Dietz v. Dietz

Decision Date07 June 2007
Docket NumberNo. 20060229.,20060229.
Citation2007 ND 84,733 N.W.2d 225
PartiesRyan G. DIETZ, Plaintiff and Appellant v. Sarah M. DIETZ, nka Sarah M. Wilkins, Defendant and Appellee.
CourtNorth Dakota Supreme Court

Arnold V. Fleck, Fleck Law Office, Bismarck, N.D., for plaintiff and appellant.

Todd D. Kranda, Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D., for defendant and appellee.

MARING, Justice.

[¶ 1] Ryan Dietz appeals from a district court order denying his motion for a change of custody of his three minor children, for an interim order placing temporary custody of the children with him, for a finding that his former wife, Sarah Wilkins, was in contempt of court, for appointment of a psychologist and a child custody investigator, and for attorney fees. We conclude the district court misapplied the law in deciding Dietz had not established a prima facie case for modification of custody, and we reverse and remand.

I

[¶ 2] Wilkins and Dietz were divorced in 2002. They had three children during their marriage, a daughter born in 1994, a daughter born in 1996, and a son born in 1999. At the time of the divorce, Wilkins was attending medical school in Grand Forks and Dietz lived in Bismarck. The initial divorce decree awarded Wilkins physical custody of the parties' three children for nine months during the school year and awarded Dietz physical custody of the children during the summer. Each party received visitation when the children were in the custody of the other parent. In 2003, Wilkins moved to Bismarck with the children. In January 2004, the judgment was amended to award the parties joint legal custody of the children, with Wilkins receiving primary physical custody subject to visitation by Dietz.

[¶ 3] In June 2006, Dietz moved for an order awarding him custody of the children under N.D.C.C. § 14-09-06.6, for an interim order placing temporary custody of the children with him pending his motion for change of custody, for an order finding Wilkins in contempt for denying and interfering with his visitation rights and right to contact the children under the amended judgment, for an order appointing a psychologist and a child custody investigator, and for an order awarding him attorney fees. In support of his motion, Dietz filed several affidavits and other documentary evidence which he asserted supported his allegations that Wilkins had willfully and persistently interfered with his visitation and contacts with the children; that Wilkins had engaged in a pattern of domestic violence, including two incidents that resulted in serious bodily injury to one of the children and to one of Dietz's friends; that continued custody of the children with Wilkins would endanger the children's emotional and physical health and welfare; that Wilkins had moved with the children from Bismarck to Fargo without permission from him or the district court; that Wilkins had failed to engage in any discussions with him about the children's extracurricular activities; that Wilkins had not attended or completed a "Children of Divorce" class, as required by the January 2004, amended judgment; that Wilkins had used the children to spy on him by recording his telephone conversations with them; that in July 2006, Wilkins would begin a medical residency program that would leave her less than one day a week to spend with the children and would require her to move several different times during the next five to six years; that Wilkins had maintained multiple relationships with different men since the January 2004, amended judgment; that in April 2006, Wilkins married a man whom the "children hardly even know" and because of Wilkins' medical school requirements, would be the primary caregiver for the children while she pursued her medical career; and that Wilkins' lifestyle and manner of disciplining the children had endangered, or likely would endanger, the children's emotional and physical health.

[¶ 4] Dietz's affidavit stated the children had expressed a preference to live with him; Wilkins had routinely denied him telephone contacts and visits with his children from June 2005 through October 2005; Wilkins had moved with the children from Bismarck to Fargo; Wilkins had hit the youngest child on one occasion and bloodied his nose leaving a noticeable scab and permanent scar on his lip; and the oldest child sometimes had been left to care for the youngest child.

[¶ 5] Wilkins responded with affidavits and other evidence detailing the parties' tumultuous history regarding custody and visitation since the divorce, and faulting Dietz for those difficulties. Wilkins' affidavit stated Dietz's allegations of abuse and neglect were completely false and unfounded; she provided the children with structure and discipline and had never hit the children in an inappropriate manner; her school and work schedule would allow her to play an active role in the children's lives; the problems with visitation and telephone contacts were attributable to Dietz; Dietz's behavior "had comprised constant verbal abuse and harassment of [Wilkins], the children, and [Wilkins'] parents"; "Dietz is a liar [and] a cheat"; he leads an unstable life; and the information presented by Dietz was "completely false or very twisted versions of the truth."

[¶ 6] Dietz scheduled a July 10, 2006, hearing on his motion for the interim order for temporary custody of the children pending his motion for change of custody. The district court cancelled that scheduled hearing, stating it would consider Wilkins' response to Dietz's motion to modify custody to decide whether Dietz had established a prima facie case for modification under N.D.C.C. § 14-09-06.6(4), and if the court decided he had established a prima facie case, the court would then consider issuing an interim order. The court thereafter rejected Dietz's request to file "a brief in reply to the brief and affidavits" submitted by Wilkins, stating there was no provision in N.D.C.C. § 14-09-06.6(4) "establishing a right [to] `a brief in reply to the brief and affidavits the defendant submits.'"

[¶ 7] In considering Dietz's motion to modify custody, the district court said it "must weigh the conflicting evidence in the affidavits." Based upon the documentary evidence presented on the motion, the court decided Dietz had failed to establish a prima facie case for modification of custody, Dietz had not shown changed circumstances, Dietz's allegations were insufficient to justify a modification of custody, and there was no need for an evidentiary hearing on the custody issue. The court quoted extensively from a memorandum decision preceding the January 2004, amended judgment and said that since that decision, the parties' affidavits indicated nothing had changed in terms of visitation problems, phone calls, changes of addresses and phone numbers, lack of cooperation, and general acrimony. The court rejected Dietz's claim that Wilkins' remarriage was a material change in circumstances. The court also said Wilkins' move from Bismarck to Fargo was an in-state move that was not precluded by N.D.C.C. § 14-09-07, and was not a material change in circumstances. The court decided there was no need for an interim order and no need for appointment of a psychologist or child custody investigator. The court also declined to find Wilkins in contempt for failing to attend the "Children of Divorce" class, stating her failure was a "trifle" when compared to the continuing acrimony between the parties. The court decided each party was responsible for their own costs and attorney fees.

II

[¶ 8] Dietz argues he established a prima facie case for custody modification under N.D.C.C. § 14-09-06.6(4), and the district court erred in denying his motion without an evidentiary hearing.

[¶ 9] Before custody may be modified after a two-year period following a prior custody order, the district court must consider whether a material change in circumstances has occurred and, if the court finds a material change in circumstances, the court must decide whether custody modification is necessary to serve the best interests of the child. N.D.C.C. § 14-09-06.6(6). A moving party demonstrates a material change in circumstances by establishing a prima facie case under N.D.C.C. § 14-09-06.6(4), which deals with limitations on post-judgment custody modifications and provides:

A party seeking modification of a custody order 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. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

[¶ 10] In Lagro v. Lagro, 2005 ND 151, ¶¶ 16-17, 703 N.W.2d 322 (citations omitted), we outlined the standard for establishing a prima facie case:

A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party. Generally, the opposing party must rebut a prima facie case by going forward with evidence showing the moving party is not entitled to the relief requested. Where the opposing party presents counter affidavits which conclusively establish that the allegations of the moving party have no credibility or where the movant's allegations are, on their face, insufficient, even if uncontradicted, to justify custody modification, the court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not brought a prima facie case and deny the motion without an evidentiary hearing.

[¶ 11] In Tank v. Tank, 2004 ND 15, ¶ 12, 673 N.W.2d 622 (citations...

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