Schroeder v. Schroeder, 20130351.

• Decision Date: 28 May 2014
• Docket Number: No. 20130351.,20130351.
• Citation: 2014 ND 106,846 N.W.2d 716
• Court: North Dakota Supreme Court
• Parties: Lyn C. SCHROEDER, n/k/a Lyn C. Karjalainen, Plaintiff and Appellant v. Travis L. SCHROEDER, Defendant and Appellee.

846 N.W.2d 716

2014 ND 106

Lyn C. SCHROEDER, n/k/a Lyn C. Karjalainen, Plaintiff and Appellant

v.Travis L. SCHROEDER, Defendant and Appellee.

No. 20130351.

Supreme Court of North Dakota.

May 28, 2014.

Tracy J. Lyson, Fargo, ND, for plaintiff and appellant.

Sarah W. Gereszek, Grand Forks, ND, for defendant and appellee.

McEVERS, Justice.

[¶ 1] Lyn Karjalainen, formerly known as Lyn Schroeder, appeals the district court order denying her motion to amend the amended divorce judgment granting Travis Schroeder primary residential responsibility of their children. Karjalainen argues she established a prima facie case for a change in primary residential responsibility and, therefore, is entitled to an evidentiary hearing. We affirm, concluding the district court did not err in determining Karjalainen established a material change of circumstances had occurred but failed to establish a prima facie case that modification is necessary to serve the best interests of T.S. and A.S.

I

[¶ 2] Karjalainen and Schroeder were married in June 1999. They have two children, T.S., born in 2000, and A.S., born in 2002. In June 2007, a divorce judgment was entered incorporating the parties' stipulated agreement. Under the stipulation, the judgment awarded Karjalainen and Schroeder joint legal and physical custody of T.S. and A.S.

[¶ 3] In March 2009, Karjalainen moved to change custody and relocate T.S. and A.S. to Sioux Falls, South Dakota. Schroeder opposed Karjalainen's motion and requested an award of primary residential responsibility. The parties filed a stipulation of significant change of circumstances requiring a change of custody. In December 2009, a hearing on this matter occurred. On February 4, 2010, the district court entered an amended judgment that awarded Schroeder primary residential responsibility. In March 2012, Karjalainen informed Schroeder she would be relocating to Omaha, Nebraska, in the summer of 2013.

[¶ 4] In May 2013, Schroeder moved to Florida. Schroeder met Karjalainen in Omaha, where he transferred T.S. and A.S. to Karjalainen for her summer parenting time on his way to Florida, one week earlier than the usual summer parenting time schedule. In July 2013, Karjalainen moved to amend the judgment requesting the district court award her primary residential responsibility. Schroeder opposed Karjalainen's motion. Both parties submitted affidavits. In August 2013, Schroeder moved for an order to show cause why Karjalainen should not be held in contempt of court for failing to return T.S. and A.S. to him in compliance with the amended judgment. Karjalainen responded and Schroeder replied.

[¶ 5] On September 6, 2013, the district court denied Karjalainen's motion. The district court determined a material change in circumstances had occurred since the February 2010 amended judgment because both parties relocated, but Karjalainen did not establish a prima facie case that the best interests of T.S. and A.S. required a review of primary residential responsibility. The district court found, “[o]ther than conclusory unsupported statements, there has been no showing by competent evidence that the move itself to Florida by [Schroeder], as their primary residential parent, has or will adversely affect the best interests of the parties' two minor children.” The district court determined a hearing was needed to address the parenting time schedule due to the change in circumstances since its prior parenting time determination. The district court also ordered Karjalainen to return the children to Schroeder immediately on the grounds her failure to return the children to Florida on August 12, 2013, in compliance with the amended judgment, was without legitimate justification. Karjalainen appealed.

II

[¶ 6] Karjalainen argues the district court erred, as a matter of law, in denying an evidentiary hearing on her motion to modify primary residential responsibility. Karjalainen asserts she was entitled to an evidentiary hearing because she established a prima facie case for a change in primary residential responsibility of T.S. and A.S. According to Karjalainen, she presented competent evidence, based on personal, firsthand knowledge, and is entitled to an evidentiary hearing on her motion to modify primary residential responsibility.

[¶ 7] When a party seeks modification of primary residential responsibility more than two years after entry of the prior order establishing primary residential responsibility, the party must initially establish a prima facie case justifying modification. N.D.C.C. § 14–09–06.6. “Whether a party presented a prima facie case for a change of primary residential responsibilityis a question of law, which this Court reviews de novo.” Schumacker v. Schumacker, 2011 ND 75, ¶ 6, 796 N.W.2d 636. An evidentiary hearing is appropriate only if a prima facie case is established. N.D.C.C. § 14–09–06.6(4). The district court may modify primary residential responsibility if it 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.

N.D.C.C. § 14–09–06.6(6). “A material change in circumstances means important new facts that were unknown at the time of a prior custodial decree.” Schumacker, 2011 ND 75, ¶ 10, 796 N.W.2d 636. “To determine whether modifying primary residential responsibility is necessary to serve the best interests of the child, the district court must consider the applicable N.D.C.C. § 14–09–06.2(1) factors.” Vining v. Renton, 2012 ND 86, ¶ 17, 816 N.W.2d 63. A prima facie case justifying a modification of primary residential responsibility and, therefore, an evidentiary hearing, is established by a material change in circumstances “which either ‘requires' a change of custody for the child's best interests or ‘fosters' or ‘serves' the child's best interests.” Blotske v. Leidholm, 487 N.W.2d 607, 609 (N.D.1992); see also Alvarez v. Carlson, 524 N.W.2d 584, 588–89 (N.D.1994). There must be a showing that the change in circumstances would adversely affect the child. Blotske, at 609.

[¶ 8] The party moving for a modification of primary residential responsibility is entitled to an evidentiary hearing after the party moving has met its burden of establishing a prima facie case justifying a modification. Schumacker, 2011 ND 75, ¶ 7, 796 N.W.2d 636. “A prima facie case is a bare minimum and requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed.” Id. The moving party must establish a prima facie case justifying a modification of primary residential responsibility on briefs and supporting affidavits. Id. A prima facie case cannot be established through allegations alone. Id. Affidavits supporting a prima facie case must include competent information and “[a]ffidavits are not competent if they fail to show a basis for actual personal knowledge, or if they state conclusions without the support of evidentiary facts.” Id.

[¶ 9] “The trial court must accept the truth of the moving party's allegations and may not weigh conflicting allegations in deciding whether to grant a hearing.” Id. at ¶ 8. A prima facie case may be rebutted by evidence that the moving party is not entitled to the relief requested. Id. A prima facie case is not rebutted by evidence that merely creates conflicting issues of fact and “a court may not weigh the conflicting allegations in considering whether a movant has established a prima facie case.” Id. “If the opposing party's counter-affidavits fail to establish the moving party's allegations have no credibility or are insufficient to justify modification, an evidentiary hearing must be held to resolve conflicting evidence and determine whether a modification in primary residential responsibility is warranted.” Id.

[¶ 10] Karjalainen argues she was entitled to an evidentiary hearing because she established a prima facie case for a change in primary residential responsibility of T.S. and A.S. under N.D.C.C. § 14–09–06.6. Karjalainen asserts she presented competent evidence, based on personal,firsthand knowledge, and is thereby entitled to an evidentiary hearing on her motion to modify primary residential responsibility.

[¶ 11] When considering whether an evidentiary hearing is required under N.D.C.C. § 14–09–06.6(6)(a), a district court must first determine whether a material change of circumstances has occurred. On appeal, Schroeder argues there was no material change in circumstances. This Court has long recognized that “[r]elocation of a parent may constitute a material change in circumstances.” Mock v. Mock, 2004 ND 14, ¶ 7, 673 N.W.2d 635. The move may be either in-state or out-of-state. State v. Neustel, 2010 ND 216, ¶ 8, 790 N.W.2d 476. In this case, the relocation of both parties constituted a material change in circumstances. The district court did not err in its conclusion that Karjalainen established a material change in circumstances had occurred since the February 2010 amended judgment when both parties had relocated.

[¶ 12] The next consideration for the district court in determining whether an evidentiary hearing is required under N.D.C.C. § 14–09–06.6(6)(b), is whether “[t]he modification is necessary to serve the best interests of the child.”

[¶ 13] The district court did not address each allegation set forth in Karjalainen's affidavits, making a summary determination that the documents submitted do not establish a prima facie case. The district court did not find an adverse affect on the children's best interests.

[¶ 14] In her affidavits in support, Karjalainen alleged Schroeder has expressed in correspondence to her and the children that he intends to restrict, limit, or infringe upon Karjalainen's parenting time. Karjalainen did not include...