Benson v. Benson, 920106

• Citation: 495 N.W.2d 72
• Decision Date: 22 January 1993
• Docket Number: No. 920106,920106
• Parties: Michael L. BENSON, Plaintiff and Appellee, v. Judith Warner BENSON, Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 72

495 N.W.2d 72

Michael L. BENSON, Plaintiff and Appellee, v. Judith Warner BENSON, Defendant and Appellant.

Civ. No. 920106.

Supreme Court of North Dakota.

Jan. 22, 1993.

William D. Yuill (argued), William D. Yuill Law Offices, Fargo, for plaintiff and appellee.

William Kirschner (argued), Kirschner Law Office, Fargo, for defendant and appellant.

RALPH J. ERICKSTAD, Surrogate Judge. ¹

Judith Warner Benson appeals from a district court order denying her motion to move, with her child, Patrick, out of North Dakota. We reverse and remand with directions.

Michael L. Benson and Judith were married in 1982. They lived in Fargo. Their son, Patrick, was born on September 4, 1986. Michael and Judith were divorced in October 1988 pursuant to a stipulation and property settlement agreement approved and adopted by the district court. The divorce decree specified that Michael and Judith "have joint legal custody" of Patrick, with Judith responsible for his "physical care and custody." The decree further provided:

"As to the parents' understanding of the term 'physical custody,' [Michael] and [Judith] shall have a shared parenting schedule with [Michael] having [Patrick] in the secondary home 40 percent of the time and [Judith] having [Patrick] in the primary home 60 percent of the time."

The visitation schedule "which comprises [Michael's] 40 percent time share arrangement" included every other weekend from Friday afternoon until Monday morning; every Tuesday evening through Wednesday morning; alternate weeks from June through August of each year until Patrick was four years old and then alternate two week periods; one week during the Christmas school vacation period; and alternate designated holidays. Michael paid $500 per month child support. The decree also provided that "[n]either party shall remove [Patrick] from ... North Dakota for the purpose of changing [Patrick's] place of residence without the written consent of the other party, or until further order of the Court."

At the time of the divorce Judith was working at Fargo and attending college on a part-time basis. Michael's visitation proceeded satisfactorily. Judith completed her masters degree in business administration and worked for a short time at a temporary job in the Fargo area. After examining job opportunities in the Fargo area, she decided her best job possibilities would be in the Twin Cities area. In October 1991 Judith left Fargo with Patrick to stay in Elk River, Minnesota, with a high school classmate, Roger Orluck, so she could be closer to prospective employment and job interviews in the Twin Cities area.

Michael then moved for change of physical custody. Judith responded with a motion to allow her to move Patrick out of state. Pursuant to a standing order of reference, ² the motions were heard by a judicial referee. Based on numerous affidavits and Judith's testimony, the referee found that it "is in the best interests of ... Patrick that he be allowed to move with his mother to the Twin Cities area." The referee reasoned that Judith "examined appropriate job opportunities in the Fargo-Moorhead area," that Judith was offered two jobs as a sales representative in the Twin Cities area and that one of them "would give her considerable flexibility in her time and would allow her to spend more time with her child," and that Judith "would have significant employment benefits which would become effective very shortly after she accepts the position." The referee recognized that "[b]oth parties agree that maximum contact with both parents is desirable" and that Michael "has had a good relationship with his young son and has exercised his visitation rights fully." The referee noted that "[t]here is no way to guarantee the expressed desire of the parties to divide their time 60 percent for [Judith] and 40 percent for [Michael] with their child, unless they both live in the same community," but that "[a] visitation scheme can be effected which will approach the intentions expressed in the [divorce decree].... Given the mobile nature of our society ... it is reasonable to allow [Judith's] move to the Twin Cities so long as [Michael's] visitation opportunities are maximized." The referee also noted that Judith, if not allowed to move to the Twin Cities, planned to move to western North Dakota "where her family lives" and that a move there "would impose an even greater hardship on the visitation schedule" than would a move to the Twin Cities area. The referee found that Patrick's "home life promises to remain stable and very similar to what it has been with the additional benefit of [Judith's] satisfactory employment. It is true that the move will mean some additional separation from some of [Patrick's] extended family who live in the Fargo-Moorhead area, but it appears that there are some relatives and family friends in the Twin Cities area also."

The referee recommended granting Judith's motion to move out of state and set forth minimum visitation requirements for Michael. The referee ordered 10 weeks of summer visitation for Michael, an additional two weeks during school vacation times, 20 weekends throughout the rest of the year, and "liberal visitation with [Patrick] whenever Michael is in the Twin Cities area upon reasonable notice to Judith." The referee also ordered that the parties mutually arrange transportation for Patrick so that Michael bears no more than one-half of the burden for visitation travel.

Michael filed a request for review with the district court, alleging that there was no evidence to support several of the referee's findings. Based on its review of the record compiled before the referee, the district court vacated the referee's decision and denied Judith's motion to move with Patrick out of state. Noting the "somewhat unique custody arrangement for the minor child," the district court said:

"[The parties 60 percent-40 percent] split custody arrangement continued to be followed until [Judith], without notice to [Michael] or permission of the Court, moved her residence to Elk River, Minnesota, in October, 1991.

"The Court is satisfied that the Referee in making a recommendation to allow [Judith] to move her residence is in error. [Judith] has violated the terms of the custodial agreement and deprived [Michael] of his custodial rights. There is little evidence that it would be in the best interests of the child to allow this move; to the contrary, there is ample evidence that it is in the best interests of [Patrick] that he continue to make his home in Fargo."

Judith appealed to this court, asserting that the referee's decision to allow her and Patrick to move to the Twin Cities is not clearly erroneous and that the district court's contrary decision should therefore be reversed. Michael asserts that the referee's decision is clearly erroneous and that the district court's contrary decision is not. ³ At the outset, then, we must examine the powers, duties, and limitations, if any, of a district court when reviewing the findings and decision of a judicial referee in a domestic relations case.

Judith asserts that, where, as here, the district court's review of a referee's findings and recommendations is based solely on the evidence compiled before the referee, the district court, pursuant to Rule 53(f)(2), N.D.R.Civ.P., must accept the referee's findings of fact unless the court determines that they are clearly erroneous under Rule 52(a), N.D.R.Civ.P. ⁴ Michael asserts that we should adopt the Minnesota approach in domestic relations cases referred to a judicial referee and determine that Rule 53(f)(2) is inapplicable under these circumstances and that the trial court is completely free to exercise its independent judgment based on its own view of the evidence. See, e.g., Peterson v. Peterson, 308 Minn. 297, 242 N.W.2d 88 (1976). For the reasons which follow, we agree with Judith's argument.

In 1985 the legislature enacted Sec. 27-05-30, N.D.C.C., which authorizes district courts to "assign a referee to preside in any case or proceeding provided for in title 14, chapter 27-20, and chapter 28-25 pursuant to rules of the supreme court." Under the authority granted by Art. VI, Sec. 3, N.D. Const., and Sec. 27-05-30, this court promulgated Rule 13 of the North Dakota Supreme Court Administrative Rules and Administrative Orders to "provide for the qualifications, the extent and assignment of authority, procedure and the conduct of the role of judicial referees within the North Dakota Judicial System in each judicial district." Administrative Rule 13, Sec. 2. Although Administrative Rule 13 addresses the procedure for review of a judicial referee's findings and recommendations, it does not set forth a standard of review for the district courts to employ, as did its predecessor, former Administrative Rule 13. ⁵ Section 11 of Administrative Rule 13 currently provides:

"Section 11. Procedure for Review.

"(a) A review of the findings and recommendations may be ordered at any time by a district court judge and shall be ordered if a party files a written request for a review within three days after receiving the notice in Section 10(b). The request for review shall state the reasons for the review.

"(b) The review by a district court judge shall be a review of the record, unless the court orders a hearing of the proceeding." [Emphasis added.]

Administrative Rule 13 was largely the product of the Family Caselaw Referee Study Subcommittee of the Court Services Administration Committee. The history of the rulemaking proceedings indicates that a standard of review was intentionally left unstated in Administrative Rule 13. Although it was suggested that Section 11 refer to "the 'clearly erroneous' standard" because "this standard has been applied as a matter of custom," "[t]here was general agreement that there should be no standard of review statement in the rule and that this matter should be left to the Supreme Court...