Falcon v. Knudsen

                                                                                   FILED
                                                                           IN THE OFFICE OF THE
                                                                        CLERK OF SUPREME COURT
                                                                                MAY 9, 2023
                                                                         STATE OF NORTH DAKOTA




                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                 

Tessa R. Falcon,                                         Plaintiff and Appellee
      v.
Michael J. Knudsen,                                   Defendant and Appellant
      and
State of North Dakota                          Statutory Real Party in Interest

                                No. 20220380

Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Benjamen J. Johnson, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

H. Malcom Pippin, Williston, ND, for plaintiff and appellee; submitted on brief.

Jonathan L. Green, Wahpeton, ND, for defendant and appellant; submitted on
brief.
                             Falcon v. Knudsen
                               No. 20220380

Bahr, Justice.

      Michael Knudsen appeals from a district court order determining
Knudsen did not establish a prima facie case for modification of primary
residential responsibility and denying his motion to modify primary residential
responsibility, and from a district court order denying his motion to disqualify
Tessa Falcon’s counsel. We affirm.

                                       I

     The parties were never married but have one child together. The original
judgment awarded primary residential responsibility to Falcon subject to
Knudsen’s parenting time.

      On October 26, 2022, Knudsen filed a motion to modify primary
residential responsibility. Falcon responded in opposition. The district court
concluded Knudsen did not present a prima facie case sufficient to warrant an
evidentiary hearing under N.D.C.C. § 14-09-06.6, and denied his motion to
modify primary residential responsibility and accompanying motion for second
amended judgment.

     On November 14, 2022, Knudsen filed a motion to permanently
disqualify Falcon’s counsel, Harry Malcolm Pippin and the Pippin Law Firm.
Falcon resisted the motion and filed a proposed order. The district court denied
the motion and adopted most of Falcon’s proposed order.

                                      II

      Knudsen argues the district court erred in failing to issue specific
findings of fact under N.D.R.Civ.P. 52(a) for the order denying the motion to
modify primary residential responsibility and the order denying the motion to
disqualify Falcon’s counsel.




                                       1
      Rule 52(a), N.D.R.Civ.P., requires:

      (1) In an action tried on the facts without a jury or with an advisory
      jury, the court must find the facts specially and state its
      conclusions of law separately. The findings and conclusions may be
      stated on the record after the close of the evidence or may appear
      in an opinion or a memorandum of decision filed by the court.
      ....
      (3) The court is not required to state findings or conclusions when
      ruling on a motion under Rule 12 or 56 or, unless these rules
      provide otherwise, on any other motion.

In applying this Rule, “the initial determination which must be made is
whether the particular findings complained of are findings of fact and are
subject to the ‘clearly erroneous’ Rule of 52(a), N.D.R.Civ.P., or whether they
are conclusions of law and are fully reviewable by this court on appeal.”
Ferguson v. Ferguson, 

 (N.D. 1972). “[A] trial court’s
conclusions of law are not subject to the clearly erroneous rule applicable to
findings of fact, and are thus fully reviewable upon appeal.” Jarmin v. Shriners
Hosps. for Crippled Child., 

 (N.D. 1990).

      Knudsen’s reliance on N.D.R.Civ.P. 52(a) is misplaced. Below we address
the application of N.D.R.Civ.P. 52(a) to the challenged orders.

                                      III

      Knudsen argues the district court erred in determining Knudsen failed
to establish a prima facie case for modification of primary residential
responsibility and denying his motion to modify primary residential
responsibility.

      “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, 

, 

. The movant seeking
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). It
“requires only facts which, if proved at an evidentiary hearing, would support
a change of primary residential responsibility that could be affirmed if

                                        2
appealed.” Grigg, at ¶ 9 (quoting Jensen v. Jensen, 

, 

). A party may establish a prima facie case “with affidavits
including ‘competent information, which usually requires the affiant to have
first-hand knowledge.’” 

 (quoting Jensen, at ¶ 8). 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. 

(quoting Thompson v. Thompson, 

, 

).

                                        A

       Rule 52(a), N.D.R.Civ.P., does not apply to the district court’s order
denying the motion to modify primary residential responsibility because the
court did not make findings of fact when determining whether Knudsen made
a prima facie case. “We have made it clear that district courts are prohibited
from weighing conflicts in the evidence presented in competing affidavits to
reach the conclusion that the moving party’s evidence is insufficient to
establish a prima facie case for modification of residential responsibility.”
Grigg, 

. “In determining whether a movant made a prima
facie showing, a court must assume the truth of the movant’s allegations if
based on competent information.” Forster v. Flaagan, 

, 

. “The trial court makes no findings of fact when reviewing a party’s
affidavits accompanying a motion to modify custody. Determination of whether
[Knudsen] established a prima facie case entitling [him] to an evidentiary
hearing is a question of law.” Tank v. Tank, 

, 

.

       Although the district court order states it “finds that the Defendant has
not proven a prima facie case sufficient to warrant the holding of an
evidentiary hearing in this matter under NDCC 14-09-06.6,” the court was
actually making a conclusion of law, not a finding of fact. For that reason, we
review de novo the court’s decision Knudsen did not establish a prima facie
case for a change of primary residential responsibility. See Grigg, 

 (“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.”).




                                        3
                                        B

      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.

Under section 14-09-06.6(6), N.D.C.C., the movant has the burden of
establishing a prima facie case on both of the above elements. Kerzmann v.
Kerzmann, 

, 

.

      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, 

.
Therefore, to establish a prima facie case under section 14-09-06.6(4),
N.D.C.C., the movant must establish both a material change of circumstance
and “either a general decline in the condition of the child or that the change
has adversely affected the child . . . .” Gomm v. Winterfeldt, 

,

 (quoting Kunz v. Slappy, 

, 

).

      Knudsen had the burden to establish a prima facie case showing a
general decline in the condition of the child or the material change adversely
affected the child. See Gomm, 

. Knudsen wholly failed to
allege either a general decline in the condition of the child or a change in
circumstances adversely affected the child. Thus, under our de novo review, we
conclude Knudsen did not show how a change to primary residential
responsibility is necessary to serve the best interests of the child.

     We affirm the district court’s denial of Knudsen’s motion to modify
primary residential responsibility because we conclude Knudsen failed to

                                        4
establish a prima facie case modification is in the best interests of the child.
See Bubel v. Bubel, 

, 

 (concluding “[w]e need
not address whether [the movant] has demonstrated a material change in
circumstances, because under our de novo standard of review she has not
shown how a change to primary residential responsibility is necessary to serve
the best interests of the child.”).

                                        IV

     Knudsen argues the district court erred in denying his motion to
disqualify Harry Malcolm Pippin and the Pippin Law Firm as Falcon’s counsel.

      “A trial court’s decision on a disqualification motion will only be reversed
for an abuse of discretion.” Sargent Cnty. Bank v. Wentworth, 

 (N.D. 1993). “A district court abuses its discretion if it acts in an arbitrary,
unconscionable, or unreasonable manner, if it misinterprets or misapplies the
law or if its decision is not the product of a rational mental process leading to
a reasoned determination.” State v. White, 

, 

.
“We also recognize, however, that courts generally view motions to disqualify
opposing counsel with extreme caution because disqualification can be used to
gain a tactical advantage and to harass the opposing party.” Wentworth, at 871.

                                         A

      The district court, adopting Falcon’s proposed order, stated:

      Now upon all of the files, records, and proceedings herein, in
      regard to the motion pending before the Court and for reasons set
      forth in Plaintiff ’s briefing:
      IT IS HEREBY ORDERED that the Defendant’s Motion to
      Permanently Disqualify Harry Malcolm Pippin and the Pippin
      Law Firm as Plaintiff ’s Counsel and for Protective Relief is hereby
      denied in all respects.

The court offered no further findings or explanation. The court crossed out
Falcon’s final paragraph attempting to award attorney’s fees for the motion.




                                         5
       The district court adopted Falcon’s proposed order denying the motion to
disqualify counsel “for reasons set forth in Plaintiff ’s briefing.” Because
adopting a party’s brief “may fail to foster the appearance of fairness and
impartiality in our courts, and may thereby reduce confidence in our judicial
system, we cannot approve it as a practice.” Schmidkunz, 529 N.W.2d at 859.
“It is preferable that the court, if it chooses to issue a written memorandum
opinion, state in its own words the rationale and basis for its decision.” Id.

       Although this Court strongly discourages district courts from
incorporating a pleading as its findings or rationale, in light of the limited issue
presented and narrow scope of “Plaintiff ’s briefing,” the order in this case is
sufficient to permit us to understand the factual basis for the district court’s
decision. However, we discourage courts from adopting a pleading as its
opinion and, depending on the issues and nature of the pleading, doing so may
prevent this Court from understanding the rationale and basis for the court’s
decision and dictate a remand. See e.g., Atkins v. State, 

, 

 (relying on N.D.R.Civ.P. 52(a)(3), this Court held “the district
court’s failure to articulate the basis for its decision is not a bar to summary
dismissal” of an application for post-conviction relief); contra Caster v. State,

, 

 (Remanding the order, this Court
explained, “We do not approve a court granting a motion solely ‘[f]or the
reasons articulated in the State’s Motion.’ Reliance on a bare bones proposed
motion, with no factual findings, conclusions of law, or support from the record,
is insufficient to satisfy the requirements of N.D.C.C. § 29-32.1-11. By failing
to explain its reasoning, the district court has prevented us from discerning
the basis for its decision.”).

                                         B

      Rule 52(a), N.D.R.Civ.P., does not apply to the district court’s order
denying Knudsen’s motion to disqualify Falcon’s counsel. Rule 52(a)(3),
N.D.R.Civ.P, provides “[t]he court is not required to state findings or
conclusions when ruling on a motion under Rule 12 or 56 or, unless these rules
provide otherwise, on any other motion.” Knudsen cited no rule requiring the
court make findings on his motion to disqualify counsel. We conclude the court


                                         6
did not abuse its discretion by ruling on Knudsen’s motion without making
findings of fact. Discover Bank v. Bolinske, 

, 

(explaining “[t]he court did not abuse its discretion by ruling on Bolinske’s
motion to vacate judgment without making findings of fact, because the court
was not required to make any such findings”).

                                        C

      Knudsen argues the district court erred in denying his motion to
disqualify Harry Malcolm Pippin and the Pippin Law Firm as Falcon’s counsel
because Pippin Law Firm violated N.D.R. Prof. Conduct 1.7(a), 1.7(c), 1.9(a)
and 1.9(b).

       “The disciplinary rules outline a lawyer’s duties to a ‘former client’ and
to a ‘potential client.’ N.D.R. Prof. Conduct 1.9 and 1.18.” Kuntz v. Disciplinary
Bd., 

, 

. Rule 1.9(a), N.D.R. Prof. Conduct,
describes a lawyer’s duties to a “former client” and provides that a “lawyer who
has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the former client
unless the former client consents in writing.” Under N.D.R. Prof. Conduct
1.9(c), a lawyer who has formerly represented a client in a matter shall not use
information relating to the representation to the disadvantage of the former
client in the same or a substantially related matter except as permitted by the
rules of professional conduct or when the information has become generally
known. Kuntz, at ¶ 14.

      The “Plaintiff ’s briefing” states Knudsen had an initial consultation with
an associate attorney at the Pippin Law Firm regarding a case against
Knudsen’s ex-wife and the two children born of that marriage. The meeting did
not pertain to Falcon. Knudsen’s own briefing provides the same information.
Knudsen failed to establish the case involving his ex-wife is the same or a
substantially related matter to the case at hand.




                                        7
      The district court’s decision was the product of a rational mental process
leading to a reasoned determination. The court did not abuse its discretion in
denying Knudsen’s motion to disqualify Falcon’s counsel.

                                      V

       We affirm the district court order concluding Knudsen did not establish
a prima facie case for modification of primary residential responsibility and
denying his motion to modify primary residential responsibility, and the
district court order denying the motion to disqualify Falcon’s counsel.

      Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




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