Lausen v. Hertz

20050371 Erin Kathleen Lausen, Plaintiff and Appellee
v.
Kary Jay Hertz, Defendant and Appellant

Appeal from: District Court, Northwest Judicial District, Ward County
Judge William W. McLees
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellant: Pagel Weikum Law Firm
Appellee: Larson Law Firm, P.C.
Term: 02/2006   Argument: 02/09/2006  2:15pm
ND cite: 2006 ND 101
NW cite: 714 N.W.2d 57

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Issues: Appellant's Statement of the Issues:
1 Is evidence of the relocation of the custodial parent and the minor child to an out of state location roughly 1,200 miles away adequate prima facie evidence permitting an evidentiary hearing on a motion for change of custody?
2) Does N.D.C.C. 14-09-07 require the custodial parent of a minor child to either obtain the consent of the non-custodial parent or an order permitting the change of residence at the time of the anticipated relocation out of state?

Appellee's Statement of the Issues:
This is an attempt to create a custody dispute where none exists. The underlying motion for change of custody occurred because Erin Lausen, hereinafter "Erin", informed Kary J. Hertz, hereinafter "Kary", that she was moving to Saginaw, Michigan and planning to get married. Kary filed a motion to change custody under Section 14-09-06.6 of the North Dakota Century Code. Kary's motion argued that a move from the State of North Dakota was not contemplated at any earlier time. As a result, the move was a change in circumstances which required the court's consideration at a hearing at which the potential for modifying custody could be determined. Kary failed to recognize in his motion that the permission to move from the State of North Dakota had been granted in two earlier judgments and had been considered by the court in its orders for judgment. As a result, Kary presented no new facts which the court could consider. The court determined that Kary had not met his burden to establish a prima facie case to conduct a hearing on the issue of change of custody.

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Docket entries:
110/26/2005 NOTICE OF APPEAL: 10/24/2005
211/02/2005 APPELLANT BRIEF
311/02/2005 APPELLANT APPENDIX
411/02/2005 DISK - ATB (e-mailed)
511/14/2005 Copies of NOA for ATA
611/23/2005 MOT. EXT/TIME APPELLEE BRIEF
711/23/2005 E-FILED MOTION (MAE)
811/23/2005 ACTION BY CHIEF DEPUTY CLERK (MAE granted, w/understanding OA will be heard in Jan.) . Granted: 12/15/2005
912/02/2005 RECORD ON APPEAL
1012/12/2005 APPELLEE BRIEF
1112/12/2005 APPELLEE APPENDIX
1212/18/2005 DISK of AEB
1312/19/2005 Letter from Rodney Pagel dated 12-15-05 RE: 3rd Amended Judgment is being drafted, and
1412/19/2005 his informing us his client does not intend to appeal the 3rd amended judgment
1501/17/2006 MOTION FOR WAIVER OF ORAL ARGUMENT ON BEHALF OF THE APPELLEE (letter dated 1-11-06 from Mr. Larson)
1601/17/2006 Letter dated 1-13-06 from Rodney E. Pagel advising his client will not waive OA
1701/20/2006 Supplemental Clerk's Certificate dated 1-19-06 (Entry Nos. 80-91)
1801/24/2006 ACTION BY SUPREME COURT (OA waived on behalf of Appellee). Granted
1902/09/2006 APPEARANCES: Rodney E. Pagel; submitted on brief for Appellee
2002/09/2006 ARGUED: Pagel; submitted on brief for Appellee
2102/09/2006 ORAL ARGUMENT WEBCAST
2205/11/2006 DISPOSITION: AFFIRMED
2305/11/2006 UNANIMOUS OPINION: Kapsner, Carol Ronning
2405/11/2006 (Concur in the result): Sandstrom, Dale V.: CON/RES
2505/11/2006 Costs on appeal taxed in favor of appellee
2605/15/2006 Judgment Mailed to Parties
2706/08/2006 MANDATE
2806/13/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 04/18/2014