In re Marriage of Goldman

• Decision Date: 02 January 2007
• Docket Number: No. A06-1110.,A06-1110.
• Citation: 725 N.W.2d 747
• Parties: In re the MARRIAGE OF Deborah A. GOLDMAN, f/k/a Deborah A. Greenwood, petitioner, Appellant, v. Mark E. Greenwood, Respondent.
• Court: Minnesota Court of Appeals

Page 747

725 N.W.2d 747

In re the MARRIAGE OF Deborah A. GOLDMAN, f/k/a Deborah A. Greenwood, petitioner, Appellant, v. Mark E. Greenwood, Respondent.

No. A06-1110.

Court of Appeals of Minnesota.

January 2, 2007.

Richard D. Goff, Minneapolis, MN, and Felipe Orner, Flushing, NY, for appellant.

Suzanne M. Edmiston, Edina, MN, for respondent.

Considered and decided by SHUMAKER, Presiding Judge; HUDSON, Judge; and CRIPPEN, Judge.

OPINION

CRIPPEN, Judge.^*

This appeal is from a district court order denying the sole physical custodian's motion for removal of the parties' child to New York City, the city where the custodian's spouse lives and works and where the child, soon to be age 11, may enjoy greater social and educational opportunities, coinciding with his Orthodox Jewish faith and practice. Appellant challenges, as a matter of law, the district court's application of Minn.Stat. § 518.18 (2004) to her removal motion and disputes the district court's analysis of evidence she submitted to establish a prima facie case for removal. Because the arguments advanced by appellant have merit, we reverse and remand for an evidentiary hearing under Minn. Stat. Ann. § 518.175, subd. 3 (West, Westlaw through 2006 Regular Session).¹

FACTS

Appellant Deborah Goldman and respondent Mark Greenwood were married in 1993 and divorced by a June 2002 judgment. The parties are parents of I.G., a son born on January 30, 1996.

While divorce proceedings were pending in 2001, the district court determined disputed custody and parenting time issues in a memorandum decision awarding appellant sole physical custody of the child, who was then age 5. The court rejected appellant's proposal to move with the child to Boston, Massachusetts, to permit appellant to seek better employment and be closer to her family. The memorandum decision also stated what it labeled a "LaChapelle locale restriction," limiting appellant's freedom to remove the child from Minnesota. See LaChapelle v. Mitten, 607 N.W.2d 151, 162-63 (Minn.App.2000) (permitting custody award conditioned on parent's continuing residence in state), review denied (Minn. May 16, 2000).

Following child custody litigation, after the parties failed to conclude the matter by a stipulation or formation of a parenting plan, the district court formulated a 2002 judgment "award[ing] sole physical custody [of I.G.] . . . subject to reasonable parenting time by [r]espondent." Both the judgment's findings of fact and conclusions of law "incorporated by reference" the court's 2001 memorandum decision on child custody issues, including the root of this appeal, its 2001-02 court-created removal restriction.

Appellant contends that the 2001 removal restriction is not adequately certain,² but by reading the 2001 memorandum decision with the 2002 judgment, we are reasonably certain that the following statement accurately represents the district court's custody award:

[Appellant] is hereby awarded sole physical custody of the minor child, namely: [I.G., six at the time of the 2002 judgment; eleven on January 30, 2007] subject to reasonable parenting time by Respondent. . . . [without] a major change in [I.G.'s] daily routine . . . as long as [a.] [appellant] remains available to parent him in Minnesota, [b.] a specific schedule ensures ample parenting time for [respondent], [c.] both parents engage in counseling, and [d.] a parenting consultant or parenting time expeditor is appointed to help reduce disputes over daily care and access issues.

In addition to awarding appellant sole physical custody, the 2001 memorandum reserved the question of I.G.'s legal custody but observed appellant's "greater disposition to continue [I.G.]'s religious training," demanded a sharing of information, and appointed a "parenting consultant."

In 2006, appellant moved the district court for permission to relocate with I.G. to New York City, where appellant's fiancé (now spouse) lives. Because this request was at odds with the judgment's custody provision requiring that appellant remain available to her son in Minnesota, appellant both moved the district to alter this provision of the judgment's custody provision and sought the court's permission for the proposed move.

Appellant submitted 15 affidavits in support of her motions. The child's teachers, baseball coach, and appellant's neighbors were among those who submitted affidavits. In her own affidavit, appellant pointed to I.G.'s improved opportunity to live as an Orthodox Jew and further his religious education in New York City, as well as his psychological adjustment and his changing relationships with respondent's other children. Appellant also highlighted I.G.'s limited opportunity to live his religious life and further his religious education in Minneapolis. Appellant cited her own engagement and the fact that her (then) fiancé lived and worked in New York City in support of her motion and asserted that the proposed move was in I.G.'s best interests. Respondent opposed appellant's motion, arguing that appellant failed to make a "prima facie showing" for relief conflicting with the removal provision in the 2002 judgment.

After a hearing, the district court denied appellant's plea to alter the removal restriction and, without a further evaluation or evidentiary hearing, denied her permission to remove I.G. to New York. Relying partly on an unpublished appellate decision, the district court treated appellant's motion as a motion to modify the custody provision of the judgment and imposed upon appellant the custody modification burdens provided in Minn.Stat. § 518.18 (2004) (amended 2006) rather than the requirements for residential removal addressed by Minn.Stat. § 518.175, subd. 3 (2004) (amended 2006). Assessing appellant's supporting affidavits, the court concluded that appellant failed to present a prima facie case of changed circumstances sufficient to require an evidentiary hearing on the question of whether she could modify the judgment's removal provision that she remain in Minnesota.

Although the court observed that an endangerment analysis might be unnecessary, the court determined that appellant failed to present a prima facie case of endangerment under Minn.Stat. § 518.18(d)(iv). Using still another standard of section 518.18(d)(iv), the court also concluded that appellant failed to "present[] a prima facie case that the advantages associated with the proposed removal . . . outweigh the harm to be caused by the change." Notwithstanding these holdings, the court confirmed that appellant remains the parent with the "greater capacity and disposition to continue educating and raising [I.G.] in his religion" and has "attended to [I.G.]'s religious training, along with his structured social/extracurricular activities."

To challenge the district court's ultimate decision to deny removal without holding an evidentiary hearing, appellant primarily disputes the court's application of the custody-modification provisions of Minn.Stat. § 518.18 and its analysis of her asserted prima facie case for removal.

ISSUES

1. Does Minn.Stat. § 518.18 (2006) govern appellant's motion for removal?

2. Did the district court err in its determination that appellant failed to show a prima facie case for removing the child?

3. Can this court act on appellant's claim of district court bias?

ANALYSIS

The question of whether the district correctly applied the law is reviewed by this court de novo. In re A.R.M., 611 N.W.2d 43, 47 (Minn.App.2000).

1.

Appellant initially contends that the district court erred in reasoning that removal to New York City, because it conflicts with the court's 2001 removal restrictions, is governed by Minn.Stat. § 518.18 regarding custody modification rather than Minn.Stat. § 518.175 regarding removal of a child's residence from Minnesota. As previously stated, portions of the statutes at issue in this case were recently amended, effective on August 1, 2006. See supra note 1.

Generally, appellate courts apply the law "as it exists at the time they rule on a case . . . ." Interstate Power Co. v. Nobles Co. Bd., 617 N.W.2d 566, 575-76 (Minn.2000) (noting that exceptions to this general rule exist when "rights affected by the amended law were vested before the change in the law" or application of changed law would produce manifest injustice or conflict with statutory direction or legislative history). Respondent does not contend that the 2002 judgment establishes vested rights that are altered by the recent amendments. And because other Interstate exceptions also have not been asserted, we apply the relevant statutes as amended.

Minn.Stat. § 518.175 (2006) governs proceedings involving parenting time for the noncustodial parent. Subdivision 3(a) prescribes the manner in which the custodian must seek to remove the child:

The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree. If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child's residence to be moved to another state.

Minn.Stat. § 518.175, subd. 3(a).

The central part of Minn.Stat. § 518.18 (2006) addresses modification of orders determining child custody and provides that the district court

shall not modify a prior custody order . . . which specifies the child's primary residence unless it finds, upon the basis of facts . . . that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.

Minn.Stat. § 518.18(d).

The Minnesota Supreme Court put Minn.Stat. § 518.175, subd. 3 (1982) at the threshold of its analysis of the statutory...