                Filed 2/21/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                  2019 ND 45


Robert M. Heidt,                                            Plaintiff and Appellee

      v.

Trina A. Heidt, n/k/a Trina Ann Iverson,                 Defendant and Appellant


                                 No. 20180250


      Appeal from the District Court of Walsh County, Northeast Judicial District,
the Honorable Anthony S. Benson, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by Jensen, Justice.

      Robert C. Fleming, Cavalier, ND, for plaintiff and appellee.

      Jerilynn Brantner Adams (argued) and Megan J. Gordon (appeared), Fargo,
ND, for defendant and appellant.
                                   Heidt v. Heidt
                                    No. 20180250


       Jensen, Justice.
[¶1]   Trina Iverson appeals from a district court order finding a prima facie case for
modification of primary residential responsibility had not been established with regard
to the parties’ two youngest children, G.I.H. and G.O.H. Iverson also asserts the
district court erred when it denied her motion to amend the findings and order. We
reverse the district court’s order and remand for an evidentiary hearing to determine
whether modification of primary residential responsibility for G.I.H. and G.O.H. is
appropriate.
                                          I.
[¶2]   Iverson and Robert Heidt were divorced in October 2012, but did not initially
address child custody issues. In September 2013, the parties agreed to award primary
residential responsibility of the parties’ seven minor children to Heidt. In June 2016,
Iverson filed her motion seeking modification of primary residential responsibility for
the parties’ minor children. Two of the parties’ children had reached the age of
majority and the five younger children were subject to the motion.
[¶3]   After the divorce, Heidt remained in Grafton and Iverson relocated to Fargo
to pursue job opportunities. In April 2014, Heidt remarried. Heidt’s new wife and
her three children moved into Heidt’s home which included the parties’ five minor
children, increasing the number of children in the home to eight. In June 2016,
Iverson sought to obtain primary residential responsibility of the minor children.
Iverson, two of the minor children—V.E.H. and J.J.H., as well as two of the older
siblings, filed affidavits in support of the requested modification. Heidt resisted the
motion and filed responsive affidavits from Heidt, his wife, and his parents.
[¶4]   In September 2016, the district court issued an order finding a prima facie case
only for V.E.H. and J.J.H. and denied Iverson’s request for an evidentiary hearing
regarding the two youngest children, G.I.H. and G.O.H. The district court also denied

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an evidentiary hearing with regard to R.H.H., due to the minor child’s affidavit
stating, though she supported her siblings relocating, she would prefer to remain in
Grafton to finish high school. As to G.I.H. and G.O.H., the district court found that
“simply a remarriage by the custodial parent and vague statements about the desires
of the youngest two children with the household as alleged by the Defendant are not
sufficient in this situation to support a finding of a prima facie case or warrant an
evidentiary hearing.”
[¶5]   Iverson filed a motion to amend findings and order to provide that a prima
facie case had been met as to G.I.H. and G.O.H. and to request an evidentiary hearing
for the four children she asserted wanted to live with her. The district court denied
the motion stating G.I.H. and G.O.H. did not provide a strong desire to change their
residence like J.J.H. and V.E.H. did in their affidavits. Iverson has not appealed the
denial of an evidentiary hearing with regard to R.H.H.
                                           II.
[¶6]   When a modification of primary residential responsibility is sought more than
two years after entry of the prior order establishing primary residential responsibility,
the motion is governed by N.D.C.C. § 14-09-06.6(6), which 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.
“A material change in circumstances is an important new fact that was unknown at
the time of the prior custody decision.” Thompson v. Thompson, 2012 ND 15, ¶ 6,
809 N.W.2d 331.
[¶7]   Prior to granting an evidentiary hearing on a motion seeking modification of
primary residential responsibility, the party seeking modification must initially
establish a prima facie case justifying a modification:

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       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.
N.D.C.C. § 14-09-06.6(4).
[¶8]   Whether a party has established a prima facie case for a change of primary
residential responsibility is a question of law which this Court reviews de novo. E.g.,
Sweeney v. Kirby, 2013 ND 9, ¶ 3, 826 N.W.2d 330; Thompson, 2012 ND 15, ¶ 6, 809
N.W.2d 331; Wolt v. Wolt, 2011 ND 170, ¶ 9, 803 N.W.2d 534. “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.” Kartes v. Kartes, 2013 ND 106, ¶ 9, 831 N.W.2d 731
(citing Sweeney, at ¶ 5). It is a “bare minimum” and requires only facts which, if
proved at an evidentiary hearing, would support a change of primary residential
responsibility that could be affirmed if appealed. Kartes, at ¶ 9; Sweeney, at ¶ 5.
Allegations alone, however, do not establish a prima facie case, and affidavits must
include competent information, which usually requires the affiant to have first-hand
knowledge. Thompson, at ¶ 6. “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.” Id.
[¶9]   In determining whether a prima facie case has been established, the district
court must accept the truth of the moving party’s allegations. Kartes, 2013 ND 106,
¶ 9, 831 N.W.2d 731; Schumacker v. Schumacker, 2011 ND 75, ¶ 8, 796 N.W.2d 636.
The party opposing the motion may attempt to rebut a prima facie case by presenting
evidence conclusively demonstrating the moving party is not entitled to a
modification, but when the opposing party’s evidence merely creates conflicting
issues of fact, the court may not weigh the conflicting allegations when deciding
whether a prima facie case has been established. Wolt, 2011 ND 170, ¶ 9, 803

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N.W.2d 534.      Only when the opposing party presents counter-affidavits that
conclusively show the allegations of the moving party have no credibility, or when
the movant’s allegations are, on their face, insufficient to justify custody modification,
may the district court decide the moving party has not established a prima facie case
and deny the motion without an evidentiary hearing. Id.
[¶10] Iverson submitted five affidavits: one from herself and four from her children.
Iverson’s affidavit states the children would have extended family in Fargo, Heidt has
physical issues which cause him pain, and the children’s healthcare issues are not
addressed in a timely manner.
[¶11] V.E.H.’s affidavit states, they (all the minor children) feel “stressed” and
“worried” in Grafton. V.E.H. also claims “[t]here is a lot of yelling and arguing in
Grafton. [All the minor children seem] to be happier in Fargo . . . .” J.J.H.’s affidavit
goes into greater detail and asserts there is a large amount of arguing and yelling in
the household and suggests Heidt and his new wife do not spend time with the
children. The affidavit of A.I.H., an older child not subject to the motion, asserts
Iverson’s home in Fargo has less conflict and is more stable than the home in Grafton.
A.I.H. also asserts Iverson is more approachable and trustworthy with private
information than Heidt. The affidavit of R.H.H. states Iverson’s home is less stressful
than Heidt’s and that the younger siblings are more comfortable with Iverson than
Heidt.
[¶12] In addition to the information contained in the affidavits, the district court
would have been aware that it had granted an evidentiary hearing for two of G.I.H.’s
and G.O.H.’s siblings, and would potentially be dividing custody for the parties’ four
youngest children. This Court has previously held that our trial courts should be
cautious about dividing primary residential responsibility of children. Schlieve v.
Schlieve, 2014 ND 107, ¶ 25, 846 N.W.2d 733. We have also recognized when
determining primary residential responsibility, “split custody of siblings is generally
disfavored.” Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142. This Court
recently approved the split primary residential responsibility of siblings, but only after

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concluding that “the court thoroughly explained its decision . . . .” Brouillet v.
Brouillet, 2016 ND 40, ¶¶ 12-13, 875 N.W.2d 485. While we decline to adopt a
policy that compels an evidentiary hearing for all children who are subject to an order
establishing primary residential responsibility if granted for some of the children
subject to the order, the potential for subsequent split primary residential
responsibility should be considered in determining whether a prima facie showing has
been made by the moving party.
[¶13] In finding no prima facie case existed for either G.I.H. or G.O.H., the district
court relied on the lack of a strong preference for modification being expressed by
either child. Because of their ages at the time the motion for modification was filed,
ten and seven, G.I.H. and G.O.H. did not submit affidavits. Given their young ages,
it is uncertain whether significant weight could have been placed on their preference
even if affidavits had been filed.
[¶14] We also note the potential for significant extension of the litigation process if
modification motions are handled in a piecemeal fashion.            In this instance,
modification was ultimately granted for two children. Their departure from the home
would likely satisfy a prima facie change in circumstances and result in a new motion
to modify primary residential responsibility. If that occurs, litigation which began in
2016 would be extended and likely span a period of three to four years in order to
decide modification issues that could have been resolved in the initial motion.
[¶15] Accepting the truth of the affidavits submitted by Iverson, the district court
became aware of Heidt’s remarriage, the addition of Heidt’s new spouse to the
household, the addition of three new children to the household, persistent arguing
between Heidt and his new spouse, and that the household was now stressful for all
of the children. The court would also have known that V.E.H. and J.J.H. no longer
wanted to reside in Heidt’s household and that there was a potential for creating what
this Court has generally regarded as a disfavored situation; the separation of G.I.H.
and G.O.H. from V.E.H. and J.J.H.          These circumstances were sufficient to



                                          5
demonstrate a prima facie case that a material change in circumstances had occurred
with regard to all four of the youngest children.
                                           III.
[¶16] The next step in determining whether an evidentiary hearing is required under
N.D.C.C. § 14-09-06.6(6)(b), is whether “[t]he modification is necessary to serve the
best interests of the child.” Iverson lists and discusses each of the best interest factors
in her affidavit. Iverson asserts the children are suffering emotional damage which
cannot be rectified without a change in primary residential responsibility. The
allegations of consistent arguing between Heidt and his wife, their alleged poor
relationship with the children, as well as the stressful household, is a basis for
Iverson’s position that modification is necessary to prevent emotional damage to the
children. See Schroeder v. Schroeder, 2014 ND 106, ¶ 19, 846 N.W.2d 716
(modification is necessary to serve the best interests of the child if a child’s present
environment endangers emotional health or impairs emotional development). The
district court would also have been aware that it was creating a potential for
separating G.I.H. and G.O.H. from their siblings. Separation of siblings is disfavored
and the court should have gone into greater detail regarding why it was compelled to
entertain this possibility. When taken as true, the arguments advanced by Iverson are
sufficient to support a prima facie finding that the modification is necessary to serve
the best interests of G.I.H. and G.O.H. because they have been exposed to a stressful
environment which may endanger their emotional health or impair their development.
[¶17] Heidt submitted various affidavits to the district court opposing modification
of residential responsibility. Those affidavits merely contradict Iverson’s allegations
and do not conclusively demonstrate Iverson is not entitled to a modification.




                                           IV.
[¶18] Because this Court concludes a prima facie case has been established for G.I.H.
and G.O.H., it is unnecessary to determine if the district court erred when it denied

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Iverson’s motion to amend the findings and order. We conclude Iverson established
a prima facie case for modification of primary residential responsibility of G.I.H. and
G.O.H. and was entitled to an evidentiary hearing. We reverse the district court’s
order and remand for further proceedings to determine if modification of primary
residential responsibility for G.I.H. and G.O.H. is appropriate.
[¶19] Jon J. Jensen
      Lisa Fair McEvers
      Daniel J. Crothers
      Jerod E. Tufte
      Gerald W. VandeWalle, C.J.




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