IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 183

Jerry M. Kerzmann, Plaintiff and Appellee

and

Tonya L. Kerzmann, Defendant and Appellant

No. 20210086

Appeal from the District Court of McLean County, South Central Judicial 

District, the Honorable John W. Grinsteiner, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Jensen, Chief Justice.

Justin D. Hager, Bismarck, ND, for plaintiff and appellee.

Theresa L. Kellington, Bismarck, ND, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

OCTOBER 14, 2021 

STATE OF NORTH DAKOTA
1

Kerzmann v. Kerzmann

No. 20210086

Jensen, Chief Justice.

[¶1] Tonya Kerzmann appeals from a district court’s denial of her request for 

an evidentiary hearing on her motion for a change in primary residential 

responsibility. We conclude Tonya Kerzmann pled a prima facie case 

supporting her motion for modification of primary residential responsibility. 

We reverse the order of the district court and remand for further proceedings.

I

[¶2] Tonya Kerzmann and Jerry Kerzmann were married and have two 

children, K.K. and B.K. They were divorced in 2016, and the parties agreed 

Jerry Kerzmann would receive primary residential responsibility of the 

children. Shortly after the entry of the initial judgment, Tonya Kerzmann 

unsuccessfully moved to set aside the parties’ agreement. In March 2017, the 

initial judgment was amended to provide Tonya Kerzmann parenting time 

with the children every other weekend. In March 2018, Tonya Kerzmann filed 

a motion seeking additional parenting time. The March 2018 motion was 

resolved when the parties reached an agreement to dismiss the parenting time 

motion along with other pending motions.

[¶3] In February 2021, Tonya Kerzmann again moved for modification of the 

judgment and requested an evidentiary hearing to modify residential

responsibility of the children under N.D.C.C. § 14-09-06.6(6). As required by 

N.D.C.C. § 14-09-06.6(6), Tonya Kerzmann provided an affidavit intended to

establish a prima facie case for her motion for modification of parental 

responsibility, a prerequisite to being granted a full evidentiary hearing. She 

asserted that the following constituted significant changes in circumstances: 

that Jerry Kerzmann does not provide her with the opportunity to exercise 

parenting time when he is unable to parent as required in the judgment; that 

Jerry Kerzmann fails to discuss the children’s medical care with her; that Jerry 

Kerzmann intentionally interferes with parenting time; that Jerry Kerzmann 

has not initiated a weekly phone call to allow her to speak to the children as 
2

required by the judgment; and that Jerry Kerzmann has directed the children’s 

school to not allow Tonya Kerzmann at school functions. Included within her 

affidavit were the following additional allegations: dental care for the children 

had been neglected; Jerry Kerzmann was intentionally trying to alienate the 

children from her; and concern about the failure to follow through with 

recommended therapy for the children.

[¶4] Jerry Kerzmann submitted an affidavit denying Tonya Kerzmann’s 

allegations. He argued the supporting affidavit was not competent because it 

was comprised of inadmissible evidence, the affidavit lacked credibility, and it 

would not be in the best interests of the children to modify custody.

[¶5] The district court denied the request for an evidentiary hearing, after 

finding Tonya Kerzmann did not establish a prima facie case warranting an 

evidentiary hearing. The court found the supporting affidavit was primarily 

comprised of inadmissible hearsay and the allegations within the affidavit 

were made with limited first-hand knowledge. The court also found that even 

if the requirement to provide prima facie evidence of a material change in 

circumstances was satisfied, there was no competent evidence that a change in 

primary residential responsibility was necessary for the best interests of the 

children.

II

[¶6] “Whether a moving party has established a prima facie case for a 

modification of primary residential responsibility is a question of law which 

this Court reviews de novo on appeal.” Baker v. Baker, 2019 ND 225, ¶ 7, 932

N.W.2d 510 (citing Heidt v. Heidt, 2019 ND 45, ¶ 8, 923 N.W.2d 530). When a 

motion to modify primary residential responsibility is brought more than two 

years after the date of entry of an order establishing primary residential 

responsibility, modification is appropriate only if the district court finds the 

following: 

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 
3

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. 

N.D.C.C. § 14-09-06.6(6).

[¶7] Before proceeding to a full evidentiary hearing on a motion to modify 

primary residential responsibility, the party moving for the modification must 

establish a prima facie case. Wolt v. Wolt, 2011 ND 170, ¶ 7, 803 N.W.2d 534. 

An initial prima facie showing is required by N.D.C.C. § 14-09-06.6(4), which 

reads as follows:

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.

[¶8] A prima facie case requires facts that show there could be a change in 

custody if they are proven at an evidentiary hearing. Klundt v. Benjamin, 2021 

ND 149, ¶ 6, 963 N.W.2d 278 (internal citations omitted).

We have explained that 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. 
4

Id. (quoting Johnshoy v. Johnshoy, 2021 ND 108, ¶ 5, 961 N.W.2d 282).

A

[¶9] Section 14-09-06.6(6)(a), N.D.C.C., requires a material change in 

circumstances to modify primary residential responsibility. Tonya Kerzmann 

argues she sufficiently alleged prima facie evidence of a material change in 

circumstances to warrant an evidentiary hearing.

[¶10] A district court may deny an evidentiary hearing when the opposing 

party presents affidavits showing the moving party has no credibility or the 

allegations are insufficient to justify residential responsibility modification. 

Schumacker v. Schumacker, 2011 ND 75, ¶ 8, 796 N.W.2d 636. “Whether an 

alleged change in circumstance is material depends upon the particularities of 

a given case.” Forster v. Flaagan, 2016 ND 12, ¶ 11, 873 N.W.2d 904. While “a 

frustration of parenting time does not alone constitute a sufficient change in 

circumstances to warrant a change in primary residential responsibility . . . 

‘allegations of parental frustration of parenting time may be a basis to grant 

an evidentiary hearing.’” Baker, 2019 ND 225, ¶ 13 (quoting Hankey v. Hankey, 

2015 ND 70, ¶ 12, 861 N.W.2d 479).

[¶11] In her affidavit, Tonya Kerzmann described the following actions by 

Jerry Kerzmann, which she asserts create a material change in circumstances: 

the denial of parenting time; the failure to encourage a relationship between 

her and the children; the refusal to discuss medical issues with her; 

interference with access to the children’s school; and using his position as a law 

enforcement officer to prevent her access to the school. Tonya Kerzmann

provided documentation that one of the minor children’s therapy appointments 

was cancelled and school notes regarding her denial of access to K.K.’s school.

She also provided the district court with text message exchanges between the 

parties regarding parenting time. Because the affidavits included information

Tonya Kerzmann represented to be based on her personal knowledge, 

incorporated documentation of exchanges between the parties, and the alleged 

facts could be the basis in which to modify residential responsibility of the 

children, Tonya Kerzmann met her burden to provide a prima facie showing of 

a change in circumstances sufficient to satisfy N.D.C.C. § 14-09-06.6(6)(a).
5

III

[¶12] Section 14-09-06.6(6)(b) requires any modification of the existing 

primary residential responsibility to be necessary to serve the best interests of 

the child. Tonya Kerzmann argues she has presented sufficient evidence to 

meet her burden of showing a prima facie case that modification is necessary 

to serve the best interests of the children.

[¶13] In considering whether the moving party has met the prima facie burden 

related to N.D.C.C. § 14-09-06.6(6)(b), the district court must consider the 

applicable N.D.C.C. § 14-09-06.2(1) factors. See Schroeder v. Schroeder, 2014 

ND 106, ¶ 7, 846 N.W.2d 716. To satisfy the best interests, the moving party 

must demonstrate a “factual showing that could justify a finding for the 

moving party that could be affirmed on appeal.” Solwey v. Solwey, 2016 ND 

246, ¶ 20, 888 N.W.2d 756 (emphasis in original). “This is not the time for the 

district court to judge whether it would decide the best-interest factors in favor 

of the moving party.” Id. at ¶ 20 (citing Wald v. Holmes, 2013 ND 212, ¶ 5, 839 

N.W.2d 820) (emphasis in original).

[¶14] Tonya Kerzmann’s affidavit described incidents where Jerry Kerzmann 

has not attended to the children’s developmental needs and the children have 

exhibited inappropriate behavior for their ages. Tonya Kerzmann’s affidavit 

described problems with the children’s dental care. Further, she described in 

her affidavit Jerry Kerzmann’s failure to facilitate a relationship between her 

and the children, specifically, that K.K. often refuses time with her, leading to 

a separation of K.K. and B.K. The affidavit also described how Jerry Kerzmann 

has failed to follow-through with counseling for K.K.

[¶15] While Jerry Kerzmann argues the statements within Tonya Kerzmann’s 

affidavit are either untrue or he has different explanations for them, we must 

accept Tonya Kerzmann’s statements within the affidavit as true. See Solwey, 

2016 ND 246, ¶ 18. The statements, assumed true, implicate the best interest 

factors under N.D.C.C. § 14-09-06.2(1) (c), (e), and (h), because the statements

relate to the children’s developmental needs, the willingness of each parent to 

facilitate a relationship with the other, and the school records of the children.
6

[¶16] Tonya Kerzmann’s affidavit also provides prima facie evidence the 

children are being adversely affected as required by our prior case law

interpreting the legislature’s use of the term “necessary.” See Johnshoy, 2021 

ND 108, ¶ 9; Kelly v. Kelly, 2002 ND 37, ¶ 16, 640 N.W.2d 38. The affidavit 

includes descriptions of Jerry Kerzmann frustrating Tonya Kerzmann’s 

parenting time, failing to facilitate a relationship between the children and 

Tonya Kerzmann, failing to follow through with recommended counseling for 

the children, and failing to provide adequate dental care for the children. The 

affidavit is sufficient to provide a prima facie showing the children may be 

adversely affected.

[¶17] Under our de novo review, we conclude Tonya Kerzmann has met her 

burden of showing a modification of residential responsibility could be in the 

best interests of the children. Because these facts implicate several best 

interests factors, which if proven at an evidentiary hearing, could result in a 

modification of residential responsibility, we find Tonya Kerzmann has 

satisfied N.D.C.C. § 14-09-06.6(6)(b).

IV

[¶18] Tonya Kerzmann provided a prima facie showing of both a material 

change in circumstances as required by N.D.C.C. § 14-09-06.6(6)(a) and 

provided a prima facie showing a modification is necessary for the best 

interests of the children as required by N.D.C.C. § 14-09-06.6(6)(b). Because 

she has provided a prima facie showing of both prongs of the statutory 

framework, we reverse and remand for an evidentiary hearing on Tonya 

Kerzmann’s motion to modify residential responsibility. 

V

[¶19] Jerry Kerzmann moved for sanctions against Tonya Kerzmann asserting 

she had included material from the record within the appendix that is not 

relevant to the pending appeal. Jerry Kerzmann contends that as part of the 

stipulated dismissal of Tonya Kerzmann’s March 2018 motion to amend her 

parenting time, the district court ordered that “neither party will be allowed to 

rely on these old allegations moving forward for any future motions.” 
7

Documents related to the March 2018 motion were included within the 

Appellant’s Appendix. This Court “may take appropriate action against any 

person failing to perform an act required by rule or court order,” N.D.R.App.P. 

13, and it has discretion in determining whether to administer sanctions for 

noncompliance with the appellate rules. Silbernagel v. Silbernagel, 2007 ND 

124, ¶ 21, 736 N.W.2d 441. After reviewing the additional materials and noting 

the materials are part of the court’s record, we decline to impose sanctions in 

this matter.

VI

[¶20] Tonya Kerzmann provided an affidavit sufficient to establish prima facie 

evidence supporting modification of residential responsibility of the children. 

Accordingly, we reverse the order of the district court and remand for an 

evidentiary hearing on the motion for modification of residential responsibility.

[¶21] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte