Falkenstein v. Dill
2012 ND 165
| N.D. | 2012Background
- Rudnick and Rode are the parents of M.R., born in 2004, with a 2005 district-court order granting Rudnick primary physical custody.
- Rode moved in 2010 for modification of primary residential responsibility and for an ex parte interim order alleging abuse in Rudnick’s home.
- The district court granted an ex parte interim order granting Rode temporary residential responsibility and Rudnick supervised visitation.
- Rudnick contested the ex parte order, arguing failure to comply with N.D.R.Ct. 8.2 and insufficient evidence of exceptional circumstances.
- An evidentiary hearing on modification was held, but exhibits supporting Rode’s motion were not in the record and could not be located by the court.
- In August 2011 the court modified primary residential responsibility to equal shared responsibility, which Rudnick appeals as clearly erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex parte order compliance | Rudnick contends 8.2(a) requirements were not met. | Rode asserts exceptional circumstances justified the order. | Ex parte order proceedings were defective; failure to follow 8.2 invalidates the order. |
| Prima facie showing under 14-09-06.6(6)(4) | Rudnick asserts Rode failed to establish prima facie evidence of modification. | Rode contends affidavits and briefs sufficed to show a prima facie case for modification. | Court erred by not first confirming a prima facie case before an evidentiary hearing. |
| Material change in circumstances | Rudnick maintains no material change proven by credible evidence of abuse. | Rode claims new evidence shows environment endangers child’s health. | No material change supported; evidence relied on hearsay and lacked reliable proof. |
| Best-interests analysis and stability | Rudnick argues modification not necessary and ignores stability with custodial parent. | Rode argues best interests require reconsideration due to alleged change in environment. | Best-interests analysis misapplied; stability with Rudnick was not adequately weighed. |
Key Cases Cited
- Thompson v. Thompson, 2012 ND 15 (2012 ND) (prima facie standard and modification burden guidance)
- Siewert v. Siewert, 2008 ND 221 (2008 ND) (material change criteria and health impact on child)
- Myers v. Myers, 1999 ND 194 (1999 ND) (need for substantial reasons to modify custody; stability importance)
- Neustel, 2010 ND 216 (2010 ND) (stability and finality considerations in custody changes)
- In re R.A., 2011 ND 119 (2011 ND) (imminent danger and necessity of emergency proceedings)