Hawkinson v. Hawkinson, 980281

• Decision Date: 06 April 1999
• Docket Number: No. 980281,980281
• Citation: 1999 ND 58,591 N.W.2d 144
• Parties: Donald Lee HAWKINSON, Plaintiff and Appellant, v. Lynda Ann HAWKINSON, now known as Lynda Ann McAllister, Defendant and Appellee.
• Court: North Dakota Supreme Court

Page 144

591 N.W.2d 144

1999 ND 58

Donald Lee HAWKINSON, Plaintiff and Appellant, v. Lynda Ann HAWKINSON, now known as Lynda Ann McAllister Defendant and Appellee.

No. 980281.

Supreme Court of North Dakota.

April 6, 1999.

James R. Brothers, Wold Johnson, P.C., Fargo, ND, for plaintiff and appellant.

Douglas W. Nesheim, Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, ND, for defendant and appellee.

KAPSNER, Justice.

¶1 Donald Lee Hawkinson appealed from a trial court judgment granting Lynda Ann McAllister's request to move with their son, Donald John (D.J.), to Plymouth, Minnesota. We hold the trial court's decision is not clearly erroneous and therefore affirm.

I.

¶2 D.J. was born February 16, 1987. Donald and Lynda divorced in January 1989. Lynda was granted sole custody with specific visitation rights for Donald. Both parties remarried after the divorce.

¶3 At the time of the motion, Lynda and D.J. lived in Moorhead, Minnesota, with Lynda's new husband, Steven McAllister. Steven was employed by the Hershey Chocolate Company as the district sales manager for North Dakota, South Dakota, and northwest Minnesota. Steven's district was restructured and he was promoted and reassigned to Hershey's Minneapolis-St. Paul office in the spring of 1998. Lynda and Steven sold their house in Moorhead and purchased a house in the Minneapolis area.

¶4 On May 14, 1998, Lynda brought a motion requesting permission to move D.J. to Plymouth, Minnesota. The trial court granted the motion on June 16, 1998. A detailed visitation schedule was established by the court. Donald appealed.

II.

¶5 A custodial parent must get judicial permission to move a child to another state if the noncustodial parent does not consent to the move. N.D.C.C. § 14-09-07. The custodial parent has the burden of proof to establish the proposed move is in the best interests of the child. Keller v. Keller, 1998 ND 179, p 10, 584 N.W.2d 509. The trial court's decision whether the move is in the best interests of the child is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Id. 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 after reviewing the record we are left with a definite and firm conviction a mistake has been made. Id.

¶6 When determining whether the move is in the best interests of the child, the trial court must apply the four-factor analysis enunciated in Stout v. Stout, 1997 ND 61, p 34, 560 N.W.2d 903:

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. 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.

¶7 Donald argues the trial court's decision was based on a clearly erroneous interpretation of Stout. Although Donald acknowledges the trial court discussed the Stout factors, he asserts the decision was clearly erroneous because the trial court believed if an economic advantage to the move could be proven, the motion must be granted. He contends the trial court's mistaken belief is evidenced by the following statement:

One of the things that I think is important for us to bear in mind is that if you look at what Stout v. Stout did, other than gut the existing law, was a statement by the majority that they didn't intend to overrule any of its precedence [sic]. Now I don't know quite how you--- I don't know how you reconcile that frankly. I have looked at [Stout] and I've looked at its progeny and I--- and you look at what they did in Bauske and I don't know how a Court fashions any kind of a finding that withstands the scrutiny frankly of the Supreme Court.

The trial court's statement was made at a motion hearing during a discussion of whether the court should interview D.J. about his views on the proposed move. The court determined D.J.'s testimony would be considered when ascertaining whether the move would be advantageous to his quality of life under the first Stout factor. Donald, however, asserts the trial judge's comments indicate the court's belief if any advantages to the move could be shown, the move must be granted without properly weighing the prospective advantages against the disadvantages that may occur as a result of the move. Donald argues Stout does not clearly signal the need to weigh the prospective disadvantages of the move when deciding whether the move is in a child's best interests. We agree with Donald in part. We agree a determination of a child's best interests requires a weighing of both positive and negative factors. We disagree, however, with Donald's assertion the trial court failed to do so.

¶8 A trial court must balance the prospective advantages of a proposed move in improving the custodial parent's and the child's quality of life with the potential negative impact on the relationship between the noncustodial parent and the child. This court has, at least implicitly, addressed this concern before. Hedstrom v. Berg, 421 N.W.2d 488, 489-90 (N.D.1988). In Stout at p 25, while reviewing our prior cases on relocation, we acknowledged the Hedstrom decision "established that economic advantages of a move were factors to be considered and that the trial court should balance the move out of state with the negative impact on the relationship between the noncustodial parent and the child."

¶9 After discussing the rationale of our prior relocation decisions, this court clearly stated in Stout at p 34, we were not overruling that prior case law. Relying on prior cases including Hedstrom, we announced a four-factor analysis when deciding whether a proposed move is in the best interests of the child. Stout, at pp 33-34, However, to make explicit that determining the best interests of the child requires consideration of both positive and negative impacts of the proposed move, we restate the fourth Stout factor as follows:

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.

The remaining three factors announced in Stout, at p 34, are unchanged by this opinion.

¶10 The trial court noted the economic advantage to D.J.'s custodial family was undisputed. Steven's employment position in the Fargo-Moorhead area was eliminated by Hershey. The new position provided a twenty-five percent pay increase, an annual bonus, additional benefits, and an opportunity for further career advancement. The economic advantage produced other benefits for D.J. Lynda will work fewer hours and will be able to spend more time with him. The trial court recognized D.J. "should benefit greatly by this increase in available parenting time."

¶11 The trial court must weigh the advantages and disadvantages of a move while recognizing the importance of maintaining continuity and stability in the custodial family. Paulson v. Bauske, 1998 ND 17, pp 10-12, 574 N.W.2d 801. Although the emphasis on continuity and stability pertains primarily to the custodial parent-child relationship, this court has recognized "a stepparent naturally takes on a family relationship with children of a spouse and, consequently, the circumstances of each are interrelated." Id. at p 10, 574 N.W.2d 801. We have long emphasized the importance of a move so a custodial family could stay together as a unit, thereby maintaining "the continuity and stability of the integrated family unit." See, e.g., Thomas v. Thomas, 446 N.W.2d 433, 435 (N.D.1989); Hedstrom, 421 N.W.2d at 489-90.

¶12 The trial court noted Bauske, Hedstrom, and Novak v. Novak, 441 N.W.2d 656 (N.D.1989) were instructive as "supporting the importance of maintaining the continuity and stability of the custodial family in making a 'best interest' analysis." This is a correct interpretation of the case law on relocation. It is also a correct consideration under the first Stout factor.

¶13 It is clear, however, without the benefit of the clarification which we announce today, the trial court did properly weigh both the advantages and disadvantages to D.J. of the proposed move. The trial court acknowledged Donald's extensive involvement in D.J.'s daily life. Donald was active in coaching D.J. in hockey and football and both Donald and D.J. expressed a desire that such involvement continue. This desire on the part of both father and son was considered. The court addressed the fact Donald would no longer be able to coach D.J.'s hockey and football teams after the move, contrary to D.J.'s express wishes. The court recognized the importance of sports in D.J.'s life, but reasoned other experiences were equally valuable. The trial court stated: "[w]hen the Court balances the interest in athletics against the interest of maintaining the continuity and stability of the custodial family, athletics must necessarily be viewed as secondarily important."

¶14 The trial court also discussed Donald's practice of maintaining weekly telephone contact with D.J.'s teacher, and Donald's direct interaction with D.J. regarding his school performance. After recognizing the positive impact of such practices on D.J.'s education, the court acknowledged the same weekly telephone contact could be maintained with D.J. and his teachers in Plymouth.

¶15 Donald urges the disruption...