Kartes v. Kartes

• Decision Date: 19 June 2013
• Docket Number: No. 20120311.,20120311.
• Citation: 2013 ND 106,831 N.W.2d 731
• Parties: Jorey KARTES, Plaintiff and Appellee v. Erin KARTES, n/k/a Erin Muxlow, Defendant and Appellant.
• Court: North Dakota Supreme Court

831 N.W.2d 731

2013 ND 106

Jorey KARTES, Plaintiff and Appellee

v.Erin KARTES, n/k/a Erin Muxlow, Defendant and Appellant.

No. 20120311.

Supreme Court of North Dakota.

June 19, 2013.

Carrie L. Francis, Minot, N.D., for plaintiff and appellee.

Jaclyn M. Stebbins, Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Erin Muxlow, formerly known as Erin Kartes, appealed from an amended divorce judgment awarding Jorey Kartes primary residential responsibility for the parties' two children. We affirm, concluding on appeal a party cannot challenge a district court's conclusion that a prima facie case has been established warranting an evidentiary hearing on a change of primary residential responsibility and the district court's findings that Muxlow's actions constituted a persistent and willful denial or interference with Kartes's parenting time and that the best interests of the children required a change of primary residential responsibility to Kartes were not clearly erroneous.

I

[¶ 2] Kartes and Muxlow married in 2002 and had two children. When they divorced in 2010, Kartes and Muxlow stipulated to a parenting plan for the children. Under the terms of the original parenting plan, which was incorporated into the divorce judgment, Muxlow received primary residential responsibility for the children and Kartes received 14 days of parenting time each month, to be exercised as two seven-consecutive-day parenting times per month. At the time of the divorce, both parties lived in Minot.

[¶ 3] In February 2011, less than six months after entry of the divorce judgment, Muxlow moved to amend the judgment to allow her to move to Texas with the children. Kartes objected and moved to amend the judgment to change primary residential responsibility to himself. The court denied both motions, and the parties continued with the original parenting plan, essentially alternating custody of the children on a weekly basis.

[¶ 4] In September 2011 Kartes learned that the man Muxlow was engaged to marry, Jeremy Muxlow, was a registered sex offender. Erin and Jeremy Muxlow married a few days later and moved to Tappen, North Dakota, approximately 2 1/2 hours from Kartes's home.

[¶ 5] Kartes immediately moved to modify the residential responsibility provisions of the divorce judgment, seeking primary residential responsibility for the children. The district court concluded Kartes had established a prima facie case for modification of primary residential responsibility, warranting an evidentiary hearing under N.D.C.C. § 14–09–06.6(4). Following a two-day evidentiary hearing in March 2012, the district court found Muxlow's change of residence constituted a persistent and willful denial or interference with Kartes's parenting time and a change of primary residential responsibility was necessary to serve the best interests of the children. An amended judgment granting primary residential responsibility to Kartes was entered in July 2012, and Muxlow appealed.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Muxlow's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.

II

[¶ 7] Muxlow contends the district court erred in concluding Kartes had established a prima facie case warranting an evidentiary hearing on his motion to modify primary residential responsibility.

[¶ 8] Because Kartes's motion to modify primary residential responsibility was made within two years of entry of the divorce judgment granting Muxlow primary residential responsibility, the motion was governed by N.D.C.C. § 14–09–06.6(5):

The court may not modify the primary residential responsibility within the two-year period following the date of entry of an order establishing primary residential responsibility 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 parenting time;

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 residential responsibility for the child has changed to the other parent for longer than six months.

To warrant an evidentiary hearing on the motion, the party seeking modification must first 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 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. The court shall set a date for an evidentiary hearing only if a prima facie case is established.

N.D.C.C. § 14–09–06.6(4).

[¶ 9] A prima facie case requires only enough evidence to allow the factfinder to infer the fact at issue and rule in the moving party's favor. Sweeney v. Kirby, 2013 ND 9, ¶ 5, 826 N.W.2d 330. It 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. 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 party's allegations and may not weigh conflicting allegations. Schumacker v. Schumacker, 2011 ND 75, ¶ 8, 796 N.W.2d 636;Volz v. Peterson, 2003 ND 139, ¶ 14, 667 N.W.2d 637. The opposing party may present evidence challenging the moving party's right to the relief requested, but when that evidence merely creates conflicting issues of fact, the court may not weigh or resolve conflicting allegations. Schumacker, at ¶ 8. Unless the opposing party's counter-affidavits conclusively show the moving party's allegations have no credibility or are insufficient to justify modification of primary residential responsibility, an evidentiary hearing must be held to resolve conflicting evidence and determine whether a modification of primary residential responsibility is warranted. Id.;Volz, at ¶ 14.

[¶ 10] The district court in this case concluded Kartes had established a prima facie case to justify modification based upon allegations that Muxlow had married a registered sex offender and moved more than two hours away from Minot, that Muxlow was facing pending criminal charges and her driver's license had been suspended, and that Muxlow had moved several times and changed jobs numerous times since the divorce. Muxlow argues Kartes did not allege sufficient facts to establish a prima facie case and the district court's conclusion that Kartes had established a prima facie case was induced by an erroneous view of the law. She contends the court therefore erred when it allowed the case to proceed to an evidentiary hearing.

[¶ 11] It is unnecessary to decide whether the district court erred when it concluded Kartes had established a prima facie case, because that issue became moot when the evidentiary hearing was held and the court resolved the issues on the merits.

[¶ 12] The purpose of the prima facie case requirement is to avoid holding modification hearings based on mere allegations alone, and it is not intended to allow the moving party an opportunity to investigate unsubstantiated allegations. Kourajian v. Kourajian, 2008 ND 8, ¶ 12, 744 N.W.2d 274;see also Schumacker, 2011 ND 75, ¶ 7, 796 N.W.2d 636. The procedure created by N.D.C.C. § 14–09–06.6(4) therefore allows the district court to eliminate unsupported or frivolous cases without imposing upon the court and the parties the burden and expense of an unnecessary evidentiary hearing. The requirement of establishing a prima facie case at a preliminary stage creates a threshold burden upon the party seeking modification, requiring a showing that there is evidence upon which a court could rule in his favor. See Sweeney, 2013 ND 9, ¶¶ 5–6, 826 N.W.2d 330. The conclusion that a prima facie case has been established is not a final determination of any issue in the case, but merely allows the case to proceed to a full presentation of the evidence at a hearing with a full and final determination of the issues on the merits.

[¶ 13] In this respect, the prima facie case requirement in N.D.C.C. § 14–09–06.6(4) is similar to two other procedures which create a threshold requiring a preliminary showing that there is evidence upon which a court could rule in the party's favor as a prerequisite to a full evidentiary hearing or trial: (1) a motion for summary judgment dismissal in a civil case, and (2) a preliminary hearing in a criminal case. In both of those circumstances, it is generally held that the question of the adequacy of the preliminary showing is rendered moot when the case proceeds to trial and is resolved upon the merits. Thus this Court has consistently held that if a case goes to trial after a motion for summary judgment is denied, the question of whether the trial court erred in denying summary judgment is moot. In re Estate of Vestre, 2011 ND 144, ¶ 19, 799 N.W.2d 379;Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 9, 643 N.W.2d 29;Berg v. Dakota Boys Ranch Ass'n, 2001 ND 122, ¶¶ 10–11, 629 N.W.2d 563. As this Court noted in Berg, at ¶ 10: “Once a case proceeds to trial, the question of whether a party has met its burden as to the elements of a claim must be answered with reference to the evidence and the record as a whole, rather than by looking to the pretrial submissions alone.”

[¶ 14] Similarly, although this Court has apparently never directly addressed the issue, courts in other jurisdictions have held that any question whether probable cause was...