Matter of Wolff
2011 ND 76
| N.D. | 2011Background
- Schumacker and Blair married in 1992; they have two children and entered a 2007 divorce judgment incorporating a property, custody, and divorce stipulation with Blair as primary physical custodian and joint legal custody.
- In 2010, Schumacker moved to change primary residential responsibility to himself, asserting a material change in circumstances, supported by an affidavit with some competent and some incompetent assertions.
- Blair opposed, submitting affidavits; the district court denied an evidentiary hearing, finding no prima facie case and questioning Schumacker’s credibility.
- Schumacker appealed, arguing he was entitled to an evidentiary hearing after establishing a prima facie case for modification.
- ND law allows post-judgment modification of primary residential responsibility after two years if a material change in circumstances and best interests support modification; evidentiary hearing is required if prima facie case is established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the movant established a prima facie case for modification | Schumacker’s affidavit shows material changes and child impact. | Blair argues affidavits are insufficient and credibility is suspect. | Yes; prima facie case established requiring evidentiary hearing. |
| Whether suicide attempts by Blair constitute a material change | Attempts occurred since judgment and affected children. | Attempts predate the judgment and aren’t material changes. | Suicide attempts can be material if relevant; evidence supports prima facie case for hearing. |
| Whether allegations of domestic violence in Blair’s home establish material change | Children’s statements about violence show impact on state of mind; admissible as state-of-mind evidence. | Hearsay from children is inadmissible without proper exceptions. | Some statements satisfy state-of-mind exception and support prima facie case; evidentiary hearing warranted. |
| Whether the district court erred in denying an evidentiary hearing on other allegations | Conflicting affidavits require resolution at hearing. | Court should weigh credibility at hearing or deny modification. | District court erred; evidentiary hearing necessary to resolve conflicts. |
Key Cases Cited
- Joyce v. Joyce, 2010 ND 199, 789 N.W.2d 560 (ND) (defines prima facie standard for modification)
- Green v. Green, 2009 ND 162, 772 N.W.2d 612 (ND) (affidavit competency and first-hand knowledge requirements)
- Tank v. Tank, 2004 ND 15, 673 N.W.2d 622 (ND) (hearing standards and reliance on prima facie evidence)
- Frueh v. Frueh, 2008 ND 26, 745 N.W.2d 362 (ND) (opposing party may rebut prima facie case with credible counter-evidence)
- Kourajian v. Kourajian, 2008 ND 8, 744 N.W.2d 274 (ND) (affidavits must show actual knowledge and evidentiary facts)