963 N.W.2d 278
N.D.2021Background
- Parties: James Klundt (plaintiff/appellee) and Rebecca Benjamin (defendant/appellant) share one child born in 2012. 2018 judgment awarded Klundt primary residential responsibility; Benjamin had parenting time and lived in Michigan then.
- Benjamin moved to North Dakota in April 2019 and lived about 18 miles from the child; she alleges increased opportunity to spend time with the child since moving.
- In late November 2020, Klundt and the child moved to Bismarck after Klundt lost his Newburg job due to COVID-19 and sought employment opportunities.
- In December 2020 Benjamin moved for interim relief and to modify primary residential responsibility, claiming a material change in circumstances (her improved situation and Klundt’s move/job instability) and that the move harmed the child (including a school counselor note about the child having a hard time).
- The district court denied the motions for lack of a prima facie showing to warrant an evidentiary hearing, reasoning the original judgment permitted in-state moves and Benjamin’s affidavits were insufficient on their face.
Issues
| Issue | Plaintiff's Argument (Klundt) | Defendant's Argument (Benjamin) | Held |
|---|---|---|---|
| Whether Benjamin established a prima facie case to warrant an evidentiary hearing and modification of primary residential responsibility (and interim relief) under N.D.C.C. § 14-09-06.6 | The 2018 order permitted in-state moves; Benjamin’s allegations are insufficient and her affidavits lack competent, first-hand facts to show necessity of change. | Benjamin argued a material change occurred: she relocated to ND and is closer to the child, Klundt moved to Bismarck after job loss, and the child is struggling in school—so a change is necessary for the child’s best interests. | Affirmed. The court held Benjamin failed to establish a prima facie case; even assuming a material change, she did not show modification was necessary to serve the child’s best interests and her affidavits lacked sufficient competent facts showing adverse effect on the child. |
Key Cases Cited
- Johnshoy v. Johnshoy, 961 N.W.2d 282 (N.D. 2021) (explaining prima facie standard for modifying primary residential responsibility and need for competent, first‑hand affidavit evidence)
- Solwey v. Solwey, 888 N.W.2d 756 (N.D. 2016) (defines "material change in circumstances" as a new important fact unknown at the time of the prior custody decision)
- Schroeder v. Schroeder, 846 N.W.2d 716 (N.D. 2014) (clarifies that improved circumstances of the moving parent alone do not establish necessity of modification for the children’s best interests)