concurring and dissenting.
[¶ 23] I concur with the majority’s resolution of Part III.
[¶ 24] I respectfully dissent from Part II of the majority’s opinion concluding Schumacker’s affidavit established a prima facie case for modification of primary residential responsibility. I would affirm the district court’s order because the movant’s affidavit alleging domestic violence was inadequate to warrant an evidentiary hearing and because evidence of Blair’s suicide attempts was before the court when Blair was originally granted primary residential responsibility of the children.
[¶ 25] Regarding allegations of domestic violence in Blair’s home, Schumacker’s affidavit contains hearsay from his children. Schumacker’s affidavit states, “The children told me what had happened, and about the fight. [Blair] and [Blair’s husband] were outside yelling and [Blair] was hitting [Blair’s husband]. The children could hear everything and A.D.S. was crying.”
[¶ 26] The justiciable question here is whether domestic violence in Blair’s home provides a prima facie case of a material change in circumstances supporting a change of residential responsibility from Blair to Schumacker. To that question, evidence of whether Blair and her husband were hitting and yelling at each other is offered for truth of the matter asserted— that those two people were engaged in the alleged conduct. The proffered evidence comes not from the declarants, the children, but from Schumacker passing through what “[t]he children told me had happened.” Such statements are hearsay and do not fit under a hearsay exception. See N.D.R.Ev. 802; In re Estate of Stanton, 472 N.W.2d 741, 745 (N.D.1991) (“Statements constituting hearsay, of *644course, are generally not admissible unless they fall within an exception to the hearsay rules.”)- Inadmissible hearsay statements do not provide a prima facie case for modification of primary residential responsibility. See Green v. Green, 2009 ND 162, ¶ 13, 772 N.W.2d 612; Tank v. Tank, 2004 ND 15, ¶ 12, 678 N.W.2d 622.
[¶ 27] The majority concludes these statements are an exception to the hearsay rule as “the declarant’s then existing state of mind, emotion, sensation, or physical condition.” Majority Opinion at ¶ 15. The majority acknowledges this state of mind evidence is not competent direct evidence of domestic violence. Id. at ¶¶ 15-16. Instead of making that link, the majority lowers the evidentiary bar to a “bare minimum” while never explaining how the state of mind evidence satisfies Schumacker’s burden of producing “enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Tank, 2004 ND 15, ¶ 12, 673 N.W.2d 622 (quotation omitted).
[¶ 28] Instead of elevating the state of mind evidence from Schumacker’s affidavit to the level of a prima facie case, I would protect the letter and spirit of N.D.C.C. § 14-09-06.6(4) and (6) and conclude the district court did not err by finding this affidavit fails to establish a material change in circumstances.
[¶ 29] The majority also concludes Blair’s two suicide attempts provide timely evidence of a material change in circumstances warranting an evidentiary hearing. Majority Opinion at ¶ 12. I again respectfully disagree.
[¶ 30] The underlying divorce judgment was entered on a stipulation between Schumacker and Blair. The record reveals the suicide attempts were discussed in documents filed with the district court prior to entry of the divorce decree. This conduct occurred over three years ago. Schumacker’s affidavit establishes he has some personal knowledge about the two attempts; however, Schumacker’s affidavit does not explain how these two events support a change of primary residential responsibility. See Kourajian v. Kourajian, 2008 ND 8, ¶ 12, 744 N.W.2d 274 (mov-ant’s allegations were insufficient when they provided little or no information about “how they have negatively impacted the children”). I would conclude the district court did not err by finding the two suicide attempts that occurred before entry of the divorce judgment were not a material change in circumstances.
[¶ 31] MARY MUEHLEN MARING, J., concur.