Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Todd L. Cresap, Judge.
Carrie L. Francis, for plaintiff and appellee.
Jaclyn M. Stebbins, for defendant and appellant.
[¶ 1] Erin Muxlow, formerly known as Erin Kartes, appealed from an amended divorce judgment awarding Jorey Kartes primary residential responsibility for the parties' two children. We affirm, concluding on appeal a party cannot challenge a district court's conclusion that a prima facie case has been established warranting an evidentiary hearing on a change of primary residential responsibility and the district court's findings that Muxlow's actions constituted a persistent and willful denial or interference with Kartes's parenting time and that the best interests of the children required a change of primary residential responsibility to Kartes were not clearly erroneous.
[¶ 2] Kartes and Muxlow married in 2002 and had two children. When they divorced in 2010, Kartes and Muxlow stipulated to a parenting plan for the children. Under the terms of the original parenting plan, which was incorporated into the divorce judgment, Muxlow received primary residential responsibility for the children and Kartes received 14 days of parenting time each month, to be exercised as two seven-consecutive-day parenting times per month. At the time of the divorce, both parties lived in Minot.
[¶ 3] In February 2011, less than six months after entry of the divorce judgment, Muxlow moved to amend the judgment to allow her to move to Texas with the children. Kartes objected and moved to amend the judgment to change primary residential responsibility to himself. The court denied both motions, and the parties continued with the original parenting plan, essentially alternating custody of the children on a weekly basis.
[¶ 4] In September 2011 Kartes learned that the man Muxlow was engaged to marry, Jeremy Muxlow, was a registered sex offender. Erin and Jeremy Muxlow married a few days later and moved to Tappen, North Dakota, approximately 2½ hours from Kartes's home.
[¶ 5] Kartes immediately moved to modify the residential responsibility provisions of the divorce judgment, seeking primary residential responsibility for the children. The district court concluded Kartes had established a prima facie case for modification of primary residential responsibility, warranting an evidentiary hearing under N.D.C.C. § 14-09-06.6(4). Following a two-day evidentiary hearing in March 2012, the district court found Muxlow's change of residence constituted a persistent and willful denial or interference with Kartes's parenting time and a change of primary residential responsibility was necessary to serve the best interests of the children. An amended judgment granting primary residential responsibility to Kartes was entered in July 2012, and Muxlow appealed.
[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Muxlow's 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.
[¶ 7] Muxlow contends the district court erred in concluding Kartes had established a prima facie case warranting an evidentiary hearing on his motion to modify primary residential responsibility.
[¶ 8] Because Kartes's motion to modify primary residential responsibility was made within two years of entry of the divorce judgment granting Muxlow primary residential responsibility, the motion was governed by N.D.C.C. § 14-09-06.6(5):
The court may not modify the primary residential responsibility within the two-year period following the date of entry of an order establishing primary residential responsibility 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 parenting time;
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 residential responsibility for the child has changed to the other parent for longer than six months.
To warrant an evidentiary hearing on the motion, the party seeking modification must first establish a prima facie ...