Heidt v. Heidt, 20180250

• Court: United States State Supreme Court of North Dakota
• Citation: 923 N.W.2d 530
• Docket Number: No. 20180250,20180250
• Parties: Robert M. HEIDT, Plaintiff and Appellee v. Trina A. HEIDT, n/k/a Trina Ann Iverson, Defendant and Appellant
• Decision Date: 21 February 2019

923 N.W.2d 530

Robert M. HEIDT, Plaintiff and Appellee
v.
Trina A. HEIDT, n/k/a Trina Ann Iverson, Defendant and Appellant

No. 20180250

Supreme Court of North Dakota.

Filed February 21, 2019

Robert C. Fleming, Cavalier, ND, for plaintiff and appellee.

Jerilynn Brantner Adams (argued) and Megan J. Gordon (appeared), Fargo, ND, for defendant and appellant.

Jensen, Justice.

¶1] Trina Iverson appeals from a district court order finding a prima facie case for modification of primary residential responsibility had not been established with regard to the parties’ two youngest children, G.I.H. and G.O.H. Iverson also asserts the district court erred when it denied her motion to amend the findings and order. We reverse the district court’s order and remand for an evidentiary hearing to determine whether modification of primary residential responsibility for G.I.H. and G.O.H. is appropriate.

I.

[¶2] Iverson and Robert Heidt were divorced in October 2012, but did not initially address child custody issues. In September 2013, the parties agreed to award primary residential responsibility of the parties’ seven minor children to Heidt. In June 2016, Iverson filed her motion seeking modification of primary residential responsibility for the parties’ minor children. Two of the parties’ children had reached the age of majority and the five younger children were subject to the motion.

[¶3] After the divorce, Heidt remained in Grafton and Iverson relocated to Fargo to pursue job opportunities. In April 2014, Heidt remarried. Heidt’s new wife and her three children moved into Heidt’s home which included the parties’ five minor children, increasing the number of children in the home to eight. In June 2016, Iverson sought to obtain primary residential responsibility of the minor children. Iverson, two of the minor children—V.E.H. and J.J.H., as well as two of the older siblings, filed affidavits in support of the requested modification. Heidt resisted the motion and filed responsive affidavits from Heidt, his wife, and his parents.

[¶4] In September 2016, the district court issued an order finding a prima facie case only for V.E.H. and J.J.H. and denied Iverson’s request for an evidentiary hearing regarding the two youngest children, G.I.H. and G.O.H. The district court also denied an evidentiary hearing with regard to R.H.H., due to the minor child’s affidavit stating, though she supported her siblings relocating, she would prefer to remain in Grafton to finish high school. As to G.I.H. and G.O.H., the district court found that "simply a remarriage by the custodial parent and vague statements about the desires of the youngest two children with the household as alleged by the Defendant are not sufficient in this situation to support a finding of a prima facie case or warrant an evidentiary hearing."

[¶5] Iverson filed a motion to amend findings and order to provide that a prima facie case had been met as to G.I.H. and G.O.H. and to request an evidentiary hearing for the four children she asserted wanted to live with her. The district court denied the motion stating G.I.H. and G.O.H. did not provide a strong desire to change their residence like J.J.H. and V.E.H. did in their affidavits. Iverson has

[923 N.W.2d 533

not appealed the denial of an evidentiary hearing with regard to R.H.H.

II.

[¶6] 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 interests 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.

¶7] Prior to granting an evidentiary hearing on a motion seeking modification of primary residential responsibility, 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

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