Dvorak v. Dvorak, 20040222

Decision Date23 March 2005
Docket NumberNo. 20040222,20040222
CourtNorth Dakota Supreme Court
PartiesBob L. Dvorak, Plaintiff and Appellee v. Kathleen A. Dvorak, Defendant and Appellant.
Opinion of the Court by Sandstrom, Justice.


[¶1] Kathleen Dvorak appeals a divorce judgment from the district court awarding her custody of the children, child support, spousal support, and a portion of the marital property and requiring her to move back to North Dakota from Albuquerque, New Mexico, with the children. Concluding the district court failed to properly analyze the relocation factors and erred in dividing the marital property, we affirm in part, reverse in part, and remand to the district court the issues of the relocation of the children, the distribution of marital property, and the payment of attorney's fees.


[¶2] Kathleen and Bob Dvorak were married on September 8, 1990, and divorced on April 27, 2004. The parties lived together for two and a half years before they were married, and they had five children from their relationship.

[¶3] In 2002, Kathleen Dvorak applied for admittance to a massage therapy school in Albuquerque, New Mexico, and was accepted. She had her husband sign a statement that she could go to New Mexico with their five children while obtaining her degree. She moved with the children to New Mexico in December 2002 so that the children could begin school in the Albuquerque school system at the beginning of the school semester. At the time of the move, she was intending to come back to North Dakota after she obtained her massage therapy degree.

[¶4] Bob Dvorak filed for a divorce in March 2003 while Kathleen Dvorak was in New Mexico. Kathleen Dvorak moved for, and the district court granted, an interim order giving her custody of the children and allowing her to remain in New Mexico with the children during the pendency of the divorce.

[¶5] The case was tried on March 16, 2004. At the time of the trial, Bob Dvorak was a 43-year-old, self-employed farmer and rancher. He attended school through the tenth grade but did not graduate from high school. Kathleen Dvorak was 46 years old and had a general equivalency diploma, a dental assistant degree, and a two-year business degree, and she had completed her massage therapy degree by the time of the trial.

[¶6] The district court granted the parties a divorce on the grounds of irreconcilable differences. The district court awarded custody of the minor children to Kathleen Dvorak and awarded reasonable visitation, including every other weekend, alternating holidays, and six weeks during the summer, to Bob Dvorak. The district court ordered Bob Dvorak to pay $510 per month in child support and allowed him to claim the children as dependents for tax purposes. The district court awarded Kathleen Dvorak spousal support in the amount of $1,000 per month for four years.

[¶7] The district court awarded property valued at $881,744 to Bob Dvorak and property worth $8,715.92 to Kathleen Dvorak. The district court stated it considered the Ruff-Fischer guidelines in making this property division and recognized the division created a substantial disparity between the parties. It noted that it gave specific weight to when the property was accumulated and stated that it was "appropriate for the Court to consider all the time the parties have lived together in dividing their marital property." The district court found the net worth of Bob Dvorak in 1988, the year the parties began living together, was $644,647, and the couple's net worth at the time of the trial had increased by $237,097. The district court then awarded an "offsetting monetary award of $114,190.00" to Kathleen Dvorak.

[¶8] Kathleen Dvorak appeals the district court judgment.

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


[¶10] Kathleen Dvorak argues the district court improperly found it was not in the children's best interest to move to New Mexico.

[¶11] The custodial parent has the burden of proving by a preponderance of the evidence that a move is in the best interest of the child. Dickson v. Dickson, 2001 ND 157, ¶ 7, 634 N.W.2d 76. A district court's decision whether a proposed move to another state is in the best interest of a child is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Id. at ¶ 8.

[¶12] North Dakota statute states:

A parent entitled to the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree. A court order is not required if the noncustodial parent:
1. Has not exercised visitation rights for a period of one year; or
2. Has moved to another state and is more than fifty miles [80.47 kilometers] from the residence of the custodial parent.

N.D.C.C. § 14-09-07. The purpose of the relocation statute is to protect the noncustodial parent's visitation rights when the custodial parent wants to move out of state with the children. State ex rel. Melling v. Ness, 1999 ND 73, ¶ 7, 592 N.W.2d 565.

[¶13] Kathleen Dvorak argues the district court did not have subject matter jurisdiction, because Bob Dvorak waived his right to contest the move by initially allowing her to move to New Mexico with the children. Although Bob Dvorak signed a paper stating he agreed that his wife could take the children to New Mexico, he argues he did not want to sign the paper but felt he had no choice and no legal way to stop her from moving without getting a divorce.

[¶14] Subject matter jurisdiction allows a district court to adjudicate an action if the constitution and laws authorize it to hear the type of case to which the particular action belongs. Larson v. Dunn, 474 N.W.2d 34, 38 (N.D. 1991). A judgment or order entered by a district court that does not have the requisite jurisdiction is void. Id. at 39. District courts in North Dakota have broad jurisdictional authority, including authority to decree a divorce. N.D.C.C. §§ 27-05-06, 14-05-01(2).

[¶15] Bob Dvorak signed a paper allowing Kathleen Dvorak and the children to move to New Mexico while she was obtaining a massage therapy degree. Both Kathleen and Bob Dvorak expected that she would return with the children after she completed her studies. Bob Dvorak's signing of the paper did not waive his right to object to Kathleen Dvorak's relocating with the children permanently, and the district court did not lose its jurisdiction over the issue.


[¶16] Kathleen Dvorak argues the district court erred in finding the move was not in the best interests of the children.

In every relocation dispute, the court must try to accommodate the competing interests of the custodial parent who desires to seek a better life for herself and the children in a different geographical area; the child's interest in maintaining a meaningful relationship with the noncustodial parent; the noncustodial parent's interest in maintaining a meaningful relationship with the child; and finally, the state's interest in protecting the best interests of the child.

Stout v. Stout, 1997 ND 61, ¶ 32, 560 N.W.2d 903. "The relevant factors in evaluating whether a custodial parent should be allowed to move children out of state were enumerated in Stout and refined in Hawkinson v. Hawkinson, 1999 ND 58, 591 N.W.2d 144." Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 8, 681 N.W.2d 762. They are:

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 Hawkinson, at ¶¶ 6, 9). "No single factor is dominant, and a minor factor in one case may have a greater impact in another." Id.

[¶17] The district court held that Kathleen Dvorak did not meet her burden of proof to relocate to New Mexico with the children. It reasoned that it was only Kathleen Dvorak's subjective opinion that it was better for her and the children to live in New Mexico. The district court found that she had not offered any "evidence of employment opportunities in North Dakota or the lack thereof compared to Albuquerque, New Mexico." The district court denied her request to move with the children.

[¶18] The district court did not set forth its analysis of the four relocation factors announced by a majority of this Court in Stout and modified in Hawkinson. Although it may have considered all of the factors, it discussed only a portion of the first factor relating to the economic benefit of the move. A majority of this Court has said the first factor includes not only the economic advantages of the move but also the noneconomic advantages for enhancing the custodial family's life. Tibor v. Tibor, 1999 ND 150, ¶ 11, 598 N.W.2d 480.

[¶19] In determining whether moving to another state is in a child's best interests, the district...

To continue reading

Request your trial
21 cases
  • Lorenz v. Lorenz
    • United States
    • United States State Supreme Court of North Dakota
    • April 10, 2007
    ...regarding the division of property as findings of fact, and we will not reverse unless the findings are clearly erroneous." Dvorak v. Dvorak, 2005 ND 66, ¶ 20, 693 N.W.2d 646. "`A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence ......
  • Rothberg v. Rothberg
    • United States
    • United States State Supreme Court of North Dakota
    • March 29, 2006
    ...whether the actions of either party unreasonably increased the time spent on the case. Bertsch, 2006 ND 31, ¶ 8, 710 N.W.2d 113; Dvorak v. Dvorak, 2005 ND 66, ¶ 32, 693 N.W.2d 646; Litoff, at ¶ [¶ 21] The district court's order contains a single sentence addressing Patricia Rothberg's reque......
  • Solem v. Solem
    • United States
    • United States State Supreme Court of North Dakota
    • November 21, 2008
    ...one spouse has a need for them and the other spouse has an ability to pay. Wold v. Wold, 2008 ND 14, ¶ 20, 744 N.W.2d 541(citing Dvorak v. Dvorak, 2005 ND 66, ¶ 32, 693 N.W.2d 646). "Although we have concurrent jurisdiction with the district court to award attorney fees for an appeal in a d......
  • Dvorak v. Dvorak
    • United States
    • United States State Supreme Court of North Dakota
    • July 27, 2006
    ...Justice. [¶ 1] Kathleen Dvorak appeals and Bob Dvorak cross-appeals from a divorce judgment, entered after remand in Dvorak v. Dvorak, 2005 ND 66, 693 N.W.2d 646, in which the district court divided the parties' marital property and denied her request to relocate with her children from Nort......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT