Wald v. Holmes

• Decision Date: 21 November 2013
• Docket Number: No. 20130124.,20130124.
• Parties: Matthew F. WALD, Plaintiff and Appellee v. Anna Rose HOLMES, a/k/a Anna Rose Biemold, Defendant and Appellant.
• Court: North Dakota Supreme Court

839 N.W.2d 820

2013 ND 212

Matthew F. WALD, Plaintiff and Appellee

v.Anna Rose HOLMES, a/k/a Anna Rose Biemold, Defendant and Appellant.

No. 20130124.

Supreme Court of North Dakota.

Nov. 21, 2013.

Jacey L. Johnston, Grand Forks, ND, for plaintiff and appellee; submitted on brief.

Jesse D. Matson, Fargo, ND, for defendant and appellant; submitted on brief.

KAPSNER, Justice.

[¶ 1] Anna Holmes appeals from a district court order denying an evidentiary hearing on her motion for change of custody. Because we conclude Holmes met her burden of establishing a prima facie case justifying modification, we reverse the district court order and remand for an evidentiary hearing.

I

[¶ 2] Following an uncontested hearing, Matthew Wald was granted primary residential responsibility of his and Anna Holmes's minor child. Less than two years later, Holmes filed a motion for change of primary residential responsibility, alleging interference with parenting time, denial of contact, chemical dependency, and a history of emotional and physical abuse. Holmes's motion was supported by several affidavits, including her own affidavit and one written by Wald's former girlfriend. Wald responded to the motion and filed several affidavits on his behalf, including one written by the same former girlfriend, which purported to rescind the affidavit she had submitted earlier in support of Holmes. The district court denied Holmes's motion, noting that the former girlfriend's first affidavit had been rescinded, finding Holmes presented no first-hand knowledge of the facts she alleged in support of her motion, and holding her motion was entirely without merit. The court also awarded Wald attorney fees. Holmes filed a motion for reconsideration, which was denied by the district court.

II

A

[¶ 3] On appeal, Holmes argues the district court erred by denying an evidentiary hearing on her change of primary residential responsibility motion. “[A] party moving to change [primary residential responsibility], when less than two years has passed, is required to establish a prima facie case” justifying a change of primary residential responsibility in order to obtain an evidentiary hearing. Green v. Green, 2009 ND 162, ¶ 5, 772 N.W.2d 612 (citing N.D.C.C. § 14–09–06.6(4)). This Court has held that the determination of whether a prima facie case has been established is a question of law, reviewed de novo. Green, at ¶ 5.

[¶ 4] When a motion to modify primary residential responsibility is brought less than two years after an initial primary residential responsibility order:

The court may not modify the primary residential responsibility ... unless the court finds the modification is necessary to serve the best interests of the child and:

a. The persistent and willful denial or interference with parenting time; [or]

b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development....

N.D.C.C. § 14–09–06.6(5). The legislature has adopted a non-exhaustive list of factors that must be considered by the court, when applicable, in determining whether a change in primary residential responsibility is in the best interest of a child. SeeN.D.C.C. § 14–09–06.2(1).

[¶ 5] “Upon a motion to modify primary residential responsibility under this section, the burden of proof is on the moving party.” N.D.C.C. § 14–09–06.6(8). If the court finds the moving party established a prima facie case justifying modification, then the court will set a date for an evidentiary hearing. N.D.C.C. § 14–09–06.6(4). A prima facie case is established by the moving party “alleging, with supporting affidavits, sufficient facts which, if they remained uncontradicted at an evidentiary hearing, would support a [primary residential responsibility] modification in her favor.” Tank v. Tank, 2004 ND 15, ¶ 9, 673 N.W.2d 622 (citing Volz v. Peterson, 2003 ND 139, ¶ 7, 667 N.W.2d 637).

A prima facie case does not require facts which, if proved, would mandate a change of [primary residential responsibility] as a matter of law. A prima facie case only requires facts which, if proved at an evidentiary hearing, would support a change of [primary residential responsibility] 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.

Tank, at ¶ 12. “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.” Sweeney v. Kirby, 2013 ND 9, ¶ 5, 826 N.W.2d 330 (quoting Schumacker v. Schumacker, 2011 ND 75, ¶ 7, 796 N.W.2d 636).

[¶ 6] There are two situations in which a court may find that a prima facie case has not been established: 1) the opposing party presents counter affidavits conclusively establishing the allegations of the moving party have no credibility, or 2) the moving party's allegations are insufficient on their face to justify modification. Tank, 2004 ND 15, ¶ 9, 673 N.W.2d 622 (citing Volz, 2003 ND 139, ¶ 8, 667 N.W.2d 637). However, “the trial court must accept the truth of [the moving party's] allegations and may not weigh conflicting allegations.” Tank, at ¶ 32 (citing Volz, at ¶ 14). “Merely offering explanations or conflicting details is insufficient to rebut a prima facie case under N.D.C.C. § 14–09–06.6(4).” Tank, at ¶ 32.

[¶ 7] If the opposing party conclusively establishes the allegations of the moving party have no credibility, the prima facie case is rebutted and the trial court may deny the moving party's motion without holding an evidentiary hearing. Tank, 2004 ND 15, ¶ 9, 673 N.W.2d 622 (citing Volz, 2003 ND 139, ¶ 8, 667 N.W.2d 637). “However, if the opposing party fails to meet that burden, an evidentiary hearing must be held to resolve conflicting evidence and determine whether [primary residential responsibility] modification is warranted.” Tank, at ¶ 9 (citing Volz, at ¶ 8).

B

[¶ 8] As a preliminary matter, Wald argues that res judicata bars the court from hearing any information that was available or considered by the court in prior proceedings. However, this Court has said, “The doctrine [of res judicata] should not be strictly applied to preclude the trial court from hearing for the first time relevant [primary residential responsibility]-related evidence bearing on considerations of what is in a child's best interests.” Wetch v. Wetch, 539 N.W.2d 309, 312 (N.D.1995) (citing Randolph v. Dean, 27 Ill.App.3d 913, 327 N.E.2d 473, 474–75 (1975)).

[¶ 9] Wald also argues, and the district court agreed, that the first affidavit of Wald's former girlfriend should not be considered, because she rescinded that affidavit in a subsequent affidavit. Neither party cites authority for whether a witness's affidavit may be withdrawn, and our existing caselaw does not address the issue. While an affidavit must be withdrawn if the information asserted is discovered to be false, seeN.D.R.Civ.P. 11 and N.D.R. Prof. Conduct 3.3, no rule or law provides for withdrawal where the affiant merely no longer wishes to be involved. State and federal courts in other jurisdictions have held that allowing withdrawal for reasons other than promoting truth is improper. See, e.g., Krumme v. W. Point–Pepperell, Inc., 735 F.Supp. 575, 580 (S.D.N.Y.1990) (finding that Fed.R.Evid. 102 required denial of a motion to withdraw a nonparty's affidavit because the affidavit was voluntarily given and withdrawal of the affidavit would not assist in ascertaining the truth); Scholl v. Ins. Co. of N. Am., 132 Wis.2d 478, 392 N.W.2d 847 (Ct.App.1986), unpublished opinion 1986 WL 217472 *1 (finding that the district court's decision to allow withdrawal of a truthful affidavit was error and stating that “[m]atters submitted as evidence should remain in evidence”). We accept the reasoning of these courts and hold that a truthful affidavit may not be subsequently withdrawn where the affiant seeks withdrawal merely because she no longer wishes to be involved in a case.

[¶ 10] In this case, Wald's former girlfriend submitted a second affidavit through Wald seeking to withdraw her first affidavit. Her reasons for withdrawal are unconvincing. She indicated that at the time she signed the first affidavit, she and Wald had recently broken up, that she “sign [ed] the affidavit for the wrong reasons,” and that she and Wald have since come to an agreement with respect to their own child. At no time does she indicate that anything in her first affidavit was untrue or mischaracterized. Furthermore, while the district court did not find any evidence of wrongdoing by Wald with respect to the second affidavit, a rule allowing a sworn witness to withdraw a truthful and accurate affidavit due to a change of heart would pave the way for witness intimidation. For these reasons, we conclude that the district court's decision to treat the first affidavit as withdrawn was improper, and the affidavit should be considered as evidence supporting Holmes's claims.

C

[¶ 11] To establish a prima facie case warranting an evidentiary hearing on a motion for change of primary residential responsibility brought less than two years after an initial primary residential responsibility order, Holmes must first show either “[t]he persistent and willful denial or interference with parenting time” or that “[t]he child's present environment may endanger the child's physical or emotional health or impair the child's emotional development.” N.D.C.C. § 14–09–06.6(5). Under the court's primary residential responsibility order, Holmes was granted “reasonable and liberal supervised parenting time until her chemical dependency issues are adequately addressed and she has maintained sobriety for a reasonable amount of time.” “Parenting time” is...