Kerzmann v. Kerzmann , 2021 ND 183 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
OCTOBER 14, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 183Jerry M. Kerzmann, Plaintiff and Appellee
and
Tonya L. Kerzmann, Defendant and Appellant
No. 20210086
Appeal from the District Court of McLean County, South Central Judicial
District, the Honorable John W. Grinsteiner, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Jensen, Chief Justice.
Justin D. Hager, Bismarck, ND, for plaintiff and appellee.
Theresa L. Kellington, Bismarck, ND, for defendant and appellant.
Kerzmann v. Kerzmann
No. 20210086
Jensen, Chief Justice.
[¶1] Tonya Kerzmann appeals from a district court’s denial of her request for
an evidentiary hearing on her motion for a change in primary residential
responsibility. We conclude Tonya Kerzmann pled a prima facie case
supporting her motion for modification of primary residential responsibility.
We reverse the order of the district court and remand for further proceedings.
I
[¶2] Tonya Kerzmann and Jerry Kerzmann were married and have two
children, K.K. and B.K. They were divorced in 2016, and the parties agreed
Jerry Kerzmann would receive primary residential responsibility of the
children. Shortly after the entry of the initial judgment, Tonya Kerzmann
unsuccessfully moved to set aside the parties’ agreement. In March 2017, the
initial judgment was amended to provide Tonya Kerzmann parenting time
with the children every other weekend. In March 2018, Tonya Kerzmann filed
a motion seeking additional parenting time. The March 2018 motion was
resolved when the parties reached an agreement to dismiss the parenting time
motion along with other pending motions.
[¶3] In February 2021, Tonya Kerzmann again moved for modification of the
judgment and requested an evidentiary hearing to modify residential
responsibility of the children under N.D.C.C. § 14-09-06.6(6). As required by
N.D.C.C. § 14-09-06.6(6), Tonya Kerzmann provided an affidavit intended to
establish a prima facie case for her motion for modification of parental
responsibility, a prerequisite to being granted a full evidentiary hearing. She
asserted that the following constituted significant changes in circumstances:
that Jerry Kerzmann does not provide her with the opportunity to exercise
parenting time when he is unable to parent as required in the judgment; that
Jerry Kerzmann fails to discuss the children’s medical care with her; that Jerry
Kerzmann intentionally interferes with parenting time; that Jerry Kerzmann
has not initiated a weekly phone call to allow her to speak to the children as
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required by the judgment; and that Jerry Kerzmann has directed the children’s
school to not allow Tonya Kerzmann at school functions. Included within her
affidavit were the following additional allegations: dental care for the children
had been neglected; Jerry Kerzmann was intentionally trying to alienate the
children from her; and concern about the failure to follow through with
recommended therapy for the children.
[¶4] Jerry Kerzmann submitted an affidavit denying Tonya Kerzmann’s
allegations. He argued the supporting affidavit was not competent because it
was comprised of inadmissible evidence, the affidavit lacked credibility, and it
would not be in the best interests of the children to modify custody.
[¶5] The district court denied the request for an evidentiary hearing, after
finding Tonya Kerzmann did not establish a prima facie case warranting an
evidentiary hearing. The court found the supporting affidavit was primarily
comprised of inadmissible hearsay and the allegations within the affidavit
were made with limited first-hand knowledge. The court also found that even
if the requirement to provide prima facie evidence of a material change in
circumstances was satisfied, there was no competent evidence that a change in
primary residential responsibility was necessary for the best interests of the
children.
II
[¶6] “Whether a moving party has established a prima facie case for a
modification of primary residential responsibility is a question of law which
this Court reviews de novo on appeal.” Baker v. Baker, 2019 ND 225, ¶ 7, 932
N.W.2d 510 (citing Heidt v. Heidt, 2019 ND 45, ¶ 8, 923 N.W.2d 530). When a
motion to modify primary residential responsibility is brought more than two
years after the date of entry of an order establishing primary residential
responsibility, modification is appropriate only if the district court finds the
following:
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
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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.
N.D.C.C. § 14-09-06.6(6).
[¶7] Before proceeding to a full evidentiary hearing on a motion to modify
primary residential responsibility, the party moving for the modification must
establish a prima facie case. Wolt v. Wolt, 2011 ND 170, ¶ 7, 803 N.W.2d 534.
An initial prima facie showing is required by N.D.C.C. § 14-09-06.6(4), which
reads as follows:
A party seeking modification of an order concerning primary
residential responsibility shall serve and file moving papers and
supporting affidavits and shall give notice to the other party to the
proceeding who may serve and file a response and opposing
affidavits. The court shall consider the motion 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. The court shall set a
date for an evidentiary hearing only if a prima facie case is
established.
[¶8] A prima facie case requires facts that show there could be a change in
custody if they are proven at an evidentiary hearing. Klundt v. Benjamin, 2021
ND 149, ¶ 6, 963 N.W.2d 278 (internal citations omitted).
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.
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Id. (quoting Johnshoy v. Johnshoy, 2021 ND 108, ¶ 5, 961 N.W.2d 282).
A
[¶9] Section 14-09-06.6(6)(a), N.D.C.C., requires a material change in
circumstances to modify primary residential responsibility. Tonya Kerzmann
argues she sufficiently alleged prima facie evidence of a material change in
circumstances to warrant an evidentiary hearing.
[¶10] A district court may deny an evidentiary hearing when the opposing
party presents affidavits showing the moving party has no credibility or the
allegations are insufficient to justify residential responsibility modification.
Schumacker v. Schumacker, 2011 ND 75, ¶ 8, 796 N.W.2d 636. “Whether an
alleged change in circumstance is material depends upon the particularities of
a given case.” Forster v. Flaagan, 2016 ND 12, ¶ 11, 873 N.W.2d 904. While “a
frustration of parenting time does not alone constitute a sufficient change in
circumstances to warrant a change in primary residential responsibility . . .
‘allegations of parental frustration of parenting time may be a basis to grant
an evidentiary hearing.’” Baker, 2019 ND 225, ¶ 13 (quoting Hankey v. Hankey,
2015 ND 70, ¶ 12, 861 N.W.2d 479).
[¶11] In her affidavit, Tonya Kerzmann described the following actions by
Jerry Kerzmann, which she asserts create a material change in circumstances:
the denial of parenting time; the failure to encourage a relationship between
her and the children; the refusal to discuss medical issues with her;
interference with access to the children’s school; and using his position as a law
enforcement officer to prevent her access to the school. Tonya Kerzmann
provided documentation that one of the minor children’s therapy appointments
was cancelled and school notes regarding her denial of access to K.K.’s school.
She also provided the district court with text message exchanges between the
parties regarding parenting time. Because the affidavits included information
Tonya Kerzmann represented to be based on her personal knowledge,
incorporated documentation of exchanges between the parties, and the alleged
facts could be the basis in which to modify residential responsibility of the
children, Tonya Kerzmann met her burden to provide a prima facie showing of
a change in circumstances sufficient to satisfy N.D.C.C. § 14-09-06.6(6)(a).
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III
[¶12] Section 14-09-06.6(6)(b) requires any modification of the existing
primary residential responsibility to be necessary to serve the best interests of
the child. Tonya Kerzmann argues she has presented sufficient evidence to
meet her burden of showing a prima facie case that modification is necessary
to serve the best interests of the children.
[¶13] In considering whether the moving party has met the prima facie burden
related to N.D.C.C. § 14-09-06.6(6)(b), the district court must consider the
applicable N.D.C.C. § 14-09-06.2(1) factors. See Schroeder v. Schroeder, 2014
ND 106, ¶ 7, 846 N.W.2d 716. To satisfy the best interests, the moving party
must demonstrate a “factual showing that could justify a finding for the
moving party that could be affirmed on appeal.” Solwey v. Solwey, 2016 ND
246, ¶ 20, 888 N.W.2d 756 (emphasis in original). “This is not the time for the
district court to judge whether it would decide the best-interest factors in favor
of the moving party.” Id. at ¶ 20 (citing Wald v. Holmes, 2013 ND 212, ¶ 5, 839
N.W.2d 820) (emphasis in original).
[¶14] Tonya Kerzmann’s affidavit described incidents where Jerry Kerzmann
has not attended to the children’s developmental needs and the children have
exhibited inappropriate behavior for their ages. Tonya Kerzmann’s affidavit
described problems with the children’s dental care. Further, she described in
her affidavit Jerry Kerzmann’s failure to facilitate a relationship between her
and the children, specifically, that K.K. often refuses time with her, leading to
a separation of K.K. and B.K. The affidavit also described how Jerry Kerzmann
has failed to follow-through with counseling for K.K.
[¶15] While Jerry Kerzmann argues the statements within Tonya Kerzmann’s
affidavit are either untrue or he has different explanations for them, we must
accept Tonya Kerzmann’s statements within the affidavit as true. See Solwey,
2016 ND 246, ¶ 18. The statements, assumed true, implicate the best interest
factors under N.D.C.C. § 14-09-06.2(1) (c), (e), and (h), because the statements
relate to the children’s developmental needs, the willingness of each parent to
facilitate a relationship with the other, and the school records of the children.
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[¶16] Tonya Kerzmann’s affidavit also provides prima facie evidence the
children are being adversely affected as required by our prior case law
interpreting the legislature’s use of the term “necessary.” See Johnshoy, 2021
ND 108, ¶ 9; Kelly v. Kelly, 2002 ND 37, ¶ 16, 640 N.W.2d 38. The affidavit
includes descriptions of Jerry Kerzmann frustrating Tonya Kerzmann’s
parenting time, failing to facilitate a relationship between the children and
Tonya Kerzmann, failing to follow through with recommended counseling for
the children, and failing to provide adequate dental care for the children. The
affidavit is sufficient to provide a prima facie showing the children may be
adversely affected.
[¶17] Under our de novo review, we conclude Tonya Kerzmann has met her
burden of showing a modification of residential responsibility could be in the
best interests of the children. Because these facts implicate several best
interests factors, which if proven at an evidentiary hearing, could result in a
modification of residential responsibility, we find Tonya Kerzmann has
satisfied N.D.C.C. § 14-09-06.6(6)(b).
IV
[¶18] Tonya Kerzmann provided a prima facie showing of both a material
change in circumstances as required by N.D.C.C. § 14-09-06.6(6)(a) and
provided a prima facie showing a modification is necessary for the best
interests of the children as required by N.D.C.C. § 14-09-06.6(6)(b). Because
she has provided a prima facie showing of both prongs of the statutory
framework, we reverse and remand for an evidentiary hearing on Tonya
Kerzmann’s motion to modify residential responsibility.
V
[¶19] Jerry Kerzmann moved for sanctions against Tonya Kerzmann asserting
she had included material from the record within the appendix that is not
relevant to the pending appeal. Jerry Kerzmann contends that as part of the
stipulated dismissal of Tonya Kerzmann’s March 2018 motion to amend her
parenting time, the district court ordered that “neither party will be allowed to
rely on these old allegations moving forward for any future motions.”
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Documents related to the March 2018 motion were included within the
Appellant’s Appendix. This Court “may take appropriate action against any
person failing to perform an act required by rule or court order,” N.D.R.App.P.
13, and it has discretion in determining whether to administer sanctions for
noncompliance with the appellate rules. Silbernagel v. Silbernagel, 2007 ND
124, ¶ 21, 736 N.W.2d 441. After reviewing the additional materials and noting
the materials are part of the court’s record, we decline to impose sanctions in
this matter.
VI
[¶20] Tonya Kerzmann provided an affidavit sufficient to establish prima facie
evidence supporting modification of residential responsibility of the children.
Accordingly, we reverse the order of the district court and remand for an
evidentiary hearing on the motion for modification of residential responsibility.
[¶21] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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