965 N.W.2d 427
N.D.2021Background
- Jerry and Tonya Kerzmann divorced in 2016; the parties agreed Jerry would have primary residential responsibility for their two children.
- Tonya filed prior motions (2017, 2018) seeking more parenting time; a 2018 parenting-time motion was dismissed by agreement.
- In February 2021 Tonya moved to modify primary residential responsibility under N.D.C.C. § 14-09-06.6(6), submitting an affidavit alleging denial and interference with parenting time, failure to discuss medical care, cancelled therapy appointments, school exclusion, dental neglect, and parental alienation.
- Jerry filed a counter-affidavit denying the allegations and argued Tonya’s affidavit was inadmissible hearsay and lacked first-hand knowledge; the district court denied an evidentiary hearing for lack of a prima facie showing.
- The North Dakota Supreme Court reviewed de novo, concluded Tonya’s affidavit (with incorporated documents and texts) provided competent first‑hand and documentary material that, if proved, could support both (a) a material change in circumstances and (b) that modification was necessary for the children’s best interests, and reversed and remanded for an evidentiary hearing.
- The Court denied Jerry’s request for sanctions over materials in the appellate appendix, finding the contested items were part of the record.
Issues
| Issue | Plaintiff's Argument (Tonya) | Defendant's Argument (Jerry) | Held |
|---|---|---|---|
| Whether Tonya made a prima facie showing of a material change in circumstances under N.D.C.C. § 14-09-06.6(6)(a) | Affidavit alleged denial/interference with parenting time, school exclusion, cancelled therapy, and dental neglect; included school notes and text messages | Affidavit is inadmissible hearsay, lacks credibility and first-hand knowledge | Court: Affidavit contained first‑hand statements and incorporated documentary evidence; prima facie material change shown |
| Whether Tonya made a prima facie showing that modification is necessary for the children’s best interests under § 14-09-06.6(6)(b) | Alleged facts implicate best-interest factors (developmental needs, parent facilitation, school records) and show children may be adversely affected | Statements are untrue or have benign explanations; insufficient competent evidence for best interests | Court: Accepting affidavit facts as true for prima facie review, allegations implicate § 14-09-06.2(1) factors and satisfy the prima facie best-interest showing |
| Whether sanctions were warranted for including pre-2018 materials in the appellate appendix | (implicitly) inclusion was part of record and relevant to appeal | Sought sanctions claiming stipulated dismissal precluded reliance on old allegations | Court: Declined to impose sanctions; materials were part of the record |
Key Cases Cited
- Baker v. Baker, 2019 ND 225, 932 N.W.2d 510 (de novo review of prima facie determination; parental frustration can justify an evidentiary hearing)
- Klundt v. Benjamin, 2021 ND 149, 963 N.W.2d 278 (prima facie requires enough evidence that, if proven, could change custody)
- Johnshoy v. Johnshoy, 2021 ND 108, 961 N.W.2d 282 (affidavits must include competent, first‑hand facts; conclusions insufficient)
- Wolt v. Wolt, 2011 ND 170, 803 N.W.2d 534 (prima facie showing required before evidentiary hearing)
- Solwey v. Solwey, 2016 ND 246, 888 N.W.2d 756 (prima facie best-interest showing need only permit a finding for moving party that would survive appeal)
- Hankey v. Hankey, 2015 ND 70, 861 N.W.2d 479 (parental interference with parenting time can be basis for hearing)
- Kelly v. Kelly, 2002 ND 37, 640 N.W.2d 38 (interpreting "necessary"—showing children are adversely affected may be required)
- Silbernagel v. Silbernagel, 2007 ND 124, 736 N.W.2d 441 (appellate discretion to impose sanctions for rule or order violations)