Kerzmann v. Kerzmann, 20210086

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: Jensen, Chief Justice.
• Citation: 965 N.W.2d 427
• Parties: Jerry M. KERZMANN, Plaintiff and Appellee v. Tonya L. KERZMANN, Defendant and Appellant
• Docket Number: No. 20210086,20210086
• Decision Date: 14 October 2021

965 N.W.2d 427

Jerry M. KERZMANN, Plaintiff and Appellee
v.
Tonya L. KERZMANN, Defendant and Appellant

No. 20210086

Supreme Court of North Dakota.

FILED OCTOBER 14, 2021
Corrected January 6, 2022
Corrected January 11, 2022

Justin D. Hager, Bismarck, ND, for plaintiff and appellee.

Theresa L. Kellington, Bismarck, ND, for defendant and appellant.

Jensen, Chief Justice.

¶1] Tonya Kerzmann appeals from a district court's denial of her request for an evidentiary hearing on her motion for a change in primary residential responsibility. We conclude Tonya Kerzmann pled a prima facie case supporting her motion for modification of primary residential responsibility. We reverse the order of the district court and remand for further proceedings.

I

[¶2] Tonya Kerzmann and Jerry Kerzmann were married and have two children, K.K. and B.K. They were divorced in 2016, and the parties agreed Jerry Kerzmann would receive primary residential responsibility of the children. Shortly after the entry of the initial judgment, Tonya Kerzmann unsuccessfully moved to set aside the parties’ agreement. In March 2017, the initial judgment was amended to provide Tonya Kerzmann parenting time with the children every other weekend. In March 2018, Tonya Kerzmann filed a motion seeking additional parenting time. The March 2018 motion was resolved when the parties reached an agreement to dismiss the parenting time motion along with other pending motions.

[¶3] In February 2021, Tonya Kerzmann again moved for modification of the judgment and requested an evidentiary hearing to modify residential responsibility of the children under N.D.C.C. § 14-09-06.6(6). As required by N.D.C.C. § 14-09-06.6(6), Tonya Kerzmann provided an affidavit intended to establish a prima facie case for her motion for modification of parental responsibility, a prerequisite to being granted a full evidentiary hearing. She asserted that the following constituted significant changes in circumstances: that Jerry Kerzmann does not provide her with the opportunity to exercise parenting time when he is unable to parent as required in the judgment; that Jerry Kerzmann fails to discuss the children's medical care with her; that Jerry Kerzmann intentionally interferes with parenting time; that Jerry Kerzmann has not initiated a weekly phone call to allow her to speak to the children as required by the judgment; and that Jerry Kerzmann has directed the children's school to not allow Tonya Kerzmann at school functions. Included within her affidavit were the following additional allegations: dental care for the children had been neglected; Jerry Kerzmann was intentionally trying to alienate the children from her; and concern about the failure to

[965 N.W.2d 429

follow through with recommended therapy for the children.

¶4] Jerry Kerzmann submitted an affidavit denying Tonya Kerzmann's allegations. He argued the supporting affidavit was not competent because it was comprised of inadmissible evidence, the affidavit lacked credibility, and it would not be in the best interests of the children to modify custody.

[¶5] The district court denied the request for an evidentiary hearing, after finding Tonya Kerzmann did not establish a prima facie case warranting an evidentiary hearing. The court found the supporting affidavit was primarily comprised of inadmissible hearsay and the allegations within the affidavit were made with limited first-hand knowledge. The court also found that even if the requirement to provide prima facie evidence of a material change in circumstances was satisfied, there was no competent evidence that a change in primary residential responsibility was necessary for the best interests of the children.

II

[¶6] "Whether a moving party has established a prima facie case for a modification of primary residential responsibility is a question of law which this Court reviews de novo on appeal." Baker v. Baker , 2019 ND 225, ¶ 7, 932 N.W.2d 510 (citing Heidt v. Heidt , 2019 ND 45, ¶ 8, 923 N.W.2d 530 ). When a motion to modify primary residential responsibility is brought more than two years after the date of entry of an order establishing primary residential responsibility, modification is appropriate only if the district court finds the following:

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.

N.D.C.C. § 14-09-06.6(6).

[¶7] Before proceeding to a full evidentiary hearing on a motion to modify primary residential responsibility, the party moving for the modification must establish a prima facie case. Wolt v. Wolt , 2011 ND 170, ¶ 7, 803 N.W.2d 534. An initial prima facie showing is required by N.D.C.C. § 14-09-06.6(4), which reads as follows:

A party seeking modification of an

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