Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.
The opinion of the court was delivered by: Kapsner, Justice
[¶1] Darcy Ehli, formerly known as Darcy Joyce, appeals from an order summarily denying her motion to amend a stipulated divorce judgment granting her and Donald Joyce joint legal and physical custody of their child. We hold Ehli established a prima facie case entitling her to an evidentiary hearing on her motion to change primary residential responsibility of the child. We reverse and remand.
[¶2] In 2006, Ehli and Joyce stipulated to a divorce judgment granting them "joint legal and physical custody of their minor child" and also providing:
The parties have been sharing time with the child equally upon mutual agreement since their separation in April 2006, and the parties shall continue sharing time with the child on an equal basis upon mutual agreement. Either party may bring a motion to specify times for joint physical custody if the parties can no longer reach an agreement.
[¶3] In 2010, Ehli moved to change primary residential responsibility of the child to herself and to establish a parenting plan. Ehli claimed the parties had not shared primary residential responsibility of the child after the divorce judgment, and she sought to amend the judgment to reflect the parties' actual arrangement. Ehli's affidavit in support of her motion stated that after the divorce judgment, she had remarried and has had the child "about 95% of the time." Ehli's affidavit stated there has been a dramatic decrease in the time Joyce spends with the child and he has exercised only minimal visitation. An affidavit by Ehli's husband also stated Ehli has had the child "probably 95% of the time since [he has] known her." Joyce resisted Ehli's motion and requested a specific parenting plan "so neither party can interfere with the parenting time for the other party." Joyce's affidavit stated he had tried to exercise parenting time with his child, but Ehli has limited his parenting time and he has been "systematically pushed out"of his child's life. Joyce stated Ehli was "pulling numbers out of the air by claiming 95%" of the child's time was spent with her and he had spent "a lot more time with the children than just a mere 5%." He also stated he had worked out of town for several weeks and was not able to see the child.
[¶4] The district court decided Ehli's affidavits did not establish a material change in circumstances after entry of the stipulated judgment and summarily denied her motion without a hearing. The court said "nothing prevents the parties from agreeing to a parenting plan and agreeing to amend the Judgment accordingly."
[¶5] Ehli argues the district court erred as a matter of law in not granting her an evidentiary hearing on her motion to modify primary residential responsibility. She argues the district court's decision that she failed to show a material change in circumstances is contrary to the affidavits presented to the court. She asserts the affidavits establish the child has been with her more than ninety-five percent of the time since the original judgment and Joyce went nine months without seeing the child. Ehli claims there has been an improvement in her living conditions and a general decline in Joyce's home and lifestyle, and she seeks a change in primary residential responsibility to reflect the parties' actual arrangement.
[¶6] Section 14-09-06.6, N.D.C.C., deals with limitations on post-judgment modifications of primary residential responsibility, and as relevant to Ehli's motion more than two years after the stipulated judgment, provides:
4. 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 prima facie case is established.
6. 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 ...