20130042 - ndcourts.gov
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IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Jessica Charvat, )
)
Plaintiff and Appellee, )
)
Supreme Court No. 20130042; Civil Case No. 08-
09-C-01357
vs. )
)
Brandon Charvat, )
)
Defendant and Appellant,
and
)
)
)
)
State of North Dakota,
Statutory Real Party in
Interest.
)
)
)
)
APPEAL FROM THE BURLEIGH COUNTY DISTRICT COURT ORDER ON
MOTION TO MODIFY AND MOTION TO APPOINT PARENTING INVESTIGATOR
DATED JANUARY 18, 2013
SOUTH CENTRAL JUDICIAL DISTRICT
BRIEF OF PLAINTIFF-APPELLEE,
JESSICA CHARVAT
Bobbi L. Weiler (NDID 06546)
Jackson, Thomason & Weiler, P.C.
418 East Rosser Avenue Suite 320
Bismarck, ND 58501
Telephone: (701) 751-4847
FAX: (701) 751-4845
Attorney for the Appellee
20130042 FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT MAY 9, 2013 STATE OF NORTH DAKOTA
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TABLE OF CONTENTS
Table of Authorities Page 3
Statement of the Issues Presented for Review ¶2
Statement of the Case ¶¶3 - 4
Statement of the Facts ¶¶5 - 16
Procedural Background ¶¶17 - 18
Legal Argument ¶¶19 - 47
A. Standard Of Review.
B. The District Court did not err when it found that the Appellant failed to establish a
prima facie case.
1. The District Court did not err when it found that Jessica’s prior
relationships, her changing residences, and both parties changing
employment did not constitute a material change in circumstances.
2. The District Court did not err when it found that Brandon’s allegations of
Jessica’s involvement with at least two men who Brandon claims abused
Jessica did not constitute a material change of circumstances.
3. The District Court did not err when it found that Brandon’s claims that
Jessica tried to commit suicide more than three years ago did not establish
a prima facie case.
4. The District Court did not err when it found that pictures and text
messages found on Jessica’s old phone that Brandon claimed was in his
daughter’s possession with no charge did not constitute a material change
of circumstances.
5. The District Court did not err when it failed to consider the information
contained in Paula Metzger’s, Jon Vanderhoef’s, and Heidi Good’s
Affidavits.
Conclusion ¶48
Certificate of Service Page 23
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TABLE OF AUTHORITIES
Case Law: Paragraph No:
Ehli v. Joyce, 2010 ND 199, 789 N.W.2d 560 22
Kelly v. Kelly, 2002 ND 37, 640 N.W.2d 38 21
Mayo v. Mayo, 2000 ND 204, 619 N.W.2d 631 21
Peterson v. North Dakota Univ. Sys., 2004 ND 82, 678 N.W.2d 163 19
Schumacker v. Schumacker, 2011 ND 75, 792 N.W.2d 636 38
Selzler v. Selzler, 2001 ND 138, 631 N.W.2d 564 21
Tank v. Tank, 2004 ND 15, 673 N.W.2d 622 19, 21
Quarne v. Quarne, 1999 ND 188, 601 N.W.2d 256 21
Volz v. Peterson, 2003 ND 139, 667 N.W.2d 637 21
Wolt v. Wolt, 2011 ND 170, 803 N.W.2d 534 22
North Dakota Century Code
N.D.C.C. § 14-09-06.6 20, 21
North Dakota Constitution
N.D. Const. Art VI, § 1 1
N.D. Const. Art. VI, § 6 1
N.D. Const. Art. VI, § 8 1
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I. JURISDICTION STATEMENT.
[1] The District Court had jurisdiction pursuant to N.D. Const. Art. VI, § 8. This
Court has jurisdiction under N.D. Const. Art. VI, §§ 1 and 6.
II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW.
[2] The District Court did not err when it found that Appellant failed to establish a
prima facie face based upon incompetent evidence, hearsay, and failure to establish a
material change in circumstances.
III. STATEMENT OF THE CASE.
[3] The parties were divorced pursuant to a Judgment entered by the District
Court on August 11, 2009. (App., p. 12-14). As a result of the relationship between the
parties, one child was born, B.C., born 2007. Per the original Judgment, Jessica was
awarded primary residential responsibility. Id. On December 11, 2012, Brandon filed a
Motion to Modify Judgment requesting that he be awarded primary residential
responsibility. Brandon submitted an initial affidavit and supporting affidavits on
December 11, 2012. (App., p. 41-72). Jessica filed a Response and Responsive
Affidavits opposing Brandon’s Motion on December 21, 2012. (App., p. 77-143).
Brandon then filed Supplemental Affidavits on December 31, 2012. (App., p. 156-183).
Jessica filed an opposition to the Supplemental Affidavits on January 14, 2013. (App., p.
186-187). Brandon filed a response to Jessica’s objection to the Supplemental Affidavits
on January 15, 2013. (App., p. 188-189). The Court did not rule on the Objection.
[4] The Court filed its Order on the Motion to Modify and Motion to Appoint a
Parenting Investigator on January 18, 2013, denying Brandon’s Motion to Modify
Judgment finding that Brandon failed to establish a prima facie case. (App., p. 190-195).
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On February 7, 2013, Brandon filed his Notice of Appeal. (App., p. 6). The Court
entered an Amended Judgment on March 6, 2013, amending child support. (App., p.
196-198).
IV. STATEMENT OF THE FACTS.
[5] The relevant facts to this appeal are on December 11, 2012, Brandon filed a
Motion to Modify Judgment requesting that he be awarded primary residential
responsibility. Brandon filed Affidavits in support of his Motion. (App., p. 41-72).
Brandon bases his argument that the Court erred in finding that he failed to establish a
prima facie case upon five grounds: 1) that Jessica allegedly dated eight different men
since the divorce in 2009, Jessica moved three times since 2009, and Jessica and Brandon
changed employment; 2) that Jessica was allegedly abused by at least two ex-boyfriends;
3) that Jessica allegedly attempted suicide over three years ago; 4) that his five-year-old
daughter had Jessica’s old phone and after he charged the phone, he found pictures and
text messages that were inappropriate for his daughter to see; and 5) that the Court
should have considered all Affidavits when making its decision (App., p. 41-64).
[6] In support for his claim that he established a prima facie case, he alleged that
Jessica has allegedly dated eight different men since the divorce in 2009, Jessica moved
three times since 2009, and Jessica and Brandon changed employment, the Appellant
filed his affidavit along with Affidavits of Lauren Kalberer and Kim Cain. Id. Jessica
responded to those allegations by submitting Affidavits in Response. (App., p. 77-143).
In his affidavit, Brandon merely states that Jessica has allegedly had eight relationships
since the divorce. (App., p. 41-43). However, he only states two by name. Id. He does
mention a person by the name of Jamie Schmidt who was Jessica’s and Brandon’s realtor
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before the divorce and Jessica’s after the divorce. Id. Brandon states that he lived with
Jessica because he was also going through a divorce at the time. Id. Brandon provides
no evidence or proof that Jessica was actually dating this person or if their relationship
was merely friendly. Id. Jessica claims that she has only dated two men that her
daughter has met and that she does have some male friends. (App., p. 80-81). Brandon
also states that Jessica told him that Jamie came over and forced himself on Jessica.
(App., p. 41). Jessica claims that her daughter has never been in harm’s way while in her
care. (App., p. 77-96).
[7] Brandon does mention by name Andrew Russell and Scott Steckler. (App., p.
41-43). Brandon claims that Andrew Russell is a known ecstasy and steroid user and he
physically assaulted Jessica. (App., p. 42). Brandon does not provide any criminal record
or other evidence for his claim that Andrew Russell is a known ecstasy and steroid user.
Jessica states that he was in the military in Alaska for a majority of their relationship and
she never saw any indication of drug use. (App., p. 80). Brandon does however provide a
criminal record for Scott Steckler regarding a simple assault that occurred in 2005. (App.,
p. 50). Brandon failed to provide any information regarding the simple assault. Brandon
bases his claims that these two individuals are bad people on hearsay; specifically
Brandon bases these claims on information he is receiving from his daughter and in his
words “from friends who knew some people.” (App., p. 41-43). Brandon provided no
other names of these alleged eight boyfriends, but just states that there were eight.
[8] Brandon then stated that Jessica had moved three times since 2009. (App., p.
41-49). Brandon failed to mention that one of those moves were based upon the divorce
and moving out of the martial home. Brandon failed to state how the moves negatively
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affected the child, such as having to move schools. Jessica stated that she has lived in the
same residence for two years. (App., p. 90). Jessica stated that she moved the first time
because she could not afford the mortgage after the divorce. Id. Another time, she stated
that she wanted a bigger place in a good school district for her daughter. Id.
[9] Brandon also claims in his affidavit that because Jessica was reprimanded at
her job and changed employment she should no longer have primary residential
responsibility of her child. (App., p. 43). Again, Brandon bases this claim on hearsay,
specifically, he states “[a] coworker of hers said that she . . .” and provides a report that
she was reprimanded. Id. Brandon provides no firsthand knowledge regarding what
occurred in the reprimand. After the reprimand, Jessica continued to be a licensed
registered nurse and continued to work at a different hospital. (App., p. 81-82).
Brandon’s own Exhibits prove that Jessica did not violate HIPPA. (App., p. 51-61).
[10] Brandon also argues that he changed jobs in order to have more time with his
daughter. (App., p. 43-44). He also stated that previous to this, he stopped asking to see
his daughter and would see her less and less. (App., p. 44). He does not allege that
Jessica has ever refused to allow him to have his court ordered parenting time. (App., p.
41-49). However, he states that he should be allowed more time with his daughter and
that Jessica does not accommodate his work schedule. Id. He also alleged that his parents
should have his parenting time when he cannot, even though that is not ordered through
the Judgment. (App., p. 45). Jessica states that she has always allowed Brandon to have
his parenting time and she has tried to accommodate his schedule. (App., p. 83-84).
However, Brandon has changed jobs five times since 2009, one in which he was fired
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because of assaulting his supervisor and his work schedule has prevented him from
spending time with his daughter. Id.
[11] Brandon alleges that because Jessica had to receive medical treatment for a
cut on her wrist over three years, he should receive primary residential responsibility.
(App., p. 42-43). Brandon states that this occurred in September or October, 2009. Id.
Jessica, however, stated it occurred shortly after the divorce in August, 2009, as a result
of depression caused by Brandon’s infidelity. (App., p. 82-83). Brandon alleges that
Jessica texted him in the morning regarding being at the hospital the night before. (App.,
p. 42-43). Brandon provided no text messages even though this allegedly concerned him
greatly. Brandon then changed his story throughout his Affidavits and Briefs by stating
at times that Jessica admitted she thought she had “borderline personality disorder,” and
at other times stating that Jessica was diagnosed with “borderline personality disorder.”
(App., p. 42-43, 15-28). Brandon cannot get his story straight and did not provide any
medical evidence regarding his claim that it was a suicide attempt or any evidence that
Jessica had any mental health issues since his claim of suicide in 2009. Jessica claims
that she was depressed, but was not suicidal and never admitted to wanting to kill herself.
(App., p. 82-83).
[12] Brandon claimed that because his four-year-old daughter had Jessica’s old
phone, which had sexual pictures and inappropriate text messages, he established a prima
facie case. (App., p. 47-48). Brandon stated at least two different stories again in his
Affidavits and Briefs. (App., p. 47-48, 15-28). First, he states that the phone was brought
to his home on May 4, 2012 by his daughter. Id. He then stated that when he found the
phone on July 12, 2012, the phone’s battery was still charged and he turned it on. Id. He
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also states at other times that he had to power up the phone. Id. Jessica claims that
Brandon took the phone while he was picking up his daughter and the phone had not been
used in over two years. (App., p. 86-88). Jessica claims that she had no idea that her
daughter had one of her phones and has never seen her daughter looking at an old phone.
Id. The only phone Jessica knows that her daughter has is a Cinderella phone as a play
phone. Id. Brandon alleged that he found text messages regarding “rolling” on ecstasy
and sexual photos. (App., p. 45-46, 62-64). However, none of the text messages that
Brandon submitted contained the words ecstasy or the use of illegal drugs on Jessica’s
part. (App., p. 62-64). Jessica claims that she does not use drugs or is not involved with
anyone who does drugs. (App., p. 80).
[13] Finally, Brandon claims that the Court should consider his supporting
Affidavits. Specifically, Brandon claims that the Court should consider Paula Metzger’s
Affidavit. He states that Paula had firsthand information regarding Jessica’s social life
after the divorce. However, Paula failed to mention in her affidavit when she worked
with Jessica or whether it happened 10 years ago or 2 years ago. (App., p. 172-175). In
fact, she also mentioned when Brandon would bring her flowers, which would have
occurred before the Judgment. Id. It is unknown of the time frame of Paula’s allegations.
Id. Moreover, at that time, Jessica stated that she worked weekends. (App., p. 78).
[14] Brandon claims that the Court should consider Jon Vanderhoef’s affidavit.
He states that Jon provides firsthand knowledge regarding Jessica’s failure to give him
extra parenting time (not required by the Judgment) or extra time to his parents. (App., p.
176-179). Jon also could provide that he saw Facebook posts. Id. However, Jon failed
to mention the date the pictures were taken or if they were taken at the same function.
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[15] Brandon claims that the court should consider Heidi Good’s Affidavit. He
states that Heidi can show that Jessica and her former boyfriend had gotten in a physical
altercation and Heidi has seen Jessica in the bar. (App., p. 180-183). As with the other
Affidavits, Heidi fails to provide any dates to the Court or the frequency of seeing
Jessica. Id. Heidi’s affidavit also contains a lot of hearsay. Id.
[16] Ultimately, the Court filed its Order on the Motion to Modify and Motion to
Appoint a Parenting Investigator on January 18, 2013, denying Brandon’s Motion to
Modify Judgment finding that Brandon failed to establish a prima facie case . (App., p.
190-195).
V. PROCEDURAL BACKGROUND
[17] The parties were divorced pursuant to a Judgment entered by the District
Court on August 11, 2009. (App., p. 12-14). As a result of the relationship between the
parties, one child was born, B.C., born, 2007. Per the original Judgment, Jessica was
awarded primary residential responsibility. Id. On December 11, 2012, Brandon filed a
Motion to Modify Judgment requesting that he be awarded primary residential
responsibility. Brandon submitted an initial affidavit and supporting affidavits on
December 11, 2012. (App., p. 41-72). Jessica filed a Response and Responsive
Affidavits opposing Brandon’s Motion on December 21, 2012. (App., p. 77-142).
Brandon then filed Supplemental Affidavits on December 31, 2012. (App., p. 156-183).
Jessica filed an opposition to the Supplemental Affidavits on January 14, 2013. (App., p.
186-187). Brandon filed a response to Jessica’s objection to the Supplemental Affidavits
on January 15, 2013. (App., p. 188-189). The Court did not rule on the Objection.
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[18] The Court filed its Order on the Motion to Modify and Motion to Appoint a
Parenting Investigator on January 18, 2013, denying Brandon’s Motion to Modify
Judgment finding that Brandon failed to establish a prima facie case. (App., p. 190-195).
On February 7, 2013, Brandon filed his Notice of Appeal. (App., p. 6). The Court
entered an Amended Judgment on March 6, 2013, amending child support. (App., p.
196-198).
VI. LEGAL ARGUMENT.
A. Standard Of Review.
[19] Whether a party has established a prima facie case entitling them to an
evidentiary hearing on a motion to change custody is a question of law. Tank v. Tank,
2004 ND 15, ¶ 6, 673 N.W.2d 622. The Court reviews questions of law de novo. See
Peterson v. North Dakota Univ. Sys., 2004 ND 82, ¶ 6, 678 N.W.2d 163.
B. The District Court Did Not Err when it Found that the Appellant Failed to
Establish a Prima Facie Case.
[20] Modifications of residential responsibility of minor child is governed by
North Dakota Century Code § 14-09-06.6, which provides in relevant part the following:
. . . .
4. A party seeking modification of an order concerning primary residential
responsibility shall serve and file moving papers and supporting affidavits
and shall give notice to the other party to the proceeding who may serve
and file a response and opposing affidavits. The court shall consider the
motion on briefs and without oral argument or evidentiary hearing and
shall deny the motion unless the court finds the moving party has
established a prima facie case justifying a modification. The court shall set
a date for an evidentiary hearing only if a prima facie case is established.
. . . .
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6. 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 interest of the
child.
. . . .
8. Upon a motion to modify primary residential responsibility under this
section, the burden of proof is on the moving party.
[21] “Before custody may be modified after the two-year period following a prior
custody order, North Dakota law requires a two-tiered determination by the trial court.
N.D.C.C. § 14-09-06.6(6). The trial court must first determine whether a material change
in circumstances has occurred and, if it makes such a finding, must determine whether
"the modification is necessary to serve the best interest of the child." N.D.C.C. § 14-09-
06.6(6)(b).” Tank, at ¶ 7. In this case, we are only concerned with the first requirement
as the Court never addressed whether modification is necessary to serve the best interests
of the child as the Court denied the Motion on the first tier.
The moving party establishes a prima facie case by alleging, with
supporting affidavits, sufficient facts which, if they remained
uncontradicted at an evidentiary hearing, would support a custody
modification in her favor. Volz, 2003 ND 139, ¶ 7, 667 N.W.2d 637
(citing Lawrence v. Delkamp, 2003 ND 53, ¶ 7, 658 N.W.2d 758; Quarne
v. Quarne, 1999 ND 188, ¶ 11, 601 N.W.2d 256). A trial court can find the
moving party has failed to bring 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. Volz, at ¶ 8
(citing O'Neill v. O'Neill, 2000 ND 200, ¶¶ 4-5, 619 N.W.2d 855). If the
opposing party meets that burden, the prima facie case is rebutted and the
trial court may deny the motion to modify custody without holding an
evidentiary hearing. Id. However, if the opposing party fails to meet that
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burden, an evidentiary hearing must be held to resolve conflicting
evidence and determine whether custody modification is warranted.
Tank, at ¶ 9. In addition, this Court has stated that “a material change in circumstances is
defined as important new facts unknown to the court at the time of the prior custody
decree.” Id., at ¶ 10; see also Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38; Selzler
v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564; Mayo v. Mayo, 2000 ND 204, ¶ 16, 619
N.W.2d 631.
[22] In reviewing the affidavits, “allegations alone do not establish a prima facie
case, affidavits must include competent information, which usually requires the affiant
have first-hand knowledge, and witnesses are generally not competent to testify to
suspected facts.” Wolt v. Wolt, 2011 ND 170, ¶ 9, 803 N.W.2d 534; Ehli v. Joyce, 2010
ND 199, ¶ 7, 789 N.W.2d 560. “Affidavits are not competent when they do not show a
basis for actual personal knowledge or when they state conclusions without supporting
evidentiary facts.” Wolt, at ¶ 9; Ehli, at ¶ 7.
1. The District Court did not err when it found that Jessica’s prior
relationships, her changing residences, and both parties changing
employment did not constitute a material change in circumstances.
[23] Brandon alleges that Jessica has dated eight different men and changed her
residence three time since the Judgment. In his affidavit, Brandon merely states that
Jessica has had eight boyfriends since the divorce. (App., p. 41-43). However, he only
states two by name. Id. Brandon failed to mention the name of the mysterious six others
or when Jessica allegedly dated them. Brandon also failed to mention the length of the
relationships or whether his daughter met them. For all the Court knows, Brandon is
counting every man she had dinner with over the last three years, including men who are
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her friends. It is unknown how Brandon received this alleged information other than his
allegations in his Affidavit that he heard from others that Jessica would go out—all
hearsay. (App., p. 41-43).
[24] He does mention a person by the name of Jamie Schmidt who was Jessica’s
and Brandon’s realtor before the divorce and Jessica’s after the divorce. Id. Brandon
states that he lived with Jessica because he was also going through a divorce at the time.
Id. Brandon provides no evidence or proof that Jessica was actually dating this person or
if their relationship was merely friendly. Jessica claims that she has only dated two men
that her daughter has met and that she does have some male friends. (App., p. 80-81).
Brandon then states that Jessica told him that Jamie came over and forced himself on her.
(App., p. 41). Brandon seems to infer that it is Jessica’s fault that she was assaulted and
that the Court should believe she is a bad mom and he should have primary residential
responsibility of his daughter because Jessica could not control the fact that she was
assaulted over three years ago. As in most of these allegations this information is over
three years old.
[25] Brandon does mention by name Andrew Russell and Scott Steckler. (App.,
p. 41-43). Brandon claims that Andrew Russell is a known ecstasy and steroid user and
he physically assaulted Jessica. (App., p. 42-43). Brandon does not provide any criminal
record or other evidence for his claim that Andrew Russell is a known ecstasy and steroid
user. Jessica states that he was in military in Alaska for a majority of their relationship
and she never saw any indication of drug use. (App., p. 80). Brandon does however
provide a criminal record for Scott Steckler regarding a simple assault that occurred in
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2005, over eight years ago. (App., p. 50). Brandon failed to provide any information
regarding the simple assault.
[26] Brandon bases his claims that these two individuals are bad people on
hearsay; specifically Brandon bases these claims on information he is receiving from his
daughter and in his words “from friends who knew some people.” (App., p. 41-43).
Brandon cannot base his claims on hearsay for a motion to amend judgment. The Court
was correct in not considering a majority of his affidavits.
[27] Brandon also stated that Jessica had moved three times since 2009. (App., p.
41-49). Brandon failed to mention that one of those moves were based upon the divorce
and moving out of the martial home. Brandon failed to state how the moves negatively
affected the child, such as having to move schools. Jessica stated that she moved the first
time because she could not afford the mortgage after the divorce. (App., p. 90). Another
time, she stated that she wanted a bigger place for B.C. to grow into and in a good school
district for her daughter. Id.
[28] Brandon also claims in his affidavit that because Jessica was reprimanded at
her job and changed employment she should no longer have primary residential
responsibility of her child. (App., p. 43). Again, Brandon bases this claim on hearsay,
specifically, he states “[a] coworker of hers said that she . . . ” and provides a report that
she was reprimanded. Id. Brandon provides no firsthand knowledge regarding what
occurred in the reprimand. After the reprimand, Jessica continued to be a licensed
registered nurse and continued to work at a different hospital. (App., p. 81-81). If Jessica
had violated HIPPA as Brandon claims, she would have lost her license. In addition,
Brandon’s own Exhibits prove that Jessica did not violate HIPPA. (App., p. 51-61).
16
[29] Brandon also argues that he changed jobs in order to have more time with his
daughter. (App., p. 43-44). Brandon’s own affidavit contradicts his statement that he
would have more time for his daughter. By his own argument that he is not always able
to have his daughter on his Court ordered parenting time because of his own job, he is
contradicting the argument that his job allows more time with his daughter.
[30] Brandon does not allege that Jessica has ever refused to allow him to have
his court ordered parenting time. (App., p. 41-49). In fact, he states that he was seeing
her less and less based upon his own actions. (App., p. 43-44). He states that he should
be allowed more time with his daughter and that Jessica does not accommodate his work
schedule. Id. He also alleged that his parents should have his parenting time when he
cannot, even though that is not allowed through the Judgment. (App., p. 45). Jessica
states that she has always allowed Brandon to have his parenting time and she has tried to
accommodate his schedule. (App., p. 83-84). However, Brandon has changed jobs five
times since 2009, one which he was fired for assaulting his supervisor, and his work
schedule has prevented him from spending time with his daughter. Id. Not being
allowed extra time with your daughter is not grounds for a prima facie case. There were
no allegations that Jessica has ever interfered with his Court ordered parenting time.
2. The District Court did not err when it found that Brandon’s allegations of
Jessica’s involvement with at least two men who Brandon claims abused
Jessica did not constitute a material change of circumstances.
[31] Brandon argues that at least two of Jessica’s prior relationships involved
domestic violence. (App., p. 41-43). However, Brandon only provided hearsay evidence
from his daughter and others that any domestic violence had occurred. (App., p. 41-43).
In fact, in his Brief, Brandon states “Brandon does allege that B.C. has told him that
17
Jessica’s current boyfriend, Scott Steckler ‘makes mommy cry’.” (App., p. 41-43). First,
this is hearsay. And second, it does not even show that there is domestic violence.
Common sense tells you there are a lot of reasons that a person cries that do not involve
domestic violence.
[32] He does mention a person by the name of Jamie Schmidt who was Jessica’s
and Brandon’s realtor before the divorce. Id. Brandon states that he lived with Jessica
because he was also going through a divorce at the time. Id. Brandon provides no
evidence or proof that Jessica was actually dating this person or if their relationship was
merely friendly. Jessica claims that she has only dated two men that her daughter has
met and that she does have some men friends. (App., p. 80-81). Brandon then states that
Jessica told him that Jamie came over and forced himself on Jessica. (App., p. 41).
Brandon seems to infer that it is Jessica’s fault that she was assaulted and that the Court
should believe she is a bad mom and he should have primary residential responsibility of
his daughter because Jessica could not control the fact that she was assaulted over three
years ago. As in most of the allegations contained in Brandon’s Affidavit, this
information is over three years old.
[33] Brandon also mentions Jessica’s relationship with Andrew Russell. Jessica
stated that this relationship occurred two years ago and for most of the relationship.
Andrew lived in Alaska. (App., p. 80). Andrew never lived with Jessica and B.C. was
never subject to any danger while Jessica was dating Andrew. Id.
[34] Brandon argues that all he has to show the Court is that Jessica has a pattern
of abusive relationships, not that B.C. was ever harmed or witnessed any abuse.
However, he has even failed to show a pattern of abuse. Jessica was never in a
18
relationship with Jamie. Brandon alleges that forced himself on Jessica and Brandon
wants the Court to blame Jessica. Scott never abused Jessica and Brandon provided no
evidence, except hearsay, that there were any issues with Jessica’s relationship with
Scott. There is no pattern of abuse.
3. The District Court did not err when it found that Brandon’s claims that
Jessica tried to commit suicide more than three years ago did not establish
a prima facie case.
[35] Brandon alleges that because Jessica had to receive medical treatment for a
cut on her wrist over three years, he should receive primary residential responsibility.
(App., p. 42-43). Brandon states that this occurred in September or October, 2009. Id.
Jessica, however, stated it occurred shortly after the divorce in August, 2009 as a result of
her being depressed over Brandon infidelity. (App., p. 82-83). Jessica went to the ER
voluntarily. Brandon alleges that Jessica texted him the next morning regarding her visit
to the ER the night before. (App., p. 42-43). Brandon provided no text messages even
though this allegedly concerned him greatly.
[36] Brandon also changed his story throughout his Affidavits and Briefs by
stating at times that Jessica admitted she thought she had “borderline personality
disorder,” and at other times stating that Jessica was diagnosed with “borderline
personality disorder.” (App., p. 42-43, 15-28). Brandon cannot get his story straight and
did not provide any medical evidence regarding his claim that it was a suicide attempt or
any evidence that Jessica had any mental health issues since his claim of suicide in 2009.
[37] If Jessica was suicidal and attempted to kill herself, she would not be
allowed to leave the same morning. Jessica claims that she was depressed, but was not
suicidal and never admitted to wanting to kill herself. (App., p. 82-83). Brandon
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provided no proof that Jessica suffers from any medical conditions. Brandon has
allowed his daughter to remain in Jessica’s care for over three years since this event with
no issues. He cannot now state that she is in any way unstable.
[38] The Appellant argues that this case is like that in Schumacker v.
Schumacker. However, in Schumacker, the Appellant had supporting affidavits that there
were two suicide attempts, the Appellee admitted to the suicide attempts, that the children
knew of the suicide attempts, and that the children were negatively affected by the
suicide attempts. Schumacker, 2011 ND 75, ¶ 10, 792 N.W.2d 636. In this case,
Appellant does not even have evidence that there was a suicide attempt. In fact, the
Appellant even states that Jessica was out of the hospital the next day. If Jessica was
suicidal and attempted to kill herself, she would not be allowed to leave the same
morning.
[39] In addition, in this case, there was no testimony that the child knew about the
suicide attempt or was negatively affected by it. The child would have been around two
years of age at the time. Brandon was not even concerned enough to go and get his
daughter the day after the incident.
4. The District Court did not err when it found that pictures and text
messages found on Jessica’s old phone that Brandon claimed was in his
daughter’s possession with no charge did not constitute a material change
of circumstances.
[40] Brandon claimed that because his four-year-old daughter had Jessica’s old
phone, which had sexual pictures and inappropriate text messages, he established a prima
facie case. (App., p. 47-48). Brandon stated at least two different stories again in his
Affidavits and Briefs. (App., p. 47-48, 15-28). First, he states that the phone was brought
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to his home on May 4, 2012, by his daughter. Id. He then stated that when he found the
phone on July 12, 2012, the phone’s battery was still charged and he turned it on. Id. He
also states at other times that he had to power up the phone. Id. It is hard to believe and
maybe impossible for a phone to continue to hold a charge for over two months without
having to be charged. His story is not credible.
[41] Jessica claims that Brandon took the phone while he was picking up their
daughter. (App., p. 86-88). Jessica claims that she had no idea that her daughter had one
of her phones and has never seen her daughter looking at an old phone. Id. The only
phone Jessica knows that her daughter has is a Cinderella play phone. Id.
[42] Brandon also alleged that he found text messages regarding “rolling” on
ecstasy and sexual photos. (App., p. 45-46, 62-64). However, none of the text messages
that Brandon submitted contained the words ecstasy or the use of illegal drugs on
Jessica’s part. (App., p. 62-64). It is not known where Brandon is getting the ecstasy
allegation from because there was never any indication from the text messages. Brandon
did state that there were rumors that Jessica’s ex-boyfriend did ecstasy. However, again
Brandon is basing those claims on hearsay.
[43] Jessica claims that she does not use drugs or involved with anyone who does
drugs. (App., p. 80). Jessica provided a Letter from her boss at work. Her boss testified
that Jessica is a great, well-liked employee. If Jessica has a drug problem as Brandon
alleges, she would have been in trouble with her work. In addition, all of Brandon’s
allegations not only are based upon hearsay, but are from over two to three years ago. He
has provided no credible evidence.
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5. The District Court did not err when it failed to consider the information
contained in Paula Metzger’s, Jon Vanderhoef’s, and Heidi Good’s
Affidavits.
[44] Brandon claims that the Court should consider Paula Metzger’s Affidavit.
He states that Paula had firsthand information regarding Jessica’s social life after the
divorce. However, Paula failed to mention in her affidavit when she worked with Jessica
or whether it happened 10 years ago or 2 years ago. (App., p. 172-175). In fact, she also
mentioned when Brandon would bring her flowers, which would have occurred before
the Judgment. Id. It is unknown a time frame regarding any of Paula’s allegations. Id. In
addition, Jessica stated that she worked weekends at this time. It would have been
impossible for Paula’s claims to be accurate because Jessica would have been working at
the times Paula stated that she said she was out drinking.
[45] Brandon claims that the Court should consider Jon Vanderhoef’s affidavit.
He states that Jon provides firsthand knowledge regarding Jessica’s failure to give him
extra parenting time (not required by the Judgment) or extra time to his parents. (App., p.
176-179). Jon also could provide that he saw Facebook posts. Id. However, Jon failed to
mention the date the pictures were taken or if they were taken at the same function. Id.
[46] Brandon claims that the court should consider Heidi Good’s Affidavit. He
states that Heidi can show that Jessica and her former boyfriend had gotten in a physical
altercation and Heidi has seen Jessica in the bar. (App., p. 180-183). As with the other
Affidavits, Heidi fails to provide any dates to the Court or the frequency of seeing
Jessica. Id. Heidi’s affidavit also contains a lot of hearsay. Id.
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[47] The District Court did not err when it concluded that these Affidavits were
wholly personal opinion and did not present any competent evidence.
VII. CONCLUSION.
[48] For the foregoing reasons, Jessica Charvat, respectfully requests that this
Court affirm the District Court’s decision to deny the Appellant’s Motion to Modify and
Motion to Appoint Parenting Investigator.
Dated this 9th
day of May, 2013.
/s/Bobbi L. Weiler
Jackson, Thomason & Weiler, P.C.
Bobbi L. Weiler (NDID 06546)
418 E Rosser Ave., Suite 320
Bismarck, ND 58501
Phone: 701-751-4847
Fax: 701-751-4845
Email: [email protected]
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of Plaintiff -
Appellee, Jesssica Charvat, was on the 9th
day of May, 2013, served electronically to the
following:
Susanne M. Schweigert
Attorney at Law
Jessica Charvat
Appellee
/s/Bobbi L. Weiler
Bobbi L. Weiler (NDID 06546)
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of Plaintiff - Appellee,
Jesssica Charvat, was on the 13th day of May, 2013, served electronically to the following:
Susanne M. Schweigert Attorney at Law [email protected] Stacy Moldenhauer Attorney at Law [email protected]
/s/Bobbi L. Weiler Bobbi L. Weiler (NDID 06546)