Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Susan L. Bailey, Judge.
Berly D. Nelson, Fargo, ND, for plaintiff and appellee.
Jacey L. Johnston, Grand Forks, ND, for defendant and appellant.
Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner.
Gerald W. VandeWalle, Chief Justice.
[¶1] Adam Flaagan appealed from a district court order denying his motion to modify primary residential responsibility without an evidentiary hearing. We reverse and remand.
[¶2] Adam Flaagan and Lindsay Forster, now known as Lindsay Seitz, are the parents of J.F.F., a minor child. A 2010 judgment awarded Forster primary residential responsibility and awarded Flaagan parenting time. Under the judgment, Flaagan's parenting time decreased when J.F.F. started school in fall 2014. In May 2015, Flaagan moved the district court to modify Forster's primary residential responsibility, claiming a material change in J.F.F.'s circumstances occurred since entry of the 2010 judgment.
[¶3] Flaagan offered an affidavit in support of this motion. In the affidavit, Flaagan alleged J.F.F. exhibited increasingly problematic behavior as the school year progressed, leading to poor grades and struggles in school. To support these allegations, Flaagan included exhibits from J.F.F.'s teacher elaborating on J.F.F.'s behavioral struggles and declining academics. Flaagan alleged these behavioral problems do not occur when J.F.F. is in his care and have occurred with increasing frequency since his parenting time decreased. Flaagan further alleged this increasingly problematic behavior directly correlates with the increased amount of time J.F.F. spends under Forster's care. To support these allegations, Flaagan cited exhibits from J.F.F.'s teacher outlining how J.F.F.'s behavioral issues have occurred with increased frequency throughout the school year. Flaagan also alleged J.F.F. uses obscene language and J.F.F. appeared tired, hungry, and had skin rashes at the beginning of Flaagan's parenting
time. Additionally, Flaagan alleged J.F.F. has nightmares and eats junk food. To support these allegations, Flaagan attested to his personal experiences. In the brief filed in support of his motion, Flaagan also asserted Forster married and had two other children, both of whom are younger than J.F.F., since entry of the 2010 judgment.
[¶4] In the affidavit, Flaagan also contended a change in living arrangements would be in J.F.F.'s best interest. Flaagan alleged J.F.F. does better academically while in his care because he supervises J.F.F.'s completion of homework assignments and J.F.F. does not appear to have any academic problems during his parenting time. Flaagan alleged Forster is unwilling to address the day-to-day issues potentially causing J.F.F.'s behavioral issues. Flaagan also alleged he can provide a stable home environment that helps deal with J.F.F. when he acts out, which Flaagan alleged does not happen while J.F.F. is in his care. Flaagan alleged this ...