Lisa D. Solwey, Plaintiff and Appellee
Thomas J. Solwey, Defendant and Appellant
from the District Court of Foster County, Southeast Judicial
District, the Honorable James D. Hovey, Judge.
T. Ottmar, for plaintiff and appellee.
Timothy C. Lamb, for defendant and appellant.
1] Thomas Solwey appeals the district court order denying his
petition to modify primary parental responsibility. We
reverse and remand for further proceedings, concluding Thomas
Solwey established a prima facie case for modification and
was entitled to an evidentiary hearing. We decline his
request that we order a different district judge hear the
matter on remand. We also decline his request for
2] Thomas and Lisa Solwey married in 1998 and divorced in
October 2013. They have four children, a daughter born in
1999, a twin son and a twin daughter born in 2003, and a
daughter born in 2007. The mother received primary
residential responsibility for the children.
3] In August 2015, the father moved to modify primary
residential responsibility. Under the heightened standard for
such motions within two years of the previous order, the
district court dismissed the motion without an evidentiary
hearing. See N.D.C.C. § 14-09-06.6(1) and (3).
The father did not appeal that order.
4] In November 2015, the father again moved to modify primary
residential responsibility. He submitted his affidavit and
affidavits from the twin children. The affidavits included
several allegations about the son's disruptive behavior.
The mother responded with her affidavit and affidavits from
the twin children. The allegations in the twins' second
affidavits recanted much of their first affidavits.
5] On March 2, 2016, the district court ordered the parties
to mediate the dispute, with mediation to be completed within
6] On April 6, 2016, before mediation was completed, the
district court issued an order denying the motion to change
custody, finding the father's allegations failed to show
modification would be in the children's best interests.
The court rejected the twins' first and second
affidavits, finding the twins lacked credibility because they
were "willing to sign an affidavit based upon whoever
they [were] with at the time." In its order, the court
said it "incorporates into this order the findings of
fact and analysis of the order" on the earlier motion.
7] The father moved the court to reconsider its order and
attached this Court's opinion in Forster v.
Flaagan, 2016 ND 12, 873 N.W.2d 904. The district court
denied the father's motion for reconsideration.
8] The father appeals, arguing he established a prima facie
case for an evidentiary hearing. He also argues that if this
Court reverses the district court's decision, (1) the
judge should not be allowed to hear the case on remand
because he was biased in ruling against him, and (2) he is
entitled to attorney's fees.
9] The district court had jurisdiction under N.D. Const. art.
VI, § 8, and N.D.C.C. § 27-05-06. Thomas
Solwey's appeal is timely under N.D.R.App.P. 4(a). We
have jurisdiction under N.D. Const. art. VI, §§ 2
and 6, and N.D.C.C. § 28-27-01.
10] Thomas Solwey argues he should have been given an
evidentiary hearing on his motion to change primary