Anderson v. Jenkins, 20130078.

CourtUnited States State Supreme Court of North Dakota
Citation2013 ND 167,837 N.W.2d 374
Docket NumberNo. 20130078.,20130078.
PartiesIvy ANDERSON, Plaintiff and Appellee v. Timothy JENKINS, Defendant and Appellant.
Decision Date25 September 2013

837 N.W.2d 374
2013 ND 167

Ivy ANDERSON, Plaintiff and Appellee
v.
Timothy JENKINS, Defendant and Appellant.

No. 20130078.

Supreme Court of North Dakota.

Sept. 25, 2013.


[837 N.W.2d 375]


Pamela F. Coleman, Grand Forks, N.D., for plaintiff and appellee; submitted on brief.

Rhiannon L. Gorham, Grand Forks, N.D., for defendant and appellant; submitted on brief.


SANDSTROM, Justice.

[¶ 1] Timothy Jenkins appeals from a district court order denying his motion to amend an amended divorce judgment to modify primary residential responsibility of the parties' children. We reverse and remand for further proceedings, concluding Jenkins' affidavit established a prima facie case entitling him to an evidentiary hearing on his motion to change residential responsibility.

I

[¶ 2] In 2005, Timothy Jenkins and Ivy Anderson were divorced in California, and a divorce judgment was entered establishing joint residential responsibility and parenting time for the parties' three minor children: D.J., I.J., and Z.J. Both parties now live in North Dakota. In 2008, the California divorce judgment was registered in Grand Forks County, North Dakota.

[837 N.W.2d 376]

In October 2009, the district court in Grand Forks County entered a second amended judgment after a hearing awarding Ivy Anderson primary residential responsibility of the parties' three minor children. In February 2010, Jenkins moved for modification of residential responsibility, alleging Anderson's home environment threatened the children's well-being and Anderson was interfering with his parenting time. The court denied his motion.

[¶ 3] In June 2012, Jenkins applied for an ex parte order, asserting Anderson was withholding the children without justification. Anderson also moved to amend Jenkins' parenting time, appoint a guardian ad litem, and order parenting evaluations. The court denied Jenkins' ex parte application but held a hearing to determine whether Anderson was in contempt of court. After a hearing, the court entered an interim order holding Anderson was not in contempt and Jenkins would have supervised parenting time with one child and unsupervised parenting time with the other two children. In October 2012, Jenkins moved to amend the interim order.

[¶ 4] In November 2012, Jenkins moved to modify primary residential responsibility. In January 2013, the district court denied Jenkins' motion to modify primary residential responsibility without an evidentiary hearing, holding he had failed to establish a prima facie case. The court subsequently held hearings on Jenkins' motion to modify the interim order and Anderson's motion to modify parenting time. In March 2013, Jenkins appealed the district court's order denying his motion to modify residential responsibility. The court subsequently entered an amended interim order, and Anderson's motion to amend Jenkins' parenting time remained pending before the district court. This appeal concerns only the court's January 2013 order denying Jenkins' November 2012 motion to modify primary residential responsibility without an evidentiary hearing.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.

II

[¶ 6] Jenkins argues the district court erred in denying an evidentiary hearing on his motion to modify primary residential responsibility when he provided sufficient competent evidence to establish a prima facie case warranting an evidentiary hearing. Here, a second amended judgment was entered in 2009, and an order denying Jenkins' motion to amend the amended judgment was entered in April 2010. Jenkins made his present motion to modify residential responsibility in November 2012, more than two years after entry of the order establishing primary residential responsibility.

[¶ 7] 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

[837 N.W.2d 377]

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 basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and

b. The modification is necessary to serve the best interests of the child.

[¶ 8] Under N.D.C.C. § 14–09–06.6(6)(a), we have explained that a “material change in circumstances” is an important new fact that was unknown at the time of the prior custody decision. See Charvat v. Charvat, 2013 ND 145, ¶ 7, 835 N.W.2d 846;Thompson v. Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331. The party moving for a change of primary residential responsibility has the burden of establishing a prima facie case under N.D.C.C. § 14–09–06.6(4) to justify modification before the party is entitled to an evidentiary hearing. Schumacker v. Schumacker, 2011 ND 75, ¶ 7, 796 N.W.2d 636;Green v. Green, 2009 ND 162, ¶ 7, 772 N.W.2d 612. “Whether a party has established a prima facie case for a change of primary residential responsibility is a question of law which this Court reviews de novo.” Charvat, 2013 ND 145, ¶ 9, 835 N.W.2d 846;see also Sweeney v. Kirby, 2013 ND 9, ¶ 3, 826 N.W.2d 330;Wolt v. Wolt, 2011 ND 170, ¶ 9, 803 N.W.2d 534.

[¶ 9] We have explained that a prima facie case requires only enough evidence to permit a factfinder to infer the fact at issue and rule in the moving party's favor. Kartes v. Kartes, 2013 ND 106, ¶ 9, 831 N.W.2d 731;Sweeney, 2013 ND 9, ¶ 5, 826 N.W.2d 330. “A prima facie case is a bare minimum and requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed.” Ehli v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560. “Allegations alone do not establish a prima facie case, and affidavits supporting the motion for modification must include competent information, which usually requires the affiant have first-hand knowledge.” Schumacker, 2011 ND 75, ¶ 7, 796 N.W.2d 636. “Affidavits are not competent if they fail to show a basis for actual personal knowledge, or if they state conclusions without the support of evidentiary facts.” Joyce, at ¶ 7.

[¶ 10] This Court has provided guidance on the district court's consideration of the motion:

In determining whether a prima facie case has been established, the district court must accept the truth of the moving party's allegations. Kartes, 2013 ND 106, ¶ 9, 831 N.W.2d 731;Schumacker v. Schumacker, 2011 ND 75, ¶ 8, 796 N.W.2d 636. The party opposing the motion may attempt to rebut a prima facie case by presenting evidence conclusively demonstrating the moving party is not entitled to a modification, but when the opposing party's evidence merely creates conflicting issues of fact, the court may not weigh the conflicting allegations when deciding whether a prima facie case has been established. Wolt, 2011 ND 170, ¶ 9, 803 N.W.2d 534. Only when the opposing party presents counter-affidavits that conclusively show the allegations of the moving party have no credibility, or when the movant's allegations

[837 N.W.2d 378]

are, on their face, insufficient to justify custody modification, may the district court decide the moving party has not established a prima facie case and deny the motion without an evidentiary hearing. Id.

Charvat, 2013 ND 145, ¶ 10, 835 N.W.2d 846. In Jensen v. Jensen, 2013 ND 144, ¶ 10, 835 N.W.2d 819, we noted district courts had engaged in weighing of evidence presented in the competing affidavits to reach conclusions that a moving party's evidence did not establish a prima facie case. We therefore clarified in Jensen the standards governing the district court's consideration and decision whether a prima facie case under N.D.C.C. § 14–09–06.6(4) has been established when the movant's allegations are supported by competent, admissible evidence:


[T]he court may conclude the moving party failed to establish a prima facie case only if: (1) the opposing party's counter-affidavits...

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  • Solwey v. Solwey, 20160158
    • United States
    • United States State Supreme Court of North Dakota
    • December 20, 2016
    ...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 modific......
  • Solwey v. Solwey
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    ...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-judgm......
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