Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Karen Kosanda Braaten, Judge.
Pamela F. Coleman, for plaintiff and appellee; submitted on brief.
Rhiannon L. Gorham, for defendant and appellant; submitted on brief.
[¶ 1] Timothy Jenkins appeals from a district court order denying his motion to amend an amended divorce judgment to modify primary residential responsibility of the parties' children. We reverse and remand for further proceedings, concluding Jenkins' affidavit established a prima facie case entitling him to an evidentiary hearing on his motion to change residential responsibility.
[¶ 2] In 2005, Timothy Jenkins and Ivy Anderson were divorced in California, and a divorce judgment was entered establishing joint residential responsibility and parenting time for the parties' three minor children: D.J., I.J., and Z.J. Both parties now live in North Dakota. In 2008, the California divorce judgment was registered in Grand Forks County, North Dakota. In October 2009, the district court in Grand Forks County entered a second amended judgment after a hearing awarding Ivy Anderson primary residential responsibility of the parties' three minor children. In February 2010, Jenkins moved for modification of residential responsibility, alleging Anderson's home environment threatened the children's well-being and Anderson was interfering with his parenting time. The court denied his motion.
[¶ 3] In June 2012, Jenkins applied for an ex parte order, asserting Anderson was withholding the children without justification. Anderson also moved to amend Jenkins' parenting time, appoint a guardian ad litem, and order parenting evaluations. The court denied Jenkins' ex parte application but held a hearing to determine whether Anderson was in contempt of court. After a hearing, the court entered an interim order holding Anderson was not in contempt and Jenkins would have supervised parenting time with one child and unsupervised parenting time with the other two children. In October 2012, Jenkins moved to amend the interim order.
[¶ 4] In November 2012, Jenkins moved to modify primary residential responsibility. In January 2013, the district court denied Jenkins' motion to modify primary residential responsibility without an evidentiary hearing, holding he had failed to establish a prima facie case. The court subsequently held hearings on Jenkins' motion to modify the interim order and Anderson's motion to modify parenting time. In March 2013, Jenkins appealed the district court's order denying his motion to modify residential responsibility. The court subsequently entered an amended interim order, and Anderson's motion to amend Jenkins' parenting time remained pending before the district court. This appeal concerns only the court's January 2013 order denying Jenkins' November 2012 motion to modify primary residential responsibility without an evidentiary hearing.
[¶ 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.
[¶ 6] Jenkins argues the district court erred in denying an evidentiary hearing on his motion to modify primary residential responsibility when he provided sufficient competent evidence to establish a prima facie case warranting an evidentiary hearing. Here, a second amended judgment was entered in 2009, and an order denying Jenkins' motion to amend the amended judgment was entered in April 2010. Jenkins made his present motion to modify residential responsibility in November 2012, more than two years after entry of the order establishing primary residential responsibility.
[¶ 7] Section 14-09-06.6, N.D.C.C., provides for a post-judgment modification of primary residential responsibility more than two years after entry of an order establishing primary residential responsibility:
4. A party seeking modification of an order concerning primary residential responsibility shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case ...