Graner v. Graner

Citation738 N.W.2d 9,2007 ND 139
Decision Date22 August 2007
Docket NumberNo. 20060359.,20060359.
PartiesHeather A. GRANER, Plaintiff and Appellant, v. Jeffrey R. GRANER, Defendant and Appellee.
CourtUnited States State Supreme Court of North Dakota

TaLisa Ann Nemec, Nemec Law Office, Steele, N.D., for plaintiff and appellant.

Todd D. Kranda, Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D., for defendant and appellee.

MARING, Justice.

[¶ 1] Heather Graner appeals from a third amendment to judgment granting Jeffrey Graner's motion to modify custody of two of the parties' minor children, denying her motion to change the children's residence to Arizona, and finding her in contempt. We affirm those parts of the third amendment to judgment denying Heather Graner's motion to relocate and finding her in contempt, and we reverse that part of the third amendment to judgment modifying custody of the two youngest minor children and remand for further proceedings.

I

[¶ 2] Heather and Jeffrey Graner have three children together. In 2002, Heather and Jeffrey Graner divorced. The parties entered into a stipulation, which was incorporated into the divorce judgment. The stipulation provided Heather Graner would receive physical custody of all three children, and Jeffrey Graner would have weekend and Wednesday night visitation every other week. They also agreed to an alternating holiday visitation schedule.

[¶ 3] In August 2004, Heather Graner moved for permission to relocate with the parties' three children from Bismarck to Maryland to pursue business opportunities. Jeffrey Graner opposed the motion and moved to modify physical custody of all three children to him. He argued the oldest child had been living with him since November 2003. He claimed Heather Graner had willfully denied his visitation with the two youngest children, and that she was not able to provide a stable home environment, had many boyfriends, often left the children with strangers, had trouble providing for the children's basic needs, abused drugs, and suffers from bipolar disorder. Heather Graner denied all of Jeffrey Graner's allegations, and claimed he was attempting to alienate the children from her. An evidentiary hearing on the motions was set for November 8, 2004, but on November 5, 2004, the parties entered into a stipulation resolving the dispute and agreed to modify custody placing physical custody of the parties' oldest child with Jeffrey Graner. The parties agreed Heather Graner would retain physical custody of the two youngest children. An amended judgment, consistent with the parties' stipulation, was entered on November 10, 2004.

[¶ 4] On January 19, 2006, Heather Graner moved for permission to relocate to Arizona with the parties' two youngest children. She wanted to relocate to live with her fiancé and his extended family and to rebuild her business designing and selling plush novelty toys, which failed in October 2004. Jeffrey Graner again opposed the motion and moved to modify physical custody of the two youngest children. He argued the relocation would not be in the children's best interests. He again argued he should have custody because the children's living environment is unstable and Heather Graner is attempting to alienate the children from him.

[¶ 5] Before a hearing on the motions was held, Heather Graner's engagement to her fiancé ended, but she decided to continue pursuing her motion to relocate. An evidentiary hearing on the motions was scheduled for March 15, 2006, but the district court granted a continuance at Heather Graner's request. The court appointed a custody investigator to assist the court in reaching a decision on the custody modification and relocation issues after considering the tumultuous history between the parties.

[¶ 6] On June 30, 2006, Jeffrey Graner moved for a contempt determination against Heather Graner for failure to comply with the visitation schedule and failure to pay his costs for subpoenaing witnesses as ordered by the district court. He claimed Heather Graner denied his June 23-26, 2006, weekend visitation, and he requested the court award him attorney's fees and costs for the contempt motion.

[¶ 7] An evidentiary hearing on all motions was held on August 31, 2006. Both parties testified at the hearing and presented other witnesses. Heather Graner testified the move to Arizona would be in the children's best interests because she lacks family support in North Dakota since she has been estranged from her biological family for the last five years, and she has developed a family relationship and receives support from her ex-fiancé's family in Arizona. She testified they would live with her ex-fiancé's sister in a new home, located close to a good school, and the children would benefit from the improved living conditions. Heather Graner testified she is unemployed and receives public assistance, but she would be able to take advantage of the enhanced economic opportunities available in Arizona. She testified her ex-fiance's family has invested in and plans to help her rebuild her failed business. She anticipates the business will be more successful in Arizona because it will be closer to a seaport, which will save on the cost of importing the products from China, but she was reluctant to testify about specific plans for the business. She accused Jeffrey Graner of trying to alienate the children from her, and argued the relocation would benefit the children because the distance and visitation schedule would help stop the alienation, and the children would have access to a counselor specializing in parental alienation.

[¶ 8] Jeffrey Graner testified about his relationship with the children and why he is seeking custody of the two youngest children. He testified Heather Graner has often expressed a desire to move out of state to marry different men she has met on the Internet, and he compared her current relocation request to the prior motion to relocate to Maryland. He also again claimed Heather Graner has been physically abusive in the past, has had substance abuse problems, and suffers from bipolar disorder.

[¶ 9] Heather Graner's biological sister testified about Heather Graner's relationship with her biological family, and her past substance abuse and anger issues. The custody investigator testified about her investigation and recommended that Jeffrey Graner have custody of the parties' three children and that the court deny Heather Graner's motion to relocate with the two youngest children.

[¶ 10] On September 27, 2006, the district court issued a memorandum opinion and order denying Heather Graner's motion to relocate and granting Jeffrey Graner's motion to modify custody. The district court also found Heather Graner was in contempt because she denied visitation on June 23-26, 2006, and had not paid Jeffrey Graner's costs for subpoenaing witnesses as ordered. The court ordered Heather Graner to pay the subpoena costs and awarded Jeffrey Graner $250 in attorney's fees for bringing the motion for contempt. A third amendment to judgment was subsequently entered.

II

[¶ 11] Heather Graner argues the district court erred in denying her motion to relocate with the parties' two youngest children to Arizona. She claims the relocation is in the children's best interests because they would have the support of her ex-fiancé's family and she would be able to rebuild her failed business.

[¶ 12] A district court's decision on relocation is a finding of fact, which will only be reversed on appeal if it is clearly erroneous. Dvorak v. Dvorak, 2006 ND 171, ¶ 11, 719 N.W.2d 362. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or, if there is some evidence to support the finding, on the entire record we are left with a definite and firm conviction a mistake has been made. Id.

[¶ 13] Under N.D.C.C. § 14-09-07, a custodial parent generally 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." The burden is on the custodial parent to prove, by a preponderance of the evidence, that the move is in the child's best interests. Porter v. Porter, 2006 ND 123, ¶ 14, 714 N.W.2d 865. In deciding whether a custodial parent should be allowed to relocate with a minor child to another state, the court must apply the four factors we outlined in Stout v. Stout, 1997 ND 61, ¶ 33, 560 N.W.2d 903, and modified in Hawkinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144:

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.

No single factor is dominant, and what may be a minor factor in one case may have a greater impact in another. Dvorak, 2006 ND 171, ¶ 14, 719 N.W.2d 362.

[¶ 14] The district court applied the four Stout-Hawkinson factors and found the move to Arizona was not in the children's best interests. Heather Graner argues the court's findings on the first and fourth factors are clearly erroneous and the evidence favors a finding that the move is in the children's best interests.

[¶ 15] The first Stout-Hawkinson factor requires the court to consider the prospective advantages of the move, including enhanced economic opportunities and other less tangible non-economic benefits. P...

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