Matthew F. WALD, Plaintiff and Appellee
Anna Rose HOLMES, a/k/a Anna Rose Biemold, Defendant and Appellant.
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Jacey L. Johnston, Grand Forks, ND, for plaintiff and appellee; submitted on brief.
Jesse D. Matson, Fargo, ND, for defendant and appellant; submitted on brief.
[¶ 1] Anna Holmes appeals from a district court order denying an evidentiary hearing on her motion for change of custody. Because we conclude Holmes met her burden of establishing a prima facie case justifying modification, we reverse the district court order and remand for an evidentiary hearing.
[¶ 2] Following an uncontested hearing, Matthew Wald was granted primary residential responsibility of his and Anna Holmes's minor child. Less than two years later, Holmes filed a motion for change of primary residential responsibility, alleging interference with parenting time, denial of contact, chemical dependency, and a history of emotional and physical abuse. Holmes's motion was supported by several affidavits, including her own affidavit and one written by Wald's former girlfriend. Wald responded to the motion and filed several affidavits on his behalf, including one written by the same former girlfriend, which purported to rescind the affidavit she had submitted earlier in support of Holmes. The district court denied Holmes's motion, noting that the former girlfriend's first affidavit had been rescinded, finding Holmes presented no first-hand
knowledge of the facts she alleged in support of her motion, and holding her motion was entirely without merit. The court also awarded Wald attorney fees. Holmes filed a motion for reconsideration, which was denied by the district court.
[¶ 3] On appeal, Holmes argues the district court erred by denying an evidentiary hearing on her change of primary residential responsibility motion. " [A] party moving to change [primary residential responsibility], when less than two years has passed, is required to establish a prima facie case" justifying a change of primary residential responsibility in order to obtain an evidentiary hearing. Green v. Green, 2009 ND 162, ¶ 5, 772 N.W.2d 612 (citing N.D.C.C. § 14-09-06.6(4)). This Court has held that the determination of whether a prima facie case has been established is a question of law, reviewed de novo. Green, at ¶ 5.
[¶ 4] When a motion to modify primary residential responsibility is brought less than two years after an initial primary residential responsibility order:
The court may not modify the primary residential responsibility ... unless the court finds the modification is necessary to serve the best interests of the child and:
a. The persistent and willful denial or interference with parenting time; [or]
b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development....
N.D.C.C. § 14-09-06.6(5). The legislature has adopted a non-exhaustive list of factors that must be considered by the court, when applicable, in determining whether a change in primary residential responsibility is in the best interest of a child. See N.D.C.C. § 14-09-06.2(1).
[¶ 5] " Upon a motion to modify primary residential responsibility under this section, the burden of proof is on the moving party." N.D.C.C. § 14-09-06.6(8). If the court finds the moving party established a prima facie case justifying modification, then the court will set a date for an evidentiary hearing. N.D.C.C. § 14-09-06.6(4). A prima facie case is established by the moving party " alleging, with supporting affidavits, sufficient facts which, if they remained uncontradicted at an evidentiary hearing, would support a [primary residential ...