Sailer v. Sailer , 2022 ND 151 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 4, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 151Connie Sailer and Kevin Sailer, Petitioners and Appellants
v.
Natasha Sailer, Respondent and Appellee
and
Justin Sailer, Respondent
No. 20220050
Appeal from the District Court of Mercer County, South Central Judicial
District, the Honorable Bobbi Brown Weiler, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justices VandeWalle, Crothers, and McEvers joined. Justice VandeWalle also
filed an opinion concurring specially.
Elise A. Fischer (argued) and Theresa L. Kellington (on brief), Bismarck, N.D.,
for petitioners and appellants.
Jami L. Haynes, Dickinson, N.D., for respondent and appellee.
Sailer v. Sailer
No. 20220050
Tufte, Justice.
[¶1] Connie and Kevin Sailer appeal from a district court order dismissing
their petition for nonparent visitation with their grandchildren. On appeal,
they argue the court erred in dismissing their petition for failure to plead a
prima facie case. We affirm.
I
[¶2] Connie and Kevin Sailer are the paternal grandparents of E.D.S. and
E.R.S. Justin and Natasha Sailer are the children’s parents. When the parents
divorced, they stipulated that Natasha would have primary residential
responsibility of the children, with Justin having parenting time until 2022.
After 2022, the judgment provides the parties share residential responsibility
if Justin has no alcohol-related incidents.
[¶3] In July of 2020, an altercation occurred between the grandparents and
the parents. While the parties differ in their accounts of what occurred, it is
undisputed that the children witnessed the altercation. The children have not
had contact with their grandparents since the altercation, apart from the
grandparents having attended some of the children’s sporting events.
[¶4] The grandparents filed a petition for nonparent visitation, which was
opposed by Natasha Sailer. The district court dismissed the grandparents’
petition for failure to plead a prima facie case, finding they did not plead
sufficient facts to establish that they have a substantial relationship with the
children or that denial of visitation would result in harm to the children. The
grandparents appeal the court’s order dismissing their petition.
II
[¶5] We have not previously described our standard of review for a district
court’s determination that a petitioner failed to plead a prima facie case for
nonparent visitation. The parties argue the clearly erroneous standard of
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review applies to this appeal because we have held that “[a] district court’s
decision on visitation is a finding of fact and will not be reversed unless clearly
erroneous.” Muchow v. Kohler, 2021 ND 209, ¶ 5, 966 N.W.2d 910. Unlike the
district court’s decision after an evidentiary hearing in Muchow, this case
involves a determination that the pleadings failed to make a prima facie
showing. A prima facie showing is not a finding, but instead is a legal
conclusion that a party has presented “evidence strong enough, if
uncontradicted, to support a finding in her favor.” In re Estate of Clemetson,
2012 ND 28, ¶ 8, 812 N.W.2d 388 (quoting Helbling v. Helbling, 541 N.W.2d
443, 445 (N.D. 1995)). In other contexts, including review of a motion to modify
primary residential responsibility, we have held the question of whether a
party has established a prima facie case is a question of law fully reviewable
on appeal. Kerzmann v. Kerzmann, 2021 ND 183, ¶ 6, 965 N.W.2d 427.
Accordingly, we review de novo the court’s determination that the
grandparents did not establish a prima facie case to support an award of
nonparent visitation.
[¶6] The district court may order nonparent visitation if the petitioner proves:
(1) the nonparent is a consistent caretaker or (2) the nonparent has a
substantial relationship with the child and the denial of visitation would result
in harm to the child. N.D.C.C. § 14-09.4-03(1)(a)(1)-(2). “‘Harm to a child’
means a significant adverse effect on a child’s physical, emotional, or
psychological well-being.” N.D.C.C. § 14-09.4-01(5). The petitioner also must
prove the visitation is in the best interest of the child. N.D.C.C. § 14-09.4-
03(1)(b).
[¶7] Under the Uniform Nonparent Custody and Visitation Act, an
evidentiary hearing may be held only if a prima facie case is established. “The
court shall determine based on the petition under section 14-09.4-06 whether
the nonparent has pleaded a prima facie case that the nonparent: . . . [i]s a
consistent caretaker; or . . . [h]as a substantial relationship with the child and
denial of custody or visitation would result in harm to the child.” N.D.C.C. § 14-
09.4-07(1). If the court determines the nonparent has failed to make a prima
facie showing, “the court shall dismiss the petition.” N.D.C.C. § 14-09.4-07(2).
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[¶8] In determining whether a party has established a prima facie case:
We have explained that a prima facie case requires only enough
evidence to permit a factfinder to infer the fact at issue and rule in
the moving party’s favor. A prima facie case is a bare minimum and
requires facts which, if proved at an evidentiary hearing, would
support a change of custody that could be affirmed if appealed.
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 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.
Kerzmann, 2021 ND 183, ¶ 8.
[¶9] The district court did not expressly determine whether the grandparents
were “consistent caretakers.” By dismissing the petition, it impliedly concluded
there was no prima facie case on any asserted grounds. Because our review is
de novo, we independently review the record to determine whether sufficient
facts were alleged to support a finding of “consistent caretaker.” To make a
prima facie showing of “consistent caretaker” status, North Dakota law
requires, among other things, evidence sufficient to support a finding that the
children lived with the grandparents for not less than twelve months, or good
cause to accept a shorter period. N.D.C.C. §§ 14-09.4-03(2). The grandparents
did not claim the children lived with them for not less than twelve months.
Instead, they asserted in their verified petition and accompanying declarations
that they were consistent caregivers because they would “pick the children up
and drop them off as needed, wash their clothes, cut their fingernails, spend
holidays and special events together, and even buy groceries for the children.”
On our review of the record, we conclude that the children staying with the
grandparents for an occasional weekend and the grandparents periodically
caring for their needs failed to establish a prima facie case that the
grandparents were consistent caretakers.
[¶10] The district court also concluded that the grandparents failed to make a
prima facie showing that they had a substantial relationship with the children
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or that denied visitation would harm the children. Regarding the first element,
the court explained that the grandparents failed to show they had a substantial
relationship with the children because of “the children’s young age, the limited
number of contacts with the children since July 2020, and the fact that the
children were traumatized by the last contact with the Petitioners in July
2020.” Further, the court also found the harm to the children element was not
established because “the Petition fails to state reasons the denial of visitation
would result in harm to the children” and “[t]here is no evidence that the lack
of contact by the Petitioners since July 2020 has resulted in any physical,
emotional, or psychological detriment to the children.”
[¶11] We need not decide here whether the grandparents pleaded sufficient
facts to support a substantial relationship with the children, because their
failure to establish the “harm to a child” element is dispositive. The
grandparents failed to plead any facts that, if proved at an evidentiary hearing,
would support a finding that the children would be harmed if visitation were
denied. More specifically, the evidence did not establish a prima facie case that
further lack of contact would have a “significant adverse effect on [the]
child[ren]’s physical, emotional, or psychological well-being.” Instead, the
grandparents offered only conclusory statements that “further denial of
visitation by Natasha would be detrimental to the minor children in that their
emotional and behavioral development may be affected,” but did not support
these conclusory statements with any evidentiary facts. If proven at an
evidentiary hearing, facts showing that the children would “smile, wave, and
often times throw kisses” at the grandparents when they attended their
sporting events would not support a finding that denial of visitation would
have a significant adverse effect on the children’s well-being. Because the
grandparents failed to plead sufficient facts to support a finding of “harm to
the child,” the grandparents did not meet their burden in establishing a prima
facie case. Thus, we conclude the court did not err in dismissing their petition.
III
[¶12] The order dismissing the petition for grandparent visitation is affirmed.
4
[¶13] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
VandeWalle, Justice, concurring specially.
[¶14] This appeal is governed by the Uniform Nonparent Custody and
Visitation Act, in particular section 14-09.4-03, N.D.C.C., stating the
requirements for order of custody or visitation:
1. A court may order custody or visitation to a nonparent if the
nonparent proves:
a. The nonparent:
(1) Is a consistent caretaker; or
(2) Has a substantial relationship with the child and
denial of custody or visitation would result in harm
to the child; and
b. An order of custody or visitation to the nonparent is in
the best interest of the child.
2. A nonparent is a consistent caretaker if the nonparent
without expectation of compensation:
a. Lived with the child for not less than twelve months,
unless the court finds good cause to accept a shorter
period;
b. Regularly exercised care of the child;
c. Made day-to-day decisions regarding the child solely
or in cooperation with an individual having physical
custody of the child; and
d. Established a bonded and dependent relationship with
the child with the express or implied consent of a
parent of the child, or without the consent of a parent
if no parent has been able or willing to perform
parenting functions.
3. A nonparent has a substantial relationship with the child if:
a. The nonparent:
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(1) Is an individual with a familial relationship with
the child by blood or law; or
(2) Formed a relationship with the child without
expectation of compensation; and
b. A significant emotional bond exists between the
nonparent and the child.
Under N.D.C.C. § 14-09.4-01(7), a nonparent is defined as “an individual other
than a parent of the child, including a grandparent, sibling, or stepparent of
the child.”
[¶15] It is clear to me that the grandparents meet the first part of N.D.C.C. §
14-09.4-03(3)(a)(1) in that, as a matter of law, they have had a familial
relationship with the children. I believe they may even have alleged enough to
satisfy part (3)(b) of section 14-09.4-03, N.D.C.C., which requires that they
have a significant emotional bond between the nonparent and the child.
However, I agree with the majority opinion that in this case the record does
not support that the denial of visitation may result in harm to the children or
that an order for visitation with the grandparents would be in the best interest
of the children.
[¶16] It appears to me that the grandparents here are arguing that a denial of
the relationship would, presumably, result in harm to the children. In so far as
presumptions are concerned, N.D.C.C. § 14-09.4-04 provides “a decision by a
parent regarding a request for custody or visitation by a nonparent is in the
best interest of the child.” This Court has a long standing presumption that
applies to parents that “visitation between a non-custodial parent and a child
is presumed to be in the child’s best interests and that it is not merely a
privilege of the non-custodial parent, but a right of the child.” Taylor v. Taylor,
2022 ND 39, ¶ 16, 970 N.W.2d 209 (quoting Hendrickson v. Hendrickson, 2000
ND 1, ¶ 21, 603 N.W.2d 896). See Gardebring v. Rizzo, 269 N.W.2d 104 (N.D.
1978) (discussing the history and theory of presumption in North Dakota). We
have established no such presumption for grandparents and in light of the
Uniform Nonparent Custody and Visitation Act we cannot and should not do
so. It would take legislative action to create such a presumption.
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[¶17] I do note that there have been several previous cases before this Court
where the grandparents have a better relationship with the child than even
the parent. However, even in those cases, the presumption favors the parent,
not the grandparents, which may, in fact, be contrary to the best interest of the
child.
[¶18] Gerald W. VandeWalle
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