Miller v. Miller

20120424 Leslie Wade Miller, Plaintiff and Appellant
v.
Jenny Lynn Miller, n/k/a Jenny Sailer, Defendant and Appellee

Appeal from: District Court, South Central Judicial District, Mercer County
Judge David E. Reich
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellant: Lynn M. Boughey
Appellee: Sherry Mills Moore
Term: 04/2013   Argument: 04/02/2013  10:45am
ND cite: 2013 ND 103
NW cite: 832 N.W.2d 327

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
Issue 1: The district court erred in failing to find a prima facia case in a situation in which:
A) the district court's total analysis consisted of only one-fact (the fifteen-year-old was not of sufficient maturity to provide a preference) in its one-sentence conclusory finding, despite the substantial factual allegations contained in the affidavits submitted by the movant and his son;
B) the district court apparently adopted the affidavits of the opposing parent whole-cloth through a one-sentence conclusory finding which ignored all other allegations made by the movant;
C) the district court erred in ruling that a prima facia case was not warranted by issuing a one-sentence conclusory finding and ignoring all other allegations made and based solely on a finding that the fifteen-year-old son did not have sufficient maturity to provide a preference that would constitute a prima facia case.

Appellee's Statement of the Issues:
A) Should a denial of a motion to modify primary responsibility be reversed if the bulk of evidence produced is either not competent or based upon firsthand knowledge, was previously submitted, or is clearly and facially inaccurate?
B) Does a two-month trial period constitute a de facto change of primary residential responsibility such that, as a matter of law, trial court's denial of the motion to change primary residential responsibility must be reversed?
C) Must appropriate, lawful parental guidance for a troubled child require a reversal of the trial court?
D) Can the perception of the non-primary parent that his child has inadequate clothing at his house and that the primary parent insufficiently included him in the decision-making create a mandate for an evidentiary hearing for change of primary residential responsibility?
E) Does a simple assertion of slight improvement without specifics constitute a material change of circumstance?
F) Was the minor child of sufficient maturity and sound judgment for his preference to require an evidentiary hearing?

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Docket entries:
112/06/2012 NOTICE OF APPEAL: 12/03/2012
212/13/2012 Received $125 filing fee (Receipt #21615)
301/02/2013 ELEC. RECORD ON APPEAL DATED DECEMBER 31, 2012 (ENTRY NOS.1-95)
401/10/2013 MOT. EXT/TIME APPELLANT BRIEF
501/10/2013 E-FILED MOTION
601/10/2013 ACTION BY CLERK. Granted: 02/02/2013
702/02/2013 APPELLANT BRIEF (PDF)
802/02/2013 E-FILED BRIEF (PDF)
902/02/2013 APPELLANT APPENDIX
1002/02/2013 E-FILED APPENDIX
1102/22/2013 Rcv'd $25 surcharge for ATB (Receipt #21710)
1202/08/2013 Rcv'd nonsubstantive corrections to atb & ata (added n/k/a)
1302/08/2013 DISK(ATB)(e-mailed)
1402/27/2013 Rcv'd 7 copies of ATB from CSD
1502/27/2013 Rcv'd 6 copies of ATA from CSD
1603/07/2013 Received the $25 surcharge for the aeb
1703/07/2013 APPELLEE BRIEF
1803/07/2013 E-FILED BRIEF
1903/07/2013 APPELLEE APPENDIX
2003/07/2013 E-FILED APPENDIX
2103/08/2013 Rec'd non-substantive changes to the title pages of ATB & ATA
2203/13/2013 We rec'd 7 copies of the aeb & 6 copies of the aea from CSD
2303/18/2013 NOTICE OF ORAL ARGUMENT SENT
2404/02/2013 APPEARANCES: Lynn M. Boughey; Sherry Mills Moore
2504/02/2013 ARGUED: Lynn M. Boughey; Sherry Mills Moore
2604/02/2013 ORAL ARGUMENT WEBCAST
2706/19/2013 DISPOSITION: AFFIRMED
2806/19/2013 UNANIMOUS OPINION: Kapsner, Carol Ronning
2906/19/2013 Costs on appeal taxed in favor of Appellee
3006/20/2013 Judgment Sent to Parties
3107/25/2013 MANDATE

Generated from Supreme Court Docket on 08/27/2014