Charvat v. Charvat, 835 N.W.2d 846

Brandon and Jessica Charvat divorced in 2009; Jessica was awarded primary residential responsibility for their daughter, B.C.
In 2012 Brandon moved to modify the judgment, seeking primary residential responsibility, submitting affidavits alleging multiple concerning incidents involving Jessica since the divorce.
Allegations included Jessica’s involvement with multiple men (two who physically abused her), living with a man with a prior domestic violence conviction, a 2009 suicide attempt while the child was present, allowing the child access to a phone containing sexually explicit images/texts, and job discipline at her nursing job.
Jessica filed counter-affidavits disputing or explaining many allegations.
The district court denied Brandon’s motion without an evidentiary hearing, finding he had not made a prima facie case; Brandon appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether movant established a prima facie case to trigger an evidentiary hearing under N.D.C.C. § 14-09-06.6(4)	Brandon: affidavits show material changes since prior order (suicide attempt, exposure to abusive partners, unsafe living/contact, sexualized material accessible to child) warrant hearing	Jessica: counter-affidavits dispute/mitigate allegations; court may deny where movant’s evidence is insufficient	Court reversed: district court improperly weighed conflicting affidavits; Brandon established a prima facie case and was entitled to an evidentiary hearing
Proper standard for prima facie review by district court	Brandon: court must accept truth of moving party’s allegations unless opposing affidavits conclusively negate them	Jessica: district court treated counter-affidavits as dispositive and weighed credibility	Court clarified: only conclusory-disproving counter-affidavits or facially insufficient allegations justify denial; otherwise accept movant’s allegations for prima facie determination

Thompson v. Thompson, 2012 ND 15, 809 N.W.2d 381 (material change = important new fact unknown at prior decision)
Sweeney v. Kirby, 2013 ND 9, 826 N.W.2d 330 (prima facie standard; de novo review)
Wolt v. Wolt, 2011 ND 170, 803 N.W.2d 534 (opponent’s affidavits must conclusively refute movant to avoid hearing)
Kartes v. Kartes, 2013 ND 106, 831 N.W.2d 731 (prima facie = evidence sufficient for factfinder to infer the fact if proved at hearing)
Schumacker v. Schumacher, 2011 ND 75, 796 N.W.2d 636 (suicide attempt by custodial parent can constitute material change)
Jensen v. Jensen, 2013 ND 144, 835 N.W.2d 819 (district courts must not conduct mini-trials by weighing affidavit conflicts)
Kelly v. Kelly, 2002 ND 37, 640 N.W.2d 38 (stability and continuity of custodial relationship central in custody changes)