Schumacker v. Schumacker
796 N.W.2d 636
| N.D. | 2011Background
- Schumacker and Blair married in 1992 with two children; 2007 divorce judgment incorporated stipulation granting Blair physical custody but joint legal custody.
- June 2010 motion to modify primary residential responsibility to Schumacker was supported by his affidavit with both competent and incompetent/false allegations; Blair opposed with counter-affidavits.
- July 29, 2010 district court denied an evidentiary hearing, finding no prima facie case and questioning Schumacker's credibility.
- Schumacker argued he established a prima facie case entitling an evidentiary hearing on modification.
- Statutory framework provides post-judgment modification only after establishing a prima facie case and, if established, triggers an evidentiary hearing (ND Century Code § 14-09-06.6).
- Court reversed and remanded, holding Schumacker’s affidavit established a prima facie case warranting an evidentiary hearing; concurrence discusses limitations on admissibility of certain domestic-violence and suicide-related evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Schumacker’s affidavit establishes a prima facie case for modification. | Schumacker supports material change; affidavit shows new facts affecting children. | Affidavit contains incompetent/alleged hearsay and credibility concerns; no prima facie case. | Yes; prima facie case established; evidentiary hearing required. |
| Are Blair’s suicide attempts a material change in circumstances? | Since occurring after judgment, they show changed circumstances. | Attempts occurred before judgment; not a material change. | Yes; the evidence supports a material change justifying a hearing. |
| Do domestic-violence allegations in Schumacker’s affidavit constitute competent evidence? | Statements show state of mind of children and impact on custody. | Some statements are inadmissible hearsay not tied to contemporaneous declarants. | Yes for state-of-mind exception; otherwise requires hearing to resolve credibility. |
| Did the district court err by not granting an evidentiary hearing on the prima facie case? | The affidavits, including first-hand child-state-of-mind content, suffice. | Need more competent evidence; hearsay concerns. | Remand; evidentiary hearing required to resolve conflicting evidence. |
| Sanctions for appellate-record appendix issues? | Not alleged. | Rule violations claimed; improper use of minor names; requests sanctions. | Sanctions denied. |
Key Cases Cited
- Joyce v. Joyce, 2010 ND 199, 789 N.W.2d 560 (ND 2010) (defines prima facie standard for custody modification and bare minimum facts needed for hearing)
- Green v. Green, 2009 ND 162, 772 N.W.2d 612 (ND 2009) (establishes requirements for competent affidavits and first-hand knowledge)
- Tank v. Tank, 2004 ND 15, 673 N.W.2d 622 (ND 2004) (outlines evidentiary hearing when opposing affidavits fail to rebut prima facie case)
- Frueh v. Frueh, 2008 ND 26, 745 N.W.2d 362 (ND 2008) (affirmative evaluation of conflicting affidavits on prima facie showings)
- Roberson v. Roberson, 2004 ND 203, 688 N.W.2d 380 (ND 2004) (limits weighing of conflicting allegations at prima facie stage)
- Kourajian v. Kourajian, 2008 ND 8, 744 N.W.2d 274 (ND 2008) (requires actual personal knowledge in affidavits; supports prima facie standard)
- Mock v. Mock, 2004 ND 14, 673 N.W.2d 635 (ND 2004) (pre-divorce conduct can be relevant when decree is stipulation-based)
- Niemann v. Niemann, 2008 ND 54, 746 N.W.2d 3 (ND 2008) (recognizes domestic-violence considerations may trigger modifications)
- Lechler v. Lechler, 2010 ND 158, 786 N.W.2d 733 (ND 2010) (defines material change where present environment endangers child)