Baker v. Baker, 20190048

• Court: United States State Supreme Court of North Dakota
• Citation: 932 N.W.2d 510
• Docket Number: No. 20190048,20190048
• Parties: Ashley A. BAKER, Plaintiff and Appellee v. Eric L. BAKER, Defendant and Appellant
• Decision Date: 22 August 2019

932 N.W.2d 510

Ashley A. BAKER, Plaintiff and Appellee
v.
Eric L. BAKER, Defendant and Appellant

No. 20190048

Supreme Court of North Dakota.

Filed August 22, 2019

Joshua Weatherspoon (argued) and Micheal A. Mulloy (appeared), Bismarck, N.D., for plaintiff and appellee.

Theresa L. Kellington, Bismarck, N.D., for defendant and appellant.

Tufte, Justice.

¶1] Eric Baker appeals from a district court order denying his motion to modify primary residential responsibility. We reverse and remand, concluding Eric Baker established a prima facie case for modification, warranting an evidentiary hearing on the motion.

I

[¶2] Ashley Baker and Eric Baker divorced in November 2016. Ashley Baker

[932 N.W.2d 512

was awarded primary residential responsibility of the parties' two children. The divorce judgment granted the parties joint decision-making responsibilities for major decisions, including medical decisions. The judgment required the parties to communicate any doctor appointments, illnesses, or behavior issues regarding the children. The judgment also included a right of first refusal provision, stating that if either of the parties was unable to care for the minor children during their parenting time for four hours or more, the other parent must be given the first option to care for the children.

¶3] In December 2018, Eric Baker moved to modify primary residential responsibility, arguing there had been a material change in circumstances warranting modification. He submitted an affidavit alleging Ashley Baker frustrated his parenting time, failed to make joint decisions with him relating to medical care, failed to comply with the divorce judgment’s provisions on communication and the right of first refusal, and abused the children. In response, Ashley Baker submitted an affidavit denying Eric Baker’s allegations.

[¶4] The district court denied Eric Baker’s motion without a hearing. The court found Eric Baker failed to demonstrate a material change in circumstances had occurred since the entry of the divorce judgment.

II

[¶5] Eric Baker argues he established a prima facie case for modification, and the district court erred in denying his motion without an evidentiary hearing.

[¶6] When a party moves to modify primary residential responsibility after the two-year period following the date of entry of a judgment establishing primary residential responsibility, the district court may grant modification if it 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.

N.D.C.C. § 14-09-06.6(6).

[¶7] A material change in circumstances is an important new fact that was unknown at the time of the earlier primary residential responsibility decision. Heidt v. Heidt , 2019 ND 45, ¶ 6, 923 N.W.2d 530. The party seeking modification has the burden of proving a prima facie case for modification by serving and filing moving papers and supporting affidavits. N.D.C.C. §§ 14-09-06.6(4) and 14-09-06.6(8). A prima facie case "only requires facts which, if proved at an evidentiary hearing, would support a change of [primary residential responsibility] that could be affirmed if appealed." Hankey v. Hankey , 2015 ND 70, ¶ 8, 861 N.W.2d 479. Whether a moving party has established a prima facie case for a modification of primary residential responsibility is a question of law which this Court reviews de novo on appeal. Heidt , at ¶ 8.

[¶8] In deciding whether a prima facie case has been established, the district court must accept the truth of the moving party’s allegations, and it may not weigh conflicting allegations. Heidt , 2019 ND 45, ¶ 9, 923 N.W.2d 530. In Hankey , 2015 ND 70, ¶ 9, 861 N.W.2d 479, this Court discussed the standards guiding a district court’s decision of whether a moving party has established a prima facie case under N.D.C.C. § 14-09-06.6(4) :

If the moving party’s allegations are supported by competent, admissible evidence, the court may conclude the moving

[932 N.W.2d 513

party failed to establish a prima facie case only if: (1) the opposing party’s counter-affidavits conclusively establish that the moving party’s allegations have no credibility; or (2) the moving party’s allegations are insufficient on their face, even if uncontradicted, to justify modification. Unless the counter-affidavits conclusively establish the movant’s allegations have no credibility, the district court must accept the truth of the moving party’s allegations.

"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." Heidt , at ¶ 8.

¶9] Eric Baker’s affidavit and supporting exhibits alleged Ashley Baker frustrated his parenting time and denied him the right of first refusal under the divorce judgment. He discussed two instances where Ashley Baker frustrated his parenting time during the Memorial Day and Christmas holidays. He also addressed occasions when Ashley Baker denied him the...