IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2026 ND 10
Ashley Marie Cull, Plaintiff and Appellant
v.
Andrew James Cull, Defendant and Appellee
No. 20250303
Appeal from the District Court of Pembina County, Northeast Judicial District,
the Honorable Barbara L. Whelan, Judge.
AFFIRMED.
Opinion of the Court by Bahr, Justice.
Jacey L. Johnston and Blayze Fisher, under the Rule on Limited Practice of Law
by Law Students, Grand Forks, ND, for plaintiff and appellant; on brief.
Patti J. Jensen, East Grand Forks, MN, for defendant and appellee; on brief.
Cull v. Cull
No. 20250303
Bahr, Justice.
[¶1] Ashley Cull appeals the district court order denying her motion to award
her primary residential responsibility of the parties’ two minor children, K.J.C.
and R.R.C. She argues the court erred in concluding she did not establish a prima
facie case entitling her to an evidentiary hearing. We affirm the court’s order
denying Ashley Cull’s motion to modify primary residential responsibility.
I
[¶2] Ashley Cull and Andrew Cull were married in October 2013. The parties
have two children together: K.J.C., born in 2016, and R.R.C., born in 2019. In June
2021, Ashley Cull initiated a divorce action. The district court entered a
stipulated judgment of divorce in January 2022. In March 2022, the court entered
an amended judgment. Andrew Cull was awarded primary residential
responsibility in both judgments.
[¶3] In February 2025, Ashley Cull filed a motion to modify primary residential
responsibility under N.D.C.C. § 14-09-06.6. She filed two supporting
declarations, her declaration and her parents’ joint declaration. Andrew Cull
responded to the motion, filing fourteen declarations.
[¶4] In June 2025, the district court issued an order denying the motion. The
court concluded Ashley Cull failed to establish a prima facie case under N.D.C.C.
§ 14-09-06.6 because “there has been no material change in circumstances of the
children or parties, and . . . modification of the existing primary residential
responsibility determination is not necessary to serve the best interests of the
children.”
II
[¶5] Ashley Cull argues she is entitled to an evidentiary hearing because she
established a prima facie case for modification of primary residential
responsibility under N.D.C.C. § 14-09-06.6. She asserts she supported her motion
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with competent, firsthand sworn statements, exhibits, and school records that
show Andrew Cull delegates parenting responsibility to his mother, making her
the children’s primary caregiver; there is a “lack of consistent routine and
structure” in Andrew Cull’s home, and he has “limited engagement with the
children’s schooling,” adversely impacting the children’s behavior and academic
performance; Andrew Cull made “unsafe parenting decisions that placed the
children at risk”; and other grounds justifying modification.
A
[¶6] A district court may modify primary residential responsibility under
N.D.C.C. § 14-09-06.6. “When a party seeks modification of primary residential
responsibility two years after entry of the prior order establishing primary
residential responsibility, the party must establish a prima facie case justifying
modification.” Weber v. Pennington, 2025 ND 105, ¶ 7,
22 N.W.3d 726; see also
N.D.C.C. § 14-09-06.6. The court considers the motion on briefs without oral
argument or an evidentiary hearing, and must deny the motion unless it finds
the moving party established a prima facie case justifying the modification.
N.D.C.C. § 14-09-06.6(4). The moving party is entitled to an evidentiary hearing
only if the court finds the party established a prima facie case justifying
modification. Weber, ¶ 8.
[¶7] A party seeking modification of primary residential responsibility
establishes a prima facie case by showing: (1) based on facts that have arisen
since the prior order, 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 (2) the modification is necessary to serve the best interest of the child.
N.D.C.C. § 14-09-06.6(6). “To warrant modification, the material change in
circumstances must adversely affect the child or result in a general decline in the
child’s condition.” Weber,
2025 ND 105, ¶ 12 (quoting Anderson v. Spitzer,
2022
ND 110, ¶ 7,
974 N.W.2d 695). “Whether an alleged change in circumstance is
material depends upon the particularities of a given case.”
Id. (quoting Kerzmann
v. Kerzmann,
2021 ND 183, ¶ 10,
965 N.W.2d 427).
[¶8] We have explained:
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[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.
Weber, 2025 ND 105, ¶ 8 (quoting Kerzmann,
2021 ND 183, ¶ 8). “A district court
may conclude the moving party failed to establish a prima facie case only if the
opposing party presents counter affidavits conclusively establishing the
allegations of the moving party have no credibility, or if the movant’s allegations
are insufficient, on their face, to justify custody modification.”
Id. “Whether a
party has established a prima facie case for a change of primary residential
responsibility is a question of law which we review de novo.”
Id. (quoting Jensen
v. Jensen,
2023 ND 22, ¶ 3,
985 N.W.2d 679).
[¶9] “The purpose of the prima facie case requirement is to avoid holding
modification hearings based on mere allegations alone. The statutory procedure
allows the district court to eliminate unsupported or frivolous cases without
imposing upon the court and the parties the burden and expense of an
unnecessary evidentiary hearing.” Weber,
2025 ND 105, ¶ 7 (cleaned up).
B
[¶10] Ashley Cull argues the district court misapplied the standard to establish
a prima facie case. She asserts the court did not accept her sworn declarations,
instead weighing the evidence, dismissing her evidence as “anecdotal,” and
improperly crediting Andrew Cull’s rebuttal affidavits.
[¶11] In discussing Ashley Cull’s allegations, the district court noted some of the
allegations were not based on firsthand knowledge or were not competent
information. For example, the court explained some of the statements by Ashley
Cull’s parents were based on what they “claim to have been told by others,”
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“what they were told,” and what they “report the children have told them[.]”
The court further noted Ashley Cull refers to what “family members and
community members have observed” and what an “acquaintance of the parties
observed[.]” The declarations also often do not indicate what statements purport
to be based on personal knowledge, using language like we “witnessed firsthand
and been told” and we are “aware.” Ashley Cull makes assertions regarding
Andrew Cull’s parenting, vaguely stating “[t]his has been witnessed by myself,
my family and members of the community.” At other times, the court notes
Ashley Cull presented “no evidence” supporting certain allegations, did not
provide “supporting documentation,” and that certain claims are not
substantiated.
[¶12] The district court did not err by not considering the declarations to the
extent they do not include competent information and are not based on firsthand
knowledge. “Mere allegations are not enough to establish a prima facie case.”
Carvalho v. Carvalho, 2025 ND 129, ¶ 10,
23 N.W.3d 890. And declarations “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.” Kerzmann,
2021
ND 183, ¶ 8 (quoting Klundt v. Benjamin,
2021 ND 149, ¶ 6,
963 N.W.2d 278).
C
1
[¶13] Ashley Cull argues Andrew Cull’s occupation as a farmer severely restricts
his capacity to provide consistent care and routine for their children, resulting in
Andrew Cull delegating his role as the primary parent to his mother.
[¶14] The district court concluded Andrew Cull’s “occupation as a farmer was
known to the Court at the time of the original and amended Judgments and
therefore does not, in itself, constitute a change in circumstances.” The court then
addressed the allegation Andrew Cull’s mother is the primary caregiver of the
children. It stated that, although some statements in the declarations are based
on what the declarants “personally observed,” others are based on what the
declarants were told. And many parts of the declarations fail to show whether
the statements are based on the declarant’s personal knowledge. The court noted
4
the statements “provide minimal firsthand knowledge of what occurs during
Andrew’s parenting time[,]” do not provide details, and do not provide evidence
Andrew Cull was not providing care “during the majority of his parenting time.”
The court then discussed this Court’s decision in Weber, 2025 ND 105, ¶ 22, where
this Court stated “we take it as given that extended family members may be
involved in caring for children, and that a working parent may need assistance
from others to care for younger children like those in this matter. In fact, the
statutory best interest factors recognize the importance of family and
community.”
Id. The court further explained this Court “held the use of extended
family members for childcare does not amount to a material change in
circumstances unless it can be shown the arrangement has a detrimental effect
on the children.” The court stated Ashley Cull “presented no evidence” showing
Andrew Cull’s mother’s involvement during Andrew Cull’s parenting time “has
resulted in instability, neglect, harm, or unmet needs.” The court concluded:
Under Weber v. Pennington, the assistance of extended family does
not constitute a material change in circumstances absent a showing
of harm or adverse impact on the children, something Ashley has
not demonstrated. Accordingly, this ground does not support
modification. Further, Andrew’s occupation as a farmer requires no
further analysis, as it remains unchanged since the entry of the
original and amended Judgments.
[¶15] Extended family involvement in childcare is both common and statutorily
favored when a working parent requires support. Ashley Call did not present
competent evidence Andrew Cull’s mother’s assistance in caring for the children
has an adverse effect on the children. Moreover, Andrew Cull’s occupation as a
farmer is not a new fact; it was known to the district court at the time of the
original judgment. The demanding nature of farming, including long and
inconsistent hours, was contemplated by the court when it awarded Andrew
Cull primary residential responsibility. Because these facts existed at the time of
the prior order, they cannot now serve as the basis for establishing a material
change in circumstances.
[¶16] Based on our de novo review of the record, considering only the competent
information presented, Ashley Cull did not meet her burden of establishing a
5
material change of circumstances due to Andrew Cull’s occupation as a farmer
and his mother assisting with the care of the children.
2
[¶17] Ashley Cull asserts “[b]oth children are experiencing behavioral and
academic challenges in school.” She alleges this is because during Andrew Cull’s
parenting time the children lack “the essential structure and daily routine
necessary for their ages”; “[t]here is too much electronic time, television time,
and access to YouTube at Andrew’s”; Andrew Cull’s participation in addressing
the school issues has been limited; and Andrew Cull’s failure to prioritize
homework assistance and appropriate bedtimes.
[¶18] Andrew Cull acknowledged, and the district court accepted the allegation,
the children are facing behavioral and academic challenges at school. However,
the court concluded Ashley Cull did not present competent evidence regarding
Andrew Cull’s parenting and the structure in his home or that the children are
being negatively impacted by Andrew Cull’s parenting time.
[¶19] Ashley Cull did not show the basis for most of her assertions regarding
what occurs during Andrew Cull’s parenting time. “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.” Weber, 2025 ND 105, ¶ 8 (quoting Kerzmann,
2021 ND 183, ¶ 8). She also provides no competent evidence establishing a causal
connection between the children’s behavioral and academic issues and Andrew
Cull’s parenting, merely alleging without support these problems stem from his
parenting style. See Weber, ¶ 20 (“Pennington did not provide evidence that
B.B.W. was behind in reading due to Weber having primary residential
responsibility.”).
[¶20] Based on our de novo review of the record, considering only the competent
information presented, Ashley Cull did not meet her burden of establishing a
material change of circumstances due to the children’s behavioral and academic
difficulties.
6
3
[¶21] Ashley Cull alleges Andrew Cull endangered the children’s safety on
January 22, 2025. She asserts no one arrived to pick the children up from church
school, causing them to walk in subzero temperatures to Andrew Cull’s mother’s
house. She states an acquaintance observed the children, picked them up, and
found Andrew’s mother’s house locked with no one home. She emphasizes the
children could have gotten frostbite or worse, and states Andrew Cull does not
seem to understand the danger he put the children in.
[¶22] “A material change of circumstances can occur if a child’s present
environment may endanger the child’s physical or emotional health or impair
the child’s emotional development.” McCay v. McCay, 2024 ND 130, ¶ 6,
9
N.W.3d 687. Our prior cases indicate competent information showing potential
endangerment to a child’s physical or mental health may constitute a significant
change of circumstances which will raise a prima facie case for a modification of
custody and entitlement to an evidentiary hearing. See Kerzmann,
2021 ND 183,
¶ 16 (holding an affidavit including descriptions of the other parent frustrating
the movant’s parenting time, failing to facilitate a relationship between the
children and the movant, “failing to follow through with recommended
counseling for the children, and failing to provide adequate dental care for the
children . . . is sufficient to provide a prima facie showing the children may be
adversely affected”); Tank v. Tank,
2004 ND 15, ¶ 31,
673 N.W.2d 622 (“The
allegations discussed above each show potential endangerment to the children,
demonstrating a material change in circumstances and requiring further review
at an evidentiary hearing.”); Volz v. Peterson,
2003 ND 139, ¶ 10,
667 N.W.2d 637
(“An allegation that a fifteen-year-old is being exposed to drugs and cigarettes
in one parent’s home and is sneaking out of the house undetected by the parents
would show potential physical and mental harm to the children.”). However,
while potential endangerment may constitute a significant change in
circumstances and raise a prima facie case for modification, an isolated incident
does not automatically mandate a finding of material change. See Johnson v.
Staiger,
2025 ND 198, ¶ 16,
27 N.W.3d 692 (“[O]ur cases do not show an isolated
incident of a parent driving under the influence automatically mandates a
finding of a material change of circumstances.”).
7
[¶23] It is unclear what, if any, firsthand knowledge Ashley Cull has about the
January 22, 2025 incident. Andrew Cull submitted declarations based on
firsthand knowledge. Based on the competent information presented, the district
court concluded “the incident reflects a miscommunication and lack of clear
supervision at pickup[.]” The court stated “there is no evidence the children were
in immediate danger or that similar situations have occurred frequently.” The
court further concluded “firsthand statements show the children were safe,
warm, and quickly located.”
[¶24] The January 22, 2025 incident is an isolated occurrence that does not rise
to the level of establishing a prima facie case of material change in circumstances.
Even Ashley Cull refers to the incident as “a discrete safety lapse.” The record
contains no evidence of prior similar incidents, a pattern of endangerment
during Andrew Cull’s parenting time, or deliberate neglect or a systemic failure
in Andrew Cull’s care.
[¶25] Based on our de novo review of the record, considering only the competent
information presented, Ashley Cull did not meet her burden of establishing the
January 22, 2025 incident is a material change of circumstances.
4
[¶26] The district court addressed and rejected Ashley Cull’s other assertions
why there is a material change of circumstances and modification is necessary to
serve the children’s best interest. We conducted a de novo review of Ashley
Cull’s other assertions, including the parties’ communication challenges and co-parenting breakdowns, Andrew Cull’s refusal to use tools like co-parenting
apps, and that there are issues with the Cavalier School District and the children
would be better off attending school in Grafton. Based on our de novo review of
those issues, considering only the competent information presented, Ashley Cull
did not meet her burden of establishing a prima facie case for modification of
primary residential responsibility under N.D.C.C. § 14-09-06.6.
8
III
[¶27] The district court did not misapply the law when determining Ashley Cull
did not meet her burden of establishing a prima facie case for modification of
primary residential responsibility under N.D.C.C. § 14-09-06.6. We affirm the
court’s order denying Ashley Cull’s motion to modify primary residential
responsibility.
[¶28] Lisa Fair McEvers, C.J.
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Douglas A. Bahr
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