Tank v. Tank

• Decision Date: 20 January 2004
• Docket Number: No. 20030111.,20030111.
• Citation: 2004 ND 15,673 N.W.2d 622
• Parties: Roger W. TANK, Plaintiff and Appellee v. Sherri L. TANK, n/k/a Sherri L. Koble, Defendant and Appellant.
• Court: North Dakota Supreme Court

673 N.W.2d 622

2004 ND 15

Roger W. TANK, Plaintiff and Appellee v. Sherri L. TANK, n/k/a Sherri L. Koble, Defendant and Appellant.

No. 20030111.

Supreme Court of North Dakota.

January 20, 2004.

Tom P. Slorby, Minot, N.D., for defendant and appellant; submitted on brief.

Robert S. Thomas of Thomas & Thomas, Minot, N.D., for plaintiff and appellee; submitted on brief.

NEUMANN, Justice.

[¶ 1] Sherri L. Tank, now known as Sherri L. Koble, appeals from an order denying her motion to amend the divorce judgment seeking to modify the custody provisions. Because the trial court erred in determining Koble had failed to establish a prima facie case entitling her to an evidentiary hearing under N.D.C.C. § 14-09-06.6(4), we reverse and remand.

I

[¶ 2] Roger W. Tank and Sherri L. Koble were married and have two children together, ages twelve and nine at the time modification was sought. The parties divorced in May 2000. By stipulation, Tank and Koble have joint physical custody of the children, and Tank has primary physical custody. Tank has remarried. His wife has a six-year-old child who resides with them.

[¶ 3] Koble moved to modify the custody arrangement in August 2002, alleging a material change in circumstances necessitated custody modification. According to Koble, Tank failed to adequately care for the children, he interfered with her visitation rights, and the children prefer to live with her. Koble requested she receive physical custody of the children and Tank receive liberal visitation. In her supporting affidavit, Koble provided specific instances and occurrences in support of her motion. Tank responded by objecting to Koble's motion and filed an affidavit denying and explaining Koble's allegations to show custody modification was unwarranted. Koble responded to Tank's affidavit by filing an affidavit further explaining her allegations and countering Tank's assertions. The trial court considered the affidavits and held Koble had failed to show a prima facie case to justify an evidentiary hearing.

[¶ 4] In its order, the trial court addressed most of the issues Koble raised. Specifically, the trial court determined the children appeared to be in a generally safe and stable environment and found no evidence of neglect. The trial court expressed concern over specific instances of conduct related to Tank's care of the children, but noted social services had reviewed the children's care and did not take action or order a follow-up investigation. The court further determined Tank's frustration of Koble's visitation rights was not serious enough to adversely affect the children's best interests. The trial court ultimately determined Koble failed to establish a prima facie case showing a material change in circumstances because her allegations were insufficient to justify custody modification and, therefore, denied her motion without an evidentiary hearing. Koble appeals.

II

[¶ 5] Koble argues she established a prima facie case under N.D.C.C. § 14-09-06.6, and the trial court erred in denying her an evidentiary hearing on her motion for a change of custody.

[¶ 6] The trial court makes no findings of fact when reviewing a party's affidavits accompanying a motion to modify custody. Determination of whether Koble established a prima facie case entitling her to an evidentiary hearing is a question of law.

[¶ 7] The requirements for custody modification are well-settled and have been recently reiterated in Volz v. Peterson, 2003 ND 139, 667 N.W.2d 637. Before custody may be modified after the two-year period following a prior custody order, North Dakota law requires a two-tiered determination by the trial court. N.D.C.C. § 14-09-06.6(6). The trial court must first determine whether a material change in circumstances has occurred and, if it makes such a finding, must determine whether "the modification is necessary to serve the best interest of the child." N.D.C.C. § 14-09-06.6(6)(b). In this case, we are only concerned with the first requirement.

[¶ 8] The moving party demonstrates a material change in circumstances by establishing a prima facie case justifying custody modification. The proper procedure for resolving a motion to modify custody has been set forth under N.D.C.C. § 14-09-06.6(4), which provides:

A party seeking modification of a custody order 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. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

[¶ 9] The moving party establishes a prima facie case by alleging, with supporting affidavits, sufficient facts which, if they remained uncontradicted at an evidentiary hearing, would support a custody modification in her favor. Volz, 2003 ND 139, ¶ 7, 667 N.W.2d 637 (citing Lawrence v. Delkamp, 2003 ND 53, ¶ 7, 658 N.W.2d 758; Quarne v. Quarne, 1999 ND 188, ¶ 11, 601 N.W.2d 256). A trial court can find the moving party has failed to bring a prima facie case only if the opposing party presents counter affidavits conclusively establishing the allegations of the moving party have no credibility, or if the movant's allegations are insufficient, on their face, to justify custody modification. Volz, at ¶ 8 (citing O'Neill v. O'Neill, 2000 ND 200, ¶¶ 4-5, 619 N.W.2d 855). If the opposing party meets that burden, the prima facie case is rebutted and the trial court may deny the motion to modify custody without holding an evidentiary hearing. Id. However, if the opposing party fails to meet that burden, an evidentiary hearing must be held to resolve conflicting evidence and determine whether custody modification is warranted. See id.

[¶ 10] A material change in circumstances is defined as important new facts unknown to the court at the time of the prior custody decree. Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38 (citing Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564; Mayo v. Mayo, 2000 ND 204, ¶ 16, 619 N.W.2d 631; In re N.C.C., 2000 ND 129, ¶ 18, 612 N.W.2d 561); N.D.C.C. § 14-09-06.6(6)(a). Allegations showing potential endangerment to the children's physical or mental health constitute a significant change of circumstances, raising a prima facie case for modification of custody and entitlement to an evidentiary hearing. Volz, 2003 ND 139, ¶ 10, 667 N.W.2d 637 O'Neill, 2000 ND 200, ¶ 8, 619 N.W.2d 855; Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256. This Court has also recognized a mature child's reasonable preference to live with one parent may constitute a significant change of circumstances under N.D.C.C. § 14-09-06.6. Volz, at ¶ 11 (citing Kelly, at ¶ 19; Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924; Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390; Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D.1994)). Generally, frustration of visitation does not alone constitute a significant change of circumstances warranting custody modification. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 18, 603 N.W.2d 896. However, custody modification may be appropriate if the best interests of the child are affected by the visitation problems. Id.

[¶ 11] In its order, the trial court discussed several of Koble's allegations and addressed Tank's rebuttal to those allegations. The trial court concluded Koble's allegations were insufficient, even if uncontradicted, and denied her an evidentiary hearing, and subsequently, denied her motion for custody modification.

[¶ 12] A prima facie case does not require facts which, if proved, would mandate a change of custody as a matter of law. A prima facie case only requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed. See Volz, 2003 ND 139, ¶ 8,

667 N.W.2d 637. A prima facie case is only "enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor." Black's Law Dictionary 1209 (7th ed.1999). It is a bare minimum. The affidavits Koble presented establish a prima facie case that would support, though not necessarily require, custody modification, if the allegations were ultimately proven.¹ The trial court erred with regard to the allegations Koble presented of child preference, frustration of visitation, and physical and emotional endangerment when it found Koble's allegations were insufficient to support modification, even if uncontradicted.

III

[¶ 13] In her supporting affidavit, Koble alleged her children expressed their preference to live with her. According to Koble, both children regularly complained to her about their current living arrangement and informed their father they wanted to live with Koble shortly before Tank's wife moved into his home. Koble asserted Tank laughed at the children and informed them they would live with him until they are of age. Additionally, Tank allegedly informed the children that, if they left him to live with their mother, he would "get sick" and "cry a lot." Tank contended the children neither complain about their current living arrangement nor ask to live primarily with their mother.

[¶ 14] As noted in Volz, a mature child's reasonable preference to live with one parent may constitute a significant change in circumstances under N.D.C.C. § 14-09-06.6. Volz, 2003 ND 139, ¶ 13, 667 N.W.2d 637 (citing Lanners v. Johnson, 2003 ND 61, ¶ 7, 659 N.W.2d 864). "A mature child's preference should be considered by the trial court as a change in circumstances if there are persuasive reasons for that preference, persuasive enough to result in a change in custody." Mosbrucker, 1997 ND 72, ¶ 11, 562 N.W.2d 390 (citing Alvarez v. Carlson, 524 N.W.2d 584, 592 (N.D.1994) (VandeWalle, C.J.,...