Lead Opinion
[¶ 1] Brandon Charvat appeals from a district court order denying his motion to amend a divorce judgment to modify primary residential responsibility of the parties’ child. We reverse and remand for further proceedings, concluding Brandon Charvat established a prima facie case justifying modification and was entitled to an evidentiary hearing.
I
[¶ 2] Brandon and Jessica Charvat married in 2006 and their daughter, B.C., was born in 2007. When they divorced in 2009, Jessica Charvat was awarded primary residential responsibility for the child and Brandon Charvat received parenting time.
[¶ 3] In 2012, Brandon Charvat moved to modify the judgment, seeking primary residential responsibility for the child. In support of his motion, he submitted affidavits and other supporting evidence alleging that Jessica Charvat had dated eight different men during the 3½ years since the divorce, including two men who had physically abused her; that Jessica Charvat and B.C. had moved three times since the divorce; that Jessica Charvat had attempted suicide in 2009 after the divorce; that Jessica Charvat had allowed the child to play with an old cell phone that contained sexually explicit pictures of Jessica Charvat
[¶ 4] The district court, while expressing concern for several of the incidents detailed in Brandon Charvat’s supporting affidavits, ultimately concluded that Brandon Charvat had “failed to present a prima facie case which would justify the holding of an evidentiary hearing on his Motion to Modify Parenting Responsibilities.” The court accordingly denied the motion without an evidentiary hearing, and Brandon Charvat appealed.
[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
II
[¶ 6] Brandon Charvat argues he was entitled to an evidentiary hearing because he established a prima facie case for modification of primary residential responsibility-
[¶ 7] When a modification of primary residential responsibility is sought more than two years after entry of the prior order establishing primary residential responsibility, the motion is governed by N.D.C.C. § 14-09-06.6(6), which provides:
The court may modify the primary residential responsibility after the two-year period following the date of entry of an order establishing primary residential responsibility if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.
A material change in circumstances is an important new fact that was unknown at the time of the prior custody decision. Thompson v. Thompson,
[¶ 8] The party seeking modification must initially establish a prima facie case justifying a modification:
A party seeking modification of an order concerning primary residential responsibility shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. The court shall set a date for an evidentiary hearing only if a pri-ma facie case is established.
N.D.C.C. § 14-09-06.6(4).
[¶ 9] Whether a party has established a prima facie case for a change of primary residential responsibility is a question of law which this Court reviews de novo. E.g., Sweeney v. Kirby,
[¶ 10] In determining whether a prima facie case has been established, the district court must accept the truth of the moving party’s allegations. Kartes,
[¶ 11] This is another in the line of recent appeals in which district courts have engaged in weighing conflicts in the evidence presented in the competing affidavits to reach the conclusion that the moving party’s evidence was insufficient to establish a prima facie case. See Jensen v. Jensen,
The court may conclude the moving party failed to establish a prima facie case only if: (1) the opposing party’s counter-affidavits conclusively establish that the moving party’s allegations have no credibility; or (2) the moving party’s allegations are insufficient on their face, even if uncontradicted, to justify modification. Unless the counter-affidavits conclusively establish the movant’s allegations have no credibility, the district court must accept the truth of the moving party’s allegations.
[¶ 12] The district court in this case clearly engaged in weighing the conflicting evidence presented by the parties to resolve conflicts and assess credibility, effectively engaging in a mini-trial by affidavit. See Jensen,
[¶ 13] For example, the court expressed concern that Jessica Charvat had been abused by two of her former boyfriends, but noted the abuse was not ongoing and B.C. had not been exposed to the abuse. Evidence that the custodial parent has been involved in abusive relationships, however, may be significant even if the abuse is not ongoing and the child was not present. Such evidence may demonstrate a lack of judgment in the parent who has engaged in the abusive relationships and a potential that the child will be exposed to
[¶ 14] The court also minimized the allegation that Jessica Charvat had attempted suicide. In Schumacker,
[¶ 15] The district court in this case clearly engaged in weighing the conflicting evidence presented in the parties’ affidavits to reach the conclusion that Brandon Charvat had failed to establish a prima facie case of a material change in circumstances. Jessica Charvat’s counter-affidavits do not conclusively establish that Brandon Charvat’s allegations have no credibility, but merely create conflicting issues of fact. The court was therefore required to accept the truth of Brandon Charvat’s allegations and could not weigh or resolve conflicts in the evidence when deciding whether a prima facie case had been established. Walt,
[¶ 16] Applying our de novo standard of review, we conclude Brandon Charvat established a prima facie case for modification and was entitled to an eviden-tiary hearing. Brandon Charvat’s supporting affidavits included evidence that Jessica Charvat had dated numerous men since the parties’ divorce, including two who had physically abused her; Jessica Charvat and B.C. were living with a man with a history of domestic violence; Jessica Charvat had attempted suicide since the divorce; and Jessica Charvat had allowed the child access to an old cell phone that contained sexually explicit pictures of Jessica Charvat and a former boyfriend. This evidence presented a prima facie case of a material change in circumstances warranting an evidentiary hearing on Brandon Charvat’s motion to amend the judgment to modify primary residential responsibility, and the district court erred in denying the motion without holding an evidentiary hearing.
Ill
[¶ 17] We conclude Brandon Charvat established a prima facie case for modification and was entitled to an evidentiary hearing, and we reverse and remand for further proceedings.
Concurrence Opinion
concurring in the result.
[¶ 19] I, respectfully, concur in the result. I am concerned with the continual decline in the quality of evidence required to establish a prima facie case justifying modification in primary residential responsibility and an evidentiary hearing.
[¶ 20] A moving party must present a competent affidavit supported by firsthand knowledge with specific and detailed evi-dentiary facts establishing a significant change that adversely impacts the child’s well-being to establish a prima facie case. See generally Jensen v. Jensen,
[¶ 21] Although I agree with the majority’s opinion that Brandon Charvat meets the “bare minimum” threshold in this case, I continue to disagree with the majority’s interpretation of our caselaw and the applicable statute. I adhere to my opinion that “it is clear the Legislature intended to require parties to meet the higher standard showing that there has been a significant or important change of circumstances that has a negative impact on the well-being of the child.” Kelly,
[¶ 22] MARY MUEHLEN MARING.