Anderson v. Jenkins

MARING, Justice,

dissenting.

[¶ 21] I, respectfully, dissent. I am of the opinion the majority misapplies the law, and Jenkins did not establish a prima facie case justifying a modification of primary residential responsibility and an evi-dentiary hearing.

[¶ 22] A prima facie case cannot be established by a moving party through allegations alone. Charvat v. Charvat, 2013 ND 145, ¶ 20, 835 N.W.2d 846 (Maring, J., concurring in the result); Jensen v. Jensen, 2013 ND 144, ¶ 23, 835 N.W.2d 819 (Maring, J., dissenting); Thompson v. Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331; see also Ehli v. Joyce, 2010 ND 199, ¶ 7, 789 N.W.2d 560; Miller v. Miller, 2013 ND 103, ¶ 6, 832 N.W.2d 327. A prima facie case is established through affidavits that include competent information. Charvat, at ¶ 20 (Maring, J., concurring in the result); Jensen, at ¶ 23 (Maring, J., dissenting); Thompson, at ¶ 6; see also Ehli, at ¶ 7; Miller, ¶ 6; Tank v. Tank, 2004 ND 15, ¶ 56, 673 N.W.2d 622 (Sandstrom, J., dissenting). Affidavits are competent if they show a basis for actual personal knowledge or they state conclusions sup*381ported by evidentiary facts. Charvat, at ¶ 20 (Maring, J., concurring in the result); Jensen, at ¶ 23 (Maring, J., dissenting); Thompson, at ¶ 6; see also Ehli, at ¶ 7; Miller, at ¶ 6; Tank, at ¶ 56 (Sandstrom, J., dissenting). A prima facie case justifying a modification of primary residential responsibility and an evidentiary hearing is established if the information contained in a competent affidavit “establish[es] a significant change that adversely impacts the child’s well-being.” Charvat, at ¶ 20 (Maring, J., concurring in result) (citing Jensen, 2013 ND 144, 835 N.W.2d 819 (Maring, J., dissenting)).

[¶ 23] My opinion continues to be “it is clear the Legislature intended to require parties to meet the higher standard of showing that there has been a significant or important change of circumstances that has a negative impact on the well-being of the child.” Kelly v. Kelly, 2002 ND 37, ¶ 50, 640 N.W.2d 38 (Maring, J., concurring in the result); see Charvat, 2013 ND 145, ¶ 21, 835 N.W.2d 846, (Maring, J., concurring in the result); Jensen, 2013 ND 144, ¶ 24, 835 N.W.2d 819 (Maring, J., dissenting); Mock v. Mock, 2004 ND 14, ¶ 34, 673 N.W.2d 635 (Maring, J., dissenting); Tank, 2004 ND 15, ¶ 44, 673 N.W.2d 622 (Maring, J., dissenting). If hearsay and conclusory allegations are the basis for evidentiary hearings for modification of primary residential responsibility, the intent of the Legislature is undermined.

[¶ 24] The appropriate standard of review is de novo when determining whether a party established a prima facie case justifying modification in primary residential responsibility. Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331. Here, Jenkins moved for modification of primary residential responsibility and submitted an affidavit in support of his motion, stating the following: (a) Anderson had ignored court orders and willfully withheld parenting time resulting in a strained co-parenting relationship and negative consequences to the children, (b) Anderson’s statements to social services, upon which social services based their findings, were false and caused disruption to Jenkins’ relationship -with his children, his wife, and extended family, (c) Anderson took the child, D.J., to multiple mental health professionals, (d) Anderson neglected to keep Jenkins informed of medical information regarding the minor children, and (e) Anderson failed to pay her one-half of nonreimbursed medical expenses.

[¶ 25] To establish a prima facie case, Jenkins’ affidavit must provide competent admissible evidence. Most of Jenkins’ allegations are conclusory and lack support by evidentiary fact or fail to show firsthand knowledge. The few facts which do not lack specificity or support simply do not rise to a prima facie case to warrant an evidentiary hearing and justify a modification of primary residential responsibility.

[¶ 26] Jenkins makes broad, generalized conclusions without a sufficient evi-dentiary basis or a showing of actual firsthand knowledge with regard to the following: Anderson lied to psychologists, social workers, and Child Protection Services to get the services required finding made in Social Services’ report; Anderson’s switching psychologists was detrimental to D.J.; Anderson changed the children’s medical dosage of prescribed medication without the doctor recommending the changes; Anderson provided the children with medication that was not prescribed; Anderson does not keep Jenkins informed of medical information regarding the minor children; Anderson has fed the children food that they are not to eat because of allergies; and Anderson failed to pay Jenkins for the nonreimbursed medical expenses.

*382[¶ 27] Jenkins’ allegation that Anderson denied him 41 days of parenting time since the 2009 order and 61 hours of supervised visitation under the Interim Order do not rise to the level of constituting frustration of visitation justifying modification of primary residential responsibility. If all the party needs to do to establish a prima facie case is to allege they have been denied visitation without some specificity of facts that rise to a prima facie case for modification, the statute is thwarted. Jenkins also alleged that Anderson changed the children’s medical dosage of prescribed medication without the doctor recommending the changes and provided the children with medication that was not prescribed are centered around occurrences on December 10, 2010, and May 2011, but Jenkins’ own exhibits contradict or do not support his allegations.

[¶ 28] Moreover, Jenkins failed to establish how any of his allegations adversely impacted the minor children’s well-being. See Blotske v. Leidholm, 487 N.W.2d 607, 609 (N.D.1992); Alvarez v. Carlson, 524 N.W.2d 584, 589 (N.D.1994). Based on this record, I believe the majority opinion, at ¶ 18, improperly applies this Court’s law in determining whether Jenkins established a prima facie case justifying a modification of primary residential responsibility and an evidentiary hearing. Under our de novo standard of review, Jenkins did not establish a prima facie case for modification and was not entitled to an evidentia-ry hearing.

[¶ 29] I agree with the district court that the facts presented which were not conclusory or lacking support, were simply not enough to warrant an evidentiary hearing and justify a modification of primary residential responsibility. The district court was correct in holding that Jenkins’ affidavit presented insufficient facts to support modification of primary residential responsibility of the parties’ minor children to him. Even assuming, for argument’s sake, the district court improperly permitted Anderson’s counter-affidavit to rebut Jenkins’ affidavit and weighed the conflicting evidence presented by the parties to resolve conflicts and assess credibility, the result does not change under our standard of de novo review. The district court made it very clear that “even if uncontradicted,” Jenkins’ allegations “are not sufficient to support modification of primary residential responsibility of the children.”

[¶ 30] I agree with the district court and would affirm its order denying Jenkins’ motion to amend the amended divorce judgment.

[¶ 31] DANIEL J. CROTHERS, J., concurs.