inline"> FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT AUGUST 5, 2021 STATE OF NORTH DAKOTA IN THE SUPREME COURT STATE OF NORTH DAKOTA 2021 ND 149


James F. Klundt,                                         Plaintiff and Appellee
      v.
Rebecca L. Benjamin,                                 Defendant and Appellant
      and
State of North Dakota,                         Statutory Real Party in Interest

                                No. 20210048

Appeal from the District Court of Bottineau County, Northeast Judicial
District, the Honorable Donovan J. Foughty, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Erin M. Conroy, Bottineau, ND, for plaintiff and appellee.

Kyle R. Craig, Minot, ND, for defendant and appellant.
                            Klundt v. Benjamin
                               No. 20210048

VandeWalle, Justice.

[¶1] Rebecca Benjamin appealed from an order denying her motions for
interim relief and to modify primary residential responsibility. We affirm,
concluding the district court did not err in determining Benjamin had not
established a prima facie case warranting an evidentiary hearing.

                                       I

[¶2] Benjamin and James Klundt have one child together, born in 2012. In
September 2018, Klundt was awarded primary residential responsibility, and
Benjamin was awarded parenting time. At the time of the 2018 judgment,
Klundt and the child lived in Newburg, North Dakota, and Benjamin lived in
Michigan.

[¶3] In December 2020, Benjamin moved for an interim order under
N.D.R.Ct. 8.2(b), and moved to modify residential responsibility under
N.D.C.C. § 14-09-06.6 and N.D.R.Ct. 3.2. She requested primary residential
responsibility of the child. In Benjamin’s affidavit supporting her motions, she
stated she moved to North Dakota in April 2019, and she lived approximately
eighteen miles away from the child, which allowed them to spend more time
together. She stated that in late November 2020, Klundt and the child moved
to Bismarck. She claimed her move to North Dakota and Klundt’s move to
Bismarck was a material change in circumstances warranting a change in
primary residential responsibility.

[¶4] The district court denied Benjamin’s motions, concluding she had not
established a prima facie case warranting an evidentiary hearing. The court
determined the original judgment allowed Klundt to move within the state,
and even if Benjamin’s allegations were undisputed, they were “insufficient on
their face to justify modification.”




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                                        II

[¶5] Benjamin argues the district court erred in concluding she had not
established a prima facie case warranting an evidentiary hearing.

[¶6] Under N.D.C.C. § 14-09-06.6(4), the district court must deny a motion to
modify primary residential responsibility unless the court finds the moving
party has established a prima facie case justifying a modification. We have
expounded our analysis of a motion to modify primary residential
responsibility:

      Under N.D.C.C. § 14-09-06.6(6)(a), we have explained that a
      “material change in circumstances” is an important new fact that
      was unknown at the time of the prior custody decision. The party
      moving for a change of primary residential responsibility has the
      burden of establishing a prima facie case under N.D.C.C. § 14-09-
      06.6(4) to justify modification before the party is entitled to an
      evidentiary hearing. 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.

      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.

Johnshoy v. Johnshoy,

2021 ND 108, ¶ 5

961 N.W.2d 282

 (quoting Solwey v.
Solwey,

2016 ND 246, ¶ 11

888 N.W.2d 756

).

[¶7] When more than two years have passed since an order establishing
primary residential responsibility, a prima facie case consists of facts sufficient
to support a finding of a material change in circumstances and that a change


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in residential responsibility is necessary to serve the best interests of the child.
N.D.C.C. § 14-09-06.6(6). A “material change in circumstances” under N.D.C.C.
§ 14-09-06.6(6)(a) is an important new fact that was unknown at the time of
the earlier decision on primary residential responsibility. Solwey,

2016 ND 246, ¶ 11

.

[¶8] To satisfy the second part of N.D.C.C. § 14-09-06.6(6), i.e., that a
modification is necessary to serve the best interests of the child at the prima
facie case stage “requires a factual showing that could justify a finding for the
moving party that could be affirmed on appeal.” Solwey,

2016 ND 246, ¶ 20

. “A
prima facie case justifying a modification of primary residential responsibility
and, therefore, an evidentiary hearing, is established by a material change in
circumstances ‘which either “requires” a change of custody for the child’s best
interests or “fosters” or “serves” the child’s best interests.’” Johnshoy,

2021 ND 108, ¶ 9

 (quoting Schroeder v. Schroeder,

2014 ND 106, ¶ 7

846 N.W.2d 716

).
“There must be a showing that the change in circumstances has adversely
affected the children.” Johnshoy, at ¶ 9.

[¶9] Benjamin’s affidavit states that since the 2018 judgment establishing
primary residential responsibility, her circumstances have improved because
she has been living in North Dakota since April 2019. She stated she and her
other children have developed a closer bond with the parties’ child since
moving back to North Dakota. She stated she received a notification in
September 2020 from a school counselor indicating the child was “having a
hard time in school.” Benjamin’s affidavit states Klundt has struggled to hold
down a job, and a move to Bismarck would have a negative effect on the child.
Her affidavit states, “I am worried about [the child] moving to a new city and
a new school where he is not familiar with anything or anyone. I don’t believe
this move would benefit my son in any way.”

[¶10] In response, Klundt’s affidavit stated he lost his job in Newburg due to
Covid-19. Klundt stated Bismarck provided more employment opportunities
for him, and he believed the move was best for the child.




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[¶11] Benjamin claims a material change in circumstances occurred and
modification of primary residential responsibility is necessary because her
circumstances have improved, and Klundt’s circumstances have declined. See
Johnshoy,

2021 ND 108, ¶ 7

 (stating improvements in a non-custodial parent’s
situation along with a decline in the children’s circumstances with the
custodial parent over the same time may constitute a material change in
circumstances). In Johnshoy, at ¶ 13, we addressed a situation similar to the
one presented by Benjamin:

            “[T]o establish a prima facie case that modification is
      necessary to serve the best interests of the children requires more
      than the improved circumstances of the party moving to modify
      primary residential responsibility.” Schroeder,

2014 ND 106, ¶ 21

846 N.W.2d 716

. Fry’s affidavit does not provide facts showing how
      the change in circumstances has affected the children. She has not
      provided evidence that the children have suffered physical or
      emotional harm. She has provided no evidence that the change in
      circumstances has prevented Johnshoy from providing the
      children with nurture, love, affection, and guidance. She does not
      allege that the children’s developmental or educational needs are
      not being met by Johnshoy. While Fry has provided facts, which if
      proved, would show an improvement in her situation, she has not
      provided facts that would show a decline in the condition of the
      children with Johnshoy over the same period. Fry’s affidavit fails
      to show how a change in custody is necessary to serve the best
      interests of the children and thus fails to establish a prima facie
      case for modification of primary residential responsibility.

[¶12] Even if we assume Benjamin’s affidavit established a material change in
circumstances, we conclude Benjamin has not demonstrated that modification
of primary residential responsibility is necessary to serve the child’s best
interests. Although Benjamin noted one instance showing the child was having
a hard time at school, she has not otherwise established that Klundt has failed
to meet the child’s educational needs. Benjamin’s affidavit stated she was
worried the move to Bismarck may not benefit the child; however, she has not
provided facts showing how the move has had an adverse impact on the child.
Benjamin has not established a prima facie case for modification of primary



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residential responsibility because she has failed to show how a change is
necessary to serve the best interests of the child.

[¶13] We conclude the district court did not err in concluding Benjamin failed
to establish a prima facie case for modification of primary residential
responsibility.

                                     III

[¶14] Klundt’s remaining arguments are either without merit or not necessary
to our decision. The order is affirmed.

[¶15] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




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