Lead Opinion
[¶ 1] Britt Green appeals from the district court’s order denying him an eviden-tiary hearing on his motion for a change of custody. We reverse the district court’s order and remand for an evidentiary hearing on the motion, concluding Britt Green established a prima facie case entitling him to an evidentiary hearing.
I
[¶ 2] Britt Green and Lucy Green were divorced in May 2007. One child was born of the marriage, B.G. Lucy Green also has two other children whom Britt Green adopted, one of whom was still a minor at the time the parties divorced. The parties stipulated to the divorce judgment, giving Lucy Green physical custody of the children and allowing her to relocate with the children to Nebraska. The divorce judgment gave Britt Green liberal visitation, providing him summer visitation with B.G. commencing “one week following [B.G.’s] release from school in the spring until one week prior to two weeks prior to commencement of school in the fall.” B.G. spent the 2007 and 2008 summers with Britt Green.
[¶ 3] In August 2008, Britt Green filed a motion to amend the divorce judgment to change custody of B.G. from Lucy Green to Britt Green. In Britt Green’s affidavit, he alleged B.G. expressed a desire to reside with him because Lucy Green drinks excessively, calls her derogatory names, leaves her unsupervised overnight and fails to lock their house doors at night. In B.G.’s affidavit, she also states that she does not feel safe at her mother’s house because her mother fails to lock their doors, drinks to excess and leaves her and her sister alone overnight. B.G.’s affidavit also claims that when her mother drinks she calls B.G. derogatory names, making B.G. feel sad and uncomfortable. B.G. said she is afraid when her mother drinks because she does not always come home and she is afraid her mother will be in an accident.
[¶ 4] Lucy Green opposed Britt Green’s motion for a change of custody. In September 2008, without setting a date for an evidentiary hearing, the district court denied Britt Green’s motion for a change of custody. In denying Britt Green’s motion for a change of custody, the court stated heightened requirements were placed on Britt Green because he was moving for a custody modification within two years from the date the existing custody order was issued. The district court concluded Britt Green did not meet the heightened requirements because he did not “specifically address on what basis he claims [B.G.’s] emotional development might be impaired.”
II
[¶ 5] In Lagro v. Lagro,
[¶ 6] Britt Green argues the district court erred when it failed to grant him an evidentiary hearing because he established a prima facie ease. Britt Green claims the three affidavits attached to his motion for change of custody provide first-hand knowledge of the facts alleged in the affidavits and establish that B.G. lives in an environment that may be endangering her emotional health.
[¶ 7] Section 14-09-06.6(5), N.D.C.C., states:
“The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:
a. The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.”
Section 14-09-06.6(4), N.D.C.C., requires:
“A party seeking modification of a custody order 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 evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie ease justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.”
The burden to establish a prima facie case is on the moving party. N.D.C.C. § 14-09-06.6(8). In Frueh v. Frueh, we stated:
“A prima facie case does not require facts which, if proved, would mandate a change of custody as a matter of law. A prima facie case only requires facts which, if proved at an 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 and rule in the party’s favor.’ It is a bare minimum.”
[¶ 8] A party opposing a custody modification can rebut a prima facie case by presenting evidence demonstrating the moving party is not entitled to modification. Frueh, at ¶ 7. “When the opposing party presents counter-affidavits that conclusively show the allegations of the moving party have no credibility, or when the movant’s allegations are, on their face, insufficient to justify custody modification, the district court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not established a prima facie case and deny the motion without an evidentiary hearing.” Frueh, at ¶ 7. When determining whether a prima facie case has been established, the court cannot weigh the conflicting allegations. Id. at ¶ 13.
[¶ 10] Britt Green argues the district court erred in denying him an eviden-tiary hearing because he established B.G.’s present environment is endangering her emotional health or impairing her emotional development. In determining an evi-dentiary hearing was not warranted, the district court correctly recognized that heightened requirements are placed on a movant bringing a motion to change custody when less than two years have passed since the existing custody order was issued. The district court determined Britt Green did not meet the heightened requirements entitling him to an evidentiary hearing because Britt Green did not “specifically address on what basis he claims [B.G.’s] emotional development might be impaired.”
[¶ 11] Section 14 — 09—06.6(5)(b), N.D.C.C., allows the court to modify custody when less than two years have passed if the court finds that “[t]he child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.” To establish B.G.’s present environment may be endangering B.G.’s emotional health or impairing her emotional development, Britt Green submitted his own affidavit, an affidavit of his wife, Terri Green, and B.G.’s affidavit. In Britt Green’s affidavit, he alleges B.G.’s present environment is endangering her emotional health because B.G. told him that when Lucy Green drinks, she calls B.G. derogatory names. Britt Green’s affidavit also discusses his concern about the negative effect Lucy Green’s drinking may have on B.G. Terri Green’s affidavit alleges B.G. said she wanted to live with her and Britt Green because they do not drink, they eat dinner at home as a family and B.G. enjoys spending time with her step-brothers.
[¶ 12] In B.G.’s affidavit, she states she wants to live with her father because she does not feel safe with her mother since her mother fails to lock their house doors, drinks a lot and leaves B.G. and her sister alone overnight while her mother sleeps over at her boyfriend’s house. B.G. also states when her mother drinks, she calls her derogatory names, making her “feel very sad and uncomfortable.” B.G. said she is afraid when her mother drinks because her mother does not always come home and she is afraid her mother will get into an accident. B.G. claims her mother ignores her when she tells her mother that she is afraid of being left alone. B.G. also stated that one night in January 2008, she woke up in the middle of the night and on her way to the bathroom she saw a strange man sleeping in their recliner in the living room. B.G. claims she woke her mother up and her mother woke up the stranger and told him he could sleep there for the night but he had to leave in the morning. B.G. said she was especially afraid this night because her bedroom is
[¶ 13] We have stated that “allegations alone do not establish prima facie evidence requiring an evidentiary hearing.” Frueh,
[¶ 14] The affidavits submitted by Britt Green are competent because B.G.’s affidavit is based on her first-hand knowledge and because B.G.’s affidavit provides factual support for the allegations contained in Britt Green’s and Terri Green’s affidavits. We conclude Britt Green has provided sufficient competent evidence to establish a prima facie case warranting an evidentiary hearing on his motion for a change of custody.
Ill
[¶ 15] Because of our conclusion, it is unnecessary to address the remaining issues raised by the parties. We reverse the district court’s order and remand for an evidentiary hearing on the motion, concluding Britt Green established a prima facie ease entitling him to an evidentiary hearing.
Concurrence Opinion
concurring.
[¶ 17] The most consequential of this Court’s disagreements relating to N.D.C.C. § 14-09-06.6(4) has related to the type of evidence required to establish a prima facie case. I have strongly advocated that the evidence must be competent and admissible. See Frueh v. Frueh,
[¶ 18] The standard of review for this Court’s evaluation of a district court’s determination of whether a prima facie case has been established has been the subject of more esoteric debate. Some have contended that the standard should be de novo review of a question of law, and others have contended that the standard should be an abuse of discretion. Of course, a court abuses its discretion if it misinterprets or misapplies the law. I have previously advocated for an abuse of discretion standard. In none of our prior cases has a majority of this Court signed an opinion establishing an abuse of discretion standard.
[¶ 19] Before Lagro, a majority of this Court had clearly said that whether a pri-ma facie case has been made is a matter of law subject to de novo review. Hawley v. LaRocque,
[¶ 20] In Logro,
[¶21] In Lausen v. Hertz,
[¶ 22] In Frueh,
[¶ 23] On reflection, I believe the de novo review of a question of law standard in applications under N.D.C.C. § 14-09-06.6(4) brings us much closer to the intent of the legislation and certainly closer than the largely unfettered discretion suggested.
[¶ 24] DALE V. SANDSTROM
Dissenting Opinion
dissenting.
[¶ 28] I respectfully dissent. The majority reverses the standard of review our Court enunciated in Lagro v. Lagro,
[¶ 29] Our Court stated in Guskjolen v. Guskjolen that the clearly erroneous standard of review applies to our Court’s review of a trial court’s determination of a motion to modify a custody award.
[¶ 30] In Lagro, our Court considered the standard of review of a trial court’s decision to deny an evidentiary hearing on a motion to modify custody and concluded the appropriate standard of review was an abuse of discretion.
[¶ 31] However, in Frueh, a clear majority of our Court held: “We review the denial of an evidentiary hearing on change of custody under an abuse-of-discretion standard. A district court abuses its discretion if it misinterprets or misapplies the law.”
[¶ 32] In Frueh, there was a deliberate and unqualified agreement by a majority of the Court on the standard of review. See
The rule of stare decisis is a rule of policy grounded on the theory that when a legal principle is accepted and established, rights may accrue under it and security and certainty require that the principle be recognized and followed thereafter even though it later be found to be not legally sound. To a certain extent this is true. But the rule is not sacrosanct. Whether or not a holding shall be adhered to or modified or overruled, is a question within the discretion of the court under the circumstances of the case under consideration.
Otter Tail Power Co. v. Von Bank,
[¶ 33] We must “acknowledge the importance of the rule of stare decisis, grounded upon the theory that when a legal principle is accepted and rights may accrue under it, security and certainty require the principle be recognized and fol
[¶ 34] The majority opinion provides no analysis of why our Court is abandoning our precedent on this issue. There is no analysis of whether there has been a change in the law of our State; there is no analysis indicating a review of other courts’ decisions or a change in the trend of the law; and there is no indication that the standard is obsolete. There are no compelling or thoughtful arguments made for our Court to ignore the rule of stare decisis. Neither of the parties argued our Court should overrule its standard of review. The only reason we have overruled our standard of review is that the justice who authored Lagro and Frueh has decided to change his mind. This decision cannot be said to further the objective of stare decisis, which is to provide uniformity, certainty, and stability in the law. If we get a new justice on the court, will the standard change again? Our Court appears to be a court of men rather than a court of law.
[¶ 35] In Lagro, Justice Sandstrom acknowledged that a majority of the Court had previously established a de novo standard of review when deciding whether a prima facie case is established requiring an evidentiary hearing.
The legislature enacted N.D.C.C. § 14-09-06.6 to address the frequency of child custody disputes. 1997 N.D. Sess. Laws ch. 149, § 1. We have held:
The purpose of the legislation was to curtail repeat custody litigation. It is the product of the 1995 Joint Family Law Task Force formed by order of this Court at the request of the State Bar Association. Testifying on the legislation before the Senate Judiciary Committee, Chair Sherry Mills Moore explained the object of the proposed legislation:
With SB 2167 we ard'trying to put more stability in the lives of children who are the object of a custody dispute by slowing the revolving door to the courthouse....
.... The decision about custody, and the process attendant to making that decision are of their very nature painful, disruptive, and destabilizing ....
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Under SB 2167, for a period of two years following a custody determination there is something of a moratorium for the family. The custody-changing process cannot be initiated except in some specific and necessary situations.
Hearing on SB 2167 before the Senate Judiciary Committee, 55th N.D. Leg. Sess. (Jan. 21, 1997).
Quarne v. Quarne,1999 ND 188 , ¶ 9,601 N.W.2d 256 .
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North Dakota patterned its affidavit procedure to modify custody within two years of a prior consideration on Minnesota’s statute. Joint Task Force on Family Law, Summary Report (June 17, 1996). Minnesota employs an abuse-of-discretion standard in reviewing the denial of an evidentiary hearing on change of custody. In re Weber,653 N.W.2d 804 , 809 (Minn.Ct.App.2002); Valentine v. Lutz,512 N.W.2d 868 , 872 (Minn.1994); see also Smith v. Smith,508 N.W.2d 222 , 226-27 (Minn.Ct.App.1993); Nice-Petersen v. Nice-Petersen,310 N.W.2d 471 , 472 (Minn.1981).
*621 Our North Dakota statute requires not only a prima facie case but also provides the opposing party may file affidavits, and it requires the court to “deny the motion unless the court finds the moving party has established a pri-ma facie case justifying a modification.” N.D.C.C. § 14-09-06.6(4) (emphasis added). The word “finds” reflects a degree of weighing of conflicting evidence, and the word “justifying” reflects “to show ... to be just or right.” The Random House Dictionary of the English Language 719, 1040 (2d ed. 1987); see also Black’s Law Dictionary 882-83 (8th ed. 2004). In view of the statutory language, and consistent with the legislative history, our review of the denial of an evidentiary hearing on change of custody will be under an abuse-of-discretion standard. Tank and Hawley are superseded to the extent they established a de novo review of a denial of an evidentiary hearing.
Lagro, at ¶¶ 11, 13-14. Our Court applied the abuse-of-discretion standard of review in Lagro. Id. at ¶ 14. We outlined our standard for establishing a prima facie case and concluded the affidavits did not provide sufficient evidence to create a pri-ma facie case that the child’s living environment with his father may endanger his physical or emotional health or impair his emotional development. Id. at ¶ 21. Our Court affirmed the trial court’s denial of an evidentiary hearing. See id. at ¶¶ 21, 24.
[¶ 36] In my dissents in Mock v. Mock and Tank, I have contended that our statute is patterned after the restrictive provisions of the Uniform Marriage and Divorce Act and the Minnesota statute on affidavit procedure for modification. See Mock,
[¶ 37] In the present case, Britt Green and Lucy Green divorced in May 2007. Lucy Green was awarded physical custody of the parties’ minor children. In August 2008, Britt Green filed a motion to modify custody of the minor child. In his motion, Britt Green claimed that there was a material change in circumstances since the divorce because the child’s “present environment is endangering her emotional health and places her at risk for impaired emotional development” and the child “is a mature child who has expressed a preference to reside with her father.” The minor child was twelve years old at the time of the hearing on the motion. The parties’ minor child signed an affidavit in which she stated that she would like to live with her father, Britt Green; she likes living in Scranton, North Dakota; she likes the school in Scranton because she has more friends and classmates in Scranton and there are classes offered that are not offered in Oxford; she has a horse named Scooter in Scranton and does not have a horse in Oxford; it is easier to talk to her dad; her mom goes to the bar every day; sometimes her mom just stops to buy beer to bring home; other times she stays at the bar and drinks; her mom drinks a lot; when her mom is drinking, her mom calls her filthy names which make her feel sad and uncomfortable; her mom has a boyfriend; approximately five times her mom has stayed overnight at his house leaving her at home alone with her fifteen-year-old sister; she is scared when her mom does not come home; she is scared and worried because her mom is drinking and driving and afraid her mom will be in an accident; her uncle and aunt used to live within a mile and she used to spend a lot of time there, but they have moved to the country; her sister is definitely her mom’s favorite child; she and her sister fight a lot; when she tells her mom that her sister slaps her and calls her names, her sister denies it, and her mom believes her sister; her mom hates her dad and so does her sister, so her sister gets what she wants; in January 2008, she woke up in the middle of the night and saw a stranger sitting in their living room so she woke up her mom, who did not know the man, but who let the man sleep there until morning; her mom does not lock their house doors and she does not feel safe in Oxford; her dad locks the doors in Scranton and is home at night.
[¶ 38] The trial court concluded that these facts were not sufficient to infer the child’s emotional health or development were endangered by the present environment. The trial court decided, based on the affidavits, there was not sufficient evidence from which it could infer the mom’s home endangered the child’s emotional health or impaired the child’s emotional development. The issue is whether the child’s statements that she does not like her mother drinking, that she is scared and worried about her mother when she is not home, that she is scared and does not feel safe because her mom does not lock the doors, and that she feels sad and uncomfortable when her mom calls her filthy names rise to the level of evidence that would support on appeal to our Court an affirmance of a modification based on an environment that endangers the child’s emotional health. Would our Court affirm a trial court’s modification of custody based on a court’s finding that these facts establish the child’s emotional health is endangered? The trial court concluded that this evidence does not justify such an affirmative conclusion:
“[The father] has presented no allegation of child abuse or physical harm and the allegations regarding possible harm to the child’s emotional health or development do not rise to a level sufficient*623 for an exception to the law prohibiting a motion to modify custody when less than two years have passed.”
[¶ 39] The trial court prepared a thorough and accurate order citing our court’s case law on the purpose of the provision requiring a court to determine whether a hearing should be even held within two years following a custody determination and on the movant’s heightened burden of proof. The majority conclusion really is based on its own disapproval of the mother’s choice of life style and its own personal values. That is not the standard the legislature has promulgated.
[¶ 40] The trial court did not abuse its discretion in denying a hearing on the motion to modify custody. Applying an abuse-of-discretion standard, I would affirm.
[V 41] MARY MUEHLEN MARING
Concurrence Opinion
concurring and dissenting.
[¶ 25] I would adhere to the standard of review the majority of this Court applied in Frueh v. Frueh,
[¶ 26] Nevertheless, applying the abuse of discretion standard, I concur in the result reached by the majority opinion. A custodial parent’s life style may endanger a child’s emotional and physical health and safety. I believe the allegations contained in the affidavits filed in this case deserve a hearing. Although I recognize that “artful” pleading by an adroit lawyer can turn a minor matter into a major issue, sanctions under Rule 11, N.D.R.Civ.P., are available and should be imposed for those allegations which have no evidentiary support.