812 N.W.2d 460
N.D.2012Background
- Seibold and Leverington share one child; 2006 judgment gave Seibold sole custody and Leverington visitation.
- 2009 custody modification awarded Leverington sole legal/physical custody with Seibold visitation; amended judgment entered Sept. 2009.
- March 4, 2011, Seibold moved for a second amended judgment and contempt, seeking more parenting time, joint decisionmaking, and a parenting time coordinator; she also sought an evidentiary hearing.
- March 21, 2011, district court denied the motions without a hearing, citing lack of prima facie case and substantial evidence.
- Seibold appealed; the majority reverses and remands for further proceedings with proper hearing and compliance with procedural rules; the dissent would uphold the district court’s denial without a hearing.
- On remand, the court must apply N.D.R.Ct. 3.2 and related statutes, and determine decisionmaking responsibilities under the amended 2009 statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Seibold was entitled to an evidentiary hearing on contempt. | Seibold entitled to hearing on contempt under § 27-10-01.3 and N.D.R.Ct. 3.2. | Leverington argues no evidentiary hearing was required given lack of prima facie contempt basis. | Entitled to a hearing; district court erred in denying without timely hearing. |
| Whether Seibold was entitled to an evidentiary hearing on the modification of parenting time. | Seibold entitled to hearing on modification of parenting time; did not need prima facie case to obtain hearing. | Modification of parenting time requires prima facie case showing material change and best interests. | Entitled to a hearing; district court erred in denying without timely hearing. |
| Whether the district court complied with procedural rules for requesting a hearing under Rule 3.2, N.D.R.Ct. | Seibold timely requested a hearing; no waiver shown. | Court properly denied for lack of prima facie case and after time for hearing had expired. | District court erred by ruling before expiration of hearing-request window; remand for proper notice and hearing. |
Key Cases Cited
- Lawrence v. Delkamp, 725 N.W.2d 211 (2006 ND) (contests on contempt procedures; oral argument timing statute cited)
- Dietz v. Dietz, 733 N.W.2d 225 (2007 ND) (requirement of timely oral argument on contempt motions)
- Wolt v. Wolt, 803 N.W.2d 534 (2011 ND) (prima facie standard for post-judgment parenting-time modifications clarified)
- Prchal v. Prchal, 795 N.W.2d 693 (2011 ND) (modification standards for parenting time)
- Siewert v. Siewert, 758 N.W.2d 691 (2008 ND) (limits on postjudgment custody modifications; distinction between custody vs. parenting time)
- Green v. Green, 772 N.W.2d 612 (2009 ND) (definition of prima facie case for modification)