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Hankey v. Hankey

Supreme Court of North Dakota

March 24, 2015

Blake Dylan Hankey, Plaintiff and Appellant
v.
Jill Renee Hankey, Defendant and Appellee

Editorial Note:

The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date.

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Richard L. Hagar, Judge.

Blake D. Hankey, self-represented, Grand Forks, ND, plaintiff and appellant.

Robert J. Schultz, ND, for defendant and appellee.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. Vande Walle, C.J. Opinion of the Court by Kapsner, Justice.

OPINION

Page 480

Kapsner, Justice.

[¶1] Blake Hankey appeals from a district court order denying his motion to modify primary residential responsibility. We reverse and remand, concluding Blake Hankey established a prima facie case for modification, warranting an evidentiary hearing.

I

[¶2] The parties divorced in October 2011. Jill Hankey was awarded primary residential responsibility of the parties' minor child, L.C.H., who was born in 2009, subject to Blake Hankey's right of parenting time, and the parties were awarded joint decision-making responsibility.

[¶3] In April 2014, Blake Hankey sought to modify residential responsibility, seeking primary residential responsibility for L.C.H. and requested an evidentiary hearing. Blake Hankey claimed there had been a material change in circumstances warranting modification, and in support of his motion, he submitted affidavits and other supporting evidence alleging Jill Hankey deliberately frustrated his parenting time, disregarded the parenting time schedule on several occasions, and exercised unilateral decision-making by taking the parties' child to occupational and play therapy without his knowledge or consent. Jill Hankey submitted counter-affidavits and other supporting evidence challenging Blake Hankey's allegations. The district court denied Blake Hankey's motion without an evidentiary hearing, determining he had failed to present a prima facie case justifying modification because he had " failed to show a material change of circumstances" and " failed to show that a

Page 481

modification of primary residential responsibility is in the best ...


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