Dvorak v. Dvorak

• Decision Date: 27 July 2006
• Docket Number: No. 20050405.,20050405.
• Citation: 719 N.W.2d 362,2006 ND 171
• Parties: Bob L. DVORAK, Plaintiff, Appellee and Cross-Appellant v. Kathleen A. DVORAK, Defendant, Appellant and Cross-Appellee.
• Court: North Dakota Supreme Court

719 N.W.2d 362

2006 ND 171

Bob L. DVORAK, Plaintiff, Appellee and Cross-Appellant v. Kathleen A. DVORAK, Defendant, Appellant and Cross-Appellee.

No. 20050405.

Supreme Court of North Dakota.

July 27, 2006.

COPYRIGHT MATERIAL OMITTED

Ronald A. Reichert, Reichert Law Office, Grand Forks, N.D., for plaintiff, appellee and cross-appellant.

Suzanne M. Schweigert, Smith Bakke Porsborg & Schweigert, Bismarck, N.D., for defendant, appellant and cross-appellee.

CROTHERS, 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 North Dakota to Albuquerque, New Mexico. We dismiss the cross-appeal, affirm the district court's relocation decision and property distribution, and remand for consideration of attorney's fees for this appeal.

I

[¶ 2] Bob and Kathleen Dvorak were married in 1990, after they lived together for two and one-half years on a family farm near Dickinson, which Bob Dvorak brought into their relationship. They had five children during their relationship and marriage. At the time of the March 2004 divorce trial, Bob Dvorak was a 43 year-old self-employed farmer and rancher with a tenth grade education. Kathleen Dvorak was 46 years old and had a general equivalency degree, a dental assistant degree, a two-year business degree, and a degree in massage therapy. When the couple met, Kathleen Dvorak was working full-time at the Social Security Office in Dickinson. After the birth of the couple's second child in March 1991, Kathleen Dvorak quit her job at the Social Security Office and assumed the primary responsibility of caring for the children.

[¶ 3] In 2002, Kathleen Dvorak was accepted into massage therapy school in Albuquerque and Bob Dvorak signed a document that said she could take their five minor children to New Mexico while she pursued her massage therapy degree. She moved with the children to New Mexico in December 2002. According to Kathleen Dvorak, she intended to move back to North Dakota in August 2003, after she received her massage therapy degree.

[¶ 4] Bob Dvorak sued Kathleen Dvorak for divorce in March 2003, while she was pursuing her degree and living in New Mexico with the children. The district court entered an interim order allowing Kathleen Dvorak to remain in New Mexico with the children during the divorce proceeding. The court subsequently granted the parties a divorce, awarded Kathleen Dvorak custody of the minor children, and granted Bob Dvorak reasonable visitation. The court denied Kathleen Dvorak's request to relocate with the children to New Mexico and distributed the parties' marital estate, which the court found had a total net worth of $890,409.92. The court awarded $881,744 worth of property to Bob Dvorak and $8,715.92 to Kathleen Dvorak. The court said the parties had experienced an increase in net worth of $237,097 since their relationship began in 1988, and to make the distribution equitable, the court awarded Kathleen Dvorak an offsetting monetary award of $114,190. The court also ordered Bob Dvorak to pay Kathleen Dvorak spousal support of $1,000 per month for four years and child support of $510 per month.

[¶ 5] In Dvorak, 2005 ND 66, ¶¶ 18-19, 23-24, 693 N.W.2d 646, we concluded the district court failed to properly analyze the factors for determining whether a custodial parent should be allowed to move children out of the state and failed to adequately explain a substantial disparity in the distribution of the parties' marital property. We said the district court did not set forth its analysis on the four relocation factors from Stout v. Stout, 1997 ND 61, ¶ 32, 560 N.W.2d 903, and Hawkinson v. Hawkinson, 1999 ND 58, ¶¶ 6, 9, 591 N.W.2d 144, and the court discussed only a portion of the first factor relating to the economic benefit of the move. Dvorak, at ¶ 18. We concluded the district court erred in failing to consider each of the four relocation factors. Id. We said the court could have arrived at the same conclusion in denying Kathleen Dvorak's request to relocate with the children if it had addressed all four of the relocation factors, but we could not say that it would have reached that determination after considering all four factors. Id. at ¶ 19. In reviewing the district court's property distribution, we said the court did not explain its rationale for using net income amounts and for the substantial disparity in the property award. Id. at ¶ 23. We acknowledged Bob Dvorak's argument about placing the family farm in financial duress if the district court had awarded any more property to Kathleen Dvorak, but we said the court's findings did not enunciate the financial hardship to the farm. Id. We remanded to the district court the issues regarding the relocation of the children, the distribution of the parties' marital property, and the payment of Kathleen Dvorak's attorney's fees for that appeal. Id. at ¶ 34.

[¶ 6] On remand, the district court made further findings on the relocation factors and again denied Kathleen Dvorak's request to relocate with the children to New Mexico. The district court also made further findings on the distribution of the parties' marital property, and the court ultimately awarded Kathleen Dvorak $6,000 in attorney's fees for the previous appeal.

II

[¶ 7] Kathleen Dvorak initially claims the district court failed to hold an evidentiary hearing on remand. She claims she "informally" requested and was denied an opportunity to present new evidence.

[¶ 8] In Kautzman v. Kautzman, 2000 ND 116, ¶¶ 6-8, 611 N.W.2d 883, we considered a similar claim about the denial of the opportunity to present additional evidence in a case that had been remanded for further proceedings. We said when we reverse and remand for a district court to address an issue or to redetermine a matter, unless otherwise specified, the district court may decide the case based on the evidence already before it or may take additional evidence. Id. at ¶ 7. We said a district court's decision about hearing additional evidence will be reversed on appeal only if the court abused its discretion. Id.

[¶ 9] In Dvorak, 2005 ND 66, ¶ 34, 693 N.W.2d 646, we did not explicitly require the district court to take additional evidence. On this record, we cannot say the district court abused its discretion in making further findings without hearing additional evidence.

III

[¶ 10] Kathleen Dvorak argues the district court clearly erred in denying her request to change the children's residence to New Mexico. She argues the court did not give due weight to the continuity and stability of the custodial family and to other non-economic factors. She also claims the court clearly erred in giving more credibility to Bob Dvorak's testimony than to a custody investigator's testimony.

[¶ 11] A district court's decision on relocation is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. See Stout, 1997 ND 61, ¶ 7, 560 N.W.2d 903. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support the finding, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Id. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess credibility when there is evidence to support a district court's findings, and we will not reverse a district court's decision merely because we might have reached a different result. Hentz v. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694. Moreover, a choice between two permissible views of the weight of the evidence is not clearly erroneous. Tishmack v. Tishmack, 2000 ND 103, ¶ 7, 611 N.W.2d 204.

[¶ 12] Section 14-09-07, N.D.C.C., provides, "[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." In Stout, 1997 ND 61, ¶ 32, 560 N.W.2d 903, we recognized relocation disputes require that courts try to accommodate the competing interests of the custodial parent who desires to seek a better life for himself or herself and the child 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 the state's interest in protecting the best interests of the child. A court's primary consideration in relocation cases is whether it is in the child's best interest to move to another state. Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 7, 681 N.W.2d 762. The custodial parent has the burden to prove, by a preponderance of the evidence, that the move is in the child's best interest. Id.

[¶ 13] In Dvorak, 2005 ND 66, ¶ 16, 693 N.W.2d 646 (quoting Oppegard-Gessler, 2004 ND 141, ¶ 8, 681 N.W.2d 762), we outlined the relevant Stout-Hawkinson factors for evaluating whether a custodial parent should be allowed to move a child to another state:

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...