Kаrley Anderson, Plaintiff and Appellant v. Seth Pedie, Defendant and Appellee and State of North Dakota, Statutory Real Party in Interest
No. 20210147
IN THE SUPREME COURT STATE OF NORTH DAKOTA
JANUARY 21, 2022
2022 ND 19
Appeal from the District Court of Bottineau County, Northeast Judicial District, the Honоrable Michael P. Hurly, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Erica L. Chisholm, Wahpeton, N.D., for plaintiff and appellant.
Tressie C. Brazil, Fargo, N.D., for defendant and appellee.
Anderson v. Pedie
No. 20210147
Tufte, Justice.
I
[¶2] Anderson and Pedie are parents to one minor child, W.D.P. After ending their relationship, both parents sought primary residеntial responsibility of W.D.P. In February 2020, after a bench trial, the district court entered its findings of fact, conclusions of law, and order for judgment awarding Pedie primary residential responsibility, subject to Anderson‘s right to reasonable parenting time. The court ordered the parents to share in decision-making responsibility for educational, medical, and religious decisions. Judgment was entered accordingly.
[¶3] In October 2020, Pedie moved the court for an order finding Anderson in
II
[¶4] Anderson argues she was entitled to an evidentiary hearing because she established a prima faciе case for modification of primary residential responsibility. “Whether a party presented a prima facie case for a change of primary residential responsibility is a question of law, which this Court reviеws de novo.” Schumacker v. Schumacker, 2011 ND 75, ¶ 6, 796 N.W.2d 636.
[¶5] Anderson‘s motion to modify primary residential responsibility was made within two years of the date of entry of the order granting Pedie primary residential responsibility, which triggers the heightened requirements of
1. Unless agreеd to in writing by the parties, or if included in the parenting plan, no motion for an order to modify primary residential responsibility may be made earlier than two years after the date of entry of an order establishing primary rеsidential responsibility, except in accordance with subsection 3.
. . . .
3. The time limitation in subsections 1 and 2 does not apply if the court finds:
. . . .
b. The child‘s present environment may endanger the child‘s physical or emotional health or impair the child‘s emotional development[.]
. . . .
5. The court may not modify the primary residential responsibility within the two-year period following the date of entry of an order establishing primary residential resрonsibility unless the court finds the modification is necessary to serve the best interests of the child and:
. . . .
b. The child‘s present environment may endanger the child‘s physical or emotional health or impair the child‘s emotional development[.]
[¶6] Anderson argues the district court analyzed the modification of primary residential responsibility under the more lenient requirements of
A prima facie case only requires facts which, if proved at аn evidentiary hearing, would support a change of custody that could be affirmed if appealed. A prima facie case is only enough evidence to allow the fact-trier to infer the fact at issue аnd rule in the party‘s favor. It is a bare minimum. Allegations alone do not establish a prima facie case, and affidavits supporting the motion for modification must include competent information, which usually requires the affiant have first-hand knowledge. Affidavits are not competent if they fail to show a basis for actual personal knowledge, or if they state conclusions without the support of evidentiary facts. Competencе usually requires that the witness have first-hand knowledge, and witnesses are generally not competent to testify to what they suspect the facts are.
Sweeney v. Kirby, 2013 ND 9, ¶ 5, 826 N.W.2d 330 (cleaned up).
[¶8] Anderson argues W.D.P.‘s environment under Pedie‘s care is endangering his physical or emotional health or is impairing his emotional development. In her affidavit supporting modification, Anderson alleged W.D.P. suffered from cuts and bruises, sleepwalking, pants wet with urine, constipation, a failure to gаin weight, and separation anxiety. Anderson does not have personal knowledge of the causes of these events, but speculates they are due to Pedie neglecting his parental responsibilities. Anderson filed two letters from certified nurse practitioners as exhibits to her modification motion. One letter simply states the diagnoses that W.D.P. was being seen for on that visit to the clinic. Another letter states W.D.P. sustained a laceration that in the nurse practitioner‘s opinion would not have required antibiotics had W.D.P. been evaluated within a few hours of the injury. These letters do not support Anderson‘s allegation that W.D.P.‘s environment under Pedie‘s cаre caused or contributed to W.D.P.‘s injuries or illnesses. Even if the need for antibiotics referred to in the second letter was due to Pedie‘s inaction, the isolated incident does not rise to the level of endangering W.D.P.‘s physical or emotional health or impairing his emotional development as required by statute.
[¶9] Anderson also alleges Pedie has refused speech and occupational therapy for W.D.P. However, Andеrson acknowledges that W.D.P. is attending Red Door Pediatric Therapy for speech and occupational therapy. Further, Anderson alleges there have been several Child Protective Services (“CPS“) reports prepared by mandated reporters concerning W.D.P. She does not identify what those alleged reports state concerning W.D.P., except in one instance where she simply states CPS was investigating a reрort regarding bruising on W.D.P. Anderson does not allege that CPS has taken any action against Pedie for his care of W.D.P. or recommended any services to him.
[¶10] We conclude that Anderson‘s assertions do not create рrima facie evidence that W.D.P.‘s environment under Pedie‘s care is endangering his physical or emotional health or impairing his emotional development.
III
[¶11] Anderson argues the district court erred in awarding Pedie attorney‘s fees in
[¶12] “The district court has discretion to award attorney‘s fees as part of a remedial sanction for contempt to reimburse the complainant for costs and expenses incurred as a result of the contempt.” Harvey v. Harvey, 2016 ND 251, ¶ 7, 888 N.W.2d 543. In Pedie‘s affidavit in support of his motion for contempt, he stated, “Because of [Anderson]‘s violations of the Judgment, I will incur at least $1,500 in attorney fees and costs to file this motion and appear at the hearing.” (Emphasis added.) After the hearing on the contempt motion, Pedie submitted his closing argument in which he requested “$3,000, as and for a portion of the attorney fees he incurred as a result of [his] contempt motion.” Anderson did not object to the $3,000 in attorney‘s fees. The court ordered as a sanction that Anderson refrain from engaging in further contemptible conduct and pay “a portion of [Pedie‘s] attorney‘s fees incurred in the creation and prosecution of this motion,” awarding attorney‘s fees in the amount of $2,000 as a sanction. Anderson does not contend attorney‘s fees were discussed at the contеmpt hearing, and did not request a transcript of the hearing. As the appellant, Anderson bears the responsibility of providing a transcript or assumes the consequences of failing to provide one. See
IV
[¶13] Pedie requests sanctions on appeal against Anderson for violating
V
[¶14] We affirm the order denying Anderson‘s motion to modify residential responsibility and the contempt order awarding attorney‘s fees, and deny sanctions on appeal.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte