Falcon v. Knudsen
Citation | 2023 ND 94 |
Decision Date | 09 May 2023 |
Docket Number | 20220380 |
Parties | Tessa R. Falcon, Plaintiff and Appellee v. Michael J. Knudsen, Defendant and Appellant and State of North Dakota Statutory Real Party in Interest |
Court | United States State Supreme Court of North Dakota |
Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Benjamen J. Johnson, Judge.
H Malcom Pippin, Williston, ND, for plaintiff and appellee submitted on brief.
Jonathan L. Green, Wahpeton, ND, for defendant and appellant submitted on brief.
[¶1] Michael Knudsen appeals from a district court order determining Knudsen did not establish a prima facie case for modification of primary residential responsibility and denying his motion to modify primary residential responsibility and from a district court order denying his motion to disqualify Tessa Falcon's counsel. We affirm.
[¶2] The parties were never married but have one child together. The original judgment awarded primary residential responsibility to Falcon subject to Knudsen's parenting time.
[¶3] On October 26, 2022, Knudsen filed a motion to modify primary residential responsibility. Falcon responded in opposition. The district court concluded Knudsen did not present a prima facie case sufficient to warrant an evidentiary hearing under N.D.C.C. § 14-09-06.6, and denied his motion to modify primary residential responsibility and accompanying motion for second amended judgment.
[¶4] On November 14, 2022, Knudsen filed a motion to permanently disqualify Falcon's counsel, Harry Malcolm Pippin and the Pippin Law Firm. Falcon resisted the motion and filed a proposed order. The district court denied the motion and adopted most of Falcon's proposed order.
[¶5] Knudsen argues the district court erred in failing to issue specific findings of fact under N.D.R.Civ.P. 52(a) for the order denying the motion to modify primary residential responsibility and the order denying the motion to disqualify Falcon's counsel.
[¶6] Rule 52(a), N.D.R.Civ.P., requires:
In applying this Rule, "the initial determination which must be made is whether the particular findings complained of are findings of fact and are subject to the 'clearly erroneous' Rule of 52(a), N.D.R.Civ.P., or whether they are conclusions of law and are fully reviewable by this court on appeal." Ferguson v. Ferguson, 202 N.W.2d 760, 763 (N.D. 1972). "[A] trial court's conclusions of law are not subject to the clearly erroneous rule applicable to findings of fact, and are thus fully reviewable upon appeal." Jarmin v. Shriners Hosps. for Crippled Child., 450 N.W.2d 750, 752 (N.D. 1990).
[¶7] Knudsen's reliance on N.D.R.Civ.P. 52(a) is misplaced. Below we address the application of N.D.R.Civ.P. 52(a) to the challenged orders.
[¶8] Knudsen argues the district court erred in determining Knudsen failed to establish a prima facie case for modification of primary residential responsibility and denying his motion to modify primary residential responsibility.
[¶9] "Whether a party has established a prima facie case for a change of primary residential responsibility is a question of law which we review de novo." Grigg v. Grigg, 2015 ND 229, ¶ 9, 869 N.W.2d 411. The movant seeking modification of primary residential responsibility has the burden to establish a "prima facie case justifying a modification." N.D.C.C. § 14-09-06.6(4). It "requires only facts which, if proved at an evidentiary hearing, would support a change of primary residential responsibility that could be affirmed if appealed." Grigg, at ¶ 9 (quoting Jensen v. Jensen, 2013 ND 144, ¶ 8, 835 N.W.2d 819). A party may establish a prima facie case "with affidavits including 'competent information, which usually requires the affiant to have first-hand knowledge.'" Id. (quoting Jensen, at ¶ 8). If affidavits "fail to show a basis for actual personal knowledge, or if they state conclusions without the support of evidentiary facts," they do not support a prima facie case. Id. (quoting Thompson v. Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331).
[¶10] Rule 52(a), N.D.R.Civ.P., does not apply to the district court's order denying the motion to modify primary residential responsibility because the court did not make findings of fact when determining whether Knudsen made a prima facie case. "We have made it clear that district courts are prohibited from weighing conflicts in the evidence presented in competing affidavits to reach the conclusion that the moving party's evidence is insufficient to establish a prima facie case for modification of residential responsibility." Grigg, 2015 ND 229, ¶ 16. "In determining whether a movant made a prima facie showing, a court must assume the truth of the movant's allegations if based on competent information." Forster v. Flaagan, 2016 ND 12, ¶ 8, 873 N.W.2d 904. Tank v. Tank, 2004 ND 15, ¶ 6, 673 N.W.2d 622.
[¶11] Although the district court order states it "finds that the Defendant has not proven a prima facie case sufficient to warrant the holding of an evidentiary hearing in this matter under NDCC 14-09-06.6," the court was actually making a conclusion of law, not a finding of fact. For that reason, we review de novo the court's decision Knudsen did not establish a prima facie case for a change of primary residential responsibility. See Grigg, 2015 ND 229, ¶ 9 ().
[¶12] Section 14-09-06.6(6), N.D.C.C., provides:
Under section 14-09-06.6(6), N.D.C.C., the movant has the burden of establishing a prima facie case on both of the above elements. Kerzmann v. Kerzmann, 2021 ND 183, ¶¶ 9, 12, 965 N.W.2d 427.
[¶13] Regarding the best interests of the child under N.D.C.C. § 14-09-06.6(6)(b), a court must consider the applicable N.D.C.C. § 14-09-06.2(1) best interests of the child factors to determine whether modifying primary residential responsibility is in a child's best interests. Grigg, 2015 ND 229, ¶ 7. Therefore, to establish a prima facie case under section 14-09-06.6(4), N.D.C.C, the movant must establish both a material change of circumstance and "either a general decline in the condition of the child or that the change has adversely affected the child . . . ." Gomm v. Winterfeldt, 2022 ND 172, ¶ 30, 980 N.W.2d 204 (quoting Kunz v. Slappy, 2021 ND 186, ¶ 26, 965 N.W.2d 408).
[¶14] Knudsen had the burden to establish a prima facie case showing a general decline in the condition of the child or the material change adversely affected the child. See Gomm, 2022 ND 172, ¶ 30. Knudsen wholly failed to allege either a general decline in the condition of the child or a change in circumstances adversely affected the child. Thus, under our de novo review, we conclude Knudsen did not show how a change to primary residential responsibility is necessary to serve the best interests of the child.
¶ 15] We affirm the district court's denial of Knudsen's motion to modify primary residential responsibility because we conclude Knudsen failed to establish a prima facie case modification is in the best interests of the child. See Bubel v. Bubel, 2022 ND 23, ¶ 3, 969 N.W.2d 468 ( ).
[¶16] Knudsen argues the district court erred in denying his motion to disqualify Harry Malcolm Pippin and the Pippin Law Firm as Falcon's counsel.
[¶17] "A trial court's decision on a disqualification motion will only be reversed for an abuse of discretion." Sargent Cnty. Bank v. Wentworth, 500 N.W.2d 862, 871 (N.D. 1993). "A district court abuses its discretion if it acts in an arbitrary unconscionable, or unreasonable manner, if it misinterprets or misapplies the law or if its decision is not the product of a rational mental process leading to a reasoned determination." State v. White, 2018 ND 58, ¶ 8, 907 N.W.2d 765. "We also recognize, however, that courts generally view motions to disqualify opposing counsel with extreme caution because disqualification can be used to gain a tactical advantage and to harass the opposing party." Wentworth, at 871.
[¶18] The district court, adopting Falcon's proposed order stated:
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