Williams v. Vraa

1

2024 ND 30

Alexander Tyson Williams, Plaintiff and Appellant v. Stefaney Vraa, Defendant and Appellee and Kyle Harley Lempia, Defendant

No. 20230248

Supreme Court of North Dakota

February 22, 2024

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Todd L. Cresap, Judge.

Aften M. Grant, Minot, ND, for plaintiff and appellant.

Megan M. Hogue, Minot, ND, for defendant and appellee.

OPINION

MCEVERS, JUSTICE.

[¶1] Alexander Williams appeals from an order dismissing his petition for nonparent visitation. On appeal, Williams argues the district court erred in dismissing his petition for failure to plead a prima facie case. We reverse and remand for further proceedings, concluding Williams established a prima facie case for nonparent visitation and was entitled to an evidentiary hearing.

I

[¶2] Stefaney Vraa, now known as Stefaney Parker, and Kyle Lempia are the biological parents of I.H.L., born in 2012. In 2014 Vraa began dating Williams and later moved with I.H.L. from Bemidji, Minnesota, to Minot, North Dakota, to live with Williams. Williams and Vraa married in November 2014 and had one child, B.N.W., in 2015. Vraa was awarded primary residential responsibility of I.H.L. in 2015. Throughout their marriage I.H.L. lived with Williams and Vraa, subject to Lempia's parenting time.

[¶3] The parties divorced in February 2018 and shared equal residential responsibility of their biological child, B.N.W Williams and Vraa agreed to B.N.W. living with each parent on a week-on-week-off schedule. According to Williams's declaration, from February 2018 to December 2022, I.H.L accompanied B.N.W. to Williams's home for the week Williams was parenting B.N.W. In December 2022, Vraa informed Williams she planned to move to Bismarck with I.H.L. and B.N.W. Williams opposed the move and a disagreement arose amongst the parties. Vraa prevented Williams from seeing I.H.L. and did not allow I.H.L. to accompany B.N.W. to Williams's home.

[¶4] Williams filed a petition for nonparent visitation in March 2023. In his petition and declaration, Williams argued he was a consistent caretaker of I.H.L. and had a substantial relationship with I.H.L. Vraa moved to dismiss the petition in April 2023. The district court dismissed Williams's petition for failing to plead a prima facie case for nonparent visitation, finding Williams did not meet the required elements of a consistent caretaker. The court did not expressly rule on whether Williams pleaded a prima facie case of having a substantial relationship with I.H.L. or that denial of visitation would result in harm to I.H.L. Williams appeals.

II

[¶5] Williams argues he was entitled to an evidentiary hearing because he established a prima facie case for nonparent visitation as he was a consistent caretaker of I.H.L. and had a substantial relationship with I.H.L.

[¶6] We review de novo a district court's determination that a petitioner failed to plead a prima facie case for nonparent visitation. Sailer v. Sailer, 2022 ND 151, ¶ 5 978 N.W.2d 699, as amended (Oct. 4, 2022). We independently review the record to determine whether sufficient facts were alleged to support a finding of a prima facie case. Id. at ¶ 9. "A prima facie showing is not a finding, but instead is a legal conclusion that a party has presented 'evidence strong enough, if uncontradicted, to support a finding in her favor.'" Id. at ¶ 5 (quoting In re Est. of Clemetson, 2012 ND 28, ¶ 8, 812 N.W.2d 388). In determining whether a party has established a prima facie case:

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. 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. 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. 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.

Id. at ¶ 8 (quoting Kerzmann v. Kerzmann, 2021 ND 183, ¶ 8, 965 N.W.2d 427).

[¶7] The North Dakota Legislative Assembly adopted the Uniform Nonparent Custody and Visitation Act ("UNCVA") in 2019. 2019 N.D. Sess. Laws ch. 131, § 1. The UNCVA, found in chapter 14-09.4, N.D.C.C., governs nonparent visitation rights. Section 14-09.4-03(1), N.D.C.C., provides:

A court may order custody or visitation to a nonparent if the nonparent proves:

a. The nonparent:

(1) Is a consistent caretaker; or

(2) Has a substantial relationship with the child and denial of custody or visitation would result in harm to the child; and

b. An order of custody or visitation to the nonparent is in the best interest of the child.

To receive an evidentiary hearing, a nonparent must file a verified petition for custody or visitation alleging facts showing the nonparent is (a) a consistent caretaker, or (b) has a substantial relationship with the child and the denial of visitation would result in harm to the child. N.D.C.C. §§ 14-09.4-05, -06. The petitioner must also prove the visitation is in the best interest of the child. N.D.C.C. § 14-09.4-03(1)(b). The petition must state the relief sought and allege specific facts sufficient to show the petitioner meets the requirements as a consistent caretaker or having a substantial relationship with the child. N.D.C.C. § 14-09.4-06(1). Based on the petition, the district court must determine whether the nonparent has pleaded a prima facie case. N.D.C.C. § 14-09.4-07(1). Proving a prima facie case only requires the nonparent to show he or she is a consistent caretaker or has a substantial relationship with the child and denial of custody or visitation would result in harm to the child. Id. The district court shall dismiss the petition if it determines the nonparent failed to plead a prima facie case. N.D.C.C. § 14-09.4-07(2).

A

[¶8] To show a prima facie case of "consistent caretaker" status, the petitioner must present evidence sufficient to support each of the following elements:

2. A nonparent is a consistent caretaker if the nonparent without expectation of compensation:

a. Lived with the child for not less than twelve months unless the court finds good cause to accept a shorter period;

b. Regularly exercised care of the child; c. Made day-to-day decisions regarding the child solely or in cooperation with an individual having physical custody of the child; and

d. Established a bonded and dependent relationship with the child with the express or implied consent of a parent of the child, or without the consent of a parent if no parent has been able or willing to perform parenting functions.

N.D.C.C. § 14-09.4-03(2).

[¶9] Regarding the first element of N.D.C.C. § 14-09.4-03(2), Williams alleged I.H.L. lived with him for more than 12 months, from September 2014 to February 2016. Williams further alleged I.H.L. lived with him consistently on a week-on-week-off schedule spending approximately fifty percent of the time with him since the parties' divorce in 2018 until the summer of 2022. I.H.L. would live at Williams's home during the weeks Williams had parenting time with B.N.W. In the summer of 2022, I.H.L.'s father moved to Bismarck, and I.H.L. would spend part of the week with Williams and the weekends, Friday through Sunday, with his father.

[¶10] Section 14-09.4-03(2)(a), N.D.C.C., requires the nonparent to have "[l]ived with the child for not less than twelve months, unless the court finds good cause to accept a shorter period." The statute does not state whether the 12 months must be consecutive, nor does it indicate a basis for good cause. "Any provision in this code which is a part of a uniform statute must be so construed as to effectuate its general purpose to make uniform the law of those states which enact it." N.D.C.C. § 1-02-13. "When we interpret and apply provisions in a uniform law, we may look to official editorial board comments for guidance." Ferguson v. Wallace-Ferguson, 2018 ND 122, ¶ 8, 911 N.W.2d 324 (quoting Matter of Bradley K. Brakke Tr., 2017 ND 34, ¶ 12, 890 N.W.2d 549). Section 4(b) of the UNCVA is the corresponding section to N.D.C.C. § 14-09.4-03(2). The official comment to the UNCVA explains the 12-month requirement need not be consecutive months:

Regarding the first element, in subsections (b)(1), the 12-month period during which the nonparent lived with the child need not be consecutive months.

. . . .

. . . [I]f a nonparent was a caretaker of a child in the recent past, but the child is no longer living with the nonparent (such as because the child is back with the parent), the nonparent could still claim status as a consistent caretaker. Such an approach gives the act flexibility and does not force the nonparent to immediately seek relief after the nonparent has stopped living with the child or because the relationship between the parent and nonparent ended. . . . Determining whether too much time has elapsed before the nonparent sought relief will depend on multiple factors, including the child's age and whether significant contact between the nonparent and child has continued.

Unif. Nonparent Custody and Visitation Act § 4 cmt. (Unif. Law Comm'n 2018).

[¶11] The district court provided the following analysis on the 12-month requirement:

The Court questions whether or not Williams has satisfied the 12 month requirement set forth above. While technically Williams did reside with I.H.L. for 12 months, he did so over seven years ago. The Court questions whether or not the

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