Anderson v. Pedie ( 2022 )


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  •                                                                                FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    JANUARY 21, 2022
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2022 ND 19
    Karley Anderson,                                        Plaintiff and Appellant
    v.
    Seth Pedie,                                            Defendant and Appellee
    and
    State of North Dakota,                         Statutory Real Party in Interest
    No. 20210147
    Appeal from the District Court of Bottineau County, Northeast Judicial
    District, the Honorable Michael P. Hurly, Judge.
    AFFIRMED.
    Opinion of the Court by Tufte, Justice.
    Erica L. Chisholm, Wahpeton, N.D., for plaintiff and appellant.
    Tressie C. Brazil, Fargo, N.D., for defendant and appellee.
    Anderson v. Pedie
    No. 20210147
    Tufte, Justice.
    Karley Anderson appeals from an order denying her motion to modify
    residential responsibility and from a contempt order awarding attorney’s fees
    to Seth Pedie. Anderson argues the district court erred by concluding she failed
    to establish a prima facie case for modification entitling her to an evidentiary
    hearing, and awarding attorney’s fees in excess of the amount requested. Pedie
    requests sanctions against Anderson for violating the North Dakota Rules of
    Appellate Procedure. We affirm the order denying Anderson’s motion to modify
    residential responsibility and the contempt order awarding attorney’s fees, and
    deny sanctions on appeal.
    I
    Anderson and Pedie are parents to one minor child, W.D.P. After ending
    their relationship, both parents sought primary residential responsibility of
    W.D.P. In February 2020, after a bench trial, the district court entered its
    findings of fact, conclusions of law, and order for judgment awarding Pedie
    primary residential responsibility, subject to Anderson’s right to reasonable
    parenting time. The court ordered the parents to share in decision-making
    responsibility for educational, medical, and religious decisions. Judgment was
    entered accordingly.
    In October 2020, Pedie moved the court for an order finding Anderson in
    contempt, arguing she had violated various provisions of the judgment. He
    requested attorney’s fees in the amount of $1,500 as a sanction. In December
    2020, Anderson moved to modify primary residential responsibility, contending
    Pedie neglected W.D.P.’s physical and emotional health and developmental
    needs. The district court denied Anderson’s motion to modify primary
    residential responsibility without an evidentiary hearing, concluding she failed
    to make a prima facie case for modification. The court found Anderson in
    contempt of court for failing to notify Pedie of medical appointments and
    1
    providing false allegations to medical professionals of harm to W.D.P. The court
    awarded Pedie attorney’s fees in the amount of $2,000.
    II
    Anderson argues she was entitled to an evidentiary hearing because she
    established a prima facie case for modification of primary residential
    responsibility. “Whether a party presented a prima facie case for a change of
    primary residential responsibility is a question of law, which this Court
    reviews de novo.” Schumacker v. Schumacker, 
    2011 ND 75
    , ¶ 6, 
    796 N.W.2d 636
    .
    Anderson’s motion to modify primary residential responsibility was
    made within two years of the date of entry of the order granting Pedie primary
    residential responsibility, which triggers the heightened requirements of
    N.D.C.C. § 14-09-06.6(1), (3), (5), which provide in relevant part:
    1. Unless agreed to in writing by the parties, or if included in the
    parenting plan, no motion for an order to modify primary
    residential responsibility may be made earlier than two years after
    the date of entry of an order establishing primary residential
    responsibility, except in accordance with subsection 3.
    ....
    3. The time limitation in subsections 1 and 2 does not apply if the
    court finds:
    ....
    b. The child’s present environment may endanger the child’s
    physical or emotional health or impair the child’s emotional
    development[.]
    ....
    5. The court may not modify the primary residential responsibility
    within the two-year period following the date of entry of an order
    establishing primary residential responsibility unless the court
    2
    finds the modification is necessary to serve the best interests of the
    child and:
    ....
    b. The child’s present environment may endanger the child’s
    physical or emotional health or impair the child’s emotional
    development[.]
    Anderson argues the district court analyzed the modification of primary
    residential responsibility under the more lenient requirements of N.D.C.C.
    § 14-09-06.6(6) (requiring a material change in circumstances), which applies
    if a modification is sought after two years following the date of an order
    establishing primary residential responsibility. Although the court
    acknowledged the heightened standard applied, the court, at least in part,
    applied the changed circumstances standard. However, we “will not set aside
    a correct result merely because an incorrect, more relaxed standard was
    applied, if the result is the same under the correct law and reasoning.” State
    ex rel. D.D. v. G.K., 
    2000 ND 101
    , ¶ 6, 
    611 N.W.2d 179
    . Thus, the court’s
    application of the changed circumstances standard alone is not reversible
    error, and we must review the modification motion under the heightened
    requirements of N.D.C.C. § 14-09-06.6(1), (3), (5).
    The district court “shall consider the motion [to modify primary
    residential responsibility] on briefs and without oral argument or evidentiary
    hearing and shall deny the motion unless the court finds the moving party has
    established a prima facie case justifying a modification.” N.D.C.C. § 14-09-
    06.6(4). The court shall set an evidentiary hearing only if the moving party has
    established a prima facie case. Id.
    A prima facie case only requires facts which, if proved at an
    evidentiary hearing, would support a change of custody that could
    be affirmed if appealed. A prima facie case is only enough evidence
    to allow the fact-trier to infer the fact at issue and rule in the
    party’s favor. It is a bare minimum. 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
    3
    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. Competence usually requires that the witness
    have first-hand knowledge, and witnesses are generally not
    competent to testify to what they suspect the facts are.
    Sweeney v. Kirby, 
    2013 ND 9
    , ¶ 5, 
    826 N.W.2d 330
     (cleaned up).
    Anderson argues W.D.P.’s environment under Pedie’s care is endangering
    his physical or emotional health or is impairing his emotional development. In
    her affidavit supporting modification, Anderson alleged W.D.P. suffered from
    cuts and bruises, sleepwalking, pants wet with urine, constipation, a failure to
    gain weight, and separation anxiety. Anderson does not have personal
    knowledge of the causes of these events, but speculates they are due to Pedie
    neglecting his parental responsibilities. Anderson filed two letters from
    certified nurse practitioners as exhibits to her modification motion. One letter
    simply states the diagnoses that W.D.P. was being seen for on that visit to the
    clinic. Another letter states W.D.P. sustained a laceration that in the nurse
    practitioner’s opinion would not have required antibiotics had W.D.P. been
    evaluated within a few hours of the injury. These letters do not support
    Anderson’s allegation that W.D.P.’s environment under Pedie’s care caused or
    contributed to W.D.P.’s injuries or illnesses. Even if the need for antibiotics
    referred to in the second letter was due to Pedie’s inaction, the isolated incident
    does not rise to the level of endangering W.D.P.’s physical or emotional health
    or impairing his emotional development as required by statute.
    Anderson also alleges Pedie has refused speech and occupational therapy
    for W.D.P. However, Anderson acknowledges that W.D.P. is attending Red Door
    Pediatric Therapy for speech and occupational therapy. Further, Anderson
    alleges there have been several Child Protective Services (“CPS”) reports
    prepared by mandated reporters concerning W.D.P. She does not identify what
    those alleged reports state concerning W.D.P., except in one instance where she
    simply states CPS was investigating a report regarding bruising on W.D.P.
    Anderson does not allege that CPS has taken any action against Pedie for his
    care of W.D.P. or recommended any services to him.
    4
    We conclude that Anderson’s assertions do not create prima facie
    evidence that W.D.P.’s environment under Pedie’s care is endangering his
    physical or emotional health or impairing his emotional development.
    III
    Anderson argues the district court erred in awarding Pedie attorney’s
    fees in the amount of $2,000 as a sanction after finding her in contempt of
    court. Anderson does not challenge the contempt of court finding, but rather
    the amount of attorney’s fees. She contends that because Pedie requested
    attorney’s fees in the amount of $1,500 in his affidavit in support of his
    contempt motion, the court erred by awarding the increased amount of $2,000
    without further findings or reasoning. Anderson does not provide any
    supporting legal authority for her argument.
    “The district court has discretion to award attorney’s fees as part of a
    remedial sanction for contempt to reimburse the complainant for costs and
    expenses incurred as a result of the contempt.” Harvey v. Harvey, 
    2016 ND 251
    ,
    ¶ 7, 
    888 N.W.2d 543
    . In Pedie’s affidavit in support of his motion for contempt,
    he stated, “Because of [Anderson]’s violations of the Judgment, I will incur at
    least $1,500 in attorney fees and costs to file this motion and appear at the
    hearing.” (Emphasis added.) After the hearing on the contempt motion, Pedie
    submitted his closing argument in which he requested “$3,000, as and for a
    portion of the attorney fees he incurred as a result of [his] contempt motion.”
    Anderson did not object to the $3,000 in attorney’s fees. The court ordered as a
    sanction that Anderson refrain from engaging in further contemptible conduct
    and pay “a portion of [Pedie’s] attorney’s fees incurred in the creation and
    prosecution of this motion,” awarding attorney’s fees in the amount of $2,000
    as a sanction. Anderson does not contend attorney’s fees were discussed at the
    contempt hearing, and did not request a transcript of the hearing. As the
    appellant, Anderson bears the responsibility of providing a transcript or
    assumes the consequences of failing to provide one. See N.D.R.App.P. 10(b)(1).
    Accordingly, the court did not abuse its discretion by awarding Pedie attorney’s
    fees in the amount of $2,000 for Anderson’s contempt of court.
    5
    IV
    Pedie requests sanctions on appeal against Anderson for violating
    N.D.R.App.P. 30 (appendix to the briefs) and N.D.R.App.P. 31 (filing and
    service of briefs). Under N.D.R.App.P. 13, we “may take appropriate action
    against any person failing to perform an act required by rule or court order.”
    “Whether to administer sanctions under N.D.R.App.P. 13 for noncompliance
    with the Rules of Appellate Procedure is discretionary with this Court.”
    Krump-Wootton v. Krump, 
    2019 ND 275
    , ¶ 7, 
    935 N.W.2d 534
    . We have
    examined the alleged violations of the appellate rules, and we decline to
    exercise our discretion to award sanctions on appeal.
    V
    We affirm the order denying Anderson’s motion to modify residential
    responsibility and the contempt order awarding attorney’s fees, and deny
    sanctions on appeal.
    Jon J. Jensen, C.J.
    Gerald W. VandeWalle
    Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    6
    

Document Info

Docket Number: 20210147

Judges: Tufte, Jerod E.

Filed Date: 1/21/2022

Precedential Status: Precedential

Modified Date: 1/21/2022