Appeal from the District Court of Mercer County, South Central Judicial District, the Honorable David E. Reich, Judge.
Lynn M. Boughey, for plaintiff and appellant.
Sherry Mills Moore, for defendant and appellee.
[¶ 1] Leslie Wade Miller appeals from an order denying without an evidentiary hearing his motion to change the primary residential responsibility for his son, B.P.M., from Jenny Lynn Miller, now known as Jenny Sailer, to himself. We affirm, concluding the district court did not err in ruling Miller failed to establish a prima facie case justifying a change of primary residential responsibility.
[¶ 2] Miller and Sailer were divorced in 2003. Under the parties' agreement, Sailer was granted primary residential responsibility for the couple's two children and Miller was granted parenting time. In 2007 Miller brought a motion to change the primary residential responsibility for B.P.M., the oldest child. Miller alleged that B.P.M., "a special needs child, " was not happy living with Sailer and that Sailer had improperly taken B.P.M. off medication, removed him from special education classes, moved several times, and lived with a boyfriend. The district court denied the motion, concluding Miller had not established a prima facie case to require an evidentiary hearing.
[¶ 3] In March 2012, Miller again moved to change primary residential responsibility for B.P.M., who was then 15 years old and an eighth-grade student. In support of the motion, Miller presented his affidavit, B.P.M.'s affidavit, and several of B.P.M.'s report cards. Many allegations mirrored those made in support of the 2007 motion. Miller also alleged Sailer had arguments with B.P.M., had contacted law enforcement about his behavior, and had taken him to juvenile youth services and threatened to send him to Dakota Boys Ranch. Miller alleged Sailer interfered with his relationship with B.P.M., did not provide for B.P.M.'s needs, and B.P.M.'s poor school performance improved during a two-month period he lived with Miller. B.P.M. alleged he argued with Sailer and stated he preferred to live with Miller. In response to the motion, Sailer presented her affidavit and several of B.P.M.'s class grade reports. Sailer provided details to counter or explain the allegations made against her and objected to hearsay statements contained in the documents filed by Miller.
[¶ 4] The district court denied Miller's motion without holding an evidentiary hearing, concluding the affidavits and other evidence presented in support of the motion did not establish a prima facie case justifying a change of primary residential responsibility. The court interpreted the "central theme" of the motion to be "that B.P.M., now age 15, does not agree with some of the restrictions and requirements Jenny imposes upon him, and that B.P.M. has stated a preference to live with Leslie." The court concluded "the conduct identified in the opposing affidavits suggests that he is not of sufficient maturity for the Court to give substantial weight to his preference."
[¶ 5] Miller argues the district court erred in ruling he failed to establish a prima facie case to support a change of primary residential responsibility.
[¶ 6] Under N.D.C.C. § 14-09-06.6(6), a court may modify primary residential responsibility after a two-year period following the date of entry of an order establishing primary residential responsibility if the court finds "[o]n 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 circumstances of the child or the parties, " and the "modification is necessary to serve the best interest of the child." A motion must be denied without an evidentiary hearing "unless the court finds the moving party has established a prima facie case justifying a modification." N.D.C.C. § 14-09-06.6(4). In Thompson v. Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331, this Court said:
Whether the moving party established a prima facie case is a question of law, which is reviewed de novo on appeal. Wolt v. Wolt, 2011 ND 170, ¶ 9, 803 N.W.2d 534. The moving party has the burden to establish a prima facie case justifying modification. Ehli v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560. This Court has said:
A prima facie case is a bare minimum and requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed. When determining whether a prima facie case has been established, a court may not weigh conflicting allegations in affidavits. However, allegations alone do not establish a prima facie case, affidavits must include competent information, which usually requires the affiant to have first-hand knowledge, and witnesses are generally not competent to testify to suspected facts. Affidavits are ...