Solwey v. Solwey
Decision Date | 20 December 2016 |
Docket Number | No. 20160158,20160158 |
Citation | 888 N.W.2d 756 |
Parties | Lisa D. SOLWEY, Plaintiff and Appellee v. Thomas J. SOLWEY, Defendant and Appellant |
Court | North Dakota Supreme Court |
Steven T. Ottmar, Jamestown, ND, for plaintiff and appellee.
Timothy C. Lamb, Grand Forks, ND, for defendant and appellant.
[¶ 1] Thomas Solwey appeals the district court order denying his petition to modify primary parental responsibility. We reverse and remand for further proceedings, concluding Thomas Solwey established a prima facie case for modification and was entitled to an evidentiary hearing. We decline his request that we order a different district judge hear the matter on remand. We also decline his request for attorney's fees.
[¶ 2] Thomas and Lisa Solwey married in 1998 and divorced in October 2013. They have four children, a daughter born in 1999, a twin son and a twin daughter born in 2003, and a daughter born in 2007. The mother received primary residential responsibility for the children.
[¶ 3] In August 2015, the father moved to modify primary residential responsibility. Under the heightened standard for such motions within two years of the previous order, the district court dismissed the motion without an evidentiary hearing. See N.D.C.C. § 14–09–06.6(1) and (3). The father did not appeal that order.
[¶ 4] In November 2015, the father again moved to modify primary residential responsibility. He submitted his affidavit and affidavits from the twin children. The affidavits included several allegations about the son's disruptive behavior. The mother responded with her affidavit and affidavits from the twin children. The allegations in the twins' second affidavits recanted much of their first affidavits.
[¶ 5] On March 2, 2016, the district court ordered the parties to mediate the dispute, with mediation to be completed within 90 days.
[¶ 6] On April 6, 2016, before mediation was completed, the district court issued an order denying the motion to change custody, finding the father's allegations failed to show modification would be in the children's best interests. The court rejected the twins' first and second affidavits, finding the twins lacked credibility because they were "willing to sign an affidavit based upon whoever they [were] with at the time." In its order, the court said it "incorporates into this order the findings of fact and analysis of the order" on the earlier motion.
[¶ 7] The father moved the court to reconsider its order and attached this Court's opinion in Forster v. Flaagan , 2016 ND 12, 873 N.W.2d 904. The district court denied the father's motion for reconsideration.
[¶ 8] The father appeals, arguing he established a prima facie case for an evidentiary hearing. He also argues that if this Court reverses the district court's decision, (1) the judge should not be allowed to hear the case on remand because he was biased in ruling against him, and (2) he is entitled to attorney's fees.
[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Thomas Solwey's appeal is timely under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.
[¶ 10] Thomas Solwey argues he should have been given an evidentiary hearing on his motion to change primary residential responsibility for the children.
[¶ 11] In Anderson v. Jenkins , 2013 ND 167, ¶¶ 7–10, 837 N.W.2d 374, we explained the legal framework of our analysis:
[¶ 12] We first address the issue of the conflicting affidavits from the children.
[¶ 13] The father submitted affidavits from the twin children in support of the motion to modify. In support of her opposition to the motion, the mother submitted affidavits from the same children recanting some of the statements in their other affidavits. The district court wrote, "It is clear to the Court that the children's conflicting affidavits signed in support of each party's position should be given little, if any, weight." We have repeatedly admonished against weighing evidence when "deciding whether a prima facie case has been established." Wolt , 2011 ND 170, ¶ 9, 803 N.W.2d 534 ; Anderson , 2013 ND 167, ¶ 10, 837 N.W.2d 374. "In determining whether a prima facie case has been established, the district court must accept the truth of the moving party's allegations." Jensen , 2013 ND 144, ¶ 9, 835 N.W.2d 819.
[¶ 14] Our neighboring State of Minnesota has addressed a similar situation in which a trial court disregarded the first affidavits submitted by the moving party when the non-moving party submitted second affidavits in conflict with the first: "This ruling, however, is directly contrary to...
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