Bubel v. Bubel , 2022 ND 23 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JANUARY 21, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 23Laura Bubel, Plaintiff and Appellant
v.
Joshua Bubel, Defendant and Appellee
and
State of North Dakota, Statutory Real Party in Interest
No. 20210263
Appeal from the District Court of Mercer County, South Central Judicial
District, the Honorable Cynthia Feland, Judge.
AFFIRMED.
Per Curiam.
Elise A. Fischer (argued), and Theresa L. Kellington (on brief), Bismarck, ND,
for plaintiff and appellant.
Kristin A. Redmann, Mandan, ND, for defendant and appellee.
Bubel v. Bubel
No. 20210263
Per Curiam.
[¶1] Laura Bubel appeals from a district court order denying her motion to
modify joint residential responsibility to primary residential responsibility. On
appeal, Laura Bubel argues the court erred in concluding she failed to present
a prima facie case requiring modification.
[¶2] Under N.D.C.C. § 14-09-06.6(4), the district court must deny a motion to
modify primary residential responsibility unless the court finds the moving
party has established a prima facie case justifying a modification. A prima facie
case “consists of facts sufficient to support a finding of a material change in
circumstances and that a change in residential responsibility is necessary to
serve the best interests of the child.” Klundt v. Benjamin, 2021 ND 149, ¶ 7,
963 N.W.2d 278. A prima facie case justifying a modification of primary
residential responsibility and, therefore, an evidentiary hearing, is established
by a material change in circumstances “which either ‘requires’ a change of
custody for the child’s best interests or ‘fosters’ or ‘serves’ the child’s best
interests.” Schroeder v. Schroeder, 2014 ND 106, ¶ 7, 846 N.W.2d 716. In cases
involving a motion to modify joint residential responsibility under N.D.C.C. §
14-09-06.6(6), the movant must show a material change in circumstances and
show modification is necessary to serve the best interests of the child; however,
in the context of a relocation case, the movant is not required to show the
material change has adversely impacted the child. Kunz v. Slappy, 2021 ND
186, ¶ 22, 965 N.W.2d 408 (relying on Dunn v. Dunn, 2009 ND 193, ¶ 11, 775
N.W.2d 486).
[¶3] We need not address whether Laura Bubel has demonstrated a material
change in circumstances, because under our de novo standard of review she
has not shown how a change to primary residential responsibility is necessary
to serve the best interests of the child. See Johnshoy v. Johnshoy, 2021 ND 108,
¶ 9, 961 N.W.2d 282 (holding failure to show change is necessary to serve the
best interests of the child fails to establish a prima facie case). Laura Bubel
has therefore failed to establish a prima facie case for modification of primary
1
residential responsibility, and we summarily affirm under N.D.R.App.P.
35.1(a)(7).
[¶4] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
2