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SUPREME COURT OF THE STATE OF NORTH DAKOTA

No. 20210086 ________________________________________________________________________

Jerry M. Kerzmann Jr.,

PLAINTIFF – APPELLEE,

vs.

Tonya L. Kerzmann,

DEFENDANT – APPELLANT.

Appeal from Order Denying Evidentiary Hearing dated March 10, 2021

McLean County District Court South Central District

Honorable Judge John Grinsteiner McLean County: 28-2016-DM-00058

________________________________________________________________________

APPELLANT’S REPLY TO APPELLEE’S BRIEF ________________________________________________________________________

Theresa L. Kellington Kellington & Oster, P.C. 619 Riverwood Drive, Suite 202 Bismarck, North Dakota 58504 Phone: (701) 258-1074 Fax: (701) 530-1943 ND State Bar #05385 theresa@kopcemail.com Attorney for the Defendant / Appellant

FILED IN THE OFFICE OF THE

CLERK OF SUPREME COURT JULY 22, 2021

STATE OF NORTH DAKOTA

20210086

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[1] TABLE OF CONTENTS

Description Paragraph

Table of Contents .................................................................................................................1

Table of Authorities .............................................................................................................2

Law and Argument ........................................................................................................ 3-27

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[2] TABLE OF AUTHORITIES

Cases Paragraph

Delzer v. Winn, 491 N.W.2d 741 (1992) ...........................................................................10

Orke, 411 N.W.2d 97 .........................................................................................................10

Rustad v. Baumgartner, 2020 ND 126 ...............................................................................14

Schroeder v. Schroeder, 2014 ND 106, 846 N.W.2d 716 ....................................................6

Sweeney v. Kirby, 2013 ND 9, ¶3, 826 N.W.2d 330...........................................................7

Statutes Paragraph

North Dakota Century Code § 14-09-06.2 .........................................................................23

North Dakota Century Code § 14-09-06.6(4) ......................................................................6

North Dakota Century Code § 14-09-06.6(6) ................................................................5, 11

North Dakota Century Code § 14-05-22(2) .......................................................................14

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[3] LAW AND ARGUMENT

[4] The Trial Court erred in Determining that an Evidentiary Hearing Was Not Warranted in this Matter.

[5] The applicable law and statutes were set forth in Appellant’s Brief and therefore,

only those for which emphasis is sought will be repeated herein. The Amended Judgment

was entered on March 24, 2017 pursuant to a stipulation between the parties. (App. 57).

Thus, a less stringent standard for modification of residential responsibility applies given

more than two-years have passed since entry of judgment. Under N.D.C.C. § 14-09-

06.6(6), in order to modify primary residential responsibility following a two-year period,

the court must find:

a. On the basis of facts that have arisen since the prior order or which were unknown 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. [6] A motion for modification of residential responsibility shall be considered “on

briefs and without oral argument or evidentiary hearing” and will be denied “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.” N.D.C.C. § 14-09-06.6(4). See Schroeder v. Schroeder, 2014 ND 106, ¶¶7-8,

846 N.W.2d 716.

[7] A prima facie case is “a bare minimum and requires facts which, if proved at an

evidentiary hearing, would support a change of [residential responsibility] that could be

affirmed if appealed. Id. at ¶8. A prima facie case requires “only enough evidence to allow

the fact-trier to infer the fact at issue and rule in the party’s favor.” Sweeney, 2013 ND 9,

at ¶5.

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[8] Appellee argues that the evidence presented by Appellant in her supporting

affidavit to the Motion to Modify Residential Responsibility was not competent evidence,

that it is was “absolutely riddled with hearsay statements.” First and foremost, there are

applicable hearsay exceptions for any and all statements that are deemed to be hearsay.

Second, even assuming arguendo there are hearsay statements for which there are no

applicable hearsay exceptions, the totality of the contents of Appellant’s sworn statement

must be considered to be determined if Appellant met her burden of proving a prima facie

case for modification of the residential responsibility over the two (2) children. Following

are just a couple of the statements made in Appellant’s Affidavit in Support of her Motion

to Modify Judgment that are material change in circumstances and that are based upon

personal experience/knowledge:

[9] That Tonya has had drastic positive changes in her life since the previous Judgment,

including obtaining a great job with flexible work hours to accommodate the children’s

schedules, obtaining a promotion with higher pay at her new job, purchasing a new home,

and maintaining an alcohol and drug free lifestyle. (App. 168). Obviously, Tonya has

personal knowledge as to the significant improvements in her life.

[10] The Court in Delzer v. Winn, 491 N.W.2d 741 (1992) addressed this very issue.

The Court stated that In Orke, 411 N.W.2d 97, where the father had improved his own life

circumstances the Court pointed out the father’s redemption may be a significant change

of circumstances. The Court held that the conclusion that it would be better for [the child]

to be with the other family does not satisfactorily complete the inquiry. The Court stated:

"[The father's] redemption as a parent may be a significant change of circumstances, but that only begins the inquiry, and the conclusion that 'it would be better for [the child] to be with the other family' does not satisfactorily complete the inquiry. Miller v. Miller, supra. . . .

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"Thus, in Miller v. Miller, supra, we pointed out that 'the change of circumstances must weigh against the child's best interests before a change in custody is justified.' 305 N.W.2d at 672.” (Emphasis Added).

[11] The significant improvement in Appellant’s life is a significant/material change of

circumstances. The question then becomes whether in light of these change of

circumstances, whether a modification is in the children’s best interests. This case is very

different than that of Delzer. The ability of the Appellee in this case to properly provide

for the needs of the children is in serious question. Appellant went on, in her supporting

Affidavit, to address many other justifiable concerns about Appellee’s care of the children

as the primary custodian parent which balance the best interest factors in Appellant’s favor.

That the children exhibit behavior that is inappropriate or unusual for their ages. (App. 168,

180). Factor (c) of N.D.C.C. 14-09-06.6 addresses special needs of the children and factor

(d) stability of the home. That the children have poor dental hygiene in Mr. Kerzmann’s

care. (App. 163). Factor (b), ability of parent to provide adequate medical care for the

children. That one of the children has expressed thoughts of self-harm. (App. 180). Factor

(c), special needs of the child and factor (b) ability of parent to provide adequate medical

care. That one of the children has hot and cold mood swings and was recommended for a

mental health evaluation. (App. 181). That Mr. Kerzmann has willfully and intentionally

interfered with Tonya’s time with the children, by refusing telephone calls, refusing

requests for additional time, refusing to comply with the right of first refusal provision, and

removing Tonya as a person authorized to participate in school activities. (App. 154) see

also (App. 155-162). Factor (e), willingness of parent to facilitate relationship with other

parent. That Mr. Kerzmann has willfully and intentionally interfered with Tonya’s right to

parent the children by attempting to remove her as an authorized person to access medical,

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dental, therapy, and school records. (App. 162, 177). Factor (e). That Mr. Kerzmann has

further interfered with Tonya’s access to the children by refusing to list Tonya as an

available parent for storms (App. 183). Factor (e), that Mr. Kerzmann does not encourage

a relationship between the children and Tonya and further allows the children to dictate

parenting time. (App. 154-162). Factor (e). That Mr. Kerzmann lies about the children’s

condition and whereabouts in an effort to interfere with Tonya’s parenting time. (App. 159,

174). Factor (e). Mr. Kerzmann does not encourage an ongoing relationship between the

children and Tonya by constantly belittling her and discussing parenting time issues with

the children directly. (App.162). Factor (e).

[12] All of the foregoing statements made by Appellant were based upon personal

knowledge and/or experience. There were many text messages and other correspondence

by and between the parties themselves that support the foregoing statements. These are

admissible pieces of evidence.

[13] Appellee attempts to argue that Appellant was obligated to assert any and all

hearsay exceptions at the District Court level. The Appellant strongly disagrees. The

statements and allegations made within Appellant’s Affidavit are what the District Court

must rely upon to determine whether or not the Appellant established a prima facie case

warranting the granting of an evidentiary hearing. It is not reasonable to expect a non

attorney Affiant to set forth hearsay exceptions within his/her affidavit. In fact, such a

situation might be deemed practicing law without a license. The Appellant attached

numerous pieces of correspondence by and between her and the Appellee which supports

said allegations. Appellant sets forth additionally what she has experienced with Appellee

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since time of Judgment. She asserts over and over examples and incidents where Appellee

interfered with her parenting time with the children.

[14] According to the Court in Rustad v. Baumgartner, 2020 ND 126, A district court's

decision on parenting time is a finding of fact, which will not be reversed on appeal unless

it is clearly erroneous. A finding of fact is clearly erroneous if there is no evidence to

support it, it is induced by an erroneous view of the law, or the supreme court is left with

a definite and firm conviction a mistake has been made. After an initial award of primary

residential responsibility has been made, parenting time is governed by N.D.C.C. § 14-05-

22(2). Under N.D.C.C. § 14-05-22(2), a party moving to modify parenting time must show

that a material change in circumstances has occurred since entry of the prior parenting time

order and that the modification is in the child's best interests. Material changes in

circumstances are important new facts that have occurred since entry of the prior order

Whether a fact is a material change in circumstances is dependent upon the facts of the

case, but the supreme court has previously recognized various factors that may constitute

material changes in circumstances, including a significant change in a parent's work

schedule, the marriage of a parent, attempts to alienate the child's affection for the other

parent, and a parenting time schedule that causes conflict between the parents and behavior

problems in the child.

[15] Appellant submitted evidence based upon personal experience/knowledge on

numerous other grounds that constitute a material change in circumstances such as a)

violations of the terms of the Amended Judgment with regards to parenting time; b) failure

to encourage or facilitate a relationship between the children and their mother; c) refusal

to discuss medical issues of the children with Appellant; d) interfering with Appellant’s

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access to the children’s school, school functions, etc. e) use of his position as a law

enforcement agent to prevent Appellant access to the children’s school.

[16] One example of Appellee interfering with the relationship between Appellant and

the children as cited by Appellant occurred on February 15, 2019, wherein Appellee

essentially bribed the child to want to come home early from a visit with his mother.

Appellee told K.K. he had a surprise for him. The only logical reaction for the child would

be to go home to his father’s as soon as possible to see the surprise. In addition, Appellant

gave numerous examples of where she attempted to reach the children for special holidays,

child’s sickness, etc. and access was denied. It is clear Appellee is using the children against

Appellant which ultimately hurts them in the end.

[17] Even more important, is the change in one of the child’s disposition, emotional

well-being, etc. since Judgment was entered. Appellant gives several examples of where

the older child K.K. was totally non-responsive and unemotional towards her while in his

father’s home. This same child has expressed self-harm and has been seeing a counselor.

[18] Appellant also addresses concerns of Appellee’s lack of addressing the children’s

medical needs. K.K. had cavities so bad that he ended up getting his teeth pulled at 6 years

of age. He ended up having a total of three teeth pulled by age of 7 and B.K. had four

crowns, two pulpotomies and a resin-based composite (filling).

[19] The Appellant also went through great detail as to several examples where Appellee

refused to give Appellant the first right of refusal to be with the children if he was unable

to be present. During the entire covid pandemic, when the children were out of school,

Appellee refused to give any time whatsoever to Appellant. This is true notwithstanding

guarantees by Tonya that she would take any and all precautions for safety.

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[20] The children have drawn pictures of naked women, breasts and other private parts.

Appellant implements strong supervision parental settings on any and all electronics that

the children use while with her. As such, there is only one other place in which they are

being exposed to such things.

[21] Notwithstanding the apparent need for continued counseling, Appellee has

cancelled numerous counseling appointments for K.K. and refuses to allow Appellant to

take him on those days he cannot get him to counseling. Appellant has seen K.K. act afraid

of his father and act guarded when in the presence of his father. He has expressed desire

for self-harm. Not taking K.K. to counseling is negligence.

[22] On April 4, 2019, K.K. was Student of the Week in his Kindergarten class.

Appellant wanted to participate in this celebration but was prevented from doing so by the

behest of Appellee. All because it wasn’t during her scheduled parenting time. This is

strong evidence of Appellee’s bullying and controlling nature where he simply does not

facilitate the relationship between the boys and their mother. Appellee also refused to allow

any participation of Appellant in the registration of school for K.K.

[23] In Appellant’s initial Brief, the best factors as set forth in N.D.C.C. § 14-09-06.2

were addressed individually, and which resulted in the favor of Appellant.

[24] Appellee’s Request for Sanctions is Completely Without Cause

[25] Appellee argues that the Appendix is a “mess.” That we should be sanctioned

because 1) it includes pleadings that predated the Order of Dismissal that states that neither

party will be allowed to rely on these old allegations moving forward for any motions” 2)

other irrelevant things were added such as stipulation regarding child support; and 3)

appendix violates redacting rules.

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[26] First, the Appellant’s attorney included all pleadings that relate to the issues at hand

in this appeal. In Appellant’s Affidavit in support of her Motion for Modification, she

specifically cites the terms of the Order of Dismissal and qualifies that any and all

information contained therein would be from things that occurred after said date. The

Justices might question why the qualification in her statements. Hence, the reason for

including said Order for Dismissal. Second, the undersigned firmly believes that some

history of this case would be helpful to the Supreme Court. Third, one of the themes of this

case since entry of Judgment as it pertained to residential responsibility is that Appellee is

a bully and uses his position as a law enforcement agent in an attempt to gain an advantage

over the Appellant in areas concerning the children such as school activities, etc. In fact,

Appellant is fearful or Appellee, his power, and who he knows. The issue of child support

was initially reserved by Appellee. Only after Appellant brought the Motion to Modify

Residential Responsibility did Appellee bring a motion for child support. This directly

supports Appellant’s position/assertion that Appellee is a bully and that this behavior has

and continues to affect the children. One of the children have expressed a desire for self-

harm and is now in counseling. How can this not be a material change in circumstances

that could warrant a change in residential responsibility. Fourth, there is no absolute

requirement that the parties attempt to agree to an appendix in the North Dakota Rules of

Appellant Procedure. Fifth, if there were any redacting issues, these should have been

addressed by opposing counsel at the lower court level. The undersigned does not feel it

appropriate to modify or change anything about the records that are of record.

[27] North Dakota Rules of Appellant Procedure, Rule 10 addresses the Record on

Appeal. Specifically, Rule 10(a), (g), and (h). The North Dakota Rules of Appellate

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Procedure, Rule 30(a)(1) and Rule 30(b) addresses the Appendix. Appellant complied with

all requirements of the Rule of Appellate Procedure and Appellee’s motion for sanctions

is just another attempt to harass and strong arm the Appellant.

[28] CONCLUSION

[29] Appellant respectfully requests that the Court find that the District Court erred in

not awarding her an evidentiary hearing on her Motion to Modify Judgment as it pertains

to residential responsibility.

[30] CERTIFICATE OF COMPLIANCE

[31] Pursuant to Rule 32(e) of the North Dakota Rules of Appellate Procedure,

the undersigned certifies that the foregoing complies with the N.D.R.App.P.

(32)(a)(8)(A).

[32] The undersigned certifies that the Appellant’s Reply Brief contains 12 pages

including this Certificate of Compliance.

[33] Dated this 22nd day of July, 2021.

/s/Theresa L. Kellington Theresa L. Kellington (State Bar #05385)

Kellington & Oster, P.C. 619 Riverwood Drive, Suite 202 Bismarck, North Dakota 58504 Phone: (701) 258-1074 Facsimile: (701) 530-1943 Attorney for Defendant / Appellant theresa@kopcemail.com

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SUPREME COURT OF THE STATE OF NORTH DAKOTA

Jerry M. Kerzmann Jr., ) ) Supreme Court No.

Plaintiff / Appellee, ) 20210086 ) v. ) ) McLean County Case No.

Tonya L. Kerzmann, ) 28-2016-DM-00058 ) Defendant / Appellant. )

APPEAL FROM ORDER DENYING EVIDENTIARY HEARING DATED MARCH 10, 2021 BY THE HONORABLE JOHN GRINSTEINER, SOUTH

CENTRAL JUDICIAL DISTRICT, MCLEAN COUNTY, NORTH DAKOTA, CASE NO. 28-2016-DM-00058

UNSWORN DECLARATION OF SERVICE

[1] Theresa L. Kellington does hereby certify that on the 22nd day of July 2021,

this document and the following:

1. Appellant’s Reply to Appellee’s Brief

[2] were filed and served electronically with the North Dakota Supreme Court Clerk through the North Dakota Supreme Court’s Electronic File & Serve:

Justin Hager Attorney for Plaintiff/Appellee justins_law2005@yahoo.com

[3] Dated this 22nd day of July, 2021.

/s/Theresa L. Kellington Theresa L. Kellington (State Bar #05385)

Kellington & Oster, P.C. 619 Riverwood Drive, Suite 202 Bismarck, North Dakota 58504 Phone: (701) 258-1074 Facsimile: (701) 530-1943 Attorney for Defendant / Appellant theresa@kopcemail.com