Solwey v. Solwey

888 N.W.2d 756

Lisa D. SOLWEY, Plaintiff and Appellee

v.Thomas J. SOLWEY, Defendant and Appellant

No. 20160158

Supreme Court of North Dakota.

Filed December 20, 2016

Steven T. Ottmar, Jamestown, ND, for plaintiff and appellee.

Timothy C. Lamb, Grand Forks, ND, for defendant and appellant.

Sandstrom, Justice.

[¶ 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 attorney's fees.

I

[¶ 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 90 days.

[¶ 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.

II

[¶ 10] Thomas Solwey argues he should have been given an evidentiary hearing on his motion to change primary residential responsibility for the children.

A

[¶ 11] In Anderson v. Jenkins , 2013 ND 167, ¶¶ 7–10, 837 N.W.2d 374, we explained the legal framework of our analysis:

Section 14–09–06.6, N.D.C.C., provides for a post-judgment modification of primary residential responsibility more than two years after entry of an order establishing primary residential responsibility:

4. A party seeking modification of an order concerning primary residential responsibility shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. The court shall set a date for an evidentiary hearing only if a prima facie case is established.

....

6. The court may modify the primary residential responsibility after the two-year period following the date of entry of an order establishing primary residential responsibility if the court finds:

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.

Under N.D.C.C. § 14–09–06.6(6)(a), we have explained that a "material change in circumstances" is an important new fact that was unknown at the time of the prior custody decision. SeeCharvat v. Charvat , 2013 ND 145, ¶ 7, 835 N.W.2d 846 ; Thompson v. Thompson , 2012 ND 15, ¶ 6, 809 N.W.2d 331. The party moving for a change of primary residential responsibility has the burden of establishing a prima facie case under N.D.C.C. § 14–09–06.6(4) to justify modification before the party is entitled to an evidentiary hearing. Schumacker v. Schumacker , 2011 ND 75, ¶ 7, 796 N.W.2d 636 ; Green v. Green , 2009 ND 162, ¶ 7, 772 N.W.2d 612. "Whether a party has established a prima facie case for a change of primary residential responsibility is a question of law which this Court reviews de novo." Charvat , 2013 ND 145, ¶ 9, 835 N.W.2d 846 ; see alsoSweeney v. Kirby , 2013 ND 9, ¶ 3, 826 N.W.2d 330 ; Wolt v. Wolt , 2011 ND 170, ¶ 9, 803 N.W.2d 534.

We have explained that a prima facie case requires only enough evidence to permit a factfinder to infer the fact at issue and rule in the moving party's favor. Kartes v. Kartes , 2013 ND 106, ¶ 9, 831 N.W.2d 731 ; Sweeney , 2013 ND 9, ¶ 5, 826 N.W.2d 330. "A prima facie case is a bare minimum and requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed." Ehli v. Joyce , 2010 ND 199, ¶ 7, 789 N.W.2d 560. "Allegations alone do not establish a prima facie case, and affidavits supporting the motion for modification must include competent information, which usually requires the affiant have first-hand knowledge." Schumacker , 2011 ND 75, ¶ 7, 796 N.W.2d 636. "Affidavits are not competent if they fail to show a basis for actual personal knowledge, or if they state conclusions without the support of evidentiary facts." Joyce , at ¶ 7.

This Court has provided guidance on the district court's consideration of the motion:

In determining whether a prima facie case has been established, the district court must accept the truth of the moving party's allegations. Kartes , 2013 ND 106, ¶ 9, 831 N.W.2d 731 ; Schumacker v. Schumacker , 2011 ND 75, ¶ 8, 796 N.W.2d 636. The party opposing the motion may attempt to rebut a prima facie case by presenting evidence conclusively demonstrating the moving party is not entitled to a modification, but when the opposing party's evidence merely creates conflicting issues of fact, the court may not weigh the conflicting allegations when deciding whether a prima facie case has been established. Wolt , 2011 ND 170, ¶ 9, 803 N.W.2d 534. Only when the opposing party presents counter-affidavits that conclusively show the allegations of the moving party have no credibility, or when the movant's allegations are, on their face, insufficient to justify custody modification, may the district court decide the moving party has not established a prima facie case and deny the motion without an evidentiary hearing. Id.

Charvat , 2013 ND 145, ¶ 10, 835 N.W.2d 846. In Jensen v. Jensen , 2013 ND 144, ¶ 10, 835 N.W.2d 819, we noted district courts had engaged in weighing of evidence presented in the competing affidavits to reach conclusions that a moving party's evidence did not establish a prima facie case. We therefore clarified in Jensen the standards governing the district court's consideration and decision whether a prima facie case under N.D.C.C. § 14–09–06.6(4) has been established when the movant's allegations are supported by competent, admissible evidence:

[T]he court may conclude the moving party failed to establish a prima facie case only if: (1) the opposing party's counter-affidavits conclusively establish that the moving party's allegations have no credibility; or (2) the moving party's allegations are insufficient on their face, even if uncontradicted, to justify modification. Unless the counter-affidavits conclusively establish the movant's allegations have no credibility, the district court must accept the truth of the moving party's allegations.

Jensen , at ¶ 13.

B

[¶ 12] We first address the issue of the conflicting affidavits from the children.

[¶ 13] The father submitted affidavits from the twin children in support of the motion to modify. In support of her opposition to the motion, the mother submitted affidavits from the same children recanting some of the statements in their other affidavits. The district court wrote, "It is clear to the Court that the children's conflicting affidavits signed in support of each party's position should be given little, if any, weight." We have repeatedly admonished against weighing evidence when "deciding whether a prima facie case has been established." Wolt , 2011 ND 170, ¶ 9, 803 N.W.2d 534 ; Anderson , 2013 ND 167, ¶ 10, 837 N.W.2d 374. "In determining whether a prima facie case has been established, the district court must accept the truth of the moving party's allegations." Jensen , 2013 ND 144, ¶ 9, 835 N.W.2d 819.

[¶ 14] Our neighboring State of Minnesota has addressed a similar situation in which a trial court disregarded the first affidavits submitted by the moving party when the non-moving party submitted second affidavits in conflict with the first: "This ruling, however, is directly contrary to...