Wald v. Holmes
2013 ND 212
| N.D. | 2013Background
- Holmes appeals district court denial of an evidentiary hearing on a motion to modify primary residential responsibility filed less than two years after an initial order.
- Holmes sought modification alleging interference with parenting time, denied contact, and concern for the child’s safety due to Wald’s alleged chemical dependency, abuse history, and instability.
- Holmes supported her motion with multiple affidavits, including one from Wald’s former girlfriend who later sought to rescind.
- District court treated the first girlfriend affidavit as withdrawn and found no first-hand knowledge supporting Holmes; court also awarded Wald attorney fees.
- Court held the movant established a prima facie case and remanded for an evidentiary hearing, rejecting the district court’s withholding of evidence and the misapplication of law.
- Court concluded Holmes’s evidence, if credible at an evidentiary hearing, could support modification in the child’s best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prima facie case for modification required? | Holmes met prima facie standard. | Wald argued no prima facie case. | Yes, Holmes established a prima facie case. |
| Withdrawal of an affidavit affects admissibility? | First affidavit should remain in evidence; withdrawal improper. | Affidavit withdrawn and not credible. | Withdrawal of a truthful affidavit was improper; first affidavit must be considered. |
| Best interests and evidence required for modification? | Evidence shows risk to child; modification necessary. | No sufficient grounds given; evidence weak. | Evidence supports modification for evidentiary hearing; best interests can be served. |
| Attorney fees on appeal and at district court? | Fees awarded due to frivolity; misapplied standard. | Fees appropriate based on frivolous motion. | District court abused discretion on attorney fees. |
Key Cases Cited
- Tank v. Tank, 673 N.W.2d 622 (2004 ND) (defines prima facie standard and need for evidence unless credibility undermined)
- Volz v. Peterson, 667 N.W.2d 637 (2003 ND) (discusses when prima facie case may be rebutted and necessity of evidentiary hearing)
- Sweeney v. Kirby, 826 N.W.2d 330 (2013 ND) (requires first-hand knowledge for affidavits; supports credibility rule)
- Green v. Green, 772 N.W.2d 612 (2009 ND) (establishes de novo review of prima facie case on modification in two-year window)
- Wetch v. Wetch, 539 N.W.2d 309 (1995 ND) (limits strict res judicata impact on admissibility of new best-interests evidence)