Frison v. Ohlhauser
2012 ND 35
N.D.2012Background
- Maria Seibold and Paul Leverington share one child; 2006 judgment awarded Seibold sole custody with Leverington visitation.
- 2009 custody modification awarded Leverington sole legal/physical custody; Seibold granted visitation; parenting rights and records access were addressed.
- March 2011 Seibold moved for second amended judgment, contempt, more parenting time, joint decisionmaking, and parenting time coordinator; requested an evidentiary hearing.
- March 21, 2011 district court denied motions without a hearing, citing lack of prima facie case and substantial change in circumstances.
- Seibold appealed, arguing entitlement to hearings on contempt and modification motions; district court erred in denying without expiry of hearing notice.
- We reverse and remand for further proceedings consistent with this opinion, determining Seibold had hearing rights and procedural requirements were not properly observed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Seibold was entitled to an evidentiary hearing on contempt. | Seibold requested a hearing and notice; no waiver appears. | Leverington contends no hearing required due to lack of prima facie contempt. | Remand for hearing; error in denying hearing. |
| Whether Seibold was entitled to an evidentiary hearing on a second amended judgment modifying parenting time. | Modification of parenting time; she sought a hearing rather than prima facie case for custody. | Prima facie standard not required for parenting time modifications. | Seibold entitled to a hearing; district court erred in summary denial. |
| Whether the district court properly applied procedural rules for requesting a hearing under ND rules. | Seibold timely requested oral argument; no waiver. | Hearing not timely requested or scheduled. | Remand with proper compliance to 3.2; hearing must be scheduled. |
| Whether decisionmaking responsibility should be addressed on remand. | Statutes amended; standard to modify decisionmaking responsibility pending. | Not addressed previously; remand needed to brief standard. | Remand to brief standard and determine modification. |
Key Cases Cited
- Lawrence v. Delkamp, 2006 ND 257, 725 N.W.2d 211 (ND 2006) (contested contempt procedures and hearing rights under Rule 3.2.)
- Dietz v. Dietz, 2007 ND 84, 733 N.W.2d 225 (ND 2007) (timely oral argument on motion for contempt.)
- Wolt v. Wolt, 2011 ND 170, 803 N.W.2d 534 (ND 2011) (whether prima facie burden applies to parenting time modifications.)
- Prchal v. Prchal, 2011 ND 62, 795 N.W.2d 693 (ND 2011) (standard for postjudgment parenting time modification.)
- Simburger v. Simburger, 2005 ND 139, 701 N.W.2d 880 (ND 2005) (standard for modification of visitation.)
- Horob v. Farm Credit Services of North Dakota ACA, 2010 ND 6, 777 N.W.2d 611 (ND 2010) (evidence and appendix compliance on appeal.)