Dickson v. Dickson, 20010011.

• Decision Date: 05 September 2001
• Docket Number: No. 20010011.,20010011.
• Citation: 634 N.W.2d 76,2001 ND 157
• Parties: Stephanie R. DICKSON, Plaintiff and Appellant, v. Thomas A. DICKSON, Defendant and Appellee.
• Court: North Dakota Supreme Court

634 N.W.2d 76

2001 ND 157

Stephanie R. DICKSON, Plaintiff and Appellant, v. Thomas A. DICKSON, Defendant and Appellee.

No. 20010011.

Supreme Court of North Dakota.

September 5, 2001.

Isabella Robertson of Robertson Law Office, P.C., Bismarck, for plaintiff and appellant.

Thomas M. Tuntland, Mandan, for defendant and appellee.

NEUMANN, Justice.

[¶ 1] Stephanie R. Dickson appealed from a trial court order denying her request to move to Saratoga, California with the parties' daughter. We reverse and remand the trial court's denial of Stephanie's request to move.

I

[¶ 2] Stephanie and Thomas Dickson divorced in October 1993. Stephanie was awarded custody of the parties' daughter. Thomas was awarded and exercised visitation.

[¶ 3] The parties both reside in the Bismarck Mandan area. Thomas remarried in December 1995, and he and his wife have one child together. Thomas's wife has two children from a prior marriage. Stephanie has not remarried. Stephanie works part time at a department store and substitute teaches during the school year.

[¶ 4] In June 2000, Stephanie was offered a teaching position in Saratoga, California with a $34,000 annual salary. In July 2000, Stephanie moved the trial court for permission to relocate to California with the parties' child. Thomas opposed Stephanie's motion, asserting the move would not improve Stephanie and the child's quality of life, would not foster and preserve the child's relationship with Thomas and his family, and would result in visitation problems.

[¶ 5] After a hearing, the trial court denied Stephanie's motion, finding she failed to meet her burden of proving the move was in the child's best interests. Stephanie appealed.

II

[¶ 6] Stephanie asserts the trial court erred in determining the move was not in the child's best interests.

[¶ 7] A custodial parent must obtain judicial permission to move a child to another state if the noncustodial parent does not consent to the move. N.D.C.C. § 14-09-07. The purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent's visitation rights when the custodial parent wants to move out of state. Hentz v. Hentz, 2001 ND 69, ¶ 5, 624 N.W.2d 694. The primary consideration in determining whether a custodial parent may move a child out of state is the best interests of the child. Id. at ¶ 5. The custodial parent has the burden of proving, by a preponderance of the evidence, the move from the state is in the best interests of the child. Id. at ¶ 5. When determining whether the move is in the best interests of the child, the trial court must consider the following factors:

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. at ¶ 7; see Hawkinson v. Hawkinson, 1999 ND 58, ¶¶ 6

and 9, 591 N.W.2d 144 (citing Stout v. Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903, and clarifying its fourth factor).

[¶ 8] A trial court's decision as to whether a proposed move to another state is in the best interests of the child is a finding of fact that will not be overturned on appeal unless it is clearly erroneous. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. Id. at ¶ 6.

[¶ 9] The trial court applied the relocation factors in resolving Stephanie's motion to move out of state with the parties' child. The court determined factors two and three were not dispositive because neither parent lacked integrity or valid purpose in that parent's motive regarding the move. As to the second factor, the court found Stephanie's desire to move was not to defeat or deter Thomas's visitation with the child, but to be close to Stephanie's sister and other family members. As to the third factor, the court found Thomas's reason for opposing the move was his concern that visitation might not happen or might be more difficult to arrange once the parties' daughter was living in California. The trial court's findings under these factors is supported by the evidence.

[¶ 10] The trial court found factors one and four to be dispositive. Under the first factor, the court concluded Stephanie failed to show the move would improve the economic and noneconomic quality of life for her and the child. Under the fourth factor, the court concluded the proposed move would have a negative impact on Thomas's ability to maintain and preserve a close relationship with the child.

A

[¶ 11] Stephanie argues the trial court's finding under the first factor was clearly erroneous because the court did not properly weigh the prospective advantages of the move.

[¶ 12] Under the first relocation factor, the trial court must weigh the advantages of the requested move while recognizing the importance of maintaining continuity and stability in the custodial family. Tibor v. Tibor, 1999 ND 150, ¶ 11, 598 N.W.2d 480. The court must give due weight to the possibility the move will enhance both the economic and noneconomic aspects of the custodial family's life. Id. at ¶ 11. Whether a custodial parent has secured employment at the proposed site of relocation should be considered under the first factor. Aus v. Carter, 1999 ND 246, ¶ 21, 603 N.W.2d 885.

[¶ 13] Regarding the prospective economic advantages of the move under the first factor, the trial court found:

[Stephanie] also has testified and submitted letters from both the Bismarck Public Schools and the Mandan Public School District, wherein they state they have currently filled their full-time teaching positions.... However, upon cross-examination of [Stephanie], she testified she had not applied for teaching positions in any other school district in the state of North Dakota. She did state she was offered a position in Fort Yates, where she did not apply, but the administrator offered her a position anyway. [Stephanie] testified she turned it down, due to the distance she would have to travel on a daily basis.

The court observed:

But, why did she not place applications in other surrounding school districts which are closer? And if [Stephanie] is determined to get a full-time position, why did she not apply to school districts in other urban areas of North Dakota?

[¶ 14] The court found that "California would be a likely choice for [Stephanie] to find employment outside of North Dakota" because she has family in California and Oregon. The court also found Thomas did not contradict that a $34,000 annual salary is higher than a salary for an elementary school teacher in North Dakota. The court continued with the following queries:

But, what about the salaries of elementary teachers in North Dakota? The only evidence of salary comparison is the job she was offered at Fort Yates for a salary of $19,000. The same job which she testified she did not apply for and did not think very highly of the position. So, what about the salaries of teaching positions in Dickinson, Fargo, Jamestown, Grand Forks, Minot, Devils Lake, Williston, etc.? How can the Court compare the economics of the position in California when [Stephanie] did not submit any evidence of salary comparisons to North Dakota? And what about the cost-of-living adjustment with a move from North Dakota to California? The Court is quite aware that the cost of living is quite more expensive in states such as California as compared to North Dakota. Does a salary of $34,000, adjusted for the increase in daily and monthly expenses living in California, bring home more net dollars than an elementary teaching position in North Dakota? Without this type of evidence on the record, how can a court determine that the economics of a move to California would be beneficial to [Stephanie] and [the parties'] child?

[¶ 15] The trial court found that Stephanie failed to present sufficient evidence to show she was unable to secure a teaching position in North Dakota outside the Bismarck Mandan area, and also found Stephanie did not submit evidence to prove her net monthly income in California, after adjusting for cost-of-living changes, would be more beneficial than what she might earn in North Dakota. Based on these findings, the trial court concluded Stephanie had not met her burden of proving the economic advantage of the move would be more beneficial to her and the child.

[¶ 16] This Court considered and rejected a similar analysis under factor one in Keller v. Keller, 1998 ND 179, 584 N.W.2d 509, and Goff v. Goff, 1999 ND 95, 593 N.W.2d 768.

[¶ 17] In Keller, 1998 ND 179, ¶ 14,584 N.W.2d 509, the custodial parent introduced evidence showing economic and noneconomic benefits of a proposed move from Grand Forks, North Dakota to Fort Wayne, Indiana. She accepted a position related to her doctoral psychology degree in Fort Wayne. Id. at ¶ 14. The position provided benefits and the opportunity for career development. Id. at ¶ 14. Despite evidence of the difficulty of securing similar employment in Grand Forks, the trial court found the custodial parent failed to prove the economic advantage of the move because she did not apply for employment in Grand Forks or the surrounding area. Id. at ¶¶ 14-15. After recognizing the noncustodial parent offered little evidence to directly contradict the evidence...