FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 16, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 22
Alexander Ryan Jensen, Plaintiff
v.
Ayrica Lynn Jensen nka Ayrica Lynn Penor, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
No. 20220238
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Ayrica L. Penor, self-represented, Bismarck, N.D., defendant and appellant;
submitted on brief.
Jensen v. Jensen
No. 20220238
Tufte, Justice.
[¶1] Ayrica Penor, formerly Ayrica Jensen, appeals from a district court order
denying her motion to modify primary residential responsibility. On appeal,
Penor argues the district court erred in determining that she failed to plead a
prima facie case and in denying her request for a hearing. We affirm.
[¶2] Ayrica Penor and Alexander Jensen are divorced, and the district court
awarded primary residential responsibility to Jensen. Penor moved to modify
primary residential responsibility under N.D.C.C. § 14-09-06.6. The court
found she failed to prove a prima facie case and denied her motion.
I
[¶3] “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.” Grigg v. Grigg, 2015 ND 229, ¶ 9,
869 N.W.2d 411. The movant seeking
postjudgment modification of primary residential responsibility has the
burden to establish a “prima facie case justifying a modification.” N.D.C.C.
§ 14-09-06.6(4); see also Green v. Green,
2009 ND 162, ¶ 7,
772 N.W.2d 612. “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.” Grigg, at ¶ 9. It “requires
only facts which, if proved at an evidentiary hearing, would support a change
of primary residential responsibility that could be affirmed if appealed.”
Id. A
party may establish a prima facie case “with affidavits including competent
information, which usually requires the affiant to have first-hand knowledge.”
Id. If affidavits “fail to show a basis for actual personal knowledge, or if they
state conclusions without the support of evidentiary facts,” they do not support
a prima facie case.
Id.
If the moving party’s allegations are supported by competent,
admissible evidence, the court may conclude the moving party
failed to establish a prima facie case only if: (1) the opposing party’s
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counter-affidavits conclusively establish that the moving party’s
allegations have no credibility; or (2) the moving party’s
allegations are insufficient on their face, even if uncontradicted, to
justify modification. Unless the counter-affidavits conclusively
establish the movant’s allegations have no credibility, the district
court must accept the truth of the moving party’s allegations.
Grigg, at ¶ 10. These requirements prevent “mini-trials by affidavit.” Forster
v. Flaagan, 2016 ND 12, ¶ 8,
873 N.W.2d 904.
II
[¶4] Penor argues the district court erred in denying her request for a hearing
by finding that she failed to plead a prima facie case under N.D.C.C. § 14-09-
06.6(6). We disagree. Section 14-09-06.6(6), N.D.C.C., 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.
Section 14-09-06.6(6), N.D.C.C., burdens the movant with establishing a prima
facie case on both of the above elements. See also Kerzmann v. Kerzmann, 2021
ND 183, ¶¶ 9, 12,
965 N.W.2d 427.
III
[¶5] Regarding the best interests of the child under N.D.C.C. § 14-09-
06.6(6)(b), a court must consider the applicable N.D.C.C. § 14-09-06.2(1) best
interests of the child factors to determine whether modifying primary
residential responsibility is in a child’s best interests. Grigg, 2015 ND 229, ¶ 7
(quoting Schroeder v. Schroeder,
2014 ND 106, ¶ 7,
846 N.W.2d 716). The
movant must establish “‘either a general decline in the condition of the child
2
or that the change has adversely affected the child’” to establish a prima facie
case. Gomm v. Winterfeldt, 2022 ND 172, ¶ 30,
980 N.W.2d 204 (quoting Kunz
v. Slappy,
2021 ND 186, ¶ 26,
965 N.W.2d 408).
[¶6] The district court concluded that the offered evidence of her relationship
with Erick Penor would weigh heavily against Penor under N.D.C.C. § 14-09-
06.2(1)(k). Factor (k) instructs the court to assess the personal interactions a
child would have in a particular household and how it would affect the child.
N.D.C.C. § 14-09-06.2(1)(k). “The court shall consider that person’s history of
inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the
fear of physical harm, bodily injury, or assault, on other persons.” Id. Penor
admits in her affidavit that she married Erick Penor. The court noted Erick
Penor had numerous criminal charges, including for violating a protection
order, stalking, and assault. The judgment that created the parenting plan
explicitly forbade Erick Penor from having contact with the children. Penor
alleges in her affidavit that Erick Penor was the “only continuous male figure”
in the children’s lives while Jensen was in prison and that he helped Penor
“tremendously” with the children during that time. In her affidavit, she asks
that the court allow Erick Penor to be in contact with the children.
[¶7] Whatever allegations support Penor’s case, Jensen’s counter-affidavits
and the allegations in Penor’s affidavit show that modifying residential
responsibility would expose the children to Erick Penor, and thus the offered
evidence could only weigh against Penor in determining the children’s best
interests. This shows the allegations are insufficient on their face to establish
a prima facie case that a change in residential responsibility is necessary to
further the children’s best interests under N.D.C.C. § 14-09-06.2(1). See Grigg,
2015 ND 229, ¶¶ 9, 10. We need not consider whether Penor established a
prima facie case that a material change in circumstances has occurred. We
conclude Penor failed to plead a prima facie case under N.D.C.C. § 14-09-
06.6(6)(b), and the district court did not err in denying her request for a
hearing.
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IV
[¶8] We affirm the order of the district court.
[¶9] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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