author: SANDSTROM, Justice. MARING, Justice,

text:
    2004 ND 11
    Suzanne M. AMSBAUGH, Plaintiff and Appellant v. Terry A. AMSBAUGH, Defendant and Appellee.
    No. 20030059.
    Supreme Court of North Dakota.
    Jan. 14, 2004.
    Rehearing Denied Feb. 25, 2004.

      Robert S. Rau of Bosard, McCutcheon & Rau, Ltd., Minot, ND, for plaintiff and appellant.
    Paul M. Probst, Probst Law Firm, Minot, ND, for defendant and appellee; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] Suzanne Amsbaugh appeals a Northwest Judicial District Court divorce judgment awarding her less than one-half of the marital estate and denying her spousal support and attorney fees. Suzanne Amsbaugh argues that the district court erred in improperly valuing the marital property; in awarding her less than one-half of the marital estate; in reducing the amount of property she was to receive by deducting guardian fees, child support payments made by Terry Amsbaugh, and credit card debt; and in failing to award her spousal support or attorney fees. We affirm with adjustment, concluding the district court’s decision was not clearly erroneous and the court did not abuse its discretion.

I

[¶ 2] Suzanne and Terry Amsbaugh were married in May 1975. Suzanne Ams-baugh sued for divorce in February 2001, and the couple separated on July 1, 2001. At the time of the hearing, the parties had been married for 27 years, and both were 46 years old. Suzanne Amsbaugh currents ly resides in an apartment in Minot, while Terry Amsbaugh resides in the marital home with the parties’ minor son. In 1999, Suzanne Amsbaugh began working at Trinity Hospital in Minot as the coordinator of the sewing and crafts department. At the time of the hearing, she was working 40 hours a week and earning $10.00 per hour. In 1999, Terry Amsbaugh and two partners started a marketing firm, Results Unlimited, in Minot. At the time of trial, Terry Amsbaugh was earning $25,-000-$26,000 per year.

[¶ 3] On September 24, 2001, an interim order granted the parties divided and split custody. Suzanne Amsbaugh was granted the care, custody, and control of the parties’ son from the first day of each month through 6:00 p.m. on the fifteenth day. Terry Amsbaugh was granted the care, custody, and control from 6:00 p.m. on the fifteenth day through the last day of the month at 6:00 p.m. Reasonable visitation was granted to both parties. The district court also ordered Terry Ams-baugh to pay interim child support and spousal support for a combined total of $300 per month.

[¶ 4] In May of 2002, Terry Amsbaugh moved to amend the interim order. He sought to terminate his child support obligation, claiming the parties’ son was residing exclusively with him. Because of disputed facts, the district court denied the order; however, it reserved the right to offset the property settlement if it became apparent at the hearing that the motion should have been granted.

[¶ 5] A hearing was held on November 1 and continued on December 16, 2002. The district court granted the parties a divorce on the grounds of irreconcilable differences. The district court granted the parties joint custody but granted Terry Amsbaugh primary physical care and control. The district court initially had a property split of roughly 50 percent in mind, but the court modified this amount to reflect child support overpaid by Terry Amsbaugh, debts incurred solely by Suzanne Amsbaugh after the parties had separated and while Terry Amsbaugh was continuing to pay the marital debts, and half of the $944 in guardian ad litem fees Terry Amsbaugh was ordered to pay. The district court explained that these items, combined with Suzanne Amsbaugh’s drinking and lack of attempts to address her alcohol problem, justified the offset.

[¶ 6] The district court found Suzanne Amsbaugh has had a number of jobs over the years and had left some under less than favorable conditions. The district court found she was an honorably discharged veteran and she had worked as a waitress, as a secretary, and as a salesperson. The district court also found she had advanced schooling in horticulture. The district court found Suzanne Amsbaugh, although capable of more, would probably remain at her current status in her career.

[¶ 7] The district court found that Terry Amsbaugh was also a veteran. The district court found he was a one-third partner in an advertising and marketing firm, Results Unlimited. The district court also found his business, CTI, was basically finished. The district court found that Results Unlimited was just getting going but should continue to grow and recognized that its potential will be achieved only with a great deal of hard work. The district court also found there was no guarantee the business would be successful.

[¶ 8] The district court explained that both parties testified about the conduct of the other that they felt contributed to the divorce. Suzanne Amsbaugh testified that her husband sat around and played on the computer while she did the housework. Terry Amsbaugh testified that his wife had a drinking problem and that this problem was the primary reason for the divorce. He also accused her of having numerous affairs. The district court found that the affairs were not proven and that Suzanne Amsbaugh’s accusations were exaggerated. The district court did find, however, that the concerns about Suzanne Amsbaugh’s drinking were warranted. The district court found that her drinking and her combative nature when drunk did more than anything else to cause the dissolution of the marriage. The district court also found that it appears Suzanne Amsbaugh minimizes her drinking and is unwilling to take the necessary steps to change. The district court was also concerned about her use of Prozac for depression while she continued to drink.

[¶ 9] The district court found that Suzanne Amsbaugh was not a disadvantaged spouse entitled to spousal support. The district court explained that Terry Ams-baugh had supported her in continuing her education throughout the marriage. The district court also explained that if Suzanne Amsbaugh is not working to her full potential, it is because of her drinking and her work attitude. The district court further found each party will be responsible for his or her own attorney fees. Judgment was entered on January 24, 2003.

[¶ 10] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 11] Suzanne Amsbaugh argues the district court improperly valued the marital home and the business, Results Unlimited.

[¶ 12] “A trial court’s valuation of property is a finding of fact that is presumptively correct and subject to the clearly erroneous standard of review.” Hoverson v. Hoverson, 2001 ND 124, ¶ 13, 629 N.W.2d 573. The value given to marital property by the courts depends on the evidence presented by the parties. Fox v. Fox, 2001 ND 88, ¶ 22, 626 N.W.2d 660. “ ‘Marital property valuations within the range of the evidence are not clearly erroneous.’ ” Id. at ¶ 19 (quoting Wald v. Wald, 556 N.W.2d 291, 295 (N.D.1996)). The owner of real property may testify as to the value of his land without any further qualification or special knowledge. Anderson v. Anderson, 368 N.W.2d 566, 569 (N.D.1985). The district court is in a better position to judge credibility and observe demeanor and to determine the true facts regarding property value. Hoverson, at ¶ 13.

A

[¶ 13] Suzanne Amsbaugh argues the district court improperly used Terry Amsbaugh’s valuation of the marital home, because there was no basis for the court’s decision. She claims her valuation, on the other hand, was based on the latest tax valuation statement of Ward County and on an insurance policy.

[¶ 14] Terry Amsbaugh testified at trial that he valued the house at $90,000 because of “its location and the close proximity to the trailer houses that are across the street, and the surroundings.” He explained that the house was built for $63,000 and that there is nothing special in the home or outside the home. He also testified that his home had never been appraised and that no one from the county had been inside the home.

[¶ 15] The property valuation of the marital home was within the range of evidence presented; therefore, we conclude the valuation was not clearly erroneous.

B

[¶ 16] Suzanne Amsbaugh also argues the district court improperly valued the business, Results Unlimited.

[¶ 17] Suzanne Amsbaugh valued the business at $100,000. When asked how she came up with this figure, she explained:

What I came up with was I came up with a hundred thousand dollars because it shows on my husband’s tax ret ... my husband’s tax return that there was a profit that he made of $13,000, and I thought as far as a passbook savings account goes, you make three to five percent. This is a much riskier business, so I figured a ten percent rate of return on ten thousand dollars. That’s where I came up with a hundred thousand.

[¶ 18] The district court valued the business interest in Results Unlimited at $1.00. Terry Amsbaugh claims that the court’s valuation was “presumably” derived from financial statements of Results Unlimited that were put into evidence. The district court did not explain how it evaluated the business. In Anderson v. Anderson, this Court concluded the district court’s valuation of property did not constitute reversible error despite the fact it did not approve of or condone the district court’s method of evaluation. 504 N.W.2d 569, 571 (N.D.1993). In Anderson the district court was faced with choosing between incredible testimony and a questionable method of valuation. Id. In this case, the district court had to choose between Suzanne Amsbaugh’s valuation, which appeared to be mere speculation on her part, and financial records indicating that the business operates at a loss and has negative worth. Under the circumstances, we conclude the district court’s valuation of the business was not clearly erroneous.

Ill

[¶ 19] Suzanne Amsbaugh argues the district court erred in failing to award her one-half of the marital estate.

[¶ 20] Suzanne Amsbaugh argues she was entitled to one-half of the marital estate because this was a long-term marriage and there was no economic waste or marital fault. She claims that any marital fault on her part was condoned.

[¶ 21] The district court’s decision regarding division of property is a finding of fact and will be reversed only if clearly erroneous. Hogan v. Hogan, 2003 ND 105, ¶ 14, 665 N.W.2d 672. When a divorce is granted, the district court makes an equitable distribution of the property and debts of the parties. N.D.C.C. § 14-05-24(1). When distributing marital property, all of the assets must be considered to ensure the division is equitable. When all of the assets and debts have been included, the district court can apply the Ruff-Fischer guidelines. Neidviecky v. Neidviecky, 2003 ND 29, ¶ 10, 657 N.W.2d 255.

[¶ 22] The district court found the total assets of the parties were valued at $144,865.52 and the total debts were $101,533.46, leaving a net marital estate of $43,332.06. A fifty-fifty property split would have given each party $21,666.03; however, Suzanne Amsbaugh was awarded $9,909.19 and Terry Amsbaugh was awarded $33,422.87.

[¶ 23] “[A] property division need not be equal to be equitable, but a substantial disparity must be explained.” Bladow v. Bladow, 2003 ND 123, ¶ 5, 665 N.W.2d 724. “In general, a lengthy marriage supports an equal division of all marital assets.” Id. at ¶ 8. The Ruff-Fischer guidelines are factors used by the district court to determine how to divide marital property and award spousal support. The guidelines originate from Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952), and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966).

[¶ 24] Under these guidelines the Court considers:

“the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material. The trial court is not required to make specific findings, but it must specify a rationale for its determination.”

Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724 (quoting Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462).

[¶ 25] In dividing the marital property, the district court explained:

If I were to make an equal (50%) distribution, it would have required giving the Plaintiff the entire Investment Service of America account ($35,921.35). My computations initially started with that assumption. From that amount I deducted ½ of the Guardian Ad Litem fees ($944.00 x ½ = $472.00), $2,700.00 for child- support the Defendant has paid since March, and $8,700.00. The $8,700.00 represents the debts the Plaintiff has incurred since separation. Although marital debts, [are] subject to distribution, they are not well documented and were incurred while the Defendant continued to service the marital debts. This combined with the [Plaintiffs] drinking and lack of attempts to address her drinking are my justifications for the offsets. This results in an uneven net distribution, but in my opinion it is equitable.

[¶ 26] Although this distribution is not equal, the district court has explained its reasons for the disparity. Suzanne Ams-baugh, however, argues the district court erred in reducing her property distribution by guardian fees, spousal support paid by Terry Amsbaugh, and post-marital debts.

[¶27] Suzanne Amsbaugh claims she has made the payments required of her for the guardian ad litem fees but that Terry Amsbaugh has not. It appears from the record that each party paid $500 initially in guardian ad litem fees. A bill submitted by the guardian ad litem indicates that a previous balance of $642.50 was owed and that a new balance of $622.50 had accrued. This billing indicates that Suzanne Ams-baugh had paid an additional $321.25. On November 12, 2002, the district court had ordered the parties to pay half of the $642.50 balance. The remaining balance of $944 includes $321.25, which Terry Ams-baugh was required to pay. The district court, therefore, erred in concluding Suzanne Amsbaugh owed half of the $944.00 due for guardian ad litem fees. Her property award should have been reduced only by half of $622.50, or $311.25.

[¶ 28] Suzanne Amsbaugh also argues the district court improperly reduced her property award by $2,700 for support paid by Terry Amsbaugh from March 2002 through December 2002. On September 24, 2001, the district court entered a written interim order that Terry Amsbaugh pay $300 per month for combined child and spousal support. A hearing had been held on the interim relief, during which the district court ruled from the bench. No transcript was provided for this hearing. Although the written interim order provided that Terry Amsbaugh was to pay $300 per month in combined child and spousal support, it did not indicate how much money should be allocated to each. The district court may have specified the allocation in its oral ruling, but because of the lack of transcript, we do not know.

[¶ 29] The district court’s findings deducted from Suzanne Amsbaugh’s property distribution “$2,700 for child support Terry Amsbaugh has paid since March” 2002. Suzanne Amsbaugh argues that because this amount included spousal support, the court erred in reducing her property award by $2,700.

[¶ 30] “If an appeal is taken in a case in which an evidentiary hearing was held, the appellant must order a transcript of the proceedings.” N.D.RApp.P. 10(b). An appellant failing to file a transcript assumes the consequences. If the record on appeal does not allow a meaningful and intelligent review of the alleged error, we decline to review it. Sabot v. Fargo Women’s Health Organization, Inc., 500 N.W.2d 889, 892 (N.D.1993). The transcript of the hearing on interim relief was not provided in this matter. The ruling contained in this transcript could have answered the issue regarding the amount of support paid by Terry Amsbaugh that should be considered spousal support. This ruling may have complemented the interim order ordering Terry Amsbaugh to pay combined child and spousal support. Here, the lack of a transcript precludes meaningful review of this alleged error; therefore, we decline to review it.

[¶ 31] Suzanne Amsbaugh also claims the parties stipulated at trial that the child support would be credited at the rate of $100 per month to Terry Amsbaugh, and that the rest would be spousal support. The record, however, does not reflect a stipulation by the parties to resolve the matter in this manner.

[¶ 32] Although we decline to review whether the district court erred in reducing the property division by $2,700, we conclude the district court was justified in offsetting Suzanne Amsbaugh’s property distribution by child support paid by Terry Amsbaugh. In May 2002, Terry Ams-baugh moved to amend the September 24, 2001, interim order. He sought to terminate his child support obligation, claiming the parties’ son was residing exclusively with him. Because of disputed facts, the district court denied the order; however, it reserved the right to offset the property settlement if it became apparent at the hearing that the motion should have been granted. Trial testimony supports the district court’s decision to offset the property settlement by the child support paid. At trial, Suzanne Amsbaugh testified that the allegations in her response to Terry Ams-baugh’s motion to modify the support were incorrect.

[¶ 33] Suzanne Amsbaugh also argues the district court improperly reduced her property award by $8,700 worth of debts incurred post-separation. She claims she has been penalized because she was allocated these debts and then her property award was reduced by the same amount. “Once all property and debts of the parties are included, a trial court may consider which of the parties has incurred particular debts, and the purposes for which those debts were incurred, in determining an equitable allocation of the responsibility for repayment.” Neidviecky, 2003 ND 29, ¶ 11, 657 N.W.2d 255. We conclude the district court’s reduction in her award was justified. Suzanne Ams-baugh incurred these debts after the parties had separated and while Terry Ams-baugh continued to make payments on other marital debts.

[¶ 34] Furthermore, Suzanne Amsbaugh argues that because there was no fault, or that fault was condoned, the unequal distribution is not justified. The district court found Suzanne Amsbaugh’s drinking and lack of attempts to address her drinking to be a further justification for the offsets in the property distribution. The district court also found that her drinking and her combative nature when drunk did more than anything else to cause the marital dissolution. Both “economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property.” McKechnie v. Berg, 2003 ND 136, ¶ 6, 667 N.W.2d 628. Furthermore, uncontrolled drinking contributing to the breakdown of the marriage, even if involving alcoholism, can be considered a matter of fault. See Nastrom v. Nastrom, 284 N.W.2d 576, 582 (N.D.1979). There is much testimony to support the finding Suzanne Amsbaugh did drink and was often combative while drinking. Suzanne Amsbaugh argues her fault in the marriage has been waived because Terry Amsbaugh condoned her drinking. She refers to N.D.C.C. § 14-05-13. This statute involves conditional forgiveness for an offense constituting a cause for a divorce. This statute does not apply, and we find this argument without merit. Furthermore, even if this argument had merit, the district court’s distribution of property is sufficiently explained without considering who was at fault.

[¶ 35] The district court sufficiently explained its reasons for not equally distributing the property in this case; therefore, we conclude the property distribution was equitable and not clearly erroneous. We direct the district court, however, to increase Suzanne Amsbaugh’s property distribution by $160.75 to reflect the amount she had already paid toward the guardian ad litem bill. With this minor adjustment, we affirm the district court’s property distribution.

rv

[¶ 36] Suzanne Amsbaugh contends the district court erred in failing to award her spousal support.

[¶ 37] “A determination on spousal support is treated as a finding of fact which will not be set aside on appeal unless clearly erroneous.” Sommers v. Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made.” Shields v. Shields, 2003 ND 16, ¶ 6, 656 N.W.2d 712.

[¶ 38] Suzanne Amsbaugh claims she is a disadvantaged spouse who has forgone opportunities because of the marriage. She claims she was the primary caregiver of their child while Terry Amsbaugh was the primary wage earner. She also claims the court erroneously focused on her drinking and discriminated against her because of it.

[¶ 39] Under N.D.C.C. § 14-05-24.1, a district court in a divorce case “may require one party to pay spousal support to the other party for any period of time.” “Trial courts in our state must consider the Ruff-Fischer guidelines in making a determination of spousal support.” Riehl v. Riehl, 1999 ND 107, ¶ 8, 595 N.W.2d 10.

[¶ 40] To award spousal support, the trial court must find the spouse to be “disadvantaged.” Riehl, 1999 ND 107, ¶ 9, 595 N.W.2d 10. A “ ‘disadvantaged spouse is one who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity.’ ” Shields, 2003 ND 16, ¶ 8, 656 N.W.2d 712 (quoting Walker v. Walker, 2002 ND 187, ¶ 15, 653 N.W.2d 722 (citations omitted)). The district court stated:

I find neither party to be disadvantaged by the marriage. The Plaintiff asks the Court for spousal support, but can point to no reasons as to why it is warranted. The Defendant has supported the Plaintiffs desires for continuing education throughout the marriage, and if the Plaintiff is not working to her full potential, it is due to her drinking and work attitude.

[¶ 41] The record supports the district court’s finding. There is nothing to indicate Suzanne Amsbaugh had to give up opportunities because of the marriage. Suzanne Amsbaugh had several jobs over the years and had the opportunity to go to college. The record demonstrates Terry Amsbaugh did not prevent Suzanne Ams-baugh from pursuing further education or from working at her full potential. Furthermore, the district court did not err in considering the reason she was not working to her full potential. The district court found any disadvantage she faces arose from her drinking and work attitude and not from the marriage or divorce. Because the record supports the district court’s finding that Suzanne Amsbaugh was not disadvantaged by the marriage, we conclude the decision to deny spousal support was not clearly erroneous.

V

[¶ 42] Finally, Suzanne Ams-baugh requests an award of partial attorney fees for the trial and appellate proceedings.

[¶ 43] “A trial court has considerable discretion in awarding costs and attorney fees, and its decision will not be overturned on appeal absent an abuse of discretion.” Giese v. Giese, 2002 ND 194, ¶ 11, 653 N.W.2d 663. “A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, when its decision is not the product of a rational mental process leading to a reasoned determination, or when it misapplies or misinterprets the law.” Simpson v. Chicago Pneumatic Tool Co., 2003 ND 31, ¶ 10, 657 N.W.2d 261.

[¶ 44] This Court has concurrent jurisdiction with the district court to award attorney fees on appeal. Schmidt v. Schmidt, 2003 ND 55, ¶ 18, 660 N.W.2d 196. “The key factors in determining the propriety of an attorney fee award in a divorce action are one party’s needs and the other’s ability to pay.” Id. “[T]he trial court is in the better position to consider the special factors relevant to an award of attorney’s fees under NDCC 14-05-23 relating to the financial status of the parties and the need for and ability to pay attorney’s fees. These factors are best developed in the fact-finding arena of a trial court.” McIntee v. McIntee, 413 N.W.2d 366, 367 (N.D.1987).

[¶ 45] After reviewing the record and arguments presented, we conclude Suzanne Amsbaugh has not shown a need for attorney fees; therefore, we affirm the district court’s judgment requiring both parties to pay their own attorney fees and deny her request for attorney fees on appeal.

VI

[¶ 46] Suzanne Amsbaugh included Results Unlimited’s 2001 tax return in her appendix even though it was not in the record. Rule 30(a), N.D.R.App.P., provides: “Only items in the record may be included in the appendix. The author’s signature on the brief, under Rule 32, certifies compliance with this rule.” Rule 13, N.D.RApp.P., provides: “The supreme court may take appropriate action against any person failing to perform an act required by rule or court order.” We direct that costs on appeal be doubled for Suzanne Amsbaugh’s failure to comply with these rules. See Estate of Wieland, 1998 ND 130, ¶ 22 n. 3, 581 N.W.2d 140.

[¶ 47] Concluding the district court did not err in valuing and dividing the property, denying spousal support, and denying attorney fees, we affirm the judgment of the district court with a slight adjustment.

[¶ 48] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN and CAROL RONNING KAPSNER, JJ., concur.

MARING, Justice,

concurring in the result.

[¶ 49] I agree with the result, but write separately to express my views on the issue of the consideration of fault in the division of marital property.

[¶ 50] Our Court has said it is well settled that fault, both economic and non-economic, is a factor the trial court can consider when dividing property. See Erickson v. Erickson, 384 N.W.2d 659, 661 (N.D.1986) (holding that evidence of adultery was properly considered in dividing the parties’ property); Behm v. Behm, 427 N.W.2d 332, 337 (N.D.1988) (holding that the trial court’s consideration of evidence of adultery and misuse of marital property when dividing the parties’ property was not clearly erroneous); Heinz v. Heinz, 2001 ND 147, ¶ 5, 632 N.W.2d 443 (holding that evidence of economic and noneconomic fault are proper considerations when dividing marital property); McKechnie v. Berg, 2003 ND 136, ¶ 6, 667 N.W.2d 628 (holding that evidence of economic and noneconomic fault are proper considerations when dividing marital property).

[¶ 51] I agree, however, with former Justices Levine and Meschke that “[m]ari-tal misconduct which is not significantly related to the economic condition of the marriage is not germane to a division of property and should not be considered.” Erickson, 384 N.W.2d at 662 (Levine and Meschke, J.J., specially concurring) (citations omitted). An enlightened view of the marriage relationship is aptly described by Justice Levine in her special concurrence in Eñckson as “a partnership enterprise, a joint venture, to which each party contributes his and her efforts and skills, as agreed upon, either or both within or without the home.” Id. at 663 (citation omitted).

[¶ 52] An equitable division of the property would, therefore, be on the basis of the contributions to the partnership that entitles each to a fair share without consideration of noneconomic fault. Erickson, 384 N.W.2d at 663. For the purposes of property division, only conduct that results in “destruction, squandering or waste of assets” would be relevant. Id. In Hover-son v. Hoverson, our Court defined “[e]co-nomic misconduct [as] misconduct that results in a wasted asset or in the reduction of the net marital estate.” 2001 ND 124, ¶ 24, 629 N.W.2d 573.

[¶ 53] A trial court’s determinations regarding division of marital property are treated as findings of fact that will not be reversed on appeal unless clearly erroneous. Heinz, 2001 ND 147, ¶ 6, 632 N.W.2d 443. A finding of fact is clearly erroneous only if no evidence exists to support it, the court has misapplied the law, or after a review of the entire record, we are left with a definite and firm conviction a mistake has been made. Id. In the present case, there is evidence that Suzanne Amsbaugh’s drinking contributed to the breakup of the marriage and impacted her financial contributions to the marriage. Although I am of the opinion the disparity in the division of assets, approximately one-fourth to Suzanne Amsbaugh and three-fourths to Terry Amsbaugh, is substantial and overly harsh for a 27 year marriage, under our current law, I cannot say it is clearly erroneous.

[¶ 54] Accordingly, I respectfully concur in the result.

[¶ 55] Mary Muehlen Maring

      . Because of a mathematical error, the district court underreports the total value of the assets received by Suzanne Amsbaugh as $9,809.19.


source: Caselaw Access Project

license: Public Domain

text:
    2004 ND 2
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 2 With Chambers in Fargo, North Dakota, East Central Judicial District.
    No. 20040008.
    Supreme Court of North Dakota.
    Jan. 14, 2004.
   ORDER

[¶ 1] On January 13, 2004, Governor John Hoeven officially notified the Supreme Court that the Honorable Norman J. Backes, Judge of the District Court, with chambers in Fargo, East Central Judicial District, is resigning his position effective May 31, 2004. Judge Backes’ impending resignation will create a vacancy under Section 27-05-02.1, N.D.C.C.

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy be filled or order the vacant office transferred to a judicial district in which an additional judge is necessary, to be filled in that district.

[¶ 3] In December, 2003, this Court received comments and information on judicial service needs, population and caseload trends, and other criteria identified in N.D. Sup.Ct. Admin. R. 7.2, Section 4, in the East Central Judicial District, in light of the announced retirement of the Honorable Michael O. McGuire. See In the Matter of the Judicial Vacancy in District Judgeship No. 4, with Chambers in Fargo, North Dakota, East Central Judicial District, 2003 ND 190, 672 N.W.2d 464.

[¶ 4] We take judicial notice of the information contained in that file. For purposes of the consultation provided for under Section 27-05-02.1(4), N.D.C.C., the notice and comment period afforded the lawyers and judges of the district in the previous matter is sufficient for determining the disposition of this vacancy.

[¶ 5] Under the criteria of Section 4 of N.D. Sup.Ct. Admin. R. 7.2, the Court has again considered all submissions received by the Court in Judicial Vacancy, East Central Judicial District, 2003 ND 190, 672 N.W.2d 464, and its own administrative records on state-wide weighted caseload data.

[¶ 6] This Court concludes that the office is necessary for effective judicial administration in its present location.

[¶ 7] IT IS HEREBY ORDERED, that Judgeship at Fargo in the East Central Judicial District be filled in the manner provided in N.D.C.C. Chapter 27-25.

[¶ 8] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


author: PER CURIAM.

text:
    2004 ND 13
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Richard C. WILKES, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of The State Of North Dakota, Petitioner, v. Richard C. Wilkes, Respondent.
    No. 20040012.
    Supreme Court of North Dakota.
    Jan. 15, 2004.
   PER CURIAM.

[¶ 1] On January 8, 2004, an Application for Order of Interim Suspension of Richard C. Wilkes, a member of the bar of North Dakota, was filed under N.D.R. Lawyer Discipl. 3.4. Wilkes was admitted to practice in the courts of North Dakota on September 22, 1976, and is currently licensed.

[¶ 2] The Application asserts that Wilkes improperly took $ 425,307 from two estates beginning in early 2001. The Application is supported by information provided by the affidavit of Michael Cameron, Special Agent, IRS-CI.

[¶ 3] Disciplinary Counsel asserts that the information provided is sufficient to implicate Rule 1.15(a), Safekeeping Property, N.D.R. Prof. Conduct, which provides that a lawyer shall hold property of clients or third persons in a lawyer’s possession in connection with representation separate from the lawyer’s own property. The evidence further implicates .Standard 4.11, Failure to Preserve the Client’s Property, N.D. Stds. Imposing Lawyer Sanctions, which provides that absent aggravating or mitigating circumstances disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. The Court considered the matter, and

[¶ 4] ORDERED, under N.D.R. Lawyer Discipl. 3.4(B), Richard C. Wilkes’ license to practice law in North Dakota is SUSPENDED effective immediately and until further order of this Court.

[¶ 5] FURTHER ORDERED, that Disciplinary Counsel apply to the district court for a professional trustee as provided in N.D.R. Lawyer Discipl. 6.4.

[¶ 6] FURTHER ORDERED, that Richard C. Wilkes comply with N.D.R. Lawyer Discipl. 6.3.

[¶ 7] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ., concur.


author: MARING, Justice.

text:
    2004 ND 16
    William P. ZUGER, Plaintiff and Appellant v. STATE of North Dakota, Defendant and Appellee.
    No. 20030170.
    Supreme Court of North Dakota.
    Jan. 20, 2004.

      William P. Zuger, pro se, Bismarck, N.D., for plaintiff and appellant.
    Tag Christian Anderson, Assistant Attorney General, Attorney General’s Office, Bismarck, N.D., for defendant and appel-lee.
   MARING, Justice.

[¶ 1] William P. Zuger has appealed a summary judgment dismissing the complaint in his action against the State of North Dakota. We affirm.

[¶ 2] The State posted a vacancy announcement for an Attorney II position with the Protection and Advocacy Project, which stated, in part:

Application Procedures:

Applicants must submit a cover letter, resume, and completed State of North Dakota Application for Employment (SFN 10950) to Teresa Larsen, Executive Director, Protection and Advocacy Project....
Contact Corinne Hofmann at (701) 328-2950, 1-800-472-2670, or TDD 1-800-366-6888 for more information or accommodation or assistance in the application or interview process.

Summary of Work:

The Protection and Advocacy Project is a statewide agency with the federally mandated purpose of protecting and advocating for the rights of people with disabilities in North Dakota. The Project provides a continuum of services from information/referral to legal representation. The Attorney II provides legal representation to the Project’s clients, researches and develops legal opinions to assist non-attorney staff in representing clients, provides information and training to staff, consumers, parents, and other professionals on legal rights issues, and provides legislative and systemic advocacy on behalf of people with disabilities.

A decision was made to interview only the four highest-ranked applicants. Zuger’s application was ranked fifth, and he was not afforded an interview. Protection and Advocacy Project hired one of the four applicants who were interviewed.

[¶ 3] Zuger sued the State, alleging he applied for an Attorney II position advertised with “the criteria therefor described in a June 28, 2002, posting on the State’s web site;” the position was subject to the protections of N.D.C.C. ch. 54-44.3; the State partially waived its sovereign immunity and provided for actions against it in N.D.C.C. ch. 32-12.2; he received a merit rating precluding him from further consideration for the position; the State made available to applicants, upon request, a Position Information Questionnaire describing job qualifications for the position in greater detail; and in assigning merit ratings, the State used an Application Screening and Rating sheet containing specific qualifications for the job, but it was not made available to applicants. Zu-ger’s complaint further alleged:

15
There were described seven additional] Items, 2 through 8, purporting to describe the qualitative practice experiences of the applicants. He received a zero in each, for the purported reason that his application did not provided sufficient detail to determine whether that experience was specifically in the area of disability law.
17
Neither the web posting, nor the defendant’s description of the job in the PIQ, stated that any disability related experience was required, except that the web posting Vacancy Announcement (but not the PIQ) stated the job required “three years of professional experience working with people with disabilities,” which was specifically addressed in the plaintiffs cover letter of July 24, 2002, and clearly established by the attachments.
20
All of the applicants approved for interviews received credit for having done legal research and analysis, such as appellate briefing.

The complaint also alleged the State did not “request further specification of disability related experience,” did not contact his professional references, and did not perform “[a] simple on-line search,” which “would have confirmed ... that he has appeared ... in the North Dakota Supreme Court.” The complaint alleged the State deprived Zuger of property rights by violating N.D.C.C. eh. 54-44.3 and by violating his rights under the 14th Amendment to the United States Constitution. Finally, the complaint alleged:

The transparency of the wrongful circumstances establishes that the actions of the application rater, Kim Wassim, were done deliberately, and any reasonable and reasonably competent lawyer in the position of and having the information of staff attorney Corinne Hofmann of the Protection Advocacy Project would so determine, and was legally obligated to so determine. Therefore, he is entitled to compensation for emotional distress, in the absence of physical injury, which injury was proximately foreseeable to the State.

[¶ 4] On December 2, 2002, the State filed a motion for dismissal under N.D.R.Civ.P. 12, asserting the complaint did not state a claim upon which relief could be granted. On December 31, 2002, the trial court noted that discovery had not been conducted, determined Zuger had “stated a claim which, if valid, may entitle him to relief,” denied the State’s motion to dismiss, and said, “the Court will consider a motion for summary judgment by either party once discovery has been completed.” On January 29, 2003, the State filed an answer to Zuger’s complaint, alleged the complaint failed to state a claim upon which relief could be granted, asserted it did not violate any of Zuger’s statutory or constitutional rights, and requested dismissal of the complaint. On February 20, 2003, the State filed a brief and motion for dismissal under either N.D.R.Civ.P. 12 or N.D.R.Civ.P. 56. Zuger responded with a brief filed on March 11, 2003.

[¶ 5] After considering the briefs and numerous depositions and exhibits, the trial court issued a Memorandum Decision and Order stating, in part:

In this court’s opinion, the Plaintiff has failed to adequately identify any state source to support his allegation of a constitutionally protected property interest. While he alleges that N.D. CENT. CODE ch. 54-44.3 creates a property right in prospective employment, neither the text of that chapter nor case law supports that assertion.... Additionally, there has been nothing presented for the court’s consideration which indicates that the Central Personnel System Act supports a claim of entitlement to any benefit.
In summary, it is this court’s determination that North Dakota law does not create a constitutionally protected property interest in a prospective employment opportunity.... In light of this determination, the remaining causes of action need not be addressed.
As a matter of law, the Defendant is entitled to the relief it seeks. Plaintiff William P. Zuger has failed to state a claim upon which the relief he seeks can be validly asserted against the State of North Dakota. Therefore, the motion for summary judgment by the Defendant is GRANTED.

A judgment dismissing Zuger’s complaint was filed on May 23, 2003.

Zuger appealed, raising the following issues:

1. The state merit selection law, NDCC chapter 54.44.3, and the administrative regulations promulgated to enforce it are binding on the State and a clear breach of its provisions is a wrong for which the state’s tort claim statute, NDCC chapter 32-12.2, provides a remedy, as alleged by the Complaint.
2. The state merit selection law also creates a sufficient property interest in those it protects from discrimination to permit an action against the State under the 14th amendment of the United States Constitution, as alleged by the Complaint.
3. The Complaint also alleges a cause of action for the tort of outrage, for which action may be brought by virtue of the state’s tort claim act, NDCC chapter 32-12.2.

[¶ 6] The trial court reviewed the parties’ briefs and the depositions and other evidence in ruling on the State’s motion for dismissal under N.D.R.Civ.P. 12 or 56. When the trial court considers matters outside the pleadings in ruling on a motion to dismiss, the motion is treated as one for summary judgment and disposed of under N.D.R.Civ.P. 56. Towne v. Dinius, 1997 ND 125, ¶ 9, 565 N.W.2d 762. Thus, we consider this appeal in the posture of summary judgment.

[¶ 7] Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Tarnavsky v. McKenzie County Grazing Ass’n, 2003 ND 117, ¶ 7, 665 N.W.2d 18. ‘Whether summary judgment was properly granted is ‘a question of law which we review de novo on the entire record.’ ” Iglehart v. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343 (quoting Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689). On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Keator v. Gale, 1997 ND 46, ¶ 7, 561 N.W.2d 286. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial. Iglehart, at ¶ 9.

[¶ 8] A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343. “Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e).” Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D.1994). “Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion.” Id.

The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

Iglehart, at ¶ 10 (quoting Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46 (citations omitted)). Mere speculation is not enough to defeat a motion for summary judgment,- and a scintilla of evidence is not sufficient to support a claim. Iglehart, at ¶ 10. If no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed that no such evidence exists. Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D.1994).

[¶ 9] In its brief in support of its motion to dismiss, the State relied upon a large number of state and federal decisions for the propositions that one cannot bring an action against a state under the Fourteenth Amendment, that Zuger had no protectible property or liberty interest within the meaning of the Fourteenth Amendment, that there is no implied private cause of action under N.D.C.C. ch. 54-44.3, and that Zuger had failed to state a claim upon which relief could be granted for intentional infliction of emotional distress.

[¶ 10] Zuger responded with a three-page brief. With regard to the N.D.R.Civ.P. 12 aspect of the State’s motion, Zuger cited only N.D.R.Civ.P. 7 and 12, and 5A Charles Alan Wright & Arthur R. Miller, Fed. Practice & Procedure § 1885 (2d ed.1990) for his propositions that “it’s already been decided” in the court’s order on the State’s first Rule 12(b) motion, and grounds for the motion must be stated with particularity in a single motion. With regard to the N.D.R.Civ.P. 56 aspect of the State’s motion, Zuger cited no authorities, other than eonelusory assertions about noncompliance by the State with three sections of the North Dakota Administrative Code, and submitted the following factual assertions:

Therefore, I oppose the motion, submitting an appropriate summary of the facts established in discovery and submit the depositions for the Court’s consideration, as appropriate.
Depositions have been taken of Teresa Larsen, Corinne Hofmann, Kim Wassim, Bruce Murry, Pam Mack and Loretta Movchan, which with the exhibits, 1 through 28, inclusive, are herewith filed. The State has conducted no discovery.
Larsen, the executive director of Protection and Advocacy, appointed Corinne Hofmann, a staff attorney to take overall charge of hiring for the position, which Hofmann had previously occupied. She worked with Kim- Wassim at Central Personnel, who rated the applicants’ written applications as to qualification for the job.
Wassim had no legal training and had never before evaluated a lawyer. She depended on Hofmann to advise her as to the job requirements and to help interpret the applications and did, indeed, confer repeatedly. Hofmann testified that my application, on its face, established a higher level of numerical score than assigned by Wassim; at least one more point, although she refused to say specifically how many points. She testified, further, that one more point would have qualified me for an interview.
The depositions also established that after receiving the applications, Hofmann directed Wassim to reduce the points assigned for practice experience, from 48 to 30. Hofmann was also advised in writing by a co-employee at P & A that the attorney hired for the job was fired from his previous job, but, in response, she personally undertook sole responsibility to look into it. She kept this information from everyone else involved in the hiring process, including Larsen. She deliberately did not follow up on the advice and did not contact Murry’s direct supervisor or follow the lead back through the individual who wrote to her, Pam Mack.
She did not comply with the regulations regarding listing the job, NDAC sections 4-07-05-05 or -08, although she was aware of them and knew she was required to follow them. These sections required that the vacancy announcement list all minimum and additional job criteria, upon which the applicants would be rated. Additional criteria were used which none of the applicants met in their entirely [sic], but for which all applicants except me were given partial credit.
She did not comply with the requirements of NDAC section 4-07-25-06, requiring “action, upon notification, to correct an error made by the agency in any part of the examination,” although she was aware of it and was given specific written notice by me of the essential errors made in the evaluation of my application, before the hiring process was completed. Indeed, even though Pam Mack had advised her of Murry’s prior termination from Burleigh County Social Services the hour before I met with her, she never followed up on it.

[¶ 11] Here, as in First Nat’l Bank & Trust Co. v. Jacobsen, 431 N.W.2d 284, 288 (N.D.1988), Zuger “left to the court the chore of divining what [his] argument in opposition to summary judgment was,” his “paperwork did not highlight a genuine issue of material fact,” and he “did not explain the significance of the evidence.” We, therefore, conclude Zuger “did not provide the district court with evidence raising a genuine issue of material fact.” Id.

[¶ 12] Zuger failed to cite any authority which supports he has a property right to an interview. While Zuger relied upon N.D.C.C. ch. 32-12.2, he did not show the trial court he had a claim that existed at common law or had “otherwise been created by law as of April 22, 1995.” See N.D.C.C. § 32-12.2-02(5), which provides: “This chapter does not create or allow any claim that does not exist at common law or has not otherwise been created by law as of April 22, 1995.”

[¶ 13] The elements of an action for intentional infliction of emotional distress are extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress. Muchow v. Lindblad, 435 N.W.2d 918, 923-24 (N.D.1989). The trial court must initially decide if a defendant’s conduct reasonably may be regarded as extreme and outrageous. Kautzman v. McDonald, 2001 ND 20, ¶ 19, 621 N.W.2d 871. “If reasonable people could differ, a plaintiff is entitled to have the trier of fact determine whether the conduct is sufficiently extreme and outrageous to result in liability.” Id.

[¶ 14] Zuger has not pointed out any specific record evidence that he has suffered severe emotional distress. “However, with regard to the claim for intentional infliction of emotional distress, the degree of outrageousness of a defendant’s conduct may itself be important evidence of severe emotional distress necessary to support a claim for intentional infliction of emotional distress.” Muchow, 435 N.W.2d at 924. Thus, we examine whether the State’s conduct meets the threshold of extreme and outrageous conduct. “Comment d. of the Reporter’s Notes of § 46 of the Restatement ... makes clear that it ... ‘has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress.’ ” Muchow, 435 N.W.2d at 924. The “extreme and outrageous” threshold is narrowly limited to conduct that exceeds “all possible bounds of decency,” and which would arouse resentment against the actor and lead to an exclamation of “Outrageous!” by an average member of the community. Id.

[¶ 15] Zuger has not persuaded us that the State’s decision not to interview an applicant for an attorney position because his ranking was below the required level based upon use of a scoring device giving credit for factors contained in a position information questionnaire is sufficiently extreme and outrageous as to support an action for intentional infliction of emotional distress. Although the position information questionnaire was not fully specified in the vacancy announcement, it was available upon an applicant’s request in accordance with the vacancy announcement’s advice to “[c]ontact Corinne Hofmann ... for more information or accommodation or assistance in the application or interview process.” Even additionally considering the fact the State did not request further information from the applicant, contact the applicant’s professional references, or perform an on-line search, which would have revealed the applicant had appeared before this Court, does not render the State’s conduct sufficiently extreme and outrageous as to support an action for intentional infliction of emotional distress.

[¶ 16] The summary judgment of dismissal is affirmed.

[¶ 17] DALE V. SANDSTROM, CYNTHIA ROTHE-SEEGER, D.J., WILLIAM F. HODNY, S.J., and WILLIAM A. NEUMANN, JJ., concur.

[¶ 18] The Honorable CYNTHIA ROTHE-SEEGER, D.J., and the Honorable WILLIAM F. HODNY, S.J., sitting in place of KAPSNER, J., and VANDE WALLE, C.J., disqualified.


author: NEUMANN, Justice. MARING, Justice, SANDSTROM, Justice,

text:
    2004 ND 15
    Roger W. TANK, Plaintiff and Appellee v. Sherri L. TANK, n/k/a Sherri L. Koble, Defendant and Appellant.
    No. 20030111.
    Supreme Court of North Dakota.
    Jan. 20, 2004.

      Tom P. Slorby, Minot, N.D., for defendant and appellant; submitted on brief.
    Robert S. Thomas of Thomas & Thomas, Minot, N.D., for plaintiff and appellee; submitted on brief.
   NEUMANN, Justice.

[¶ 1] Sherri L. Tank, now known as Sherri L. Koble, appeals from an order denying her motion to amend the divorce judgment seeking to modify the custody provisions. Because the trial court erred in determining Koble had failed to establish a prima facie case entitling her to an evidentiary hearing under N.D.C.C. § 14-09-06.6(4), we reverse and remand.

I

[¶ 2] Roger W. Tank and Sherri L. Ko-ble were married and have two children together, ages twelve and nine at the time modification was sought. The parties divorced in May 2000. By stipulation, Tank and Koble have joint physical custody of the children, and Tank has primary physical custody. Tank has remarried. His wife has a six-year-old child who resides with them.

[¶ 3] Koble moved to modify the custody arrangement in August 2002, alleging a material change in circumstances necessitated custody modification. According to Kóble, Tank failed to adequately care for the children, he interfered with her visitation rights, and the children prefer to live with her. Koble requested she receive physical custody of the children and Tank receive liberal visitation. In her supporting affidavit, Koble provided specific instances and occurrences in support of her motion. Tank responded by objecting to Koble’s motion and filed an affidavit denying and explaining Koble’s allegations to show custody modification was unwarranted. Ko-ble responded to Tank’s affidavit by filing an affidavit further explaining her allegations and countering Tank’s assertions. The trial court considered the affidavits and held Koble had failed to show a prima facie case to justify an evidentiary hearing.

[¶ 4] In its order, the trial court addressed most of the issues Koble raised. Specifically, the trial court determined the children appeared to be in a generally safe and stable environment and found no evidence of neglect. The trial court expressed concern over specific instances of conduct related to Tank’s care of the children, but noted social services had reviewed the children’s care and did not take action or order a follow-up investigation. The court further determined Tank’s frustration of Koble’s visitation rights was not serious enough to adversely affect the children’s best interests. The trial court ultimately determined Koble failed to establish a prima facie case showing a material change in circumstances because her allegations were insufficient to justify custody modification and, therefore, denied her motion without an evidentiary hearing. Koble appeals.

II

[¶ 5] Koble argues she established a prima facie case under N.D.C.C. § 14-09-06.6, and the trial court erred in denying her an evidentiary hearing on her motion for a change of custody.

[¶ 6] The trial court makes no findings of fact when reviewing a party’s affidavits accompanying a motion to modify custody. Determination of whether Koble established a prima facie case entitling her to an evidentiary hearing is a question of law.

[¶ 7] The requirements for custody modification are well-settled and have been recently reiterated in Volz v. Peterson, 2003 ND 139, 667 N.W.2d 637. Before custody may be modified after the two-year period following a prior custody order,. North Dakota law requires a two-tiered determination by the trial court. N.D.C.C. § 14-09-06.6(6). The trial court must first determine whether a material change in circumstances has occurred and, if it makes such a finding, must determine whether “the modification is necessary to serve the best interest of the child.” N.D.C.C. § 14 — 09—06.6(6)(b). In this case, we are only concerned with the first requirement.

[¶ 8] The moving party demonstrates a material change in circumstances by establishing a prima facie case justifying custody modification. The proper procedure for resolving a motion to modify custody has been set forth under N.D.C.C. § 14-09-06.6(4), which provides:

A party seeking modification of a custody order 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 evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

[¶ 9] The moving party establishes a prima facie case by alleging, with supporting affidavits, sufficient facts which, if they remained uncontradicted at an evidentiary hearing, would support a custody modification in her favor. Volz, 2003 ND 139, ¶ 7, 667 N.W.2d 637 (citing Lawrence v. Delkamp, 2003 ND 53, ¶ 7, 658 N.W.2d 758; Quarne v. Quarne, 1999 ND 188, ¶ 11, 601 N.W.2d 256). A trial court can find the moving party has failed to bring a prima facie case only if the opposing party presents counter affidavits conclusively establishing the allegations of the moving party have no credibility, or if the movant’s allegations are insufficient, on their face, to justify custody modification. Volz, at ¶ 8 (citing O’Neill v. O’Neill, 2000 ND 200, ¶¶ 4-5, 619 N.W.2d 855). If the opposing party meets that burden, the prima facie case is rebutted and the trial court may deny the motion to modify custody without holding an evidentiary hearing. Id. However, if the opposing party fails to meet that burden, an evidentiary hearing must be held to resolve conflicting evidence and determine whether custody modification is warranted. See id.

[¶ 10] A material change in circumstances is defined as important new facts unknown to the court at the time of the prior custody decree. Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38 (citing Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564; Mayo v. Mayo, 2000 ND 204, ¶ 16, 619 N.W.2d 631; In re N.C.C., 2000 ND 129, ¶ 18, 612 N.W.2d 561); N.D.C.C. § 14-09-06.6(6)(a). Allegations showing potential endangerment to the children’s physical or mental health constitute a significant change of circumstances, raising a prima facie case for modification of custody and entitlement to an evidentiary hearing. Volz, 2003 ND 139, ¶ 10, 667 N.W.2d 637 O’Neill, 2000 ND 200, ¶ 8, 619 N.W.2d 855; Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256. This Court has also recognized a mature child’s reasonable preference to live with one parent may constitute a significant change of circumstances under N.D.C.C. § 14-09-06.6. Volz, at ¶ 11 (citing Kelly, at ¶ 19; Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924; Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390; Alvarez v. Carlson, 524 N.W.2d 584, 590 (N.D.1994)). Generally, frustration of visitation does not alone constitute a significant change of circumstances warranting custody modification. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 18, 603 N.W.2d 896. However, custody modification may be appropriate if the best interests of the child are affected by the visitation problems. Id.

[¶ 11] In its order, the trial court discussed several of Koble’s allegations and addressed Tank’s rebuttal to those allegations. The trial court concluded Koble’s allegations were insufficient, even if uncon-tradicted, and denied her an evidentiary hearing, and subsequently, denied her motion for custody modification.

[¶ 12] A prima facie case does not require facts which, if proved, would mandate a change of custody as a matter of law. A prima facie case only requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed. See Volz, 2003 ND 139, ¶ 8, 667 N.W.2d 637. A prima facie case is only “enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Black’s Law Dictionary 1209 (7th ed.1999). It is a bare minimum. The affidavits Ko-ble presented establish a prima facie case that would support, though not necessarily require, custody modification, if the allegations were ultimately proven. The trial court erred with regard to the allegations Koble presented of child preference, frustration of visitation, and physical and emotional endangerment when it found Koble’s allegations were insufficient to support modification, even if uncontradicted.

Ill

[¶ 13] In her supporting affidavit, Koble alleged her children expressed their preference to live with her. According to Koble, both children regularly complained to her about their current living arrangement and informed their father they wanted to live with Koble shortly before Tank’s wife moved into his home. Koble asserted Tank laughed at the children and informed them they would live with him until they are of age. Additionally, Tank allegedly informed the children that, if they left him to live with their mother, he would “get sick” and “cry a lot.” Tank contended the children neither complain about their current living arrangement nor ask to live primarily with their mother.

[¶ 14] As noted in Volz, a mature child’s reasonable preference to live with one parent may constitute a significant change in circumstances under N.D.C.C. § 14-09-06.6. Volz, 2003 ND 139, ¶ 13, 667 N.W.2d 637 (citing Lanners v. Johnson, 2003 ND 61, ¶ 7, 659 N.W.2d 864). “A mature child’s preference should be considered by the trial court as a change in circumstances if there are persuasive reasons for that preference, persuasive enough to result in a change in custody.” Mosbrucker, 1997 ND 72, ¶ 11, 562 N.W.2d 390 (citing Alvarez v. Carlson, 524 N.W.2d 584, 592 (N.D.1994) (VandeWalle, C.J., concurring in result); Barstad v. Barstad, 499 N.W.2d 584, 589 (N.D.1993) (VandeWalle, C.J., dissenting); Novak v. Novak, 441 N.W.2d 656, 658 (N.D.1989) (Vande-Walle, J., concurring specially)). In further explaining this issue, we have said, “ ‘if the child’s preference ... stems from, for example, allegations of abuse ... [or] discord among members of a new step-family, ... the child’s preference coupled with related evidence may demonstrate a significant change of circumstances.’ ” Volz, at ¶ 11 (quoting Alvarez, at 590.) The trial court failed to address Koble’s allegation.

[¶ 15] We have previously expressed concern over the trial court’s failure to address significant allegations raised by the affidavits. See Volz, 2003 ND 139, ¶ 13, 667 N.W.2d 637. The trial court erred in failing to find Koble’s allegation ■of her children’s preference constituted a significant change in circumstances, establishing a prima facie case for custody modification. In addition to the alleged preference, Koble’s other allegations provide some basis for assuming there may be reasons to support this preference. In this case, there are allegations of conflict among the Tank children and Tank’s wife’s child. Koble has also alleged Tank neglects the children, fails to spend time with them, leaves them home alone, requires the older child to undertake onerous babysitting responsibilities, and has frustrated her visitation, among other assertions.

[¶ 16] Koble is entitled to an evidentia-ry hearing to determine whether the children have expressed such a preference and, if so, whether their preference should be given weight in determining whether custody modification is justified. Considerations as to whether the children should be considered “mature” and whether their preference is supported by persuasive reasons to modify custody are issues that should be explored at an evidentiary hearing.

IV

[¶ 17] In her supporting affidavit, Koble provided detailed allegations of Tank’s willful and consistent denial and interference with her visitation rights. The trial court correctly restated this Court’s general position that frustration of visitation does not alone constitute a significant change in circumstances warranting custody modification. See Hendrickson v. Hendrickson, 2000 ND 1, ¶ 18, 603 N.W.2d 896. The trial court also recognized our holding that custody modification, without first exhausting other remedies, may be appropriate if the best interests of the child are affected by the visitation problems. Id. The trial court then found the children’s best interests were not affected by the complaints Koble alleged and suggested a more rigid visitation schedule would alleviate some of the parties’ problems.

[¶ 18] Koble alleged Tank has prevented her from exercising her right to four weeks of summer vacation in its entirety with the children. Koble asserts she only had two and one-half weeks of summer visitation in 2002 and Tank denied her requested extended summer visitation in 2000 and 2001. She also alleged Tank does not use her as the children’s preferred care giver, as provided in the divorce decree, during her days off work because Tank uses the older child as a care giver. Koble alleged Tank involves his children in relaying his denial of her visitation, having one of the children inform Koble when Tank denies her visitation. As a specific instance of denial, Ko-ble alleged Tank once threatened to deny her visitation for an entire week because she returned the children to his home two hours late the previous weekend. Koble asserted she knew Tank and his wife were not home at the original time the children were to return. Tank allegedly informed Koble that she should have left them at his home, regardless. As a result of the children’s late return, Tank allegedly withheld six hours of Koble’s visitation. Koble also asserts the children have told her Tank does not let them see her as often as he had initially promised.

[¶ 19] Tank responded by asserting Koble did not request her full four-week summer visitation in 2000 and 2001. Tank also alleged Koble did receive four weeks of extended visitation in the summer of 2002. According to Tank, Koble sees the children every other weekend and sees them after school every other day. Tank admitted the children spent an additional six hours with him after they returned later than agreed to during the previous weekend.

[¶ 20] The trial court erred in finding Koble’s allegations insufficient to show the best interests of the children may be affected. A full evidentiary hearing should have been held to properly determine whether the children’s best interests are affected. In determining whether the allegations constituted a significant change in circumstances, the trial court may determine whether the best interests of the children are affected. However, in determining the children’s best interests, the trial court improperly weighed Tank and Koble’s conflicting affidavits. The trial court must accept the truth of the moving party’s allegations and may not weigh conflicting allegations in deciding whether to grant a hearing. Volz, 2003 ND 139, ¶ 14, 667 N.W.2d 637 (citing O’Neill, 2000 ND 200, ¶ 7, 619 N.W.2d 855).

V

[¶ 21] In her supporting affidavit, Koble alleged Tank failed to adequately care for the children, describing instances involving neglect and alluding to possible parentification. Allegations, supported by affidavit, demonstrating a custodial environment that may be endangering-the children’s physical or. mental health, are sufficient to raise a prima facie case for change of custody, entitling the movant to an evidentiary hearing. See Quarne v. Quarne, 1999 ND 188, ¶ 12, 601 N.W.2d 256. Koble alleged potential endangerment to her children’s physical and mental health, raising a prima facie case for change of custody. The trial court’s failure to provide an, evidentiary hearing, therefore, was a violation of N.D.C.C. § 14-09-06.6(4) and is reversible error.

[¶ 22] Koble alleged Tank neglected the children while in his care. Tank failed to keep current the younger child’s adrenalin injector for his peanut allergy, but argued the child had never before had a severe allergic reaction and the injector was merely a precaution. Tank further contended the expired injector was “most likely still good, and was replaced” as soon as he noticed it was expired. In its order, the trial court described the issue as “somewhat bothersome.”

[¶ 23] Koble alleged Tank had left the younger child home by himself while he was ill. Tank was at work and, according to Koble, the child was scared. Tank asserted he worked nearby, called the child hourly, and frequently stopped in to check on the child, and the child was not very sick. Koble claims the child informed her Tank did not call every hour and did not check on him until noon. The trial court noted, in its decision, that an eight-year-old child should not be left home alone, especially when ill. The trial court also recognized conflicting testimony regarding the incident and found that, regardless how often Tank checked on the child, the child should not have been left home alone.

[¶ 24] Koble alleged Tank does not take the children to the doctor when necessary. Rather, she must take them. Tank countered by stating the children do not need to see the doctor often and admitted Koble or his wife takes them, when necessary. Tank- also contended he takes the children to the dentist twice per year and takes the older child to orthodontist appointments once a month. The trial court did not address this issue in its order.

[¶ 25] Koble asserted the younger child suffers -from poor hygiene. Both parties admit that, due to the child’s allergies, they have been advised that the child should bathe less frequently. However, Koble alleged there were several occasions when the child was “filthy” when she arrived for visitation and the child can take daily short -showers. Koble also alleged the child does not brush his teeth or wash his face when in Tank’s care. The trial court found the hygiene was “not of a level” to raise concern about the child’s welfare, though it might be met with “disapproval by some.” We have previously held allegations of neglect, if true, constitute a material change of circumstances. See Lanners v. Johnson, 2003 ND 61, ¶ 12, 659 N.W.2d 864. In finding neglect, the Lanners Court factored in the child’s hygiene. See id.

[¶ 26] Koble alleged Tank leaves the children home alone. She stated that on one occasion Tank left them alone at night, and the older child had called Koble sobbing because she was scared and unable to contact Tank. After this specific instance, Koble reported Tank to social services. Tank countered, stating he did not regularly leave the children home alone. During the specific instance referred to by Koble, Tank contends he was gone less than two hours. Tank also explained that social services investigated, but chose not to reexamine the issue at a later date. The trial court found this issue to be troubling, but apparently resolved any concern over the issue by noting “[Koble] reported [Tank] and Social Services took no action against [Tank] for the incident.”

[¶ 27] Koble alleged Tank fails to spend time with the children. According to Koble, Tank works full time during the day and spends many evenings and weekends working in his backyard shop. She also alleged Tank’s wife works full time and farms, often leaving the older child to babysit the younger child and her child. Tank responded, asserting he works full time during the day, but is limited by his employer to forty-five hours per week. Tank alleged he takes the children to school and has dinner with them almost every evening. He also stated he and the children engage in many weekend activities together, which Koble disputes. The trial court found the amount of time Tank spends with the children “sounds fairly usual.”

[¶ 28] Koble alleged the older child has become the full-time babysitter for the younger child and Tank’s wife’s child and is even responsible for getting them ready for school in the morning. Koble alleged the child’s babysitting responsibilities prevent the child from participating in extracurricular activities. Tank explained the older child is not required to look after the children and has been paid for providing such care. In addition, he alleged the older child is encouraged to participate in any school activities of interest. The trial court found the responsibilities were not excessive or unreasonable.

[¶29] This Court has previously addressed concern over a child’s care-giving responsibilities. Care-giving responsibilities of children may potentially endanger their physical or emotional health, constituting a material change in circumstances. See Mayo v. Mayo, 2000 ND 204, ¶ 25, 619 N.W.2d 631 (holding the trial court’s finding the parentification of one child and possibility of parentification of the second child constituted a material change in circumstances was not clearly erroneous). Here, the trial court found the older child’s babysitting responsibilities were not unreasonable or excessive.

[¶ 30] In Volz, the Court expressed concern over the fact that the trial court noted the custody arrangement was not working well, yet failed to find the plaintiff established a prima facie case. Volz, 2003 ND 139, ¶ 13, 667 N.W.2d 637. Similarly, the trial court in this case noted there was cause for concern in several instances yet failed to find Koble established a prima facie case. As in Volz, we determine the moving party has established a prima facie case, meeting the requirements of N.D.C.C. § 14-09-06.6(4).

[¶ 31] Koble’s affidavits suggest Tank’s care of the children could potentially cause emotional or physical harm. The allegations discussed above each show potential endangerment to the children, demonstrating a material change in circumstances and requiring further review at an evidentiary hearing. Even if each allegation, by itself, may not rise to the level of showing potential endangerment, the sum total of the allegations lead to the conclusion that Ko-ble met her burden and is entitled to an evidentiary hearing.

[¶ 32] After reviewing the trial court order, we believe the trial court often weighed Koble’s allegations against Tank’s defenses, trying and resolving disputed questions of fact on the affidavits alone, without providing an evidentiary hearing and an opportunity to cross-examine the affiants. As we have already discussed, the trial court must accept the truth of Koble’s allegations and may not weigh conflicting allegations. Volz, 2003 ND 139, ¶ 14, 667 N.W.2d 637 (citing O’Neill, 2000 ND 200, ¶ 7, 619 N.W.2d 855). We again note the opposing party’s affidavits must conclusively establish that the allegations have no credibility. Volz, at ¶ 8 (citing O’Neill, at ¶¶ 4-5). Merely offering explanations or conflicting details is insufficient to rebut a prima facie case under N.D.C.C. § 14-09-06.6(4).

[¶ 33] Koble’s allegations were sufficiently detailed in their allegations of material changes in circumstances to establish a prima facie case. Koble’s affidavits provided specific instances of conduct in which she claims to have personal knowledge of the alleged acts she felt warranted custody modification.

VI

[¶ 34] We do not express an opinion on the merits of Koble’s allegations. As a matter of law, Koble has ■ presented by alleging, .with supporting affidavits, sufficient facts which, if uncontradicted, could support, though not necessarily require, a custody modification in her favor. Koble has presented a prima facie case entitling her to an evidentiary hearing, under N.D.C.C. § 14-09-06.6(4), on the change-of-custody issue.

[¶ 35] We reverse and remand for an evidentiary hearing on the motion for change of custody.

[¶ 36] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, JJ., concur.

MARING, Justice,

dissenting.

[¶ 37] I respectfully dissent. The trial court did not err in denying -Sherri an evidentiary hearing.

[¶ 38] Originally, Sherri stipulated to Roger having primary physical custody of their twelve-year-old daughter and nine-year-old son. Subsequently, Sherri brought a change of custody motion for both children on August 21, 2002. In her motion to modify custody, she alleged that Roger’s failure to provide adequate care for the minor children and his willful and consistent interference with her visitation constituted a material change in circumstances.

[¶ 39] Under the divorce judgment entered in May 2000, Sherri received liberal visitation including:, “a. Alternating major holidays of .... b. Up to four (4) weeks each summer, c. The children may spend time with Sherri after school and on her days off. If Roger is unavailable to care for the children Sherri shall, be the preferred caregiver, d. Other visitation as agreed by the parties.” Sherri’s first affidavit dated July 19, 2002, consists, mainly of general allegations with only two specific incidents described. One concerning a denial of after school visitation which resulted from a late return and the other alleging Roger left their son home alone when he was sick one day. In Sherri’s September 10, 2002, affidavit, which is her response to Roger’s affidavit, she alleges she received only two and one-half weeks of summer visitation in 2002. She never alleges why she did not receive more. She alleges she did not receive four weeks in 2000 or 2001, but we are never told how much visitation she did receive. She alleges she requested “extended” summer visitation, but Roger made excuses why she could not have the full four weeks. She also alleges that “[w]hen I would ask the plaintiff for visitation on my days off, he would tell me that [our daughter] had agreed to baby-sit twice per week.” She never alleges a time period or dates. Finally, she alleges that on Father’s Day in 2002, she took the children to a movie that made her late returning the children, and as a result, Roger would not let her see the children the entire next week, and she lost six hours of visitation.

[¶ 40] Our Court has emphasized that frustration of visitation does not alone constitute a material change in circumstances to warrant change in custody. Sweeney v. Sweeney, 2002 ND 206, ¶ 11, 654 N.W.2d 407 (quoting Anderson v. Resler, 2000 ND 183, ¶ 9, 618 N.W.2d 480). Our Court has suggested a trial court should first resort to a more rigid visitation schedule, rather than a change in custody unless the visitation problems have resulted in adverse affects to the child’s best interests. Id. Allegations of general problems with summer visitation without any allegation specifically describing the circumstances; a problem with visitation generally on Sherri’s days off because the daughter babysits; and one incident of the loss of after-school visitation because Sherri returned the children home late on Father’s Day are not sufficient facts to show a material change of circumstances necessitating a modification of custody in the best interests of the children. A motion to modify the visitation schedule would be more appropriate than a motion to modify custody.

[¶ 41] With regard to the allegations in the affidavits of Sherri that Roger is not providing adequate care for the children, she states that on Labor Day 2000, the children were left alone, but that the daughter did reach Roger eventually on his cell phone; she states the son was left alone during the day once when he was sick; she states Roger had not replaced an expired injector for the son’s allergy to peanuts; and she states Roger does not make the son bathe or brush his teeth regularly. Although all of these allegations evidence a parent, who is perhaps, more laid back than appropriate to some, they do not show a material change in circumstances or that modification is necessary in the children’s best interests.

[¶ 42] If the affidavits contained allegations of multiple specific dates on which these children were left alone at night or during the day when they were sick, it may rise to a “material” change in circumstances and modification may be necessary in the children’s best interests. If there were specific allegations that the child’s hygiene was adversely affecting him physically or emotionally, and if Roger’s failure to refill the injector immediately upon its expiration seriously endangered the child, and such neglect continued, custody modification due to a material change of circumstances, may be necessary in the child’s best interests. However, these incidents appear to be one time occurrences and not permanent or continuous and not significant or material.

[¶43] The majority opinion relies on the children’s preference to live with Sherri to show a material change in circumstances. The first affidavit of Sherri never mentions this preference. It is in her Responsive Affidavit that a preference is stated, but no persuasive reasons for this preference of the children are stated. The only allegation is a general statement that the children complain regularly about their current living arrangement. We have stated that a mature child’s preference should only be considered if there are persuasive reasons for it. Krizan v. Krizan, 1998 ND 186, ¶ 9, 585 N.W.2d 576. In this case we are left to speculate why the children want to live with Sherri. Not every change in circumstances is a “material” change warranting a modification of custody. See Kelly v. Kelly, 2002 ND 37, ¶¶ 46, 47, 50, 640 N.W.2d 38 (Maring, J., concurring specially) (suggesting the Legislature intended to curtail hearings on custody modification by requiring a “material” change of circumstances, which should be defined as a significant or important change that has a negative impact on the well-being of the child).

[IT 44] As I stated in my dissent in Mock v. Mock, 2004 ND 14, in order for affidavits to establish a prima facie case for modification, they must be made on firsthand knowledge; be specific and detailed; contain facts that support a continuing and significant, not minor or trivial, change in the child’s circumstances; and contain facts that establish a “significant degree of danger” for endangerment to a child’s physical and emotional health and development. These affidavits do not- establish a prima facie case for a modification of child custody.

[¶ 45] The trial court’s explanation for denying the evidentiary hearing. explicitly considered and rejected as insufficient the facts alleged. The trial court did not abuse its discretion in denying an eviden-tiary hearing, and I would affirm its order.

[¶ 46] The majority establishes a de novo standard for review of a trial court’s denial of an evidentiary hearing for child custody modifications without citation to any authority. See Orvedal v. Orvedal, 2003 ND 145, ¶ 10, 669 N.W.2d 89 (stating this Court applies the de novo standard of review to questions of law). In Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981), the Minnesota Supreme Court applied an abuse of discretion standard of review. With the exception of Griese v. Kamp, 666 N.W.2d 404 (Minn.Ct.App.2003), and Ross v. Ross, 477 N.W.2d 753 (Minn.Ct.App.1991), the majority of the Minnesota Appellate Courts, however, have applied an abuse of discretion standard of review. See Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn.Ct.App.1997) (stating, “[s]ubsequent decisions by this court have applied an abuse of discretion standard ..., relying on the court’s general broad discretion in custody matters”). Neither Griese nor Ross address the abuse of discretion standard used by the Minnesota Supreme Court in Nice-Petersen. Although the Minnesota Supreme Court has not directly addressed the conflict among the Minnesota Courts of Appeals’ panels on this standard of review issue, it applied an abuse of discretion standard in reviewing whether a district court properly denied a request for an evidentiary hearing under Minn.Stat. § 518.185. Valentine v. Lutz, 512 N.W.2d 868, 872 (Minn.1994).

[¶ 47] Recently, the Supreme Court of Washington concluded that application of an abuse of discretion standard of review is more appropriate in these cases than the de novo standard of review. In re the Parentage of Jannot, 149 Wash.2d 123, 65 P.3d 664, 666 (2003). The Supreme Court of Washington reasoned:

[W]e recognize that a trial judge does stand in a better position than an appellate judge to decide whether submitted affidavits establish adequate cause for a full hearing on a petition to modify a parenting plan.
Most importantly, in the area of domestic relations, the appellate courts have granted deference to the trial courts because “[t]he emotional and financial interests affected by such decisions are best served by finality,” and de novo review may encourage appeals. We also recognize that extended litigation can be harmful to children.

In re the Parentage of Jannot, at 666 (internal citations omitted). I would submit that we should adopt the reasoning of the Supreme Courts of Washington and Minnesota and hold that our Court may overturn a trial court’s prima facie determination only if the trial court has abused its discretion.

[¶ 48] It should be noted that North Dakota has applied the abuse of discretion standard of review to other family law issues. We apply the abuse of discretion standard when reviewing a trial court’s decision on motions to alter or amend divorce judgments and for interim orders for temporary custody. Cline v. Cline, 1998 ND App 11, ¶ 7, 585 N.W.2d 145. We review a motion to retroactively modify child support under an abuse of discretion standard of review. Krizan, 1998 ND 186, ¶ 13, 585 N.W.2d 576. In some limited areas, we review child support determinations under an abuse of discretion standard of review. Johnson v. Johnson, 2002 ND 151, ¶ 8, 652 N.W.2d 315. “Normally, in reviewing an exercise of the district court’s authority to maintain the status quo pending a hearing on the merits, we will apply an abuse of discretion standard.” Hanson v. Hanson, 1997 ND 151, ¶ 7, 567 N.W.2d 216. “We review the effective date for a modification of child support under an abuse of discretion standard.” Hilgers v. Hilgers, 2002 ND 173, ¶ 18, 653 N.W.2d 79.

[¶ 49] For these reasons, I respectfully dissent and would affirm the trial court’s decision under an abuse of discretion standard of review.

[¶ 50] Mary Muehlen Maring

SANDSTROM, Justice,

dissenting.

[¶ 51] Because the majority is imper-missibly substituting its views for the clear action of the legislature, I respectfully dissent.

[¶ 52] The legislature has provided that before there is a hearing on change of custody, the petitioner must present affidavits establishing a prima facie case justifying a modification. N.D.C.C. § 14-09-06.6(4). “Prima facie evidence” or “prima facie case” are legal terms with well-established meanings. See Blank’s Law Dictionary 579 & 1209 (7th éd.1999). The North Dakota Century Code itself specifies how it is to be interpreted. N.D.C.C. tit. 1. The Code specifies that words are to be understood in their ordinary sense unless a contrary meaning plainly appears. N.D.C.C. § 1-02-02. The Code specifies that there is no common law (judge-made law) when the law is declared by statute. N.D.C.C. § 1-01-06. Here the majority interprets prima facie evidence in a way contrary to the ordinarily understood meaning of the term, and the majority substitutes its judge-made law for the enactment of the legislature.

[¶ 53] Prima facie evidence is admissible evidence that, if uncontradicted, would be sufficient to justify a judgment in the presenting party’s favor. Black’s Law Dictionary 579 & 1209 (7th ed.1999).

[¶ 54] Here the majority says, in effect, that much less than prima facie evidence is necessary to entitle a moving party to a hearing on change of custody, even though the legislature has said only prima facie evidence is sufficient.

[¶ 55] A prima facie case requires competent and sufficiently specific nonconclu-sory evidence. See Schnoor v. Meinecke, 77 N.D. 96, 40 N.W.2d 803, 808 (1950). Competence generally requires that the witness have first-hand knowledge of facts. Black’s Law Dictionary 576-77 (7th ed.1999). How does the person know? Witnesses are generally not competent to testify to what they only “suspect” or “secretly hope” the facts are. See State v. Schill, 406 N.W.2d 660, 662 (N.D.1987).

[¶ 56] Affidavits fail to establish a pri-ma facie case when they are not competent, they do not show a basis of actual personal knowledge, or they are coneluso-ry, stating conclusions without the support of evidentiary facts.

[¶ 57] I generally agree with the majority that if the allegations here were supported by specific, competent, admissible evidence, they would be sufficient to justify a hearing. But I agree with Justice Maring’s dissent that most of the allegations are not supported by specific, competent, admissible evidence.

[¶ 58] I would affirm the district court.

[¶ 59] Dale V. Sandstrom

      . Allegations of harm that prove to be unfounded subject the parent making the allegations to court costs and attorneys fees. N.D.C.C. § 14-09-06.5; Sweeney v. Sweeney, 2002 ND 206, ¶ 18, 654 N.W.2d 407.