Anderson v. Pedie

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 19Karley Anderson, Plaintiff and Appellant
v.
Seth Pedie, Defendant and Appellee
and
State of North Dakota, Statutory Real Party in Interest
No. 20210147
Appeal from the District Court of Bottineau County, Northeast Judicial
District, the Honorable Michael P. Hurly, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Erica L. Chisholm, Wahpeton, N.D., for plaintiff and appellant.
Tressie C. Brazil, Fargo, N.D., for defendant and appellee.
Anderson v. Pedie
No. 20210147
Tufte, Justice.
Karley Anderson appeals from an order denying her motion to modify
residential responsibility and from a contempt order awarding attorney’s fees
to Seth Pedie. Anderson argues the district court erred by concluding she failed
to establish a prima facie case for modification entitling her to an evidentiary
hearing, and awarding attorney’s fees in excess of the amount requested. Pedie
requests sanctions against Anderson for violating the North Dakota Rules of
Appellate Procedure. We affirm the order denying Anderson’s motion to modify
residential responsibility and the contempt order awarding attorney’s fees, and
deny sanctions on appeal.
I
Anderson and Pedie are parents to one minor child, W.D.P. After ending
their relationship, both parents sought primary residential responsibility of
W.D.P. In February 2020, after a bench trial, the district court entered its
findings of fact, conclusions of law, and order for judgment awarding Pedie
primary residential responsibility, subject to Anderson’s right to reasonable
parenting time. The court ordered the parents to share in decision-making
responsibility for educational, medical, and religious decisions. Judgment was
entered accordingly.
In October 2020, Pedie moved the court for an order finding Anderson in
contempt, arguing she had violated various provisions of the judgment. He
requested attorney’s fees in the amount of $1,500 as a sanction. In December
2020, Anderson moved to modify primary residential responsibility, contending
Pedie neglected W.D.P.’s physical and emotional health and developmental
needs. The district court denied Anderson’s motion to modify primary
residential responsibility without an evidentiary hearing, concluding she failed
to make a prima facie case for modification. The court found Anderson in
contempt of court for failing to notify Pedie of medical appointments and
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providing false allegations to medical professionals of harm to W.D.P. The court
awarded Pedie attorney’s fees in the amount of $2,000.
II
Anderson argues she was entitled to an evidentiary hearing because she
established a prima facie case for modification of primary residential
responsibility. “Whether a party presented a prima facie case for a change of
primary residential responsibility is a question of law, which this Court
reviews de novo.” Schumacker v. Schumacker, 2011 ND 75, ¶ 6, 796 N.W.2d
636.
Anderson’s motion to modify primary residential responsibility was
made within two years of the date of entry of the order granting Pedie primary
residential responsibility, which triggers the heightened requirements of
N.D.C.C. § 14-09-06.6(1), (3), (5), which provide in relevant part:
1. Unless agreed to in writing by the parties, or if included in the
parenting plan, no motion for an order to modify primary
residential responsibility may be made earlier than two years after
the date of entry of an order establishing primary residential
responsibility, except in accordance with subsection 3.
....
3. The time limitation in subsections 1 and 2 does not apply if the
court finds:
....
b. The child’s present environment may endanger the child’s
physical or emotional health or impair the child’s emotional
development[.]
....
5. The court may not modify the primary residential responsibility
within the two-year period following the date of entry of an order
establishing primary residential responsibility unless the court
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finds the modification is necessary to serve the best interests of the
child and:
....
b. The child’s present environment may endanger the child’s
physical or emotional health or impair the child’s emotional
development[.]
Anderson argues the district court analyzed the modification of primary
residential responsibility under the more lenient requirements of N.D.C.C.
§ 14-09-06.6(6) (requiring a material change in circumstances), which applies
if a modification is sought after two years following the date of an order
establishing primary residential responsibility. Although the court
acknowledged the heightened standard applied, the court, at least in part,
applied the changed circumstances standard. However, we “will not set aside
a correct result merely because an incorrect, more relaxed standard was
applied, if the result is the same under the correct law and reasoning.” State
ex rel. D.D. v. G.K., 2000 ND 101, ¶ 6, 611 N.W.2d 179. Thus, the court’s
application of the changed circumstances standard alone is not reversible
error, and we must review the modification motion under the heightened
requirements of N.D.C.C. § 14-09-06.6(1), (3), (5).
The district court “shall consider the motion [to modify primary
residential responsibility] 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.” N.D.C.C. § 14-09-
06.6(4). The court shall set an evidentiary hearing only if the moving party has
established a prima facie case. Id.
A prima facie case only requires facts which, if proved at an
evidentiary hearing, would support a change of custody that could
be affirmed if appealed. A prima facie case is only enough evidence
to allow the fact-trier to infer the fact at issue and rule in the
party’s favor. It is a bare minimum. 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
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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. Competence usually requires that the witness
have first-hand knowledge, and witnesses are generally not
competent to testify to what they suspect the facts are.
Sweeney v. Kirby, 2013 ND 9, ¶ 5, 826 N.W.2d 330 (cleaned up).
Anderson argues W.D.P.’s environment under Pedie’s care is endangering
his physical or emotional health or is impairing his emotional development. In
her affidavit supporting modification, Anderson alleged W.D.P. suffered from
cuts and bruises, sleepwalking, pants wet with urine, constipation, a failure to
gain weight, and separation anxiety. Anderson does not have personal
knowledge of the causes of these events, but speculates they are due to Pedie
neglecting his parental responsibilities. Anderson filed two letters from
certified nurse practitioners as exhibits to her modification motion. One letter
simply states the diagnoses that W.D.P. was being seen for on that visit to the
clinic. Another letter states W.D.P. sustained a laceration that in the nurse
practitioner’s opinion would not have required antibiotics had W.D.P. been
evaluated within a few hours of the injury. These letters do not support
Anderson’s allegation that W.D.P.’s environment under Pedie’s care caused or
contributed to W.D.P.’s injuries or illnesses. Even if the need for antibiotics
referred to in the second letter was due to Pedie’s inaction, the isolated incident
does not rise to the level of endangering W.D.P.’s physical or emotional health
or impairing his emotional development as required by statute.
Anderson also alleges Pedie has refused speech and occupational therapy
for W.D.P. However, Anderson acknowledges that W.D.P. is attending Red Door
Pediatric Therapy for speech and occupational therapy. Further, Anderson
alleges there have been several Child Protective Services (“CPS”) reports
prepared by mandated reporters concerning W.D.P. She does not identify what
those alleged reports state concerning W.D.P., except in one instance where she
simply states CPS was investigating a report regarding bruising on W.D.P.
Anderson does not allege that CPS has taken any action against Pedie for his
care of W.D.P. or recommended any services to him.
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We conclude that Anderson’s assertions do not create prima facie
evidence that W.D.P.’s environment under Pedie’s care is endangering his
physical or emotional health or impairing his emotional development.
III
Anderson argues the district court erred in awarding Pedie attorney’s
fees in the amount of $2,000 as a sanction after finding her in contempt of
court. Anderson does not challenge the contempt of court finding, but rather
the amount of attorney’s fees. She contends that because Pedie requested
attorney’s fees in the amount of $1,500 in his affidavit in support of his
contempt motion, the court erred by awarding the increased amount of $2,000
without further findings or reasoning. Anderson does not provide any
supporting legal authority for her argument.
“The district court has discretion to award attorney’s fees as part of a
remedial sanction for contempt to reimburse the complainant for costs and
expenses incurred as a result of the contempt.” Harvey v. Harvey, 2016 ND 251,
¶ 7, 888 N.W.2d 543. In Pedie’s affidavit in support of his motion for contempt,
he stated, “Because of [Anderson]’s violations of the Judgment, I will incur at
least $1,500 in attorney fees and costs to file this motion and appear at the
hearing.” (Emphasis added.) After the hearing on the contempt motion, Pedie
submitted his closing argument in which he requested “$3,000, as and for a
portion of the attorney fees he incurred as a result of [his] contempt motion.”
Anderson did not object to the $3,000 in attorney’s fees. The court ordered as a
sanction that Anderson refrain from engaging in further contemptible conduct
and pay “a portion of [Pedie’s] attorney’s fees incurred in the creation and
prosecution of this motion,” awarding attorney’s fees in the amount of $2,000
as a sanction. Anderson does not contend attorney’s fees were discussed at the
contempt hearing, and did not request a transcript of the hearing. As the
appellant, Anderson bears the responsibility of providing a transcript or
assumes the consequences of failing to provide one. See N.D.R.App.P. 10(b)(1).
Accordingly, the court did not abuse its discretion by awarding Pedie attorney’s
fees in the amount of $2,000 for Anderson’s contempt of court.
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IV
Pedie requests sanctions on appeal against Anderson for violating
N.D.R.App.P. 30 (appendix to the briefs) and N.D.R.App.P. 31 (filing and
service of briefs). Under N.D.R.App.P. 13, we “may take appropriate action
against any person failing to perform an act required by rule or court order.”
“Whether to administer sanctions under N.D.R.App.P. 13 for noncompliance
with the Rules of Appellate Procedure is discretionary with this Court.”
Krump-Wootton v. Krump, 2019 ND 275, ¶ 7, 935 N.W.2d 534. We have
examined the alleged violations of the appellate rules, and we decline to
exercise our discretion to award sanctions on appeal.
V
We affirm the order denying Anderson’s motion to modify residential
responsibility and the contempt order awarding attorney’s fees, and deny
sanctions on appeal.
Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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