Jelsing v. Peterson

• Decision Date: 22 March 2007
• Docket Number: No. 20060112.,20060112.
• Parties: Christy Claire JELSING n/k/a Christy Claire Hafner, Plaintiff, Appellee and Cross-Appellant, v. Terry Jay PETERSON, Defendant, Appellant and Cross-Appellee.
• Court: North Dakota Supreme Court

729 N.W.2d 157

2007 ND 41

Christy Claire JELSING n/k/a Christy Claire Hafner, Plaintiff, Appellee and Cross-Appellant, v. Terry Jay PETERSON, Defendant, Appellant and Cross-Appellee.

No. 20060112.

Supreme Court of North Dakota.

March 22, 2007.

Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, N.D., for plaintiff, appellee and cross-appellant.

Lynn M. Boughey, Boughey Law Firm, Minot, N.D., for defendant, appellant and cross-appellee.

KAPSNER, Justice.

[¶ 1] Terry Peterson appeals from a judgment granting Christy Jelsing custody of the parties' minor child and allowing Jelsing to move with the child from North Dakota to Arizona. Jelsing cross-appeals from the denial of her request for attorney fees. We affirm, concluding the district court did not clearly err in granting Jelsing custody of the child and in allowing her to move with the child from North Dakota to Arizona, and the court did not err in denying Jelsing's request for attorney fees.

I

[¶ 2] Peterson and Jelsing have never been married to each other. In a March 2003 stipulated judgment, Peterson acknowledged he was the father of a child born to Jelsing in December 2002. The stipulated judgment provided that "[f]or purposes of the child support guidelines Christy Claire Jelsing is the primary caregiver" of the child and set Peterson's child support obligation at $168 per month. Since that time, the child has spent approximately an equal amount of time with each parent.

[¶ 3] In June 2005, Peterson moved for a determination of custody and sought an interim ex parte order. The district court issued an interim ex parte order, awarding the parties alternating interim custody of the child, requiring neither party to pay child support, prohibiting both parties from driving with the child in a motor vehicle without a valid drivers license, and prohibiting both parties from changing the child's residence to another state without court approval. Jelsing subsequently moved for a determination of custody and to change the child's residence from North Dakota to Arizona.

[¶ 4] After a July 2005 hearing on the interim ex parte order, the court allowed Jelsing to take the child to Arizona with the understanding that she would return the child to North Dakota by September 11, 2005, and while the child was residing in Arizona, Peterson would be entitled to visitation upon reasonable advance notice to Jelsing. The court also said that from the time the child returns to North Dakota until a scheduled evidentiary hearing in October 2005, the child would spend an equal amount of time with each parent.

[¶ 5] After the evidentiary hearing on the parties' custody motions and Jelsing's request to change the child's residence from North Dakota to Arizona, the district court decided the case was an original custody proceeding and awarded Jelsing custody of the child under the "best interests of the child" factors in N.D.C.C. § 14-09-06.2(1). The court then analyzed the relocation issue under Stout v. Stout, 1997 ND 61, 560 N.W.2d 903, and Hawkinson v. Hawkinson, 1999 ND 58, 591 N.W.2d 144 and granted Jelsing's request to move with the child from North Dakota to Arizona. The court also denied Jelsing's request for attorney fees.

II

[¶ 6] Peterson argues the district court erred in awarding Jelsing custody of the parties' child under the best interest factors in N.D.C.C. § 14-09-06.2(1). Jelsing responds custody was originally with her by virtue of the March 2003 judgment, and she argues there was no necessity for an analysis under the best interests factors, because Peterson was seeking to change custody under N.D.C.C. § 14-09-06.6 and needed to show a material change in circumstances.

[¶ 7] Section 14-09-07, N.D.C.C., provides that a custodial parent "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 purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent's visitation rights if the custodial parent seeks to move out of state. State ex rel. Melling v. Ness, 1999 ND 73, ¶ 7, 592 N.W.2d 565. In determining whether a custodial parent should be allowed to relocate with a child to another state, the primary consideration is the best interests of the child. Negaard v. Negaard, 2002 ND 70, ¶ 7, 642 N.W.2d 916. The custodial parent has the burden of proving, by a preponderance of the evidence, that a move is in the best interests of the child. Dickson v. Dickson, 2001 ND 157, ¶ 7, 634 N.W.2d 76.

[¶ 8] The relevant factors for evaluating whether a custodial parent should be allowed to move with a child out of state were enumerated in Stout, 1997 ND 61, 560 N.W.2d 903, and Hawkinson, 1999 ND 58, 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.

Hawkinson, at ¶¶ 6, 9. Under that four-part test, no single factor is controlling and a minor factor in one case may have a greater impact in another case. Hentz v. Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694.

A

[¶ 9] Our decisions for relocation recognize that a motion to relocate is not a motion for a change of custody, and in a motion to relocate, a decision about primary physical custody has already been made and is not the issue. Maynard v. McNett, 2006 ND 36, ¶ 15, 710 N.W.2d 369; Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762; Stout, 1997 ND 61, ¶ 54, 560 N.W.2d 903.

[¶ 10] Here, the initial March 2003 stipulated judgment said that "[f]or purposes of the child support guidelines Christy Claire Jelsing is the primary caregiver" of the parties' minor child. Contrary to Jelsing's claim, the plain language of the stipulated judgment reflects there was no initial custody determination in this case. The district court thus properly analyzed this case under the best interests factors in N.D.C.C. § 14-09-06.2(1) for an initial custody determination.

[¶ 11] We exercise a limited review of child custody awards. Eifert v. Eifert, 2006 ND 240, ¶ 5, 724 N.W.2d 109. A district court's decisions on child custody, including an initial award of custody, are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. Klein v. Larson, 2006 ND 236, ¶ 6, 724 N.W.2d 565. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Gietzen v. Gabel, 2006 ND 153, ¶ 6, 718 N.W.2d 552. Under the clearly erroneous standard of review, we do not reweigh the evidence or reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result. Dvorak v. Dvorak, 2006 ND 171, ¶ 11, 719 N.W.2d 362. A choice between two permissible views of the weight of the evidence is not clearly erroneous, Dvorak, at ¶ 11, and our deferential review is especially applicable for a difficult child custody decision involving two fit parents. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 12, 700 N.W.2d 711.

[¶ 12] In awarding Jelsing custody of the parties' child, the district court decided most of the factors for custody decisions under N.D.C.C § 14-09-06.2(1) favored neither party. The court decided Jelsing was the child's closest nurturing parent and had the advantage under N.D.C.C. § 14-09-06.2(1)(d), the length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity, and (m), any other relevant factors, and Peterson had a "slight advantage" under N.D.C.C § 14-09-06.2(1)(f), the moral fitness of the parents. The court recognized this was a "`close call'" with no "clear-cut `winner,'" but the factor that tipped the scales was that Jelsing was the child's "`closest, nurturing parent.'"

[¶ 13] Peterson argues the district court improperly found factors (a), the love, affection, and emotional ties between the parents and child, (b), the parents' capacity and disposition to give the child love, affection, and guidance and to continue the child's education, and (c), the parents' disposition to provide the child with food, clothing, and medical care, favored neither party. Peterson claims those factors should have been found to favor him. In support of his claim, Peterson cites some of the court's statements that he was not involved with the child for the first two months of the child's life. The gist of the court's analysis of these three factors, however, is that despite the court's statements about Peterson, the court ultimately had no concerns about him and there was no discernable difference between the parents on those three factors. We decline Peterson's request to reweigh the evidence on those three factors, and we conclude the court did not clearly err in analyzing those factors.

[¶ 14] Peterson argues the district court misapplied the law for factor (d), the stability and continuity of the child's environment, by looking only to the future and ignoring the past and the court clearly erred in finding Jelsing was the child's closest nurturing parent. Although factor (d) uses an approach...