Frueh v. Frueh

MARING, Justice,

specially concurring in the result.

[¶ 16] I respectfully concur in the result. I would reverse the trial court’s order denying an evidentiary hearing on Darin Frueh’s motion for change of custody, but for different reasons than those stated in the majority opinion.

[¶ 17] Darin Frueh alleges that the new husband of Melissa Hoheisel abused the minor child and that the child wants to live with him. Frueh filed an affidavit that contained no personal knowledge of any abuse. He attached to his affidavit a handwritten letter signed by the minor child, which was not in affidavit form and not notarized and, therefore, not competent admissible evidence. The trial court entered its order finding no prima facie case on July 24, 2007. On July 25, 2007, the trial court received a supplemental affidavit from Darin Frueh and a notarized affidavit from the minor child. The trial court considered these affidavits and declined to change its decision. The trial court entered an amended order again finding no prima facie case.

[¶ 18] The affidavit of the minor child alleges that his stepfather “grabbed me by the throat.” The minor child explains that he pushed his stepbrother because the stepbrother was making fun of him. The minor child alleges his stepfather grabbed him by the throat and said “don’t do that or something like that.” The minor child does not allege he was injured or hurt. He alleges only this one incident. The record indicates this incident would have occurred in March 2006, over one year before Darin Frueh brought his motion on June 29, 2007, to change custody. There are no allegations of “abuse” occurring before March 2006 or after the incident in March 2006. Although the trial court’s decision arguably relies on the rebuttal affidavit of Melissa Hoheisel and the Bur-leigh County Social Services’ finding of “no risk factors for abuse or neglect,” the trial court’s decision is correct that there is not a prima facie case to warrant a hearing based on the evidence before it on the issue of abuse by the stepfather. We have said:

The moving party establishes a prima facie case by alleging, with supporting affidavits, sufficient facts which, if they remained uncontradicted at an eviden-tiary hearing, would support a custody modification in her favor.

Tank v. Tank, 2004 ND 15, ¶ 9, 673 N.W.2d 622.

[¶ 19] Remarriage alone does not dictate a change of custody. Barstad v. Barstad, 499 N.W.2d 584, 587 (N.D.1993) (citing Gould v. Miller, 488 N.W.2d 42, 44 (N.D.1992)). The trial court should modify custody only if a change in custody is *367necessary or required for the best interest of the child. N.D.C.C. § 14-09-06.6. In Volz v. Peterson, 2003 ND 139, ¶ 6, 667 N.W.2d 637, we said:

In a modification decision, the trial court must first determine whether a material change in circumstances has occurred and then whether “the modification is necessary to serve the best interest of the child.” N.D.C.C. § 14-09-06.6(6).

[¶ 20] “An environment that endangers the child’s physical or emotional health is considered a material change in circumstance.” Mock v. Mock, 2004 ND 14, ¶ 7, 673 N.W.2d 635. However, not every change in circumstance necessitates a modification of custody in the best interest of the child. See Dalin v. Dalin, 512 N.W.2d 685 (N.D.1994). In this case, even if the allegation of the minor child was ultimately proven and found to be true, it would not establish a prima facie case under N.D.C.C. § 14-09-06.6(4). There is no evidence of any harm or potential harm to the minor child. The allegation in this case of one incident which occurred over one year ago is not sufficient to establish a material change in circumstances necessitating a change in custody in the best interest of the child. See N.D.C.C. § 14-09-06.6(6); Tank, 2004 ND 15, ¶43, 673 N.W.2d 622 (Maring, J., dissenting); Mock, at ¶ 25 (Maring, J., dissenting) (stating one of the purposes of the North Dakota motion practice-affidavit practice is to discourage unsubstantial motions for modification). The question of whether to grant an evidentiary hearing rests in the discretion of the trial court. Lagro v. Lagro, 2005 ND 151, ¶ 14, 703 N.W.2d 322. I am of the opinion that based on the evidence presented by Darin Frueh on the issues of Melissa Hoheisel’s remarriage and the abuse of the minor child by her husband, the trial court did not abuse its discretion in denying an evidentiary hearing.

[¶ 21] The third basis for Darin Frueh’s motion for modification is the preference of the minor child to live with him on the farm. The minor child’s affidavit does state that he wants to live with his dad on the farm. The minor child was twelve years old when he signed and filed the affidavit. We have stated that a mature child’s preference should only be considered if there are persuasive reasons for it. Krizan v. Krizan, 1998 ND 186, ¶ 9, 585 N.W.2d 576 (emphasis added). In this case, the minor child’s affidavit does state the reasons he wants to live with his dad, including that he wants to play sports in Harvey, wants to farm, and does not like his stepfather. Based on the age of the minor child and his affidavit stating with particularity the reasons why he wants to live with his dad, a prima facie case was made by Darin Frueh entitling him to an evidentiary hearing.

[¶ 22] However, in making its ultimate decision on whether to change custody, the trial court must examine the preference of the child with care because a preference “ ‘may ... be motivated by goals and ambitions which undermine the significance of that preference ... ’” Barstad, 499 N.W.2d at 588 (quoting Mertz v. Mertz, 439 N.W.2d 94, 96-97 n. 2 (N.D.1989)). We held in Barstad “[a] twelve-year-old’s desire to remain involved in hometown sports activities is a ‘goal[ ] and ambition[ ],’ that cannot trump the superior benefits to his best interests that we have recognized to inhere in the finality of litigation and the stability of the ongoing custodial relationship.” Barstad, 499 N.W.2d at 588-89 (citations omitted).

[¶ 23] I, therefore, concur in the result of the majority opinion and would reverse and remand for an evidentiary hearing.

[¶ 24] Mary Muehlen Maring.