932 N.W.2d 510
N.D.2019Background
- Parties divorced in 2016; Ashley awarded primary residential responsibility and parties retained joint decision-making for major issues (including medical). Judgment required communication about appointments/illnesses and contained a right-of-first-refusal for care periods of four hours or more.
- In December 2018 Eric moved to modify primary residential responsibility, alleging a material change: Ashley frustrated his parenting time, violated decision-making/communication and right-of-first-refusal provisions, endangered the children (car-seat issue), failed to involve him in medical care (urology appointment and medication), and there were abuse allegations (based on hearsay).
- Ashley filed a counter-affidavit denying the allegations. The district court denied Eric’s motion without an evidentiary hearing, finding no material change in circumstances and treating many allegations as appropriate for contempt or parenting-time modification instead.
- On appeal, the North Dakota Supreme Court reviewed de novo whether Eric established a prima facie case. The Court concluded the district court erred by not accepting Eric’s allegations as true for prima facie purposes, failing to make specific findings, and not addressing Ashley’s counter-affidavit as conclusively negating credibility.
- The Supreme Court reversed and remanded for an evidentiary hearing, finding Eric’s affidavit (taken as true) alleged sufficient facts, in aggregate, to establish a prima facie case for modification.
- Separate appellate sanctions: the Court granted Ashley’s motion to strike documents Eric included in his appendix that had been stricken below and awarded attorney fees ($463.75 and $500), totaling $963.75 against Eric and his attorney.
Issues
| Issue | Plaintiff's Argument (Baker) | Defendant's Argument (Ashley) | Held |
|---|---|---|---|
| Whether a prima facie case for modification of primary residential responsibility was shown | Eric argued post-judgment facts (frustration of parenting time, denial of right of first refusal, unilateral medical actions, safety concerns, alleged abuse) are material changes warranting a hearing | Ashley argued the allegations were denied in her affidavit and the facts did not show a material change; some claims were hearsay or better addressed by other remedies | Court held Eric’s allegations, if taken as true and viewed collectively, established a prima facie case and remanded for an evidentiary hearing |
| Standard for prima facie showing and district court role | Eric argued his affidavits were competent and sufficiently specific to require a hearing | Ashley relied on district court’s discretion to deny where allegations lack merit or credibility | Court clarified district court must accept moving party’s allegations as true and may only deny if counter-affidavits conclusively negate credibility or allegations are insufficient on their face |
| Admissibility/competence of affidavits and sufficiency of evidence | Eric maintained his affidavit showed personal knowledge and concrete examples | Ashley contended some allegations (abuse) were hearsay and lacked firsthand knowledge | Court found Eric’s affidavit was based on firsthand knowledge and specific examples; Ashley’s counter-affidavit did not conclusively establish lack of credibility |
| Proper contents of an appellate appendix and sanctions for including stricken documents | N/A (issue raised by Ashley) | Ashley argued Eric improperly included district-struck documents in appendix and sought sanctions | Court struck the stricken documents from the appendix, found Rule 30(a)(1) violated, and awarded Ashley $963.75 in fees as sanctions |
Key Cases Cited
- Heidt v. Heidt, 923 N.W.2d 530 (2019) (defines "material change" and prima facie standard for modification)
- Hankey v. Hankey, 861 N.W.2d 479 (2015) (explains district court must accept moving party's allegations as true unless counter-affidavits conclusively negate credibility)
- Sweeney v. Sweeney, 654 N.W.2d 407 (2002) (frustration of parenting time may warrant evidentiary hearing)
- Schroeder v. Schroeder, 846 N.W.2d 716 (2014) (parental interference/frustration of parenting time can support further proceedings)