J. Ehli v. Joyce, No. 20100185.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtKAPSNER, Justice.
Citation2010 ND 199,789 N.W.2d 560
Docket NumberNo. 20100185.
Decision Date19 October 2010
PartiesDarcy J. EHLI, f/k/a Darcy J. Joyce, Plaintiff and Appellant v. Donald A. JOYCE, Defendant and Appellee.

789 N.W.2d 560
2010 ND 199

Darcy J. EHLI, f/k/a Darcy J. Joyce, Plaintiff and Appellant
v.
Donald A. JOYCE, Defendant and Appellee.

No. 20100185.

Supreme Court of North Dakota.

Oct. 19, 2010.


789 N.W.2d 561

Justin Dale Hager, Bismarck, N.D., for plaintiff and appellant.

Todd D. Kranda, Mandan, N.D., for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Darcy Ehli, formerly known as Darcy Joyce, appeals from an order summarily denying her motion to amend a stipulated divorce judgment granting her and Donald Joyce joint legal and physical custody of their child. We hold Ehli established a prima facie case entitling her to an evidentiary hearing on her motion to

789 N.W.2d 562

change primary residential responsibility of the child. We reverse and remand.

I

[¶ 2] In 2006, Ehli and Joyce stipulated to a divorce judgment granting them “joint legal and physical custody of their minor child” and also providing:

The parties have been sharing time with the child equally upon mutual agreement since their separation in April 2006, and the parties shall continue sharing time with the child on an equal basis upon mutual agreement. Either party may bring a motion to specify times for joint physical custody if the parties can no longer reach an agreement.

[¶ 3] In 2010, Ehli moved to change primary residential responsibility of the child to herself and to establish a parenting plan. Ehli claimed the parties had not shared primary residential responsibility of the child after the divorce judgment, and she sought to amend the judgment to reflect the parties' actual arrangement. Ehli's affidavit in support of her motion stated that after the divorce judgment, she had remarried and has had the child “about 95% of the time.” Ehli's affidavit stated there has been a dramatic decrease in the time Joyce spends with the child and he has exercised only minimal visitation. An affidavit by Ehli's husband also stated Ehli has had the child “probably 95% of the time since [he has] known her.” Joyce resisted Ehli's motion and requested a specific parenting plan “so neither party can interfere with the parenting time for the other party.” Joyce's affidavit stated he had tried to exercise parenting time with his child, but Ehli has limited his parenting time and he has been “systematically pushed out” of his child's life. Joyce stated Ehli was “pulling numbers out of the air by claiming 95%” of the child's time was spent with her and he had spent “a lot more time with the children than just a mere 5%.” He also stated he had worked out of town for several weeks and was not able to see the child.

[¶ 4] The district court decided Ehli's affidavits did not establish a material change in circumstances after entry of the stipulated judgment and summarily denied her motion without a hearing. The court said “nothing prevents the parties from agreeing to a parenting plan and agreeing to amend the Judgment accordingly.”

II

[¶ 5] Ehli argues the district court erred as a matter of law in not granting her an evidentiary hearing on her motion to modify primary residential responsibility. She argues the district court's decision that she failed to show a material change in circumstances is contrary to the affidavits presented to the court. She asserts the affidavits establish the child has been with her more than ninety-five percent of the time since the original judgment and Joyce went nine months without seeing the child. Ehli claims there has been an improvement in her living conditions and a general decline in Joyce's home and lifestyle, and she seeks a change in primary residential responsibility to reflect the parties' actual arrangement.

[¶ 6] Section 14-09-06.6, N.D.C.C., deals with limitations on post-judgment modifications of primary residential responsibility, and as relevant to Ehli's motion more than two years after the stipulated judgment, provides:

4. A party seeking modification of an order...

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20 practice notes
  • Kartes v. Kartes, No. 20120311.
    • United States
    • United States State Supreme Court of North Dakota
    • June 19, 2013
    ...evidentiary hearing, would support a change of primary residential responsibility that could be affirmed if appealed. Id.;Ehli v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560. In determining whether a prima facie case has been established, the district court must accept the truth of the moving p......
  • Kunz v. Slappy, 20200352
    • United States
    • United States State Supreme Court of North Dakota
    • October 14, 2021
    ...a material change in circumstances, substantial variances can support a finding of a material change in circumstances. Ehli v. Joyce , 2010 ND 199, ¶¶ 9-10, 789 N.W.2d 560. In the context of remanding a case for the purpose of calculating an appropriate child support obligation where the ex......
  • Jensen v. Jensen, No. 20120450.
    • United States
    • United States State Supreme Court of North Dakota
    • August 29, 2013
    ...without the support of evidentiary facts.”Thompson v. Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331 (emphasis added) (quoting Ehli v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560);see also Miller v. Miller, 2013 ND 103, ¶ 6, 832 N.W.2d 327;Tank v. Tank, 2004 ND 15, ¶ 56, 673 N.W.2d 622 (Sandstrom, J......
  • Solwey v. Solwey, No. 20160158
    • United States
    • United States State Supreme Court of North Dakota
    • December 20, 2016
    ...facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed." Ehli v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560. "Allegations alone do not establish a prima facie case, and affidavits supporting the motion for modification must includ......
  • Request a trial to view additional results
20 cases
  • Kartes v. Kartes, No. 20120311.
    • United States
    • United States State Supreme Court of North Dakota
    • June 19, 2013
    ...evidentiary hearing, would support a change of primary residential responsibility that could be affirmed if appealed. Id.;Ehli v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560. In determining whether a prima facie case has been established, the district court must accept the truth of the moving p......
  • Kunz v. Slappy, 20200352
    • United States
    • United States State Supreme Court of North Dakota
    • October 14, 2021
    ...a material change in circumstances, substantial variances can support a finding of a material change in circumstances. Ehli v. Joyce , 2010 ND 199, ¶¶ 9-10, 789 N.W.2d 560. In the context of remanding a case for the purpose of calculating an appropriate child support obligation where the ex......
  • Jensen v. Jensen, No. 20120450.
    • United States
    • United States State Supreme Court of North Dakota
    • August 29, 2013
    ...without the support of evidentiary facts.”Thompson v. Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331 (emphasis added) (quoting Ehli v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560);see also Miller v. Miller, 2013 ND 103, ¶ 6, 832 N.W.2d 327;Tank v. Tank, 2004 ND 15, ¶ 56, 673 N.W.2d 622 (Sandstrom, J......
  • Solwey v. Solwey, No. 20160158
    • United States
    • United States State Supreme Court of North Dakota
    • December 20, 2016
    ...facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed." Ehli v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560. "Allegations alone do not establish a prima facie case, and affidavits supporting the motion for modification must includ......
  • Request a trial to view additional results

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