Jensen v. Jensen
2013 ND 144
| N.D. | 2013Background
- Jensen and Vettel divorced; 2007 amendment awarded Vettel primary physical custody of daughter R.J. and Jensen visitation. R.J. born 2001.
- In 2012 Vettel remarried and relocated from Jamestown to Bismarck with R.J.; Jensen lived near Palermo.
- Jensen moved to modify primary residential responsibility (Oct 2012), alleging material changes: remarriage/relocation, R.J.’s preference to live with him, inadequate supervision (left home alone, unsupervised bike rides), social/school problems, and neglect of clothing/extracurriculars.
- Vettel filed counter-affidavits disputing Jensen’s allegations. The district court denied Jensen’s motion without an evidentiary hearing, finding no prima facie case.
- Supreme Court reversed and remanded, holding Jensen established a prima facie case and was entitled to an evidentiary hearing; clarified standard for evaluating prima facie motions and use of counter-affidavits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether movant established a prima facie case to warrant an evidentiary hearing to modify primary residential responsibility under N.D.C.C. § 14-09-06.6(4) | Jensen: affidavits show material change (remarriage + relocation), loss of support network, child preference, and inadequate supervision—enough to require a hearing. | Vettel: counter-affidavits refute allegations; movant’s affidavits are conclusory, lack firsthand knowledge, and do not show adverse impact on the child. | Reversed: Jensen established a prima facie case; district court improperly weighed conflicting affidavits instead of accepting movant’s allegations unless counter-affidavits conclusively negated them. Evidentiary hearing required. |
| Proper role of opposing counter-affidavits at prima facie stage | Jensen: opposing affidavits cannot defeat a prima facie case unless they conclusively show movant’s allegations lack credibility. | Vettel: district court may weigh competing affidavits and deny motion if movant’s evidence is insufficient. | Held: Clarified standard—counter-affidavits only permit denial without hearing if they conclusively show movant’s allegations have no credibility; district courts must accept movant’s allegations as true otherwise. |
| Whether a child’s preference (R.J.) constituted a material change now | Jensen: R.J.’s stated preference supports modification. | Vettel: preference not based on maturity/persuasive reasons; insufficient. | Court declined to decide on appeal; remanded for evidentiary hearing where current evidence of preference may be offered. |
| Whether alleged facts (remarriage/relocation, supervision) on their face justify modification | Jensen: relocation/remarriage and supervision issues are material changes affecting best interests. | Vettel: allegations are conclusory or lack first‑hand basis and do not show adverse effect on child’s well‑being. | Held: Remarriage and relocation plus evidence of poor supervision and loss of support network, if believed, suffice as prima facie material change; hearing required to resolve credibility and best‑interest issues. |
Key Cases Cited
- Thompson v. Thompson, 809 N.W.2d 331 (N.D. 2012) (affidavits must show competent first‑hand evidence; allegations alone insufficient)
- Kartes v. Kartes, 831 N.W.2d 731 (N.D. 2013) (prima facie requirement and role of counter‑affidavits at modification stage)
- Wolt v. Wolt, 803 N.W.2d 534 (N.D. 2011) (district court may not weigh conflicting affidavits when deciding prima facie issue)
- Dietz v. Dietz, 733 N.W.2d 225 (N.D. 2007) (relocation/remarriage may constitute material change)
- Miller v. Miller, 832 N.W.2d 327 (N.D. 2013) (child preference can be material if persuasive and based on maturity)
- Blotske v. Leidholm, 487 N.W.2d 607 (N.D. 1992) (material change must so adversely affect the child that custody change is necessary)
- Frey v. Frey, 831 N.W.2d 753 (N.D. 2013) (parental move and remarriage recognized as possible material change)
- Schumacher v. Schumacher, 796 N.W.2d 636 (N.D. 2011) (accept movant’s allegations as true unless opposing affidavits conclusively negate them)