Hankey v. Hankey
2015 ND 70
| N.D. | 2015Background
- 2011 divorce; Jill awarded primary residential responsibility for minor child L.C.H. with Blake having parenting time and joint decision-making rights.
- 2014 Blake moved to modify to primary residential responsibility and sought an evidentiary hearing.
- Blake alleged Jill interfered with parenting time, violated the parenting time schedule, and unilaterally enrolled child in therapy without Blake’s knowledge or consent.
- District court denied motion without an evidentiary hearing, finding no material change in circumstances and that modification wasn’t in the child’s best interests.
- Blake appealed, arguing a prima facie case for modification was established and an evidentiary hearing was warranted.
- Court reviews whether a prima facie case for modification exists de novo and holds that Blake established a prima facie case warranting an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there a prima facie case to modify primary residential responsibility? | Hankey asserts material change and best interests support modification. | Hankey contends no material change and modification not in child’s best interests. | Yes, prima facie case shown; evidentiary hearing required. |
| Did the district court err by denying an evidentiary hearing without fully considering the affidavits? | Affidavits support allegations of visitation frustration and unilateral decisions. | Counter-affidavits disputed credibility and factual basis. | Yes, district court erred; evidentiary hearing warranted. |
| What constitutes a material change in circumstances under ND law for modification? | Alleged interference with parenting time and unilateral decisions constitute material change. | Material change requires facts showing adverse effect on child; not shown. | Material change exists when allegations show impact on child and parenting rights; merits hearing. |
| Does the court's failure to address allegations in affidavits affect the outcome? | Yes; lack of specific findings requires reversal and remand for evidentiary proceedings. |
Key Cases Cited
- Jensen v. Jensen, 2013 ND 144 (ND 2013) (provides de novo standard for prima facie case review)
- Kartes v. Kartes, 2013 ND 106 (ND 2013) (prima facie case may be rejected only if counter-affidavits conclusively deny credibility or show no facial basis)
- Lechler v. Lechler, 2010 ND 158 (ND 2010) (defines material change as a new fact not known at decree)
- Schroeder v. Schroeder, 2014 ND 106 (ND 2014) (past allegations of visitation frustration require evidentiary support to justify modification)
- Anderson v. Jenkins, 2013 ND 167 (ND 2013) (specific dates and evidence supporting alleged parenting-time denial strengthen prima facie case)