Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.
The opinion of the court was delivered by: Maring, Justice.
2012 ND 25 This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect] Dissent filed.
Opinion of the Court by Maring, Justice.
[¶1] Maria Seibold appeals from a district court order denying her motions for a second amended judgment and to hold Paul Leverington in contempt and denying her request for a hearing on her motions. We conclude the court erred in denying Seibold's motions without providing her with sufficient time to schedule a hearing. We reverse the court's order and remand for further proceedings.
[¶2] Seibold and Leverington have one child together. In 2006, a judgment was entered finding Leverington is the child's natural father, awarding Seibold sole legal and physical custody of the child, and awarding Leverington visitation.
[¶3] In 2009, Leverington moved to modify custody. After a hearing, the district court entered an order finding there was a material change in circumstances and it was in the child's best interests to modify custody. The court awarded Leverington sole legal and physical custody of the child and awarded Seibold visitation. The court also addressed the parties' parental rights and responsibilities and ordered that both parents have certain rights and duties related to the child, including the right to access and obtain copies of certain records related to the child and the right to contact the child by phone. An amended judgment was entered in September 2009.
[¶4] On March 4, 2011, Seibold moved for a second amended judgment and to hold Leverington in contempt. Seibold requested the court award her additional parenting time for the child, award the parties' joint decisionmaking responsibility for the child, and order the parties to use a parenting time coordinator to settle disputes. Seibold requested the court find Leverington in contempt for not allowing her access to information about the child and reasonable access to the child by telephone, and she requested the court award her compensatory parenting time and attorney's fees for bringing the contempt motion. Seibold filed an affidavit in support of her motions and asked the court to set a date for an evidentiary hearing on her motions.
[¶5] On March 17, 2011, Leverington responded to Seibold's motions for contempt and a second amended judgment. Leverington argued Seibold was not entitled to an evidentiary hearing and her motion should be denied because she failed to establish a prima facie case justifying modification of primary residential responsibility and she failed to establish that a material change in circumstances had occurred and that it was in the child's best interests to modify parenting time. Leverington also argued Seibold's motion for contempt was frivolous and without merit.
[¶6] On March 21, 2011, the district court denied Seibold's motions without holding a hearing. The court found Seibold failed to establish a prima facie case to modify parenting time, she failed to present substantial evidence that a significant change of circumstances had occurred, and she was not entitled to a hearing on her motion. The court found Seibold had used the court to frustrate Leverington through significant filings, and advised Seibold that the court "will not hesitate to impose attorney's fees in the future, unless a compelling case is made with a motion." The court denied both Seibold's motion for a second amended judgment and to hold Leverington in contempt.
[¶7] Seibold argues the district court erred in denying her request for an evidentiary hearing on her motions for ...