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2004 ND 15

Tank v. Tank

North Dakota Supreme Court

Decided January 20, 2004

North Dakota Supreme Court · decided 2004-01-20

Key passage — most relied on by later courts

“The legislature has provided that before there is a hearing on change of custody, the petitioner must present affidavits establishing a prima facie case justifying a modification. N.D.C.C. § 14-09-06.6(4). "Prima facie evidence" or "prima facie case" are legal terms with well-established meanings. See Black's Law Dictionary 579 & 1209 (7th ed.1999). The North Dakota Century Code itself specifies how it is to be interpreted. N.D.C.C. tit. 1. The Code specifies that words are to be understood in their ordinary sense unless a contrary meaning plainly appears. N.D.C.C. § 1-02-02. The Code specifies that there is no common law (judge-made law) when the law is declared by statute. N.D.C.C. § 1-01-06. Here the majority interprets prima facie evidence in a way contrary to the ordinarily understood meaning of the term, and the majority substitutes its judge-made law for the enactment of the legislature.”

quoted by 1 later decision, including Lagro v. Lagro

“they do not show a basis of actual personal knowledge, or they are conclusory, stating conclusions without the support of evidentiary facts.”

quoted by 1 later decision, including Lagro v. Lagro

Relies on State v. Schill · Schnoor Ex Rel. Schnoor v. Meinecke

Good law ✅— No negative treatment on recordhow we know

Decided 2004-01-20

How this case has been cited

Cited by 25 later decisions — most recently January 2026 · most notably Schumacker v. Schumacker (2011), Green v. Green (2009)

23 state decisions

100200420102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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SANDSTROM, Justice,

¶1dissenting.

¶2[¶ 51] Because the majority is imper-missibly substituting its views for the clear action of the legislature, I respectfully dissent.

¶3[¶ 52] The legislature has provided that before there is a hearing on change of custody, the petitioner must present affidavits establishing a prima facie case justifying a modification. N.D.C.C. § 14-09-06.6(4). “Prima facie evidence” or “prima facie case” are legal terms with well-established meanings. See Blank’s Law Dictionary 579 & 1209 (7th éd.1999). The North Dakota Century Code itself specifies how it is to be interpreted. N.D.C.C. tit. 1. The Code specifies that words are to be understood in their ordinary sense unless a contrary meaning plainly appears. N.D.C.C. § 1-02-02. The Code specifies that there is no common law (judge-made law) when the law is declared by statute. N.D.C.C. § 1-01-06. Here the majority interprets prima facie evidence in a way contrary to the ordinarily understood meaning of the term, and the majority substitutes its judge-made law for the enactment of the legislature.

¶4[¶ 53] Prima facie evidence is admissible evidence that, if uncontradicted, would be sufficient to justify a judgment in the presenting party’s favor. Black’s Law Dictionary 579 & 1209 (7th ed.1999).

¶5[¶ 54] Here the majority says, in effect, that much less than prima facie evidence is necessary to entitle a moving party to a hearing on change of custody, even though *635the legislature has said only prima facie evidence is sufficient.

¶6[¶ 55] A prima facie case requires competent and sufficiently specific nonconclu-sory evidence. See Schnoor v. Meinecke, 77 N.D. 96, 40 N.W.2d 803, 808 (1950). Competence generally requires that the witness have first-hand knowledge of facts. Black’s Law Dictionary 576-77 (7th ed.1999). How does the person know? Witnesses are generally not competent to testify to what they only “suspect” or “secretly hope” the facts are. See State v. Schill, 406 N.W.2d 660, 662 (N.D.1987).

¶7[¶ 56] Affidavits fail to establish a pri-ma facie case when they are not competent, they do not show a basis of actual personal knowledge, or they are coneluso-ry, stating conclusions without the support of evidentiary facts.

¶8[¶ 57] I generally agree with the majority that if the allegations here were supported by specific, competent, admissible evidence, they would be sufficient to justify a hearing. But I agree with Justice Maring’s dissent that most of the allegations are not supported by specific, competent, admissible evidence.

¶9[¶ 58] I would affirm the district court.

¶10[¶ 59] Dale V. Sandstrom

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