Solwey v. Solwey
2016 ND 246
| N.D. | 2016Background
- Thomas and Lisa Solwey divorced in 2013; mother received primary residential responsibility for four children.
- Father moved to modify primary residential responsibility in Aug 2015 (dismissed under heightened two‑year standard) and again in Nov 2015 with affidavits from himself and two twin children alleging the son’s disruptive behavior in mother’s home.
- Mother responded with her own affidavits, including subsequent affidavits from the same twins that recanted parts of their earlier statements.
- District court ordered mediation but, before mediation completed, denied the Nov 2015 motion without an evidentiary hearing, largely rejecting the children’s affidavits as not credible and incorporating findings from the earlier dismissal.
- Father moved for reconsideration and appealed after denial; he argued he made a prima facie showing entitling him to an evidentiary hearing, requested recusal of the judge on remand, and sought attorney’s fees.
Issues
| Issue | Plaintiff's Argument (Solwey) | Defendant's Argument (Lisa) | Held |
|---|---|---|---|
| Whether father established a prima facie case to trigger an evidentiary hearing under N.D.C.C. § 14‑09‑06.6(4) | Father: affidavits and documentation (police calls, juvenile proceedings, counseling) show material change and best‑interest concerns warranting a hearing | Mother: conflicting child affidavits and prior rulings show father’s allegations are not credible and insufficient | Reversed: father established a prima facie case; district court erred by denying an evidentiary hearing and by largely discounting the children’s earlier affidavits |
| How to treat conflicting affidavits by the same declarant | Father: first affidavits should be accepted as true for prima facie analysis; later recantations cannot negate the movant’s affidavits | Mother: later affidavits undermine credibility of the first affidavits | Held: court must disregard subsequent conflicting affidavits by the same person when deciding prima facie showing; contradictions at least create factual issues for hearing |
| Whether the district court may weigh competing affidavits at the prima facie stage | Father: court must accept movant’s allegations as true and not weigh conflicts unless counter‑affidavits conclusively negate them | Mother: court relied on conflicting affidavits to deny relief | Held: district court improperly weighed evidence; only conclusive counter‑affidavits or facial insufficiency justify denying a hearing |
| Whether Judge Hovey should be disqualified on remand | Father: denial before mediation completion shows bias requiring a different judge | Mother: adverse ruling does not establish bias | Held: recusal denied — presumption of judicial impartiality not overcome |
Key Cases Cited
- Anderson v. Jenkins, 837 N.W.2d 374 (2013) (explaining § 14‑09‑06.6 framework for post‑judgment custody modification)
- Jensen v. Jensen, 835 N.W.2d 819 (2013) (clarifying that courts must accept movant’s affidavits as true unless counter‑affidavits conclusively disprove them)
- Wolt v. Wolt, 803 N.W.2d 534 (2011) (holding courts may not weigh conflicting affidavits when assessing a prima facie case)
- Forster v. Flaagan, 873 N.W.2d 904 (2016) (discussing when modification may be necessary to serve child’s best interests)
- Griese v. Kamp, 666 N.W.2d 404 (Minn. Ct. App. 2003) (treating recanting affidavits as raising factual issues requiring hearing)