Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable John E. Greenwood, Judge.
Bobbi B. Weiler, for plaintiff and appellee.
Theresa L. Kellington, for defendant and appellant.
[¶ 1] Roy Jensen appeals from a district court order denying his motion to amend a divorce judgment to modify primary residential responsibility for the parties' child. We reverse and remand for further proceedings, concluding Jensen established a prima facie case for modification and was entitled to an evidentiary hearing.
[¶ 2] When Jensen and Rebecca Vettel, formerly Rebecca Jensen, divorced in 2004, they were awarded joint legal and physical custody of their daughter, R.J., who was born in 2001. The divorce judgment was amended in 2007 when R.J. began school, and Vettel was awarded primary physical custody and Jensen received visitation. At the time of the 2007 amendment, Vettel lived in Jamestown and Jensen lived at the Minot Air Force Base. In 2012, Vettel remarried and moved from Jamestown to Bismarck. In addition, Jensen had moved to a farm near Palermo.
[¶ 3] In October 2012, Jensen moved to amend the judgment to change primary residential responsibility for R.J. and requested an evidentiary hearing. Jensen claimed there had been a material change in circumstances warranting modification, and in supporting affidavits presented evidence that Vettel had remarried and relocated with R.J. to Bismarck; that R.J. had expressed a preference to live with him instead of her mother; that R.J. was often left home alone or with her half-brother for long periods; that R.J. was not properly supervised and was allowed to ride her bike around town or to the park alone; that R.J. had gotten lost in Bismarck and had called him, and eventually reached her stepfather by phone for directions home; that R.J. did not have family and friends in Bismarck; that R.J. disliked her new school and had made only one friend; that Vettel had failed to provide clean clothes for R.J.; and that Vettel did not allow R.J. to participate in extracurricular activities. Vettel responded to the motion with counter-affidavits challenging Jensen's allegations. The district court concluded that Jensen had "not shown sufficient evidence to warrant a finding of a prima facie case on these allegations" and that Jensen had "not made a prima facie case that RJ's preference to reside with him is based on RJ's maturity or that there are persuasive reasons for the preference." The court accordingly denied the motion without holding an evidentiary hearing, and Jensen appealed.
[¶ 4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Jensen'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.
[¶ 5] Jensen argues he was entitled to an evidentiary hearing because he established a prima facie case for modification of primary residential responsibility.
[¶ 6] When a modification of primary residential responsibility is sought more than two years after entry of the prior order establishing primary residential responsibility, the motion is governed by N.D.C.C. § 14-09-06.6(6), which provides:
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 ...