Sweeney v. Kirby, 20120339.

• Court: United States State Supreme Court of North Dakota
• Citation: 2013 ND 9,826 N.W.2d 330
• Docket Number: No. 20120339.,20120339.
• Parties: Brian L. SWEENEY, Plaintiff v. Dawn M. KIRBY, Defendant and Appellant.
• Decision Date: 23 January 2013

826 N.W.2d 330
2013 ND 9

Brian L. SWEENEY, Plaintiff
v.
Dawn M. KIRBY, Defendant and Appellant.

No. 20120339.

Supreme Court of North Dakota.

Jan. 23, 2013.

[826 N.W.2d 332]

Brian L. Sweeney, plaintiff; no appearance.

Vanessa Rose Berge, Fargo, ND, for defendant and appellant; submitted on brief.

CROTHERS, Justice.

[¶ 1] Dawn Kirby appeals a district court order denying her motion to modify primary residential responsibility without an evidentiary hearing. We reverse and remand, concluding Kirby made a prima facie case for modification, warranting an evidentiary hearing.

I

[¶ 2] Kirby and Brian Sweeney are the parents of D.L.K., who was born in 2004. Kirby and Sweeney were not married and never lived together. Paternity was established in 2006, and a child support obligation was set. Prior to seeking primary residential responsibility, Sweeney saw D.L.K. three times in a six-year period. Sweeney is married and lives in Minot, North Dakota. Sweeney and his wife have no children. Sweeney sought primary residential responsibility of D.L.K. in January 2011. On August 22, 2011, a trial was held and the district court awarded Sweeney primary residential responsibility. Kirby was granted supervised parenting time. Kirby subsequently filed a motion to modify primary residential responsibility based on allegations Sweeney refused Kirby's visitation requests and abused D.L.K. The district court's order denied Kirby's motion to modify primary residential responsibility without an evidentiary hearing because it concluded Kirby failed to establish a prima facie case for modification.

II

[¶ 3] “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.” Schumacker v. Schumacker, 2011 ND 75, ¶ 6, 796 N.W.2d 636.

A

[¶ 4] Kirby's motion to modify primary residential responsibility was made within two years of the date of entry of the order granting Sweeney primary residential responsibility, which triggers the heightened requirements of N.D.C.C. § 14–09–06.6(5) for the district court to grant modification:

“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...