Jensen v. Jensen , 2023 ND 22 ( 2023 )


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  •                                                                                   FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    FEBRUARY 16, 2023
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2023 ND 22
    Alexander Ryan Jensen,                                                Plaintiff
    v.
    Ayrica Lynn Jensen nka Ayrica Lynn Penor,            Defendant and Appellant
    and
    State of North Dakota,                         Statutory Real Party in Interest
    No. 20220238
    Appeal from the District Court of Burleigh County, South Central Judicial
    District, the Honorable Bruce A. Romanick, Judge.
    AFFIRMED.
    Opinion of the Court by Tufte, Justice.
    Ayrica L. Penor, self-represented, Bismarck, N.D., defendant and appellant;
    submitted on brief.
    Jensen v. Jensen
    No. 20220238
    Tufte, Justice.
    [¶1] Ayrica Penor, formerly Ayrica Jensen, appeals from a district court order
    denying her motion to modify primary residential responsibility. On appeal,
    Penor argues the district court erred in determining that she failed to plead a
    prima facie case and in denying her request for a hearing. We affirm.
    [¶2] Ayrica Penor and Alexander Jensen are divorced, and the district court
    awarded primary residential responsibility to Jensen. Penor moved to modify
    primary residential responsibility under N.D.C.C. § 14-09-06.6. The court
    found she failed to prove a prima facie case and denied her motion.
    I
    [¶3] “Whether a party has established a prima facie case for a change of
    primary residential responsibility is a question of law which we review de
    novo.” Grigg v. Grigg, 
    2015 ND 229
    , ¶ 9, 
    869 N.W.2d 411
    . The movant seeking
    postjudgment modification of primary residential responsibility has the
    burden to establish a “prima facie case justifying a modification.” N.D.C.C.
    § 14-09-06.6(4); see also Green v. Green, 
    2009 ND 162
    , ¶ 7, 
    772 N.W.2d 612
    . “A
    prima facie case requires only enough evidence to allow the factfinder to infer
    the fact at issue and rule in the moving party’s favor.” Grigg, at ¶ 9. It “requires
    only facts which, if proved at an evidentiary hearing, would support a change
    of primary residential responsibility that could be affirmed if appealed.” 
    Id.
     A
    party may establish a prima facie case “with affidavits including competent
    information, which usually requires the affiant to have first-hand knowledge.”
    
    Id.
     If affidavits “fail to show a basis for actual personal knowledge, or if they
    state conclusions without the support of evidentiary facts,” they do not support
    a prima facie case. 
    Id.
    If the moving party’s allegations are supported by competent,
    admissible evidence, the court may conclude the moving party
    failed to establish a prima facie case only if: (1) the opposing party’s
    1
    counter-affidavits conclusively establish that the moving party’s
    allegations have no credibility; or (2) the moving party’s
    allegations are insufficient on their face, even if uncontradicted, to
    justify modification. Unless the counter-affidavits conclusively
    establish the movant’s allegations have no credibility, the district
    court must accept the truth of the moving party’s allegations.
    Grigg, at ¶ 10. These requirements prevent “mini-trials by affidavit.” Forster
    v. Flaagan, 
    2016 ND 12
    , ¶ 8, 
    873 N.W.2d 904
    .
    II
    [¶4] Penor argues the district court erred in denying her request for a hearing
    by finding that she failed to plead a prima facie case under N.D.C.C. § 14-09-
    06.6(6). We disagree. Section 14-09-06.6(6), N.D.C.C., provides:
    The court may modify the primary residential responsibility after
    the two-year period following the date of entry of an order
    establishing primary residential responsibility 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; and
    b. The modification is necessary to serve the best interests
    of the child.
    Section 14-09-06.6(6), N.D.C.C., burdens the movant with establishing a prima
    facie case on both of the above elements. See also Kerzmann v. Kerzmann, 
    2021 ND 183
    , ¶¶ 9, 12, 
    965 N.W.2d 427
    .
    III
    [¶5] Regarding the best interests of the child under N.D.C.C. § 14-09-
    06.6(6)(b), a court must consider the applicable N.D.C.C. § 14-09-06.2(1) best
    interests of the child factors to determine whether modifying primary
    residential responsibility is in a child’s best interests. Grigg, 
    2015 ND 229
    , ¶ 7
    (quoting Schroeder v. Schroeder, 
    2014 ND 106
    , ¶ 7, 
    846 N.W.2d 716
    ). The
    movant must establish “‘either a general decline in the condition of the child
    2
    or that the change has adversely affected the child’” to establish a prima facie
    case. Gomm v. Winterfeldt, 
    2022 ND 172
    , ¶ 30, 
    980 N.W.2d 204
     (quoting Kunz
    v. Slappy, 
    2021 ND 186
    , ¶ 26, 
    965 N.W.2d 408
    ).
    [¶6] The district court concluded that the offered evidence of her relationship
    with Erick Penor would weigh heavily against Penor under N.D.C.C. § 14-09-
    06.2(1)(k). Factor (k) instructs the court to assess the personal interactions a
    child would have in a particular household and how it would affect the child.
    N.D.C.C. § 14-09-06.2(1)(k). “The court shall consider that person’s history of
    inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the
    fear of physical harm, bodily injury, or assault, on other persons.” Id. Penor
    admits in her affidavit that she married Erick Penor. The court noted Erick
    Penor had numerous criminal charges, including for violating a protection
    order, stalking, and assault. The judgment that created the parenting plan
    explicitly forbade Erick Penor from having contact with the children. Penor
    alleges in her affidavit that Erick Penor was the “only continuous male figure”
    in the children’s lives while Jensen was in prison and that he helped Penor
    “tremendously” with the children during that time. In her affidavit, she asks
    that the court allow Erick Penor to be in contact with the children.
    [¶7] Whatever allegations support Penor’s case, Jensen’s counter-affidavits
    and the allegations in Penor’s affidavit show that modifying residential
    responsibility would expose the children to Erick Penor, and thus the offered
    evidence could only weigh against Penor in determining the children’s best
    interests. This shows the allegations are insufficient on their face to establish
    a prima facie case that a change in residential responsibility is necessary to
    further the children’s best interests under N.D.C.C. § 14-09-06.2(1). See Grigg,
    
    2015 ND 229
    , ¶¶ 9, 10. We need not consider whether Penor established a
    prima facie case that a material change in circumstances has occurred. We
    conclude Penor failed to plead a prima facie case under N.D.C.C. § 14-09-
    06.6(6)(b), and the district court did not err in denying her request for a
    hearing.
    3
    IV
    [¶8] We affirm the order of the district court.
    [¶9] Jon J. Jensen, C.J.
    Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    Douglas A. Bahr
    4