Miller v. Miller
2013 ND 103
| N.D. | 2013Background
- Miller and Sailer divorced in 2003; Sailer awarded primary residential responsibility for two children, Miller had parenting time.
- In 2007 Miller sought to change primary residential responsibility for the older child B.P.M. (then 15) citing alleged parental and educational neglect by Sailer; the district court denied without an evidentiary hearing.
- In 2012 Miller again sought to change primary residential responsibility for B.P.M.; he submitted affidavits from himself and B.P.M. and school reports; Sailer responded with her affidavit and B.P.M.’s grade reports.
- The district court denied the motion without an evidentiary hearing, finding no prima facie case and noting B.P.M.’s stated preference did not establish maturity to weigh heavily.
- The Supreme Court affirms, holding Miller failed to establish a prima facie case; hearsay issues and prior proceedings barred repeated re-litigation, and B.P.M.’s preference did not demonstrate sufficient maturity or persuasiveness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Miller established a prima facie case to modify custody | Miller asserts material change and B.P.M.’s preference warrant modification | Sailer contends no prima facie case and stability best interests prevail | No prima facie case established |
| Whether a material change in circumstances existed | There was de facto shift in care and B.P.M.’s preferences favored Miller | Two-month shift is insufficient; prior issues barred by res judicata; no substantial change | Insufficient material change to justify modification |
| Whether B.P.M.’s mature preference supports modification | B.P.M. preferred to live with Miller | B.P.M. lacked demonstrated maturity to weight preference | Not persuasive; no sufficient maturity shown to weigh preference |
| Whether hearsay and res judicata bar Miller’s claims | Evidence should be considered; prior 2007 issues not binding | Res judicata bars re-litigating those issues; hearsay credibility concerns apply | Hearsay and res judicata bar use of those prior issues; no merit to modification |
Key Cases Cited
- Thompson v. Thompson, 2012 ND 15 (ND) (defines prima facie standard and de novo review for modification)
- Wolt v. Wolt, 2011 ND 170 (ND) (confirms burden to establish prima facie case and limits weighing in affidavits)
- Ehli v. Joyce, 2010 ND 199 (ND) (discusses prima facie case and modification standards)
- Frison v. Ohlhauser, 2012 ND 35 (ND) (permits weight to mature child’s preference with persuasive reasons)
- Lechler v. Lechler, 2010 ND 158 (ND) (addresses weight of child’s preference in custody decisions)
- Volz v. Peterson, 2003 ND 139 (ND) (highlights factors for weight given to a mature child’s preferences)
- Kelly v. Kelly, 2002 ND 37 (ND) (discusses factors in evaluating child’s maturity and custody preference)
- Laib v. Laib, 2010 ND 62 (ND) (res judicata precludes re-raising issues from prior proceedings)