Kartes v. Kartes
2013 ND 106
| N.D. | 2013Background
- Kartes and Muxlow divorced in 2010 with Muxlow having primary residential responsibility and Kartes having about 14 days of parenting time monthly.
- The parties’ original parenting plan was incorporated into the divorce judgment and largely preserved until 2011.
- In Feb 2011, Muxlow sought to amend to move to Texas; Kartes sought modification; court denied both motions and original plan persisted, effectively giving weekly alternation.
- In Sept 2011, Muxlow remarried a registered sex offender and moved with the children to Tappen, ND (about 2.5 hours from Kartes).
- Kartes moved to modify primary residential responsibility; the district court found a prima facie case warranted an evidentiary hearing and held a two-day hearing in March 2012, resulting in an amended judgment awarding Kartes primary residential responsibility in July 2012; Muxlow appealed.
- The North Dakota Supreme Court affirmed, holding that (i) the prima facie case rule is moot after an evidentiary hearing and does not foreclose review on the merits, (ii) the district court could rely on evidence at the hearing to modify, and (iii) the findings supporting the modification were not clearly erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prima facie case for modification was established to warrant an evidentiary hearing | Kartes contends a prima facie case was shown to justify an evidentiary hearing | Muxlow argues the prima facie showing was insufficient and relies on threshold findings | Not clearly erroneous to rely on prima facie showing; the hearing proceeded on the merits and supported modification |
| Whether the two-year lock-in on modification was overcome by best interests and statutory criteria | Kartes asserts the move and related factors satisfy §14-09-06.6(5) | Muxlow asserts the court misapplied the criteria and relied on improper factors | District court properly considered best interests and statutory factors; modification upheld |
| Whether the district court’s finding of persistent and willful denial/interference with parenting time was supported | Kartes argues the move impaired parenting time as a result of in-state relocation | Muxlow contends there was no willful interference as a matter of law | Not clearly erroneous; evidence supported persistent and willful interference under §14-09-06.6(5)(a) |
| Whether the district court could base the modification on threshold threshold findings and then resolve on merits at hearing | Kartes relies on the threshold nature of prima facie findings | Muxlow argues those findings are interlocutory and can be revisited at hearing | Interlocutory prima facie rulings are moot after full evidentiary hearing; district court did not err in relying on (a) to modify |
Key Cases Cited
- Sweeney v. Kirby, 2013 ND 9, 826 N.W.2d 330 (ND 2013) (prima facie case standard in modification proceedings; threshold burden remains moot after hearing)
- Ehli v. Joyce, 2010 ND 199, 789 N.W.2d 560 (ND 2010) (prima facie standard; threshold showing required for modification)
- Schumacker v. Schumacker, 2011 ND 75, 796 N.W.2d 636 (ND 2011) (prima facie standard and evidence weighing limitations)
- Berg v. Dakota Boys Ranch Ass’n, 2001 ND 122, 629 N.W.2d 563 (ND 2001) (threshold determinations akin to pre-trial devices; moot after full hearing)
- Nesvig v. Nesvig, 2006 ND 66, 712 N.W.2d 299 (ND 2006) (interlocutory orders subject to change; trial posture preserved)
- Hageman v. Hageman, 2013 ND 29, 827 N.W.2d 23 (ND 2013) (standard for reviewing factual findings; no reweighing of credibility on appeal)