Fleck v. Fleck, 20090075.

• Decision Date: 17 February 2010
• Docket Number: No. 20090075.,20090075.
• Parties: Melissa FLECK, n/k/a Melissa Regan, Plaintiff and Appellant v. Troy A. FLECK, Defendant and Appellee.
• Court: North Dakota Supreme Court

778 N.W.2d 572

2010 ND 24

Melissa FLECK, n/k/a Melissa Regan, Plaintiff and Appellant v. Troy A. FLECK, Defendant and Appellee.

No. 20090075.

Supreme Court of North Dakota.

February 17, 2010.

Theresa Luan Cole, Bismarck, N.D., for plaintiff and appellant.

Daniel Harry Oster, Bismarck, N.D., for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Melissa Fleck, now known as Melissa Regan, appeals from an order denying her motion to amend a divorce judgment to grant her primary residential responsibility¹ for her two children and permission to move with the children to Arizona, and granting Troy A. Fleck's motion for primary residential responsibility for the children and ordering Regan to pay child support. We conclude the district court's decision to grant Fleck primary residential responsibility for the children is not clearly erroneous, but its calculation of Regan's child support obligation is erroneous as a matter of law. We affirm in part, reverse in part, and remand for recalculation of Regan's child support obligation.

I

[¶ 2] Fleck and Regan were divorced in August 2006 and their stipulated settlement agreement was incorporated into the divorce judgment. Fleck and Regan had two children during the marriage, born in 1999 and 2000, and they agreed to share "equal physical custody" and "joint legal custody" of the children. One year before the parties were divorced, Regan moved to Sioux Falls, South Dakota, to take classes for 11 months in the Mount Marty College nurse anesthesia program. While attending college in Sioux Falls, Regan returned to Bismarck almost every other weekend to see the children. After completion of the 11-month program, Regan began doing her clinicals in Bismarck and attempted to spend as much time as possible with the children. Regan graduated in February 2008. During the time Regan was pursuing her studies, Fleck, a college graduate who is employed as a Burleigh County Deputy Sheriff, had the responsibility for taking care of the children and the family home.

[¶ 3] In March 2008, Regan married Shawn Regan, who she had met while attending college in Sioux Falls. In April 2008, the couple moved to Arizona where they had both been offered employment. Both work as nurse anesthetists at the same hospital near Phoenix, Arizona. Regan has a part-time "1099 position," in which she is "paid hourly straight" and pays her own taxes, while Shawn Regan has a full-time "W-2 position," in which he receives benefits. Regan is paid $86 per hour and her husband is paid $68 per hour plus benefits. The couple purchased a home in a gated community in the area. Since moving to Arizona, Regan has traveled to Bismarck every other two weeks to live with the children in a rented apartment and the children have traveled to Arizona periodically to spend time with Regan.

[¶ 4] In August 2008, Regan filed a motion to change primary residential responsibility for the children from "shared physical custody" with Fleck to "sole physical custody" with Regan. She also sought to establish a parenting time schedule and child support obligation for Fleck, and to receive permission to relocate the children to Arizona. Fleck responded with a counter-motion to amend the divorce judgment to grant him "primary physical custody" of the children and to establish a parenting time schedule and child support obligation for Regan. Following an evidentiary hearing, the district court denied Regan's motion and granted Fleck's counter-motion awarding him primary residential responsibility for the children, awarding Regan "ample" parenting time, and ordering that Regan pay $2,246 per month for child support.

II

[¶ 5] Regan argues the district court's decision denying her request for primary residential responsibility and for permission to relocate the children to Arizona is clearly erroneous.

[¶ 6] In Maynard v. McNett, 2006 ND 36, ¶ 21, 710 N.W.2d 369, a majority of this Court explained:

We hold that a parent with joint legal and physical custody may not be granted permission to move with the parties' child, unless the district court first determines the best interests of the child require a change in primary custody to that parent. A parent with joint custody who wishes to relocate with the child must make two motions: one for a change of custody, governed by N.D.C.C. § 14-09-06.2, and one to relocate with the child, governed by N.D.C.C. § 14-09-07. The change-of-custody motion requires the party wishing to relocate to show there has been a significant change in circumstances and the best interests of the child would be served by the child's moving with the relocating parent.

The district court found that "[c]learly with [Regan's] move to Arizona and her new part-time job at the same hospital at which her husband works full time, there has been a significant change in circumstances," and the parties do not challenge this finding. See, e.g., Dietz v. Dietz, 2007 ND 84, ¶ 13, 733 N.W.2d 225 (in-state move with children may be material change of circumstances); Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924 (in-state move with child may be viewed as significant change of circumstances); Hanson v. Hanson, 1997 ND 151, ¶ 5, 567 N.W.2d 216 (out-of-state move could be substantial change of circumstances); Van Dyke v. Van Dyke, 538 N.W.2d 197, 201 (N.D.1995) (out-of-state move alone might support finding of significant change in circumstances); Gould v. Miller, 488 N.W.2d 42, 44 (N.D.1992) (move to another state is made significant by N.D.C.C. § 14-09-07). Consequently, the district court properly analyzed this case under the best interests factors contained in N.D.C.C. § 14-09-06.2(1). See Jelsing v. Peterson, 2007 ND 41, ¶ 10, 729 N.W.2d 157.

[¶ 7] In Jelsing, 2007 ND 41, ¶ 11, 729 N.W.2d 157, we said:

We exercise a limited review of child custody awards. Eifert v. Eifert, 2006 ND 240, ¶ 5, 724 N.W.2d 109. A district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. Klein v. Larson, 2006 ND 236, ¶ 6, 724 N.W.2d 565. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Gietzen v. Gabel, 2006 ND 153, ¶ 6, 718 N.W.2d 552. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result. Dvorak v. Dvorak, 2006 ND 171, ¶ 11, 719 N.W.2d 362. A choice between two permissible views of the weight of the evidence is not clearly erroneous, Dvorak, at ¶ 11, and our deferential review is especially applicable for a difficult child custody decision involving two fit parents. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 12, 700 N.W.2d 711.

[¶ 8] In awarding primary residential responsibility for the children to Fleck, the district court found the following best interests factors in N.D.C.C. § 14-09-06.2(1)² favored Fleck: (d) the length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity; (e) the permanence, as a family unit, of the existing or proposed custodial home; (h) the home, school, and community records of the child; and (m) any other relevant factors. The court found the remaining factors were either inapplicable or favored neither party. Regan does not challenge the court's findings that factor (g), the mental and physical health of the parents, favored neither party and that factors (i), the reasonable preference of the child, (j) evidence of domestic violence, and (l), the making of false allegations, are inapplicable under the circumstances. Regan challenges the court's findings on the remaining nine best interests factors.

[¶ 9] The district court found factor (a) in N.D.C.C. § 14-09-06.2(1), the love, affection and other emotional ties existing between the parents and child, favored neither party because "[b]oth parties love their children and have strong emotional ties to them." The court found factor (b), the capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child, favored neither party because "[b]oth parties have the capacity and are disposed to provide love, affection, guidance and education to their children." The court found factor (c), the disposition of the parents to provide the child with food, clothing, medical care, or other remedial care, favored neither party because "[b]oth parties are disposed to provide their children with food, clothing and medical care." The court found factor (f), the moral fitness of the parents, favored neither party because both Regan and Fleck are "morally fit as in regard to the custody of their children." The court found factor (k), the interaction and interrelationship of the child with any person who resides in or frequents the household of a parent, favored neither party because "[t]here is no evidence that if the children were in the custody of either parent that they would have any contact with any person who might adversely [a]ffect the children's best interests." Regan's challenge to these findings consists of emphasizing the evidence she presented to the court in support of her motion and ignoring the evidence Fleck presented in support of his motion. There is abundant evidence to support these findings, and we conclude the court's findings that these best interests factors favored neither party are not clearly erroneous.

[¶ 10] The district court found factors (d), (e), (h), and (m) in N.D.C.C. § 14-09-06.2(1) favored Fleck. Regan's challenge to these findings again focuses on the evidence she...