Schumacker v. Schumacker

Decision Date12 April 2011
Docket NumberNo. 20100282.,20100282.
Citation2011 ND 75,796 N.W.2d 636
PartiesKim SCHUMACKER, Plaintiff and Appelleev.Curttis SCHUMACKER, Defendant and Appellant.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Justin D. Hager (argued), Bismarck, ND, for plaintiff and appellee.Theresa L. Kellington (argued), Bismarck, ND, for defendant and appellant.KAPSNER, Justice.

[¶ 1] Curttis Schumacker appeals the district court order denying his motion to amend the stipulated divorce judgment granting Kim Blair, formerly known as Kim Schumacker, primary residential responsibility of their children. We reverse and remand, concluding Schumacker's affidavit established a prima facie case entitling him to an evidentiary hearing on his motion to change residential responsibility.

I

[¶ 2] Schumacker and Blair were married in September 1992. They have two children, C.S. and A.S. In April 2007, a divorce judgment was entered incorporating Schumacker and Blair's stipulation for property settlement, custody, and divorce. Under the stipulation, Blair and Schumacker shared joint legal custody of their children, with Blair having physical custody.

[¶ 3] In June 2010, Schumacker moved to change primary residential responsibility to himself, alleging a material change in circumstances occurred. Schumacker supported his motion with his affidavit containing some competent evidence and some clearly incompetent and inaccurate allegations. Blair opposed the motion and submitted affidavits supporting her response.

[¶ 4] On July 29, 2010, the district court entered an order denying an evidentiary hearing, finding Schumacker did not establish a prima facie case for modification of primary residential responsibility and finding his credibility extremely suspect. Schumacker appealed.

II

[¶ 5] Schumacker argues he was entitled to an evidentiary hearing because he established a prima facie case for a change in primary residential responsibility of the parties' children.

[¶ 6] Whether a party presented a prima facie case for a change of primary residential responsibility is a question of law, which this Court reviews de novo. Green v. Green, 2009 ND 162, ¶ 5, 772 N.W.2d 612. Section 14–09–06.6, N.D.C.C., provides for post-judgment modification of primary residential responsibility more than two years after entry of a stipulated divorce judgment:

4. 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.

....

6. 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 interest of the child.

[¶ 7] A party moving for a change of primary residential responsibility must establish a prima facie case justifying a modification before the party is entitled to an evidentiary hearing. Joyce v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560 (citing Green, 2009 ND 162, ¶ 7, 772 N.W.2d 612). “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. (citing Green, at ¶ 7). [A]ttempts to establish a prima facie case justifying modification of custody [must] be considered on briefs and supporting affidavits and without oral arguments or an evidentiary hearing.” Dufner v. Trottier, 2010 ND 31, ¶ 15, 778 N.W.2d 586. Allegations alone do not establish a prima facie case, and affidavits supporting the motion for modification must include competent information, which usually requires the affiant have first-hand knowledge. Joyce, at ¶ 7 (citing Green, at ¶ 13). “Affidavits 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. (citing Green, at ¶ 13). “It is not the purpose of the requirement to allow the moving party an opportunity to investigate allegations.” Kourajian v. Kourajian, 2008 ND 8, ¶ 12, 744 N.W.2d 274.

[¶ 8] “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.” Tank v. Tank, 2004 ND 15, ¶ 20, 673 N.W.2d 622. An opposing party may rebut a prima facie case by bringing forward evidence that the moving party is not entitled to the relief requested. Frueh v. Frueh, 2008 ND 26, ¶ 7, 745 N.W.2d 362. “When an opposing party's evidence merely creates conflicting issues of fact, however, a court may not weigh the conflicting allegations in considering whether a movant has established a prima facie case.” Id. (citing Roberson v. Roberson, 2004 ND 203, ¶ 6, 688 N.W.2d 380). A court may find a moving party failed to establish a prima facie case if the opposing party presents counter-affidavits that conclusively show the allegations of the moving party have no credibility or are insufficient to justify a modification of primary residential responsibility. 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. Tank, at ¶ 9.

A

[¶ 9] Schumacker argues Blair's two suicide attempts, one occurring with the children present, constitute a material change in circumstances. Blair asserts her suicide attempts cannot be considered a material change in circumstances because the attempts occurred before the divorce judgment was entered.

[¶ 10] “A material change in circumstances means important new facts that were unknown at the time of a prior custodial decree.” Joyce, 2010 ND 199, ¶ 8, 789 N.W.2d 560 (citing Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38). Schumacker stated in his affidavit that the suicide attempts happened [s]ince the date of Judgment.” Schumacker's affidavit establishes he has some personal knowledge about the suicide attempts, and accepting the truth of Schumacker's allegations, see Tank, 2004 ND 15, ¶ 20, 673 N.W.2d 622, the parties' children knew of the attempts and were negatively affected by them. The counter-affidavits Blair submitted do not conclusively show Schumacker's allegations have no credibility or are insufficient to justify a modification. Instead, Blair's counter-affidavits include conflicting allegations, which are insufficient to rebut a prima facie case. See Frueh, 2008 ND 26, ¶ 7, 745 N.W.2d 362. Merely conflicting allegations must be resolved at an evidentiary hearing.

[¶ 11] In arguing the suicide attempts were not a material change in circumstances, Blair stated in her affidavit the attempts occurred prior to the divorce judgment. Because the original custody decree was based upon the parties' stipulation, the suicide attempts may still be relevant if the court was unaware of the attempts when entering the judgment. “Pre-divorce conduct can be relevant in a [change of] custody matter when the divorce was stipulated and the trial court was unaware of the facts at the time of the stipulation.” Mock v. Mock, 2004 ND 14, ¶ 13, 673 N.W.2d 635. Blair argues the trial court knew of the suicide attempts when entering the divorce judgment, but her argument relies upon interrogatories attached to a motion to compel. It is not evident from this record whether the court was aware of the suicide attempts, and Blair's evidence that exists outside the parties' moving papers and supporting affidavits does not rebut the prima facie case.

[¶ 12] Schumacker's affidavit includes competent first-hand knowledge on the suicide attempts, establishing a prima facie case that would justify a modification of primary residential responsibility if proved at an evidentiary hearing. The district court erred by finding Schumacker's affidavit fails to provide the prima facie case required for an evidentiary hearing. An evidentiary hearing is the proper forum for the parties to resolve the factual disputes.

B

[¶ 13] Schumacker's affidavit contains allegations about incidents of domestic violence in Blair's home with her new husband.

[¶ 14] “A material change of circumstances can occur if a child's present environment may endanger the child's physical or emotional health or impair the child's emotional development.” Lechler v. Lechler, 2010 ND 158, ¶ 17, 786 N.W.2d 733 (citing Niemann v. Niemann, 2008 ND 54, ¶ 12, 746 N.W.2d 3). “If domestic violence exists under the definition in N.D.C.C. § 14–07.1–01 but does not rise to the level necessary to invoke the presumption contained in N.D.C.C. § 14–09–06.2(1)(j), there may nevertheless be a change of circumstances which may justify a change in [primary residential responsibility] under N.D.C.C. § 14–09–06.6.” Id. (quoting Niemann, at ¶ 14). Affidavits must include competent information to establish a prima facie case, which usually requires the affiant have first-hand knowledge. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560 (citing Green, 2009 ND 162, ¶ 13, 772 N.W.2d 612). “Affidavits 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. (citing Green, at ¶ 13).

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