Dunn v. Dunn
Decision Date | 17 November 2009 |
Docket Number | No. 20090127.,20090127. |
Citation | 2009 ND 193,775 N.W.2d 486 |
Parties | Garry K. DUNN, Plaintiff and Appellee v. Michelle Dye DUNN, Defendant and Appellant. |
Court | North Dakota Supreme Court |
[¶ 1] Michelle Dunn appeals from an amended divorce judgment granting Garry Dunn physical custody of the parties' two youngest children and allowing him to move with the children to Wyoming. Michelle Dunn argues the district court's finding of a substantial change of circumstances warranting a change of custody as a prerequisite to move the children to Wyoming was induced by an erroneous view of the law because the court did not specifically find the change adversely impacted the children. We hold the court did not misapply the law, and we affirm.
[¶ 2] In a February 2007 divorce judgment entered after the parties stipulated to custody and visitation, Garry Dunn received custody of the parties' oldest minor child and the parties agreed to joint custody of their two youngest children. The parties' stipulation specified a visitation schedule for each child. Garry Dunn subsequently accepted a job as a radiologist in Wyoming beginning in March 2009, and he sought a change of custody for the two youngest children and permission to move with all three children to Wyoming.
[¶ 3] The district court granted Garry Dunn's motions after recognizing that the parties had joint physical custody of their two youngest children and that it needed to determine whether a change in custody for those children was appropriate before it could consider Garry Dunn's motion to move the children to Wyoming. The court said it could modify the custody order for the two youngest children if a material change in the children's circumstances existed and if the modification served the best interests of the children. The court found Garry Dunn's move constituted a material and significant change in circumstances requiring modification of custody for those children:
[¶ 4] The court then analyzed the factors for the best interests of the children under N.D.C.C. § 14-09-06.2 and found most of the factors were equal, but two factors, N.D.C.C. § 14-09-06.2(d) and (e), favored Garry Dunn. The court granted Garry Dunn physical custody of the two youngest children and then decided the children's best interests were to move with him to Wyoming.
[¶ 5] Michelle Dunn argues the district court erred in finding a substantial change in circumstances warranting a change in custody of the parties' two youngest children. She argues the court erred in deciding Garry Dunn's move to Wyoming, by itself, constituted a substantial change in circumstances warranting a change in custody. She claims the court erred in deciding a substantial change in circumstances had occurred requiring a change in custody without specifically finding the change adversely impacted the children. She asserts that the court did not make a specific finding the changed circumstance, Garry Dunn's move, was so adverse to the children's best interests that custody should be modified and that the court did not find her conduct adversely impacted the children or required or compelled modification of custody. She argues Garry Dunn's relocation was insufficient to warrant a change of custody and the court was required, as a matter of law, to deny his motions and to grant her sole custody of the two youngest children.
[¶ 6] A district court's decision to modify custody is a finding of fact, which will not be reversed on appeal unless clearly erroneous. Stanhope v. Phillips-Stanhope, 2008 ND 61, ¶ 7, 747 N.W.2d 79. "A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made." Id. A district court's findings of fact must be "sufficient to enable the appellate court to understand the factual determinations made by the district court and the basis for its conclusions of law." Haugrose v. Anderson, 2009 ND 81, ¶ 7, 765 N.W.2d 677. A district court's "findings of fact ... should be stated with sufficient specificity to assist the appellate court's review and to afford a clear understanding of the [] court's decision." Rothberg v. Rothberg, 2006 ND 65, ¶ 14, 711 N.W.2d 219. A district court's "findings are adequate if this Court can discern from them the factual basis for the [district] court's determination." Id.
[¶ 7] Here, the parties do not challenge the district court's determination that the initial divorce granted them joint physical custody of their two youngest children. This Court has recognized "that relocation cases involving joint custody are special, requiring a determination of primary custody before the parent may be allowed to move with the child." Maynard v. McNett, 2006 ND 36, ¶ 23, 710 N.W.2d 369. In Maynard, this Court examined decisions from other jurisdictions about motions to relocate in the context of joint custody and explained:
2006 ND 36, ¶ 21, 710 N.W.2d 369. See 2009 N.D. Sess. Laws ch. 149, § 9 and Hearing on S.B. 2042 Before Senate Judiciary Comm., 61st N.D. Legis. Sess. (Jan. 19, 2009) ( ).
[¶ 8] Section 14-09-06.2, N.D.C.C., outlines factors for a court's evaluation of the best interests and welfare of a child. As relevant to this case, N.D.C.C. § 14-09-06.6 authorizes post-judgment modification of a decision about custody which, effective August 1, 2009, is called "primary residential responsibility." See 2009 N.D. Sess. Laws ch. 149, §§ 4, 8. Under N.D.C.C. § 14-09-06.6(6), a court may modify a custody order if it has been more than two years since the order was entered, and the court finds:
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