, 722 M.W.2d 437, 443 (Minn.2006) (stating that “a reviewing court generally may consider only those issues that the record shows were presented to and considered by the trial court”) (quotation omitted).