Thompson v. Thompson, 809 N.W.2d 331

Divorced parties Thompson Wetch and Thompson have two children, T.T. and G.T., with a 2004 second amended judgment granting Thompson sole physical custody during the school year and joint summer custody with Thompson Wetch.
In 2011, Thompson Wetch moved to amend to modify primary residential responsibility, alleging substantial changes since the prior order and seeking an evidentiary hearing.
The district court denied the motion, ruling Thompson Wetch failed to establish a prima facie case for modification under ND Century Code § 14-09-06.6.
Thompson Wetch’s affidavit alleged T.T. has lived with her since 2007 and Thompson has not regular contact with T.T.; she also claimed T.T. has reached out to Thompson who has canceled visits with G.T.
The court held that affidavits must establish prima facie case through first-hand knowledge and did not address all allegations; the court’s denial was reversed and remanded for an evidentiary hearing.
The issue on appeal is whether Thompson Wetch established a prima facie case justifying modification to primary residential responsibility.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prima facie case for modification	Thompson Wetch’s firsthand affidavit shows a material change	No prima facie case established based on evidence presented	Reversed; prima facie case shown, evidentiary hearing required.
Material change in custody arrangement	Actual residential responsibility differs from prior order	Differences are not sufficient to modify without hearing	Material change shown; remand for evidentiary hearing.

Wolt v. Wolt, 803 N.W.2d 534 (ND 2011) (standard for assessing prima facie case and need for evidentiary hearing; de novo review of prima facie finding)
Ehli v. Joyce, 789 N.W.2d 560 (ND 2010) (prima facie case requires capable affidavits with firsthand knowledge)
Boumont v. Boumont, 691 N.W.2d 278 (ND 2005) (custodial arrangements substantially different from prior judgment may support modification)