Jones v. Jones
| Decision Date | 30 November 1994 |
| Docket Number | No. 24876,24876 |
| Citation | 110 Nev. 1253,885 P.2d 563 |
| Parties | Kimberly Ann JONES, now known as Kimberly Ann Porter, Appellant, v. Michael S. JONES, Respondent. |
| Court | Nevada Supreme Court |
Lynn G. Pierce, Reno, for respondent.
Appellant Kimberly Ann Porter (Porter) and respondent Michael S. Jones (Jones) have joint legal custody of their two sons; however, Porter is the primary physical custodian, while Jones has weekly visitation. Porter wishes to move to Chico, California, with the two boys. Pursuant to NRS 125A.350, Nevada's "anti-removal" statute, Porter sought permission from Jones to move the boys out of the state. When Jones denied her request, Porter petitioned the district court for removal, and was again denied. Porter appeals. For the following reasons, we reverse the order of the district court and remand with instructions to grant Porter's petition.
Porter and Jones were divorced in 1989. Porter, a full-time nurse, has been the primary custodian for her two sons, ages seven and nine, for the past five years. Porter testified that she has been considering leaving Nevada for some time. After the divorce, she desired to return to the San Francisco Bay Area where her family lived but did not do so because of the expense, the potential trauma the move may cause the boys, and the fact that she felt the area was too crowded to be a good environment for the children.
Porter also desires to leave Nevada to seek expanded opportunities in nursing. During her eleven-year career as a registered nurse, Porter has worked at all of the local hospitals in the Reno-Sparks area. She testified that she had "topped out" in her career here. Porter hopes to obtain her masters and achieve higher earning capacity elsewhere.
Porter testified that four years after the divorce, she began looking for a good area in which to raise the boys and seek expanded career opportunities for herself. In 1992, in the midst of her search, Porter met Russell James (James), who resides in Chico, California. The couple became acquainted through their mutual involvement in hot air ballooning. Porter and James were friends for a year before they began a romantic relationship.
James resides on a farm in Chico, California, near the Sacramento River. Porter and the boys began spending weekends with James in Chico in February of 1993, and plan to live with James if they move to Chico. Porter testified that though she and James have discussed marriage, they are not engaged and currently have no plans to get married, having decided that they both want to wait for a while before making such a big decision. She also testified that James is good with her boys, is never violent, and is a divorced father who also spends a lot of time with his own two children.
After a few months of interviewing in Chico, Porter was offered a position at Chico Community Hospital, with the same general hours she had at her job in Reno and a slightly higher wage. In contrast to her position in Reno, where nurses working for twenty years longer than Porter were making only two dollars an hour more, there was a structure in place for advancements and pay increases. Additionally, Porter testified that Chico Community Hospital hoped to use her as a labor and delivery consultant as they expanded that department. Porter stated that she could also obtain her masters degree from California State University in Chico.
Porter testified that, having weighed everything, she felt Chico was a better environment for the children because it is a rural community offering more outdoor activities--horseback riding, pack trips, fishing, and farm activities--than Porter can provide for the boys in the Reno/Sparks area. Before accepting the nursing position in Chico, however, Porter discussed the move with her sons, who told her on more than one occasion that they wanted to move.
Jones, the boys' father and joint legal custodian, does not want Porter to move the boys to Chico and refuses to grant her the requisite permission. Jones testified that he is concerned about the cost of gas for the drive to Chico to pick up the boys. 1 Additionally, Jones does not feel that it is a good moral example for Porter to live with James without being married.
Lastly, Jones testified that the move would make adequate visitation impossible. Currently, Jones has the boys every other weekend from Friday afternoon until Tuesday morning. On off weeks, Jones has the boys on Monday night. Jones testified, however, that he has never taken more than two weeks out of the possible six weeks of summer visitation. Jones stated that this is because he has only two weeks paid vacation, and he is unable to afford to pay for four weeks of day care during the summer when he is working. Porter testified that Jones has never attempted to work out an arrangement with her to abate support payments during this time. Also, Jones did not exercise his full visitation rights for over a year when he dropped his weeknight visitation, asserting that it was "inconvenient" to pick the kids up in Stead, where they were living at that time. Additionally, despite Porter's encouragement to do so, Jones has never spent more than his accorded time with the boys. 2
In a letter to Jones explaining her reasons for the move, Porter outlined a revised visitation schedule in which she suggested that Jones could have the boys during regularly scheduled holidays, during their spring break, for two weeks at the beginning of summer and two weeks at the end, and for any three-day weekend that he wanted. Porter also promised that Jones could see the boys any time she visited the area. She suggested that for transportation for weekend visits, they could meet halfway in Quincy, California, or alternatively, the receiving parent could go the distance to pick up the boys. Porter suggested that Jones make any changes he felt were necessary to her proposed visitation schedule and offered to meet with him in order to discuss the move. 3 Additionally, at the removal hearing, Porter's counsel stated that Porter was open and flexible to increase her proposed visitation to whatever the district court or Jones deemed appropriate to allow her to move with the boys.
The district court did not issue any written findings of fact or conclusions. At the end of the removal hearing, the district court stated that there were no physical advantages to Chico over Reno and that there was no economic advantage in the move to Chico. The district court further stated:
The mother wants to go to Chico to pursue a relationship with a man. Which I think is a good reason.... What is the problem here, is the father doesn't want the children to go, and this relationship is a short one. Now, I feel like I have got to weigh that against the ... situation of the father.... The children are entitled to, and certainly benefit from a continuation of what is an exemplary, everything considered, visitation schedule. [T]hat brings me to the other factor here.... This move, in my opinion, will cause--will have a negative impact on this father's relationship with the children because of his economic condition and because--because he's a timid man. And I do not believe he will make the extra effort to continue the relationship with his children given the roadblock of whatever miles it is. It seems like it's hard enough for him to do it now. And maybe it's time he gets a little more aggressive, but I consider these factors to be the balancing point here. Whether or not the advantage to the move that will come from pursuing this relationship outweighs the risk of the loss of the father's company.
The day after the hearing, the judge contacted the parties' counsel by phone and informed them that Porter's removal petition was denied.
Porter argues that the district court erred in weighing the evidence, thus making an improper determination under Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). She contends that the district court gave undue weight to Jones' timidity and to its speculation that Jones would not continue his relationship with the children if they were allowed to move, thus placing too great a burden on her to show the advantages of the move. Porter also asserts that the district court improperly found that Jones' visitation had been "exemplary," mischaracterized her relationship with James as a "short one," and failed to consider the possibility of reasonable, alternative visitation. We agree.
In Schwartz, a case of first impression and the only case to date on NRS 125A.350, we interpreted Nevada's "anti-removal" statute. 4 We concluded that the overall purpose of NRS 125A.350 is to preserve the rights and relationship of the noncustodial parent with respect to his or her children. Schwartz, 107 Nev. at 382, 812 P.2d at 1270 (citing Holder v. Polanski, 111 N.J. 344, 544 A.2d 852, 855 (1988)). We further concluded that the proper calculation in determining whether to grant the custodial parent permission to move the children involves a balancing between " 'the custodial parent's interest in freedom of movement as qualified by his or her custodial obligation, the State's interest in protecting the best interests of the child, and the competing interests of the noncustodial parent.' " Schwartz, 107 Nev. at 382, 812 P.2d at 1270 (quoting Holder, 544 A.2d at 855).
In determining the issue of removal, the district court must first find "whether the custodial parent has demonstrated that an actual advantage will be realized by both the children and the custodial parent in moving to a location so far removed from the current residence that weekly visitation by the noncustodial parent is virtually precluded." Schwartz, 107 Nev. at 382, 812 P.2d at 1271. 5
It is not clear in this case whether the district court found that Porter made this threshold showing. Jones argues that the...
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