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Charvat v. Charvat

Supreme Court of North Dakota

August 29, 2013

Jessica Christina Charvat, Plaintiff and Appellee
v.
Brandon David Charvat, Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

Bobbi B. Weiler, for plaintiff and appellee.

Suzanne M. Schweigert (argued) and Stacy M. Moldenhauer (on brief), for defendant and appellant.

OPINION

Sandstrom, Justice.

[¶ 1] Brandon Charvat appeals from a district court order denying his motion to amend a divorce judgment to modify primary residential responsibility of the parties' child. We reverse and remand for further proceedings, concluding Brandon Charvat established a prima facie case justifying modification and was entitled to an evidentiary hearing.

I

[¶ 2] Brandon and Jessica Charvat married in 2006 and their daughter, B.C., was born in 2007. When they divorced in 2009, Jessica Charvat was awarded primary residential responsibility for the child and Brandon Charvat received parenting time.

[¶ 3] In 2012, Brandon Charvat moved to modify the judgment, seeking primary residential responsibility for the child. In support of his motion, he submitted affidavits and other supporting evidence alleging that Jessica Charvat had dated eight different men during the 3½ years since the divorce, including two men who had physically abused her; that Jessica Charvat and B.C. had moved three times since the divorce; that Jessica Charvat had attempted suicide in 2009 after the divorce; that Jessica Charvat had allowed the child to play with an old cell phone that contained sexually explicit pictures of Jessica Charvat and a former boyfriend as well as text messages suggesting illegal drug use; and that Jessica Charvat had been fired from her nursing job and reprimanded by the State Board of Nursing for an incident in which she allowed a male friend into the nurses' station at 2 a.m. Jessica Charvat presented counter-affidavits disputing Brandon Charvat's allegations and explaining some of the incidents described.

[¶ 4] The district court, while expressing concern for several of the incidents detailed in Brandon Charvat's supporting affidavits, ultimately concluded that Brandon Charvat had "failed to present a prima facie case which would justify the holding of an evidentiary hearing on his Motion to Modify Parenting Responsibilities." The court accordingly denied the motion without an evidentiary hearing, and Brandon Charvat appealed.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The 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.

II

[¶ 6] Brandon Charvat argues he was entitled to an evidentiary hearing because he established a prima facie case for modification of primary residential responsibility.

[¶ 7] 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 ...

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