American Family Insurance v. Waupaca Elevator Co.
2012 ND 13
| N.D. | 2012Background
- Thompson Wetch and Thompson divorced in 2002 and have two children, T.T. and G.T.
- In 2004, the parties stipulated to a second amended judgment granting Thompson primary sole physical custody during the school year and joint custody in summer; Thompson Wetch to have specified visitation.
- In 2011, Thompson Wetch moved to amend to modify primary residential responsibility, claiming material changes and limited contact with Thompson for T.T. and G.T.
- District court denied the motion, concluding no prima facie case was shown under N.D.C.C. § 14-09-06.6(6).
- Thompson Wetch appealed, arguing the affidavit showed a prima facie case and entitled her to an evidentiary hearing.
- The North Dakota Supreme Court reversed, holding the affidavit alleged a first-hand material change and required an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prima facie case justified modification was shown | Wetch's affidavit shows T.T. living with her since 2007 and Thompson's limited contact. | Affidavits show insufficient prima facie facts to modify custody. | Yes; prima facie shown, evidentiary hearing required. |
| Whether the court should conduct an evidentiary hearing | First-hand residency facts in the affidavit require an evidentiary hearing. | No evidentiary hearing needed without prima facie showing. | Evidentiary hearing required. |
| What standard applies to evaluating prima facie cases in modification petitions | Prima facie is a bare minimum; affidavits must show actual knowledge and material change. | Court may deny on briefs without hearing if no prima facie case. | Affidavits with first-hand knowledge can establish prima facie case. |
Key Cases Cited
- Ehli v. Joyce, 2010 ND 199 (ND Sup. Ct. 2010) (prima facie standard for modification requires competent affidavits)
- Boumont v. Boumont, 2005 ND 20 (ND Sup. Ct. 2005) (material change can arise from custodial arrangements substantially different from prior order)
- Wolt v. Wolt, 2011 ND 170 (ND Sup. Ct. 2011) (prima facie burden reviewed de novo; requires facts that would support modification at hearing)