Solwey v. Solwey, 122016 NDSC, 20160158

Docket Nº:20160158
Opinion Judge:Sandstrom, Justice.
Party Name:Lisa D. Solwey, Plaintiff and Appellee v. Thomas J. Solwey, Defendant and Appellant
Attorney:Steven T. Ottmar, for plaintiff and appellee. Timothy C. Lamb, for defendant and appellant.
Judge Panel:Dale V. Sandstrom, Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Gerald W.VandeWalle, C.J. McEvers, Justice, concurring specially. Lisa Fair McEvers, Daniel J. Crothers
Case Date:December 20, 2016
Court:Supreme Court of North Dakota
 
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2016 ND 246

Lisa D. Solwey, Plaintiff and Appellee

v.

Thomas J. Solwey, Defendant and Appellant

No. 20160158

Supreme Court of North Dakota

December 20, 2016

Appeal from the District Court of Foster County, Southeast Judicial District, the Honorable James D. Hovey, Judge.

REVERSED AND REMANDED.

Steven T. Ottmar, for plaintiff and appellee.

Timothy C. Lamb, for defendant and appellant.

OPINION

Sandstrom, Justice.

[¶ 1] Thomas Solwey appeals the district court order denying his petition to modify primary parental responsibility. We reverse and remand for further proceedings, concluding Thomas Solwey established a prima facie case for modification and was entitled to an evidentiary hearing. We decline his request that we order a different district judge hear the matter on remand. We also decline his request for attorney's fees.

I

[¶ 2] Thomas and Lisa Solwey married in 1998 and divorced in October 2013. They have four children, a daughter born in 1999, a twin son and a twin daughter born in 2003, and a daughter born in 2007. The mother received primary residential responsibility for the children.

[¶ 3] In August 2015, the father moved to modify primary residential responsibility. Under the heightened standard for such motions within two years of the previous order, the district court dismissed the motion without an evidentiary hearing. See N.D.C.C. § 14-09-06.6(1) and (3). The father did not appeal that order.

[¶ 4] In November 2015, the father again moved to modify primary residential responsibility. He submitted his affidavit and affidavits from the twin children. The affidavits included several allegations about the son's disruptive behavior. The mother responded with her affidavit and affidavits from the twin children. The allegations in the twins' second affidavits recanted much of their first affidavits.

[¶ 5] On March 2, 2016, the district court ordered the parties to mediate the dispute, with mediation to be completed within 90 days.

[¶ 6] On April 6, 2016, before mediation was completed, the district court issued an order denying the motion to change custody, finding the father's allegations failed to show modification would be in the children's best interests. The court rejected the twins' first and second affidavits, finding the twins lacked credibility because they were "willing to sign an affidavit based upon whoever they [were] with at the time." In its order, the court said it "incorporates into this order the findings of fact and analysis of the order" on the earlier motion.

[¶ 7] The father moved the court to reconsider its order and attached this Court's opinion in Forster v. Flaagan, 2016 ND 12, 873 N.W.2d 904. The district court denied the father's motion for reconsideration.

[¶ 8] The father appeals, arguing he established a prima facie case for an evidentiary hearing. He also argues that if this Court reverses the district court's decision, (1) the judge should not be allowed to hear the case on remand because he was biased in ruling against him, and (2) he is entitled to attorney's fees.

[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Thomas Solwey's appeal is timely under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 10] Thomas Solwey argues he should have been given an evidentiary hearing on his motion to change primary residential responsibility for the children.

A

[¶ 11] In Anderson v. Jenkins, 2013 ND 167, ¶¶ 7-10, 837 N.W.2d 374, we explained the legal framework of our analysis: Section 14-09-06.6, N.D.C.C., provides for a post-judgment modification of primary residential responsibility more than two years after entry of an order establishing primary residential responsibility:

4. A party seeking modification of an order concerning primary residential responsibility shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. The court shall set a date for an evidentiary hearing only if a prima facie case is established.

....

6. The court may modify the primary residential responsibility after the two-year period following the date of entry of an order establishing primary residential responsibility if the court finds:

a. On the...

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