Hedstrom v. Berg, 870283

• Decision Date: 29 March 1988
• Docket Number: No. 870283,870283
• Parties: Darcy L. HEDSTROM, formerly Darcy L. Berg, Plaintiff and Appellee, v. Clinton A. BERG, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 488

421 N.W.2d 488

Darcy L. HEDSTROM, formerly Darcy L. Berg, Plaintiff and Appellee, v. Clinton A. BERG, Defendant and Appellant.

Civ. No. 870283.

Supreme Court of North Dakota.

March 29, 1988.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for plaintiff and appellee; argued by Pamela J. Hermes.

Garaas Law Firm, Fargo, for defendant and appellant; argued by Jonathan T. Garaas.

MESCHKE, Justice.

Clinton A. Berg appealed from an order permitting his former spouse, Darcy L. Hedstrom, to move their children to Glendale, California. We affirm.

When Clinton and Darcy were divorced in 1984 at Fargo, Darcy received custody of their two boys, Jonathan, then age nine, and Jared, then age one, subject to reasonable visitation by Clinton. Shortly, Darcy married Scott Hedstrom and lived with the boys at nearby Harwood. Clinton married Carmen and lived at Fargo, exercising visitation on alternating weekends and holidays.

Scott, a master plumber, became unemployed in March 1986. Although both Darcy and Scott worked part time, they could not make ends meet. In June 1987, Scott found employment in Glendale, California, at wages better than those from his former full-time employment in North Dakota.

In August 1987, Darcy sought court approval, as required by NDCC 14-09-07, to take the boys with her to reside with Scott in California. After affidavits and a hearing, the trial court permitted Darcy "to move to the Montrose-Glendale, California area with the two minor children of the parties where her husband is presently employed." The trial court scheduled six weeks of visits by the boys with their father each summer, and directed Darcy to bear the transportation costs of those visits.

On appeal, Clinton complains that the trial court used improper factors and ignored views expressed by a majority of this court in McRae v. Carbno, 404 N.W.2d 508 (N.D.1987).

Clinton claims that the trial court improperly emphasized the economic advantage of the move for Darcy's present spouse, arguing that the economic advantage of a stepparent is not a relevant factor. This argument stems from the trial court's statement that,

"... my primary emphasis in this case is the economic advantage, which I think falls within Subsection 10 of 14-09-06.2, to be gained in this move, the Plaintiff and her sons having obviously been dependent upon Mr. Hedstrom for primary sustenance and support this last--since their marriage."

A stepparent naturally takes on a family relationship with children of a spouse. Part of NDCC 14-09-09 says: "If the stepparent receives [a spouse's dependent children] into the family, the stepparent is liable, to the extent of his or her ability, to support them during the marriage and so long thereafter as they remain in the stepparent's family." Therefore, there is a relationship between a stepparent's financial situation and the circumstances of a spouse's dependent children. Here, the trial court went on to conclude that the move "would be an economic advantage to [Darcy] and the children," not solely for the stepparent.

Although Clinton was obligated to pay $300 a month support for his two boys, he did not always keep those payments current. Certainly, Darcy's disposition to provide the boys with care and material needs, while living with her current husband, is an important factor. See NDCC 14-09-06.2(3). We conclude that the trial court's finding, that economic advantages make this move in the interests of these children, is relevant and is supported by the record.

Clinton argues that the trial court ignored views expressed by a majority of this court in McRae v. Carbno, supra. Clinton submits that the McRae ruling precludes a custodial spouse from moving children to another state when it adversely affects an ongoing and healthy course of visitation between the children and a non-custodial spouse.

Although there was disagreement amongst us in McRae, we agree in this case that Clinton's argument reads too much into that majority opinion. In McRae, the trial court had found as a matter of fact that there were insufficient favorable factors to outweigh the negative impact of the change of residence on a healthy relationship between that daughter and father. The opposite occurred in this case. Here, the trial court found that...