Green v. Green

• Decision Date: 16 September 2009
• Docket Number: No. 20080284.,20080284.
• Citation: 2009 ND 162,772 N.W.2d 612
• Parties: Britt GREEN, Plaintiff and Appellant v. Lucy A. GREEN, Defendant and Appellee
• Court: North Dakota Supreme Court

772 N.W.2d 612

2009 ND 162

Britt GREEN, Plaintiff and Appellant v. Lucy A. GREEN, Defendant and Appellee

No. 20080284.

Supreme Court of North Dakota.

September 16, 2009.

Camille O'Kara Hann (argued), Hann Law PLLC, Dickinson, ND, for plaintiff and appellant.

Jennifer Carol Nelson (argued) and Thomas Myron Jackson (appeared), Legal Services of North Dakota, Bismarck, ND, for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Britt Green appeals from the district court's order denying him an evidentiary hearing on his motion for a change of custody. We reverse the district court's order and remand for an evidentiary hearing on the motion, concluding Britt Green established a prima facie case entitling him to an evidentiary hearing.

I

[¶ 2] Britt Green and Lucy Green were divorced in May 2007. One child was born of the marriage, B.G. Lucy Green also has two other children whom Britt Green adopted, one of whom was still a minor at the time the parties divorced. The parties stipulated to the divorce judgment, giving Lucy Green physical custody of the children and allowing her to relocate with the children to Nebraska. The divorce judgment gave Britt Green liberal visitation, providing him summer visitation with B.G. commencing "one week following [B.G.'s] release from school in the spring until one week prior to two weeks prior to commencement of school in the fall." B.G. spent the 2007 and 2008 summers with Britt Green.

[¶ 3] In August 2008, Britt Green filed a motion to amend the divorce judgment to change custody of B.G. from Lucy Green to Britt Green. In Britt Green's affidavit, he alleged B.G. expressed a desire to reside with him because Lucy Green drinks excessively, calls her derogatory names, leaves her unsupervised overnight and fails to lock their house doors at night. In B.G.'s affidavit, she also states that she does not feel safe at her mother's house because her mother fails to lock their doors, drinks to excess and leaves her and her sister alone overnight. B.G.'s affidavit also claims that when her mother drinks she calls B.G. derogatory names, making B.G. feel sad and uncomfortable. B.G. said she is afraid when her mother drinks because she does not always come home and she is afraid her mother will be in an accident.

[¶ 4] Lucy Green opposed Britt Green's motion for a change of custody. In September 2008, without setting a date for an evidentiary hearing, the district court denied Britt Green's motion for a change of custody. In denying Britt Green's motion for a change of custody, the court stated heightened requirements were placed on Britt Green because he was moving for a custody modification within two years from the date the existing custody order was issued. The district court concluded Britt Green did not meet the heightened requirements because he did not "specifically address on what basis he claims [B.G.'s] emotional development might be impaired."

II

[¶ 5] In Lagro v. Lagro, 2005 ND 151, ¶ 14, 703 N.W.2d 322, a plurality of this Court held that review of the denial of an evidentiary hearing on change of custody is reviewed under an abuse-of-discretion standard. After further review, we conclude the appropriate standard of review to be applied when reviewing the denial of an evidentiary hearing on change of custody is de novo. De novo is the appropriate standard of review because a party moving to change custody, when less than two years has passed, is required to establish a prima facie case. N.D.C.C. § 14-09-06.6(4). We have held that the determination whether a prima facie case has been established is a question of law. O'Neill v. O'Neill, 2000 ND 200, ¶ 8, 619 N.W.2d 855; Lagro, at ¶ 29 (Kapsner, J., dissenting). Questions of law are reviewed de novo. Interest of J.K., 2009 ND 46, ¶ 14, 763 N.W.2d 507. To the extent cases reflect abuse of discretion as the standard when reviewing the denial of an evidentiary hearing on a change of custody motion made within two years of the prior order establishing custody, they are overruled.

[¶ 6] Britt Green argues the district court erred when it failed to grant him an evidentiary hearing because he established a prima facie case. Britt Green claims the three affidavits attached to his motion for change of custody provide first-hand knowledge of the facts alleged in the affidavits and establish that B.G. lives in an environment that may be endangering her emotional health.

[¶ 7] Section 14-09-06.6(5), N.D.C.C., states:

"The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:

a. The persistent and willful denial or interference with visitation;

b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or

c. The primary physical care of the child has changed to the other parent for longer than six months."

Section 14-09-06.6(4), N.D.C.C., requires:

"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."

The burden to establish a prima facie case is on the moving party. N.D.C.C. § 14-09-06.6(8). In Frueh v. Frueh, we stated:

"A prima facie case does not require facts which, if proved, would mandate a change of custody as a matter of law. A prima facie case only requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed. A prima facie case is only `enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.' It is a bare minimum."

2008 ND 26, ¶ 6, 745 N.W.2d 362 (citation omitted). See also Tank v. Tank, 2004 ND 15, ¶ 9, 673 N.W.2d 622.

[¶ 8] A party opposing a custody modification can rebut a prima facie case by presenting evidence demonstrating the moving party is not entitled to modification. Frueh, at ¶ 7. "When the opposing party presents counter-affidavits that conclusively show the allegations of the moving party have no credibility, or when the movant's allegations are, on their face, insufficient to justify custody modification, the district court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not established a prima facie case and deny the motion without an evidentiary hearing." Frueh, at ¶ 7. When determining whether a prima facie case has been established, the court cannot weigh the conflicting allegations. Id. at ¶ 13.

[¶ 9] Lucy Green argues Britt Green is not entitled to an evidentiary hearing because he brought his motion under the wrong statute. We agree Britt Green's custody modification motion incorrectly cites N.D.C.C. § 14-09-06.6(6), which allows the court to modify custody if more than two years have passed since the existing custody order was issued. However, both Britt Green's motion and his affidavit allege a modification of custody is warranted because B.G.'s "present environment is endangering her emotional health and places her at risk for impaired emotional development." Therefore, although Britt Green cites the wrong statute in his motion, he correctly alleges one of the grounds listed in N.D.C.C. § 14-09-06.6(5), allowing a modification of custody when less than two years have passed since entry of the existing custody order.

[¶ 10] Britt Green argues the district court erred in denying him an evidentiary hearing because he established B.G.'s present environment is endangering her emotional health or impairing her emotional development. In determining an evidentiary hearing was not warranted, the district court correctly recognized that heightened requirements are placed on a movant bringing a motion to change custody when less than two years have passed since the existing custody order was issued. The district court determined Britt Green did not meet the heightened requirements entitling him to an evidentiary hearing because Britt Green did not "specifically address on what basis he claims [B.G.'s] emotional development might be impaired."

[¶ 11] Section 14-09-06.6(5)(b), N.D.C.C., allows the court to modify custody when less than two years have passed if the court finds that "[t]he child's present environment may endanger the child's physical or emotional health or impair the child's emotional development." To establish B.G.'s present environment may be endangering B.G.'s emotional health or impairing her emotional development, Britt Green submitted his own affidavit, an affidavit of his wife, Terri Green, and B.G.'s affidavit. In Britt Green's affidavit, he alleges B.G.'s present environment is endangering her emotional health because B.G. told him that when Lucy Green drinks, she calls B.G. derogatory names. Britt Green's affidavit also discusses his concern about the negative effect Lucy Green's drinking may have on B.G. Terri Green's affidavit alleges B.G. said she wanted to live with her and Britt Green because they do not drink, they eat dinner at home as a family and B.G. enjoys spending time with her step-brothers.

[¶ 12] In B.G.'s affidavit, she states she wants to live with her father because she does not feel safe with her mother since her mother fails to lock their house doors, drinks a lot and leaves B.G. and her sister alone overnight while her mother sleeps over at her boyfriend's house. B.G. also states when her mother drinks, she calls her derogatory names, making her "feel very sad and uncomfortable." B.G. said she is...