Charvat v. Charvat, 20130042.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: SANDSTROM
• Citation: 835 N.W.2d 846,2013 ND 145
• Parties: Jessica Christina CHARVAT, Plaintiff and Appellee v. Brandon David CHARVAT, Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest.
• Docket Number: No. 20130042.,20130042.
• Decision Date: 29 August 2013

835 N.W.2d 846
2013 ND 145

Jessica Christina CHARVAT, Plaintiff and Appellee
v.
Brandon David CHARVAT, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest.

No. 20130042.

Supreme Court of North Dakota.

Aug. 29, 2013.

[835 N.W.2d 848]

Bobbi B. Weiler, Bismarck, N.D., for plaintiff and appellee.

Suzanne M. Schweigert (argued) and Stacy M. Moldenhauer (on brief), Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Brandon Charvat appeals from a district court order denying his motion to amend a divorce judgment to modify primary residential responsibility of the parties' child. We reverse and remand for further proceedings, concluding Brandon Charvat established a prima facie case justifying modification and was entitled to an evidentiary hearing.

I

[¶ 2] Brandon and Jessica Charvat married in 2006 and their daughter, B.C., was born in 2007. When they divorced in 2009, Jessica Charvat was awarded primary residential responsibility for the child and Brandon Charvat received parenting time.

[¶ 3] In 2012, Brandon Charvat moved to modify the judgment, seeking primary residential responsibility for the child. In support of his motion, he submitted affidavits and other supporting evidence alleging that Jessica Charvat had dated eight different men during the 3 1/2 years since the divorce, including two men who had physically abused her; that Jessica Charvat and B.C. had moved three times since the divorce; that Jessica Charvat had attempted suicide in 2009 after the divorce; that Jessica Charvat had allowed the child to play with an old cell phone that contained sexually explicit pictures of Jessica Charvat

[835 N.W.2d 849]

and a former boyfriend as well as text messages suggesting illegal drug use; and that Jessica Charvat had been fired from her nursing job and reprimanded by the State Board of Nursing for an incident in which she allowed a male friend into the nurses' station at 2 a.m. Jessica Charvat presented counter-affidavits disputing Brandon Charvat's allegations and explaining some of the incidents described.

[¶ 4] The district court, while expressing concern for several of the incidents detailed in Brandon Charvat's supporting affidavits, ultimately concluded that Brandon Charvat had “failed to present a prima facie case which would justify the holding of an evidentiary hearing on his Motion to Modify Parenting Responsibilities.” The court accordingly denied the motion without an evidentiary hearing, and Brandon Charvat appealed.

[¶ 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] Brandon Charvat argues he was entitled to an evidentiary hearing because he established a prima facie case for modification of primary residential responsibility.

[¶ 7] When a modification of primary residential responsibility is sought more than two years after entry of the prior order establishing primary residential responsibility, the motion is governed by N.D.C.C. § 14–09–06.6(6), which provides:

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 interest of the child.

A material change in circumstances is an important new fact that was unknown at the time of the prior custody decision. Thompson v. Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331.

[¶ 8] The party seeking modification must initially establish a prima facie case justifying a modification:

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.

N.D.C.C. § 14–09–06.6(4).

[¶ 9] 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. E.g., Sweeney v. Kirby, 2013 ND 9, ¶ 3, 826 N.W.2d 330;Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331;Wolt v. Wolt, 2011 ND 170, ¶ 9, 803 N.W.2d 534. A prima facie case requires only enough evidence to allow the 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, at ¶ 5. It is a

[835 N.W.2d 850]

“bare minimum,” and requires only facts which, if proved at an evidentiary hearing, would support a change of primary residential responsibility...