Forster v. Flaagan

• Citation: 873 N.W.2d 904
• Decision Date: 14 January 2016
• Docket Number: No. 20150207.,20150207.
• Parties: Lindsay FORSTER (n/k/a Lindsay Seitz), Plaintiff and Appellee v. Adam FLAAGAN, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

873 N.W.2d 904

Lindsay FORSTER (n/k/a Lindsay Seitz), Plaintiff and Appellee

v.Adam FLAAGAN, Defendant and Appellant.

No. 20150207.

Supreme Court of North Dakota.

Jan. 14, 2016.

Berly D. Nelson, Fargo, ND, for plaintiff and appellee.

Jacey L. Johnston, Grand Forks, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Adam Flaagan appealed from a district court order denying his motion to modify primary residential responsibility without an evidentiary hearing. We reverse and remand.

I

[¶ 2] Adam Flaagan and Lindsay Forster, now known as Lindsay Seitz, are the parents of J.F.F., a minor child. A 2010 judgment awarded Forster primary residential responsibility and awarded Flaagan parenting time. Under the judgment, Flaagan's parenting time decreased when J.F.F. started school in fall 2014. In May 2015, Flaagan moved the district court to modify Forster's primary residential responsibility, claiming a material change in J.F.F.'s circumstances occurred since entry of the 2010 judgment.

[¶ 3] Flaagan offered an affidavit in support of this motion. In the affidavit, Flaagan alleged J.F.F. exhibited increasingly problematic behavior as the school year progressed, leading to poor grades and struggles in school. To support these allegations, Flaagan included exhibits from J.F.F.'s teacher elaborating on J.F.F.'s behavioral struggles and declining academics. Flaagan alleged these behavioral problems do not occur when J.F.F. is in his care and have occurred with increasing frequency since his parenting time decreased. Flaagan further alleged this increasingly problematic behavior directly correlates with the increased amount of time J.F.F. spends under Forster's care. To support these allegations, Flaagan cited exhibits from J.F.F.'s teacher outlining how J.F.F.'s behavioral issues have occurred with increased frequency throughout the school year. Flaagan also alleged J.F.F. uses obscene language and J.F.F. appeared tired, hungry, and had skin rashes at the beginning of Flaagan's parenting time. Additionally, Flaagan alleged J.F.F. has nightmares and eats junk food. To support these allegations, Flaagan attested to his personal experiences. In the brief filed in support of his motion, Flaagan also asserted Forster married and had two other children, both of whom are younger than J.F.F., since entry of the 2010 judgment.

[¶ 4] In the affidavit, Flaagan also contended a change in living arrangements would be in J.F.F.'s best interest. Flaagan alleged J.F.F. does better academically while in his care because he supervises J.F.F.'s completion of homework assignments and J.F.F. does not appear to have any academic problems during his parenting time. Flaagan alleged Forster is unwilling to address the day-to-day issues potentially causing J.F.F.'s behavioral issues. Flaagan also alleged he can provide a stable home environment that helps deal with J.F.F. when he acts out, which Flaagan alleged does not happen while J.F.F. is in his care. Flaagan alleged this stability would help identify the impetus of J.F.F.'s behavioral problems and could potentially help rectify the increasingly problematic behavioral issues.

[¶ 5] After considering the motion and affidavit, the district court concluded Flaagan failed to establish a prima facie case justifying a modification in residential responsibility. The court concluded Flaagan failed to establish J.F.F. experienced a material change in circumstances because all of the circumstances cited by Flaagan, except J.F.F.'s behavioral issues, were not material in this case. With respect to the behavioral issues, the court concluded Flaagan failed to establish a nexus between J.F.F.'s behavioral changes and any material change in his circumstances because Flaagan failed to provide facts establishing J.F.F. would not have otherwise exhibited such behavior but for Forster's parenting and home environment. The court also concluded Flaagan failed to establish modification would be in J.F.F.'s best interests because Flaagan failed to provide information concerning where J.F.F. would reside if placed in his care. Because Flaagan failed to establish a prima facie case for his motion, the court denied Flaagan's motion without an evidentiary hearing.

II

[¶ 6] On appeal, Flaagan argues the district court erred in dismissing his motion without an evidentiary hearing because he established a prima facie case justifying modification. "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." Jensen v. Jensen, 2013 ND 144, ¶ 8, 835 N.W.2d 819.

[¶ 7] Because Flaagan sought modification more than two years after the 2010 judgment, N.D.C.C. § 14–09–06.6(6) applies. Under this subsection, a court may modify residential responsibility if:

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.

N.D.C.C. § 14–09–06.6(6). After a party moves for modification, 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." N.D.C.C. § 14–09–06.6(4). This prima facie standard "is a ‘bare minimum,’ and requires only facts which, if proved at an evidentiary hearing, would support a change of primary residential responsibility that could be affirmed if appealed." Jensen, at ¶ 8 (quoting Kartes v. Kartes, 2013 ND 106, ¶ 9, 831 N.W.2d 731 ). Any allegations or conclusions made by the movant must be accompanied by affidavits containing competent information. Id. Competent information "usually requires the affiant to have first-hand knowledge. 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." Id. (internal citation omitted).

[¶ 8] 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. Kartes, at ¶ 9. Although a court must assume the veracity of the movant's allegations for prima facie purposes, the non-moving party may offer competent information rebutting the movant's allegations. Jensen, at ¶ 13. When the non-moving party offers such information, the court cannot weigh any conflicting information, and unless the rebutting information "conclusively establish[es] the movant's allegations have no credibility, the district court must accept the truth of the moving party's allegations." Id. In recent years, we have considered a number of appeals in which "district courts have engaged in weighing conflicts in the evidence presented in the competing affidavits to reach the conclusion that the moving party's evidence was insufficient to establish a prima facie case." Id. at ¶ 10. We again emphasize:

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

Id. at ¶ 13 (emphasis contained in original). This disallows "mini-trials by affidavit in modification cases" and precludes a court from requiring the movant to establish a case for modification in order to establish a prima facie case for modification. Id. at ¶ 12.

[¶ 9] Here, the district court concluded "[Flaagan] has failed to establish that a material change has occurred in the circumstances of the parties or that modification of primary residential responsibility is in J.F.F.'s best interests." Flaagan argues the district court erred in dismissing his motion because the court, in essence, required him to establish his case for modification in order to establish his prima facie case for modification. We agree.

A

[¶ 10] The district court concluded Flaagan failed to establish a material change in J.F.F.'s circumstances occurred. The marriage of a parent may constitute a material change in circumstances. See Frueh v. Frueh, 2008 ND 26, ¶ 12, 745 N.W.2d 362 (noting the "remarriage of a parent ... may constitute a material change of circumstances that would be sufficient to raise a prima facie case for change of custody...."). A change in a child's behavior may also be considered in determining whether a material change in circumstances occurred. See Reinecke v. Griffeth, 533 N.W.2d 695, 698–99 (N.D.1995) ; Hagel v. Hagel, 512 N.W.2d 465, 468 (N.D.1994). In his motion, Flaagan alleged J.F.F. has experienced behavioral problems. To support this allegation, Flaagan included exhibits to his affidavit evidencing such problems. Although not included within the affidavit, Flaagan argued in his brief to the district court that Forster married and had two additional children since the 2010 judgment. Forster argues we should not consider these factors because of Flaagan's failure to include these factors within his affidavit. However, Forster admitted she married and had additional children since the original judgment in her response affidavit. Additionally, her affidavit noted J.F.F. has had behavioral problems since the original judgment. Because Forster's marriage may qualify as a material change in circumstance, a decline in a child's behavior is a legitimate consideration in...