Booen v. Appel

• Decision Date: 31 July 2017
• Docket Number: No. 20170012,20170012
• Parties: Cody Allen BOOEN, Plaintiff, Appellant, and Cross-Appellee v. Jessica Marie APPEL, Defendant, Appellee, and Cross-Appellant
• Court: North Dakota Supreme Court

899 N.W.2d 648

Cody Allen BOOEN, Plaintiff, Appellant, and Cross-Appellee

v.Jessica Marie APPEL, Defendant, Appellee, and Cross-Appellant

No. 20170012

Supreme Court of North Dakota.

Filed July 31, 2017

Pamela F. Coleman, Grand Forks, ND, for plaintiff, appellant, and cross-appellee.

Patti Jo Jensen, East Grand Forks, MN, for defendant, appellee, and cross-appellant.

Crothers, Justice.

[¶1] Cody Booen appeals from a district court's order granting Jessica Appel's motion to relocate. Appel cross-appeals from the orders granting her motion to relocate and to show cause finding her in contempt. Booen argues the district court erred by granting the motion to relocate because it did not properly analyze and weigh the Stout - Hawkinson factors. Appel argues the district court erred in establishing a parenting plan, by finding her in contempt and requiring her to pay half of Booen's attorney fees. We affirm the district court's orders.

I

[¶2] Booen and Appel have a non-marital minor child. In September 2015 the district court entered a judgment adjudicating Booen as the father, awarding both parties shared legal responsibility and decision making and awarding Appel primary residential responsibility of the child, subject to Booen's reasonable parenting time. The judgment also established a parenting time schedule for the parties. In November 2015 the district court entered an amended judgment to reflect a correction regarding health care.

[¶3] In April 2016 Booen filed an application for an order to show cause accompanied by a brief and exhibits, seeking to hold Appel in contempt for disregarding the terms of the amended judgment. Booen alleged Appel was interfering with his relationship with the child. Following unsuccessful court-ordered mediation, Appel filed a motion to dismiss Booen's application and a response to the order to show cause.

[¶4] In May 2016 Appel filed a motion to relocate the child to Arizona. Appel argued that since entry of the 2015 amended judgment she had a child with her fiancé, Kory Knoff, and Knoff intended to relocate to Arizona for business opportunities. According to Knoff, he has the opportunity to open pizza franchises in Arizona. Booen objected to Appel's motion.

[¶5] In August 2016 an evidentiary hearing was held on both the application for an order to show cause and the motion to relocate. In December 2016 the district court granted Booen's application for an order to show cause, in part finding Appel in contempt. The district court also granted Appel's motion to relocate the child to Arizona, finding the move was in the child's best interests.

II

[¶6] Booen argues the district court erred in granting Appel's motion to relocate.

[¶7] "A district court's decision on a motion to relocate is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous." Larson v. Larson , 2016 ND 76, ¶ 21, 878 N.W.2d 54. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or, if there is some evidence to support the finding, on the entire record we are left with a definite and firm conviction a mistake has been made." Graner v. Graner , 2007 ND 139, ¶ 12, 738 N.W.2d 9. "In applying the clearly erroneous standard, we will not reweigh evidence, reassess witness credibility, retry a custody case, or substitute our judgment for the trial court's decision merely because this Court may have reached a different result." Hammeren v. Hammeren , 2012 ND 225, ¶ 8, 823 N.W.2d 482.

[¶8] Section 14-09-07(1), N.D.C.C., provides "[a] parent with primary residential responsibility for a child may not change the primary residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree." "The parent moving for permission to relocate has the burden of proving by a preponderance of the evidence the move is in the child's best interests." Larson v. Larson , 2016 ND 76, ¶ 21, 878 N.W.2d 54. To determine whether relocation is in the child's best interest the district court must apply the four factors outlined in Stout v. Stout , 1997 ND 61, ¶ 33, 560 N.W.2d 903, and modified in Hawkinson v. Hawkinson , 1999 ND 58, ¶ 9, 591 N.W.2d 144 :

"1. The prospective advantages of the move in improving the custodial parent's and child's quality of life,

2. The integrity of the custodial parent's motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,

3. The integrity of the noncustodial parent's motives for opposing the move, ....

4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation."

Id. (quoting Dvorak v. Dvorak , 2006 ND 171, ¶ 13, 719 N.W.2d 362 ). "No single factor is dominant, and what may be a minor factor in one case may have a greater impact in another." Id. (quoting Stai-Johnson v. Johnson , 2015 ND 99, ¶ 6, 862 N.W.2d 823 ).

A

[¶9] Booen argues the district court erred by finding the first factor favors relocation. Booen argues the district court's conclusion that the move would improve Appel's and the child's quality of life are in irreconcilable conflict with its underlying findings regarding the first factor. Booen also claims no evidence supports that the move would result in financial, educational and health advantages or that the custodial family would remain intact.

[¶10] In analyzing the first Stout - Hawkinson factor, "the district court must balance the advantages of the move, while recognizing the importance of maintaining continuity and stability." Stai-Johnson v. Johnson , 2015 ND 99, ¶ 9, 862 N.W.2d 823. "The district court must give due weight to both economic and noneconomic advantages of the move." Id. Information the district court may consider when analyzing factor one include:

" ‘[T]he custodial parent's proposed employment at the relocation site, whether the custodial parent's and child's health and well-being are benefitted, whether the custodial parent has remarried and requests to move to live with the new spouse, whether the custodial parent will have more time to spend with the child, whether there are family members who will provide a support network, the child's reasonable preference, and educational opportunities.’ "

Id. (quoting Graner v. Graner , 2007 ND 139, ¶ 15, 738 N.W.2d 9 ).

[¶11] A child's best interests are "inextricably interwoven with the quality of life of the custodial parent, with whom they live and upon whom they rely emotionally." Tibor v. Tibor , 1999 ND 150, ¶ 13, 598 N.W.2d 480. " ‘A move which benefits the health and well-being of a custodial parent is certainly beneficial to the parent's child, and is consequently in the child's best interest.’ " Id. (quoting State ex rel. Melling v. Ness , 1999 ND 73, ¶ 9, 592 N.W.2d 565 ).

[¶12] The district court found the first factor favored relocation. The district court explained Knoff's potential business opportunities were not a compelling factor, given Knoff's and Appel's current financial stability and the fact that Knoff only speculated regarding the potential success of the businesses in Arizona. However, the district court gave considerable weight to Knoff's history of running successful businesses, explaining the chance of him becoming even more successful would provide greater material benefits for Appel and the child.

[¶13] The district court further found the opportunities regarding geographical location and weather were not compelling, but found keeping the custodial home intact would be in the child's best interests. The district court also found the educational opportunities for the child in Arizona are "equally stimulating" to those available in Grand Forks. The district court's main reasoning in finding factor one favors relocation is the ability for the custodial home to remain intact and potential improvements to Appel's well-being, stating: "Given that Knoff and Appel plan to marry, and given that Appel has long wanted to live in Arizona, ... it is possible that those factors would benefit [the child] by keeping her custodial family intact and allowing her mother to experience a more positive life outlook." (Emphasis in original.)

[¶14] Under this Court's standard of review, the district court's findings are supported by the evidence and we are not left with a definite and firm conviction a mistake has been made. Appel and Knoff have a child together. They are not married but are engaged and planning a wedding for the fall of 2017. These facts support the district court's findings that the custodial family would remain intact and its ultimate conclusion that the move would improve Appel's and the child's quality of life. There is evidence which supports a finding contrary to the district court's ultimate conclusion. However, under our clearly erroneous standard of review, it is the district court and not us that weighs the evidence and assesses witness credibility. See Hammeren v. Hammeren , 2012 ND 225, ¶ 8, 823 N.W.2d 482 ; see also Wolf v. Wolf , 474 N.W.2d 257, 259 (N.D. 1991) ("We may have viewed the evidence and weighed those factors differently had we been the trier of fact; but that is not the standard on appeal and we will not reverse a decision of the trial court simply because we would have done differently had we been the trial court."); Wagner v. Wagner , 2000 ND 132, ¶ 12, 612 N.W.2d 555 ("We will not reverse a trial court's findings merely because we may have viewed the facts differently if we had been the trier of fact."). While we may have viewed the evidence differently had we been the trier of fact, the district court's...