Mock v. Mock , 2004 N.D. LEXIS 18 ( 2004 )

KAPSNER, Justice.

[¶ 1] Daniel Mock appeals from a district court order denying his motion to amend a child custody order. Daniel Mock argues he established a prima facie case under N.D.C.C. § 14-09-06.6. We reverse and remand, concluding the district court erred in determining Daniel Mock failed to establish a prima facie case enti-fling him to an evidentiary hearing under N.D.C.C. § 14-09-06.6(4).

[¶ 2] Daniel Mock and Barb Mock were divorced in August 2000. The divorce judgment, which was based upon the parties’ stipulation, provided for joint custody of the parties’ minor child. The child lives with his mother, and his father exercises liberal visitation.

[¶ 3] On December 31, 2002, Daniel Mock served a Motion for Change of Custody, requesting he receive physical and legal custody of the parties’ child. In his affidavit, Daniel Mock made several allegations as to Barb Mock’s level of care for the child, and that Barb Mock’s recent enlistment in the Air Force and move from South Dakota to Minot, North Dakota, warranted a change of custody. Daniel Mock alleged the child was suffering from medical problems; had a learning disorder resulting from abuse received from his mother; received inadequate daycare supervision; and was left by the child’s mother in a home frequented by a registered sex offender.

[¶ 4] The district court concluded that Daniel Mock’s affidavit failed to establish a prima facie case justifying modification and denied his motion without an eviden-tiary hearing. The district court ruled it would not consider evidence of behavior that took place prior to the initial stipulation. Daniel Mock filed this appeal.

I.

[¶ 5] A party seeking modification is entitled to an evidentiary hearing if the party establishes a prima facie- case by alleging in supporting affidavits, sufficient facts, which, if uncontradicted, would support a custody modification in favor of that party. Volz v. Peterson, 2003 ND 139, ¶ 7, 667 N.W.2d 637 (citing Lawrence v. Delkamp, 2003 ND 53, ¶ 7, 658 N.W.2d 758; Quarne v. Quarne, 1999 ND 188, ¶ 11, 601 N.W.2d 256). The procedure for resolving a motion to modify custody is set forth in N.D.C.C. § 14-09-06.6(4):

A party seeking modification of a custody order 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 evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

Under this provision, the district court must set a date for an evidentiary hearing only if the moving party presents a prima facie case. In O’Neill v. O’Neill, 2000 ND 200, ¶ 3, 619 N.W.2d 855 (citing Helbling v. Helbling, 541 N.W.2d 443, 445-46 (N.D.1995)), this Court described a prima facie case: “The plaintiff or moving party generally bears the burden of proof. If the party bearing the burden of proof presents evidence strong enough, if uncontradicted, to support a finding in her favor, that party has made a prima facie case.”

[¶ 6] This Court outlined the requirements to establish a prima facie case in O’Neill, at ¶ 5 (citations omitted):

A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party. Generally, the opposing party must rebut a prima facie case by going forward with evidence showing the moving party is not entitled to the relief requested. Where the opposing party presents counter affidavits which conclusively establish that the allegations of the moving party have no credibility or where the movant’s allegations are, on their face, insufficient, even if uncontra-dicted, to justify custody modification, the court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not brought a prima facie case and deny the motion without an evidentiary hearing.

[¶ 7] A material change in circumstance that establishes a prima facie case may include important new facts unknown at the time of the initial custody decree. See Lanners v. Johnson, 2003 ND 61, ¶ 7, 659 N.W.2d 864 (citing Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38). An environment that endangers the child’s physical or emotional health is considered a material change in circumstance. Lanners, at ¶ 7. Relocation of a parent may constitute a material change in circumstance. Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924. “Improvements in a non-eustodial parent’s situation accompanied by a general decline in the condition of the children with the custodial parent over the same period may constitute a significant change in circumstances.” Lanners, at ¶ 7 (citing Kelly v. Kelly, 2002 ND 37, ¶ 20, 640 N.W.2d 38).

[¶ 8] The affidavits presented by Daniel Mock, if the allegations are ultimately proven,¹ establish that Barb Mock has placed the parties’ child in situations where his health and welfare could be in jeopardy. Daniel Mock presented affidavits to the district court, containing allegations that, if found to be true, would establish a prima facie case under N.D.C.C. § 14-09-06.6(4). The affidavit dated December 30, 2002, stated:

Barb has failed to provide a stable and emotionally healthy environment for [the child]. It is not uncommon for [the child] to wake up and not know who will be with him, who will take him to his daycare or who will pick him up at the end of the day due to Barb’s shift work as a nurse and her second jobs. Although Barb has the financial means to provide for [the child], she fails to see that [the child] eats properly or gets enough rest. As a result, [the child] has a history of illness that results in the need for medical intervention. He has been to the doctor over twenty times in the past eighteen months. In November, 2002, [the child] was treated for scabies, presumed to have been contracted from an unclean sleeping environment while in Barb’s care.

The affidavit dated February 4, 2003, stated:

Barb chose to leave [the child] with her sister, Bonnie, whose son was convicted on charges of child pornography, drugs, and theft. Barb left [the child] at Bonnie’s house for three days prior to my getting custody of him, but now she claims that once they live in Minot this young man will no longer pose a danger to [the child’s] safety. Clearly, Barb has allowed [the child’s] safety to be compromised by leaving him in the care of Bonnie, knowing that her son has had numerous problems with the law.

[¶ 9] Allegations showing potential endangerment to a child’s physical or mental health constitute a “significant change of circumstances which will raise a prima facie case for a modification of custody and entitlement to an evidentiary hearing.” Volz v. Peterson, 2003 ND 139, ¶ 10, 667 N.W.2d 637 (citing O’Neill, 2000 ND 200, ¶ 8, 619 N.W.2d 855; Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256). Allegations of an unusually high rate of unexplained illness, or exposure to a registered sex offender would show potential harm to a child, sufficient to establish a prima facie case.

[¶ 10] The party seeking modification of custody bears the burden of establishing a prima facie case and ultimately has the burden of proof at the evidentiary hearing. N.D.C.C. § 14-09-06.6(8). Under N.D.C.C. § 14-09-06.6(4), the court determines whether a party has established a prima facie case by accepting the truth of the moving party’s allegations and may not weigh conflicting allegations. Accepting Daniel Mock’s allegations as true, the district court erred when it did not grant an evidentiary hearing because his allegations establish a prima facie case for change of custody.²

II.

[¶ 11] The district court misapplied the law when it failed to consider pre-divorce conduct. Daniel Mock included several allegations in his affidavits regarding Barb Mock’s pre-divorce conduct. In its order the district court stated it would not consider allegations of fact which occurred prior to the parties’ stipulation in a request for modification. Daniel Mock argues the district court erred when it did not consider pre-divorce conduct in its determination of whether there was a material change in circumstance sufficient to hold an evidentiary hearing. We agree.

[¶ 12] This Court has held that facts unknown at the time of the initial custody decree may constitute a material change in circumstance. Lanners v. Johnson, 2003 ND 61, ¶ 7, 659 N.W.2d 864 (citing Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38). The applicable statute provides:

6. The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody 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.

N.D.C.C. § 14-09-06.6(6)(a).

[¶ 13] Pre-divorce conduct can be relevant in a custody matter when the divorce was stipulated and the trial court was unaware of the facts at the time of the stipulation. The district court did not premise the refusal to consider pre-divorce conduct on the court’s ■prior knowledge of the facts. Accordingly, the district court erred when it refused to consider such facts.

[¶ 14] We reverse and remand for further proceedings.

[¶ 15] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, J., ZANE ANDERSON, District Judge, concur. [¶ 16] The Honorable ZANE ANDERSON, District Judge, sitting in place of SANDSTROM, J., disqualified.

1 . Allegations of harm which prove to be unfounded subject the parent making the allegations to court costs and attorney fees. N.D.C.C. § 14-09-06.5; Sweeney v. Sweeney, 2002 ND 206, ¶ 18, 654 N.W.2d 407.

2 . The dissent would impose the evidentiary standards used in assessing motions for summary judgments upon the affidavits required under N.D.C.C. § 14-09-06.6. See ¶¶ 19-21, 34. However, evidentiary standards must be higher in deciding a summary judgment motion because summary judgment determines the merits of the action and the party in whose favor judgment is entered must be "entitled to a judgment as a matter of law.” N.D.R.Civ.P. 56(c). In contrast, the affidavits here are used only to determine whether the parties will have a hearing on the merits of the motion. Custody motions involve evidence about the lives of children, sometimes very young children. A strict application of Rule 56 standards will require affidavits from the children or eliminate reference to hearsay statements that the children have made to the parents. Neither result may be very desirable when trying to assess whether a hearing on the merits should occur. Requiring all allegations in the supporting affidavits to be based on firsthand knowledge makes the preliminary phase, deciding only whether to have a hearing, very cumbersome. Daniel Mock's supporting affidavits appropriately delineated what information was based on hearsay and what was based on firsthand knowledge. Any incentive to include allegations in the supporting affidavits which cannot be substantiated at a hearing should be diminished by the likelihood that costs and attorney fees may be imposed as a sanction for such inclusion. N.D.C.C. § 14-09-06.5.