Wolt v. Wolt, No. 20100294.

• Court: North Dakota Supreme Court
• Writing for the Court: VANDE WALLE, Chief Justice.
• Citation: 803 N.W.2d 534,2011 ND 170
• Parties: Kathy WOLT, Plaintiff and Appellee,v.Steve WOLT, Defendant and Appellant.
• Docket Number: No. 20100294.
• Decision Date: 26 August 2011

803 N.W.2d 534
2011 ND 170

Kathy WOLT, Plaintiff and Appellee,
v.
Steve WOLT, Defendant and Appellant.

No. 20100294.

Supreme Court of North Dakota.

Aug. 26, 2011.

[803 N.W.2d 536]

Suzanne Marie Schweigert (argued) and Stacy Mae Moldenhauer (on brief), Bismarck, N.D., for plaintiff and appellee.Justin Dale Hager, Bismarck, N.D., for defendant and appellant.VANDE WALLE, Chief Justice.

[¶ 1] Steve Wolt appealed from an order denying his motion to amend a divorce judgment. We conclude the district court did not err in denying an evidentiary hearing on his motion to award him primary residential responsibility of his children and did not err in awarding Kathy Wolt attorney's fees. We also conclude, however, the court erred in denying Steve Wolt a hearing on his motion to amend his parenting time. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶ 2] Kathy Wolt and Steve Wolt were married in 1994 and have three minor children. The parties' final divorce judgment was entered in March 2009, awarding Kathy Wolt primary residential responsibility of the children and granting Steve Wolt supervised parenting time. This Court affirmed the divorce judgment in Wolt v. Wolt, 2010 ND 26, 778 N.W.2d 786 (“ Wolt I ”), and affirmed a domestic violence protection order against Steve Wolt in Wolt v. Wolt, 2010 ND 33, 778 N.W.2d 802 (“ Wolt II ”). After the parties' March 2009 divorce judgment, Steve Wolt exercised two visits at the Family Safety Center before the Center “terminated” the supervised parenting-time services based on his failure to follow the Center's guidelines.

[¶ 3] In April 2009, the two oldest children were removed from Kathy Wolt's home, placed with social services, and subsequently

[803 N.W.2d 537]

adjudicated as unruly in juvenile court. The youngest child remains in Kathy Wolt's custody. In juvenile court proceedings, Kathy Wolt admitted the children were deprived. After a July 2009 dispositional hearing, the two oldest children were placed with social services until April 2010. After a further hearing in January 2010, the juvenile court found the two oldest children were deprived, continuing social services custody until January 2011. The juvenile court found the two older children were deprived because of Steve Wolt's “intentional and systematic efforts to alienate the children from Kathy and to undermine Kathy's custody, authority and control of the children.” The court further found “these actions motivated [the two older children] to engage in unruly conduct, which in turn, caused them to be adjudicated as unruly children and placed in foster care.” The juvenile court further found that “[w]ith regard to Kathy, the children are deprived because the alienation and disrespect that Steve has instilled in [the oldest children] towards Kathy, have caused such a serious disruption in their relations that Kathy can no longer provide proper parental care and control for [them], even though she obviously wishes to do so.”

[¶ 4] In May 2010, three months after this Court's decisions in Wolt I and Wolt II, and within two years after the district court made its initial primary residential responsibility decision, Steve Wolt moved to amend the divorce judgment to change primary residential responsibility of the children and requested an evidentiary hearing. Steve Wolt alternatively sought to amend his parenting time with the children and requested a hearing.

[¶ 5] The district court denied Steve Wolt's motion to modify the judgment and awarded Kathy Wolt $1,000 in attorney's fees, concluding the motion was frivolous. Steve Wolt moved the court for relief from its order under N.D.R.Civ.P. 60, based in part on “new evidence” in the form of a psychological consultation report. The court denied Steve Wolt's request for relief.

II

[¶ 6] Steve Wolt argues the district court erred in denying him an evidentiary hearing on his motion to amend the judgment to change primary residential responsibility. He argues he was entitled to an evidentiary hearing because he established a prima facie case under N.D.C.C. § 14–09–06.6(5)(a) and (b).

[¶ 7] Section 14–09–06.6(5), N.D.C.C., limits the district court's authority to modify an award of primary residential responsibility within two years of the original decision, and states:

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 responsibility for the child has changed to the other parent for longer than six months.

Further, N.D.C.C. § 14–09–06.6(4) requires:

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

[803 N.W.2d 538]

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.

The moving party has the burden to establish a prima facie case to obtain an evidentiary hearing on the motion. N.D.C.C. § 14–09–06.6(8).

[¶ 8] This Court has explained the requirements for a prima facie case:

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. 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. It is a bare minimum.

Green v. Green, 2009 ND 162, ¶ 7, 772 N.W.2d 612 (quotations and citation omitted).

[¶ 9] Whether a prima facie case has been established is a question of law, which we review under a de novo standard of review. Green, 2009 ND 162, ¶ 5, 772 N.W.2d 612. The party opposing a motion for a change of primary residential responsibility can rebut a prima facie case by presenting evidence demonstrating the moving party is not entitled to a modification. Green, at ¶ 8. “ ‘When the opposing party presents counter-affidavits that conclusively show the allegations of the moving party have no credibility, or when the movant's allegations are, on their face, insufficient to justify custody modification, the district court, under N.D.C.C. § 14–09–06.6(4), can find the moving party has not established a prima facie case and deny the motion without an evidentiary hearing.’ ” Green, at ¶ 8 (quoting Frueh v. Frueh, 2008 ND 26, ¶ 7, 745 N.W.2d 362). The court may not weigh conflicting allegations in deciding whether a prima facie case has been established. Green, at ¶ 8; Frueh, at ¶ 13. “[A]llegations alone do not establish a prima facie case, affidavits must include competent information, which usually requires the affiant have first-hand knowledge, and witnesses are generally not competent to testify to suspected facts.” Ehli v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560. Affidavits are not competent when they do not show a basis for actual personal knowledge or when they state conclusions without supporting evidentiary facts. Ehli, at ¶ 7; Green, at ¶ 13.

[¶ 10] Steve Wolt argues he established a prima facie showing that Kathy Wolt persistently and willfully frustrated his parenting time and that “a deterioration in the custodial home” endangered the children's physical or emotional well-being. In support of his motion, Steve Wolt submitted his own affidavit, which identified his difficulties with supervised visitation, social services involvement with the family, Kathy Wolt's alleged efforts to alienate the youngest child from him, and his positive steps to demonstrate his ability to parent. He also submitted exhibits, including other court orders and transcript excerpts, various correspondence, and other affidavits from family members. He asserts that he had not seen the youngest child between April 2009 and May 2010, that Kathy Wolt denied his supervised parenting time at the Family Safety Center between March and May 2010, that...