“For a statement to be admissible under the state of mind or emotion exception to the hearsay rule, the declarant's statement must be contemporaneous with the mental or emotional state sought to be proven, there must be no circumstances suggesting a motive for the declarant to misrepresent his or her state of mind, and the declarant's state of mind must be relevant to an issue in the case.” Schumacker v. Schumacker, 2011 ND 75, ¶ 15, 796 N.W.2d 636 (allowing statements from children indicating a state of mind or emotional condition resulting from domestic violence in the home to show state of mind of child, but not to prove facts of domestic violence) (citing 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 803.05[2] (2nd ed.2011)). “Under this exception, statements may not be offered to prove the truth of the underlying facts, but only to show the declarant's state of mind or emotional condition.”
The party moving for a change of primary residential responsibility has the burden of establishing a prima facie case under N.D.C.C. § 14–09–06.6(4) to justify modification before the party is entitled to an evidentiary hearing. Schumacker v. Schumacker , 2011 ND 75, ¶ 7, 796 N.W.2d 636 ; Green v. Green , 2009 ND 162, ¶ 7, 772 N.W.2d 612. "Whether a party has established a prima facie case for a change of primary residential responsibility is a question of law which this Court reviews de novo." Charvat , 2013 ND 145, ¶ 9, 835 N.W.2d 846 ; see alsoSweeney v. Kirby , 2013 ND 9, ¶ 3, 826 N.W.2d 330 ; Wolt v. Wolt , 2011 ND 170, ¶ 9, 803 N.W.2d 534.
“A material change in circumstances means important new facts that were unknown at the time of the prior custodial decree.” Id. (citing Schumacker v. Schumacker, 2011 ND 75, ¶ 10, 796 N.W.2d 636). “Whether a party presented a prima facie case for a change of primary residential responsibility is a question of law, which this Court reviews de novo.” Id. (citing Schumacker, 2011 ND 75, ¶ 6, 796 N.W.2d 636).
N.D.C.C. § 14–09–06.6. “Whether a party presented a prima facie case for a change of primary residential responsibilityis a question of law, which this Court reviews de novo.” Schumacker v. Schumacker, 2011 ND 75, ¶ 6, 796 N.W.2d 636. An evidentiary hearing is appropriate only if a prima facie case is established. N.D.C.C. § 14–09–06.6(4).
See Charvat v. Charvat, 2013 ND 145, ¶ 7, 835 N.W.2d 846;Thompson v. Thompson, 2012 ND 15, ¶ 6, 809 N.W.2d 331. The party moving for a change of primary residential responsibility has the burden of establishing a prima facie case under N.D.C.C. § 14–09–06.6(4) to justify modification before the party is entitled to an evidentiary hearing. Schumacker v. Schumacker, 2011 ND 75, ¶ 7, 796 N.W.2d 636;Green v. Green, 2009 ND 162, ¶ 7, 772 N.W.2d 612. “Whether a party has established a prima facie case for a change of primary residential responsibility is a question of law which this Court reviews de novo.” Charvat, 2013 ND 145, ¶ 9, 835 N.W.2d 846;see also Sweeney v. Kirby, 2013 ND 9, ¶ 3, 826 N.W.2d 330;Wolt v. Wolt, 2011 ND 170, ¶ 9, 803 N.W.2d 534.
[¶ 10] In determining whether a prima facie case has been established, the district court must accept the truth of the moving party's allegations. Kartes, 2013 ND 106, ¶ 9, 831 N.W.2d 731;Schumacker v. Schumacker, 2011 ND 75, ¶ 8, 796 N.W.2d 636. The party opposing the motion may attempt to rebut a prima facie case by presenting evidence conclusively demonstrating the moving party is not entitled to a modification, but when the opposing party's evidence merely creates conflicting issues of fact, the court may not weigh the conflicting allegations when deciding whether a prima facie case has been established.
[¶ 9] In determining whether a prima facie case has been established, the district court must accept the truth of the moving party's allegations. Kartes, 2013 ND 106, ¶ 9, 831 N.W.2d 731;Schumacker v. Schumacker, 2011 ND 75, ¶ 8, 796 N.W.2d 636. The party opposing the motion may attempt to rebut a prima facie case by presenting evidence conclusively demonstrating the moving party is not entitled to a modification, but when the opposing party's evidence merely creates conflicting issues of fact, the court may not weigh the conflicting allegations when deciding whether a prima facie case has been established.
In determining whether a prima facie case has been established, the district court must accept the truth of the moving party's allegations and may not weigh conflicting allegations. Schumacker v. Schumacker, 2011 ND 75, ¶ 8, 796 N.W.2d 636;Volz v. Peterson, 2003 ND 139, ¶ 14, 667 N.W.2d 637. The opposing party may present evidence challenging the moving party's right to the relief requested, but when that evidence merely creates conflicting issues of fact, the court may not weigh or resolve conflicting allegations.
[¶ 3] “Whether a party presented a prima facie case for a change of primary residential responsibility is a question of law, which this Court reviews de novo.” Schumacker v. Schumacker, 2011 ND 75, ¶ 6, 796 N.W.2d 636. A
The exception requires that "[1] the declarant's statement must be contemporaneous with the mental or emotional state sought to be proven, [2] there must be no circumstances suggesting a motive for the declarant to misrepresent his or her state of mind, and [3] the declarant's state of mind must be relevant to an issue in the case." Schumacker v. Schumacker, 2011 ND 75, ¶ 15, 796 N.W.2d 636 (citation omitted).