Hawley v. LaRocque
689 N.W.2d 386
N.D.
2004
Check Treatment

*1 judgments post- The three-page issues raised. of the court’s the last sentence are affirmed. trial orders decision. rely implied will on We WALLE, GERALD W. VANDE fact when the record enables us findings of NELSON, D.J., C.J., DAVID W. factual determination to understand the NEUMANN, A. and CAROL WILLIAM and the basis by the district court

made KAPSNER, JJ, concur. RONNING judgment. conclusions of law and for its See, v. e.g., Equip., Almont Lumber & Co. The Honorable DAVID W. ¶ 13, 798; Dirk, 187, ND 585 N.W.2d D.J., NELSON, sitting place of Berdahl, v. First Am. Bank West MARING, J., disqualified. (N.D.1996). very It is a of contract law principle well-established agreements subsequent oral made containing an inte agreement

a written clause are not ren gration modification prior writing. ineffective the See dered Lord, § 11 R. Williston on Contracts 33:23 2004 ND 215 (4th ed.1999); Corbin, A.6 Corbin on Con HAWLEY, LaRocque, Rosa Rosa f/k/a (1979). Thus, prior writ tracts Appellant, Plaintiff and it agreement providing ten could be modi only writing prevent did not fied entering into a new oral parties LaROCQUE, D. Defendant Sam If the court had been under agreement. Appellee. writing required was impression No. 20040057. beyond employment relationship create an no

March there would have been Supreme Court of North Dakota. court to recite evidence of the need 19, 2004. Nov. respective understandings of their parties’ employment relationship after March 2000. interpret the court’s reference to the writing further evidence that

lack of as parties agree never reached an oral on for a definite term. employment ment issue, conflicting evidence on the Given implied we conclude the district court’s finding agreement that there was no oral employment for a definite term is

about clearly Consequently, erroneous. For employee, ster was an at-will and the dis in dismissing trict court did not err employment breach of contract claim against the Clinic.

IV disposition In view of our of this unnecessary it is to address other *2 Mclntee, Firm, Mclntee Law

Michael S. Bottineau, N.D., plaintiff appellant. for and Mack, Offices, P.C.,

Galen J. Mack Law N.D., Rugby, appellee. for defendant and MARING, Justice. Hawley (“Hawley”), Rosa former- from

ly LaRocque, appeals known as Rosa denying judgment a trial court amended change child her motion in her Haw- provisions judgment. divorce ley pri- that she has argues established change ma facie case for a of 14-09-06.6(4) and is under N.D.C.C. evidentiary hear- therefore entitled to ing matter. conclude the trial on the holding Hawley court was correct in has and, failed to establish a therefore, evidentiary is not entitled to an hearing, and we affirm.

I (“LaR- LaRocque Rosa Sam divorced in 1997. The terms

ocque”) were LaRocque that stipulated of the divorce four parties’ receive full of sons, Hawley receiving liberal visita- with 2003, Hawley rights. September tion custody, for a of filed a motion physi- full granted that she be requesting Hawley custody of the four children. cal claimed there had been substantial the custodial in circumstances and be in the best interests change would Hawley’s affidavit the children. that three of the alleged of her motion with stated wish to live children have her, child would like to that the fourth her, LaRocque more time with that spend Haw- family repeatedly prevented and his rights, exercising her visitation ley from providing LaRocque that is needs, or dental children’s medical in circumstances es adequately supervise a material LaRocque does not children, LaRocque pre- justifying has cus tablishing obtaining school in- tody vented modification.” than the formation on the children. Other A party seeking 673 N.W.2d 622. *3 affidavit, in allegations her aforementioned custody a order is entitled modification of Hawley’s motion for a only party if evidentiary hearing to an by any supporting accompanied was not prima by alleging a facie case establishes response, LaRocque’s In documentation. affidavits, supporting in their sufficient allegation, arguing that the he denied each facts, which, uncontradicted, sup if would motion, “i.e., Hawley’s in no lack of detail in port a modification favor of that witnesses, time, date, circumstances, con- ¶ Mock, 14, 5, party. Mock v. 2004 ND etc.,” text, prima a facie failed to establish Peterson, (citing 673 635 Volz v. N.W.2d evidentiary warranting hearing. an case ¶ 139, 7, 637; ND 667 Law 2003 N.W.2d LaRocque included letters from the chil- ¶53, 7, ND Delkamp, rence v. teachers, principal, and foot- dren’s school 758; Quarne Quarne, ND N.W.2d v. position. in of his support ball coach ¶ 256). 188, 11, 601 N.W.2d trial concluded that The court [¶ 3] a procedure resolving The for mo- [¶ 7] Hawley’s pri- affidavit failed to establish a modify custody tion to is set forth in justifying ma facie case modification and 14-09-06.6(4): § N.D.C.C. evidentiary her motion without an denied hearing. party seeking A modification of a custo- dy moving order shall serve and file

II papers and supporting affidavits and party a has estab [¶ 4] Whether give party shall notice to the other to prima entitling a facie case them to lished proceeding may who serve and file a evidentiary hearing an on a motion to response opposing affidavits. The change custody question is a of law. Tank court shall consider the motion on briefs ¶ 15, 6, 2004 ND 673 N.W.2d 622. argument and without oral or evidentia- questions review of law de novo on the ry hearing deny and shall the motion entire record. See Peterson v. North Da moving party unless the court finds the ¶ Sys., 2004 ND kota Univ. prima justi- established a facie has case fying a If a prima modification. facie established, case is the court shall set a III evidentiary hearing. date for an In a modification deci- 14-09-06.6(4). § N.D.C.C. sion, trial court must first determine whether a material in circum- A trial court a must set date stances has occurred and then whether evidentiary only an if hearing the mov necessary modification is to serve “[t]he ing party presents prima a facie case. the best interest of the child.” N.D.C.C. Mock, 14, 5, 673 N.W.2d 635. 14-09-06.6(6). § in prima We have defined a this way: plaintiff moving party gener “The the instant we are ally If proof. bears the burden of only requirement concerned with the first 14-09-06.6(6), party bearing proof presents the burden of of N.D.C.C. whether a uncontradicted, strong enough, in evidence if material circumstances has oc favor, moving party finding curred. “The demonstrates a that have stated wish to live case.” Id. the children prima a facie has made party omitted). her, (citations that the fourth child would like to with her, spend LaRocque more time with that recently described This Court has family prevented Haw- repeatedly and his facie case for how establish ley exercising rights, from her visitation a trial court custody and what change of providing not for the LaRocque is deciding whether bur- consider must needs, children’s medical or dental evidentiary hear- has been met and den adequately supervise LaRocque does warranted: ing is children, LaRocque pre and that has moving party establishes The in obtaining school vented supporting by alleging, with *4 Although any children. formation on the which, affidavits, if facts sufficient if allegations, adequately sup of these one at an eviden- uncontradicted remained a facie ported, present prima could a hearing, support would tiary anything beyond provided has not A trial court in her favor. modification her very general allegations to moving party has failed to can find the modify custody. to See Volz v. motion if only case the bring prima a facie ¶ Peterson, 139, 11, 667 N.W.2d 2003 ND counter affida- party presents opposing (a to live preference 637 mature child’s establishing allega- the conclusively vits may significant be a parent have no credi- with one moving party of the tions allegations necessitating are a bility, or if the movant’s of circumstances face, insufficient, justify cus- their to Hen custody); on in Hendrickson v. ¶ opposing party If the tody drickson, 1, 18, modification. 2000 ND N.W.2d burden, prima facie case meets (custody change may appropriate be when may deny and the trial court is rebutted are affected children’s best interests modify custody to without ¶ the motion Tank, (allega at 10 problems); visitation evidentiary hearing. Howev- holding an physical the children’s neglect tions of of er, party if fails to meet opposing prima a or mental health raise burden, evidentiary hearing an modification). Hawley has for a conflicting evi- must be held to resolve affidavits, reference provided witness determine whether dence and incidents, conversations, specific specific to modification is warranted. allega specific dates. Such bare-bones Tank, 15, ¶ 9, 2004 ND tions, are insufficient to support, without omitted). (internal citations prima facie standard. required meet the Delkamp, 2003 ND Lawrence v. See

IV ¶ 8, 658 N.W.2d 758. provide Hawley failed to this, such as In circumstances necessary type allegations of detailed clearly allegations are the movant’s where case necessitat to establish a facie insufficient, necessary to consider it is not evidentiary hearing on ing conclusively LaRocque’s response whether find “A trial court can custody motion. have no Hawley’s allegations establishes bring failed to moving party has ¶ 9, Tank, 2004 ND credibility. See allega ... if movant’s lack of complete 622. The 673 N.W.2d face, insufficient, justi are on their tions them Hawley’s allegations make detail custody modification.” fy their face establish insufficient on 15, 9, support 673 N.W.2d custody modification. for a affidavit, prima facie case Hawley alleged that three of ing V affirm trial court’s order Hawley’s modify motion to custo-

denying dy. WALLE, GERALD W. VANDE NEUMANN,

C.J., A. WILLIAM KAPSNER, JJ., CAROL RONNING concur. SANDSTROM, J., concurring.

DALE V. I concur the result.

2004 ND 213 GREYWIND, John Willard Petitioner Appellant Dakota, Respondent STATE of North Appellee. No. 20040080. Supreme of North Dakota. Court

Nov.