Gilbert v. Gilbert

• Decision Date: 04 May 2007
• Docket Number: No. 20060306.,20060306.
• Citation: 2007 ND 66,730 N.W.2d 833
• Parties: Kari Lynn GILBERT, Plaintiff and Appellant v. Boe Jason GILBERT, Defendant and Appellee.
• Court: North Dakota Supreme Court

730 N.W.2d 833

2007 ND 66

Kari Lynn GILBERT, Plaintiff and Appellant v.Boe Jason GILBERT, Defendant and Appellee.

No. 20060306.

Supreme Court of North Dakota.

May 4, 2007.

Jessica J. Wolf, Lange & Donovan, PLLP, Hazen, ND, for plaintiff and appellant.

Rudolph A. Tollefson, Solem Law Office, Beulah, ND, for defendant and appellee.

MARING, Justice.

[¶ 1]Kari Merritt, formerly known as Kari Gilbert, appeals from a district court order denying her motion to move with her child to West Virginia.We conclude the district court's finding the move is not in the child's best interests is clearly erroneous, and we reverse and remand with instructions the court enter an order granting the motion to move and establishing an appropriate visitation schedule.

I

[¶ 2] Merritt and Boe Gilbert were married in 1998, and have one child together.Merritt also has physical custody of a second child from a previous relationship.In 2001, Merritt and Gilbert divorced.Merritt was awarded sole custody of the parties' child, and Gilbert was awarded visitation.The parties agreed Gilbert would have visitation every other weekend, every other holiday, and extended summer visitation starting with two weeks the first year and increasing one week each year until Gilbert had a total of eight weeks of summer visitation.The parties are flexible with the visitation schedule, and Gilbert often has more visitation than was ordered.

[¶ 3] Merritt married Michael Merritt in July 2006.Michael Merritt lives in Ripley, West Virginia, but his occupation requires extensive travel to various locations in the United States, and he is often only in West Virginia for approximately four months a year.Michael Merritt testified his employer provides transportation to the job sites from West Virginia, and he would be required to pay his own travel expenses if he decided to live in another state.

[¶ 4] Merritt is pursuing a degree in addiction studies, and will fulfill her degree requirements after completing an internship.Merritt testified she would have to relocate within the state to pursue her career because there are no addiction counseling positions in Mercer County, where she currently resides.Merritt has secured an internship position in West Virginia, and was offered a permanent position upon completion of the internship.Merritt testified she will earn approximately $10,000 per year more in West Virginia as an addiction counselor.

[¶ 5] In 2006, Merritt moved for permission to move the parties' child to West Virginia.After a hearing, the district court denied Merritt's motion.The court concluded the move was not in the child's best interests because it would negatively impact the child's quality of life and the child's relationship with Gilbert and extended family.

II

[¶ 6]A district court's decision on relocation is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous.Porter v. Porter,2006 ND 123, ¶ 5, 714 N.W.2d 865."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."Dvorak v. Dvorak,2006 ND 171, ¶ 11, 719 N.W.2d 362.

[¶ 7]"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."N.D.C.C. § 14-09-07.A court's primary consideration in relocation cases is whether it is in the child's best interests to move to another state.Dvorak,2006 ND 171, ¶ 12, 719 N.W.2d 362.The custodial parent has the burden of proving, by a preponderance of the evidence, that the move is in the child's best interests.Id.

[¶ 8] In evaluating whether the move is in the child's best interests, the district court must apply the four factors enumerated in Stout v. Stout,1997 ND 61, 560 N.W.2d 903, and modified in Hawkinson v. Hawkinson:

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, [and]

. . . .

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.

Hawkinson v. Hawkinson,1999 ND 58, ¶¶ 6, 9, 591 N.W.2d 144.One factor is not dominant, and what may be a minor factor in one case may be more important in another case.Dvorak,2006 ND 171, ¶ 14, 719 N.W.2d 362.The court must address all four factors in evaluating whether the move is in the child's best interests, and failure to address all four factors is reversible error.Porter,2006 ND 123, ¶ 6, 714 N.W.2d 865.

[¶ 9] In this case, the district court made findings on the four Stout-Hawkinson factors.Merritt does not challenge the court's findings on the second and third factors, but argues the court's findings on the first and fourth factors are clearly erroneous.

A

[¶ 10] The first Stout-Hawkinson factor requires the district court to consider the prospective advantages of the move, and in doing so, the court must consider both the economic opportunities and the non-economic benefits of the relocation.Porter,2006 ND 123, ¶ 8, 714 N.W.2d 865.An essential part of the analysis is the "`importance of maintaining continuity and stability in the custodial family.'"Id.(quotingGoff v. Goff,1999 ND 95, ¶ 14, 593 N.W.2d 768)."A [district] court that fails to give sufficient credence to the importance of keeping the custodial family intact commits reversible error."Oppegard-Gessler v. Gessler,2004 ND 141, ¶ 10, 681 N.W.2d 762.

[¶ 11] Here, the district court concluded the first factor did not support relocation and made the following findings:

In the present case, Kari [Merritt] argues that she has improved employment opportunities in West Virginia.She has been attending school to become a chemical addiction treatment professional, and testified that she is required to complete an internship before she can be employed.She believes she has an opportunity to complete the internship and gain employment in West Virginia.

However, she opted not to seek an internship in North Dakota because she planned to move.While there may not have been opportunities for an internship in Mercer County, the evidence suggests she might well be able to complete an internship in the Bismarck-Mandan area or in another location relatively close to her home.

While Kari [Merritt] believes she may have better employment opportunities in West Virginia, there was no evidence concerning salaries and cost of living on which the Court could make a determination that a move would improve her standard of living.

The court's findings also suggest the court concluded Merritt would not benefit from the move because her husband works out of town most of the year and it may be better if Michael Merritt moved to North Dakota.In summarizing its decision, the court said:

Based on the record, I conclude Kari [Merritt] has not established that the move would improve her quality of life, and it would impact negatively on [the child's] quality of life.The move would allow Kari [Merritt] to live where her husband resides, but he is away from his residence a significant amount of time.While she may obtain employment in West Virginia, she has not made a good faith effort to obtain similar employment in the area where she now resides.The move would require [the child] to leave the area where she has lived and enjoyed a close relationship with both of her parents.

[¶ 12]The court found Merritt did not make a good faith effort to find employment in North Dakota and did not present evidence of the economic benefits of moving.However, Merritt did not choose to move for economic reasons; she wanted to move to live with her new husband.The court failed to consider the benefits to the custodial family as a result.The interests of the child are so connected to the custodial parent's well being that the interests of the custodial parent must be taken into account:

Prohibiting a move by the custodial parent may force that parent to choose between custody of his or her child and opportunities that may benefit the family unit, including the child as well as the parent.These may include a new marriage, an important job opportunity, or a return to the help provided by an extended family in the rearing of the child by a single parent.Imposing this choice can be severely detrimental to the psychological and economic well-being of the parent over many years.It also has the potential for burdening the parent-child relationship for many years, regardless of the choice the parent makes.

Stout v. Stout,1997 ND 61, ¶ 18, 560 N.W.2d 903(quoting Judith S. Wallerstein and Tony J. Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce,Fam. L.Q., Vol. 30 No. 2, Pg. 305, 314-15(Summer 1996))(emphasis added).In this case, the court's decision may force Merritt to choose between her new marriage and having physical custody of her child.

[¶ 13]We have long emphasized, even before the Stout-Hawkinson factors were applied, the importance of maintaining continuity and stability in the custodial family, which includes allowing the custodial family to move to be with a new spouse, and we have reversed relocation decisions when the court did not give that consideration...