Ashley A. Baker, Plaintiff and Appellee
Eric L. Baker, Defendant and Appellant
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce A. Romanick, Judge.
Weatherspoon (argued) and Micheal A. Mulloy (appeared),
Bismarck, N.D., for plaintiff and appellee.
Theresa L. Kellington, Bismarck, N.D., for defendant and
Eric Baker appeals from a district court order denying his
motion to modify primary residential responsibility. We
reverse and remand, concluding Eric Baker established a prima
facie case for modification, warranting an evidentiary
hearing on the motion.
Ashley Baker and Eric Baker divorced in November 2016. Ashley
Baker was awarded primary residential responsibility of the
parties' two children. The divorce judgment granted the
parties joint decision-making responsibilities for major
decisions, including medical decisions. The judgment required
the parties to communicate any doctor appointments,
illnesses, or behavior issues regarding the children. The
judgment also included a right of first refusal provision,
stating that if either of the parties was unable to care for
the minor children during their parenting time for four hours
or more, the other parent must be given the first option to
care for the children.
In December 2018, Eric Baker moved to modify primary
residential responsibility, arguing there had been a material
change in circumstances warranting modification. He submitted
an affidavit alleging Ashley Baker frustrated his parenting
time, failed to make joint decisions with him relating to
medical care, failed to comply with the divorce
judgment's provisions on communication and the right of
first refusal, and abused the children. In response, Ashley
Baker submitted an affidavit denying Eric Baker's
The district court denied Eric Baker's motion without a
hearing. The court found Eric Baker failed to demonstrate a
material change in circumstances had occurred since the entry
of the divorce judgment.
Eric Baker argues he established a prima facie case for
modification, and the district court erred in denying his
motion without an evidentiary hearing.
When a party moves to modify primary residential
responsibility after the two-year period following the date
of entry of a judgment establishing primary residential
responsibility, the district court may grant modification if
a. On the basis of facts that have arisen since the prior
order or which were unknown to the court at the time of the
prior order, a material change has occurred in the
circumstances of the child or the parties; and
b. The modification is necessary to serve the best interests
of the child. N.D.C.C. ...