Appeal from the District Court of Bottineau County, Northeast Judicial District, the Honorable Lee A. Christofferson, Judge.
Gregory W. Liebl (argued) and Luke T. Heck (on brief), Fargo, N.D., for plaintiff and appellee.
Faron E. Terry, Minot, N.D., for defendant and appellant.
Dale V. Sandstrom, Lisa Fair McEvers, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice. Carol Ronning Kapsner, Daniel J. Crothers, concurs in the result.
Dale V. Sandstrom, Justice.
[¶1] Damon Grigg appeals from a district court order denying his motion to modify primary residential responsibility. We reverse and remand, concluding Grigg established a prima facie case for modification warranting an evidentiary hearing.
[¶2] In March 2010, Damon Grigg and Dusty Lemke, formerly known as Dusty Grigg, were divorced. The district court awarded primary residential responsibility of the couple's three children to Lemke, reasonable parenting time to Grigg, and joint decision-making to both parties. Shortly after the divorce was final, Lemke and the children moved from Bottineau to live with her father and stepmother in Cando.
[¶3] In 2014, Grigg moved to amend the divorce judgment to modify primary residential responsibility for the children and amend the parenting time provisions, and he requested an evidentiary hearing. Grigg argued there had been a material change in circumstances warranting modification and, in a supporting affidavit, alleged the children's health and well-being have deteriorated since they were moved to Cando; Lemke has deprived Grigg of parenting time and interfered with his ability to communicate with the children by taking away their electronic devices; Lemke does not provide the children proper care, support, or medical treatment; and Lemke allows her father to torment their middle child, whose performance at school is deteriorating as a result of Lemke's failure to provide the necessary medication and support the child needs. Lemke submitted counter-affidavits and other supporting evidence challenging Grigg's allegations. The district court concluded Grigg's allegations had " no credibility and on their face [were] insufficient" and he had failed to establish a prima facie case justifying modification because he failed to show that a material change of circumstances had occurred or that " the best interests of the children would be served by a residential responsibility change." Without ruling on Grigg's alternative motion to amend the parenting time provisions, the district court dismissed with prejudice Grigg's request for an evidentiary hearing on whether modifying primary residential responsibility would be necessary.
[¶4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.
[¶5] On appeal, Grigg argues the district court erred as a matter of law in denying him an evidentiary hearing on his motion to modify primary residential responsibility. He argues he was entitled to an evidentiary hearing because he established a prima facie ...