Norby v. Hinesley

• Decision Date: 22 July 2020
• Docket Number: No. 20190337,20190337
• Parties: Aimee NORBY, Plaintiff and Appellant v. Robert HINESLEY, Defendant and Appellee and State of North Dakota, Statutory Real Party in Interest
• Court: North Dakota Supreme Court

946 N.W.2d 494

Aimee NORBY, Plaintiff and Appellant

v. Robert HINESLEY, Defendant and AppelleeandState of North Dakota, Statutory Real Party in Interest

No. 20190337

Supreme Court of North Dakota.

Filed July 22, 2020

Elizabeth L. Pendlay, Crosby, ND, for plaintiff and appellant; submitted on brief.

Deanna F. Longtin, Williston, ND, for defendant and appellee; submitted on brief.

Crothers, Justice.

[¶1] Aimee Norby appeals from a district court order denying her motion to relocate out of state with the parties’ minor child. We affirm.

I

[¶2] Norby and Robert Hinesley are the parents of a child born in 2012. In 2014, Norby filed and served a complaint seeking primary residential responsibility over the child. Norby was awarded primary residential responsibility, and Hinesley was awarded parenting time.

[¶3] In March 2019, Norby married Lyle Anderson. Anderson works as a diesel mechanic in the Williston, North Dakota, area. Anderson grew up in Smithville, Missouri, and owns a home there. Smithville is a town of approximately 10,000 people about twenty minutes north of Kansas City, Missouri. Norby and Anderson currently reside in Williston with the Norby's and Hinesley's child. Hinesley also lives in Williston.

[¶4] Norby filed a motion to relocate to Smithville with the child. Hinesley opposed Norby's motion and filed a motion to change primary residential responsibility or modify parenting time. The district court denied Norby's motion to relocate. On appeal, Norby argues the district court erred in denying her motion.

II

[¶5] We review a district court's order on a motion to relocate under our clearly erroneous standard of review. Larson v. Larson , 2016 ND 76, ¶ 8, 878 N.W.2d 54. Under that standard, "A district court's decision on a motion to relocate is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous." Green v. Swiers , 2018 ND 258, ¶ 4, 920 N.W.2d 471 (quoting Larson , at ¶ 21 ). "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or, if there is some evidence to support the finding, on the entire record we are left with a definite and firm conviction a mistake has been made." Id. (quoting Graner v. Graner , 2007 ND 139, ¶ 12, 738 N.W.2d 9 ). "In applying the clearly erroneous standard, we will not reweigh evidence, reassess witness credibility, retry a custody case, or substitute our judgment for the trial court's decision merely because this Court may have reached a different result." Id. (quoting Hammeren v. Hammeren , 2012 ND 225, ¶ 8, 823 N.W.2d 482 ). We also recognize "that a trial court may draw inferences from facts presented and may make a finding of fact based upon an inference supported by the evidence." American Hardware Mut. Ins. Co. v. Nat'l Farmers Union Prop. & Cas. Co. , 422 N.W.2d 402, 404 (N.D. 1988) (citing Poyzer v. Amenia Seed & Grain Co. , 409 N.W.2d 107 (N.D. 1987) ).

[¶6] Section 14-09-07(1), N.D.C.C., provides, "[a] parent with primary residential responsibility for a child may not change the primary 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." "The parent moving for permission to relocate has the burden of proving by a preponderance of the evidence the move is in the child's best interests." Green , 2018 ND 258, ¶ 5, 920 N.W.2d 471 (quoting Larson , 2016 ND 76, ¶ 21, 878 N.W.2d 54 ). To determine whether relocation is in the child's best interest, the district court must apply the four factors outlined in Stout v. Stout , 1997 ND 61, ¶¶ 33-34, 560 N.W.2d 903, and modified in Hawkinson v. Hawkinson , 1999 ND 58, ¶ 9, 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,

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."

Stout , at ¶¶ 33-34 ; Hawkinson , at ¶¶ 6, 9. "No single factor is dominant, and what may be a minor factor in one case may have a greater impact in another." Green , at ¶ 5 (quoting Stai-Johnson v. Johnson , 2015 ND 99, ¶ 6, 862 N.W.2d 823 ). Norby argues the district court's findings on factors one, two, and four are clearly erroneous.

A

[¶7] Norby argues the district court's findings under the first Stout - Hawkinson factor were clearly erroneous. She argues the evidence demonstrated an out of state move had prospective advantages that would improve her and the child's quality of life. We conclude sufficient evidence supports the district court's finding on factor one.

[¶8] "In analyzing the first Stout - Hawkinson factor, ‘the district court must balance the advantages of the move, while recognizing the importance of maintaining continuity and stability.’ " Booen v. Appel , 2017 ND 189, ¶ 10, 899 N.W.2d 648 (quoting Stai-Johnson , 2015 ND 99, ¶ 9, 862 N.W.2d 823 ). "The district court must give due weight to both economic and noneconomic advantages of the move." Id. Information the district court may consider when analyzing factor one includes:

"[T]he custodial parent's proposed employment at the relocation site, whether the custodial parent's and child's health and well-being are benefitted, whether the custodial parent has remarried and requests to move to live with the new spouse, whether the custodial parent will have more time to spend with the child, whether there are family members who will provide a support network, the child's reasonable preference, and educational opportunities."

Id. (quoting Graner , 2007 ND 139, ¶ 15, 738 N.W.2d 9 ).

[¶9] The district court found factor one did not favor relocation. The court found Norby's employment opportunities in Smithville are equal to what they are in Williston. Norby works in accounts payable for an oil company. Norby testified she had not secured employment in Smithville but did research various job opportunities including working as a receptionist for a law firm and as an accountant for Dairy Farmers of America. Norby testified these were lateral employment opportunities and would not be an improvement from her current job in Williston. Norby contended moving to Smithville would provide her with a more stable career because she has been laid off twice in the past twelve years in Williston. However, Norby worked continuously for the past six years in her current employment.

[¶10] Norby testified she wanted to leave Williston because she did not like the weather and wanted a change of scenery. However, these reasons are not compelling. See Larson , 2016 ND 76, ¶¶ 24-25, 878 N.W.2d 54 ("While many of the prospective advantages that [Conceicao] suggests—better year-round weather ... may improve [Conceicao's] quality of life, the Court does not view that the suggested advantages would significantly improve the quality of the children's lives."). Norby also testified the home in Smithville is better suited to raise a child than the apartment in Williston. The child would have his own room in the Smithville home, rather than sleeping on a toddler mattress on the floor in Norby's apartment as he currently does in Williston. The home in Smithville also has a large backyard. Norby and Anderson also testified the cost of living in Smithville is less than in Williston.

[¶11] Other than Norby's and Anderson's testimony, no evidence was introduced comparing the cost of living between Smithville and Williston. The district court found the testimony regarding the cost of living not credible because it had been three years since Anderson resided in Smithville and Norby had never resided in Smithville. Anderson testified making the transition to Williston would not be difficult. The district court found Anderson could sell the home in Smithville and purchase a similar home in Williston without difficulty.

[¶12] Analysis of the first factor also requires focus on the "importance of maintaining continuity and stability in the custodial family." Graner , 2007 ND 139, ¶ 15, 738 N.W.2d 9 (quoting Porter v. Porter , 2006 ND 123, ¶ 8, 714 N.W.2d 865 ). Allowing a custodial parent to relocate to keep the custodial home intact is in the child's best interest. Booen , 2017 ND 189, ¶ 13, 899 N.W.2d 648 ; Hruby v. Hruby , 2009 ND 203, ¶¶ 17-20, 776 N.W.2d 530. In one case, this Court stated, "When the custodial parent desires to move to live with a new spouse, we conclude that fact becomes dominant in favor of allowing the move...." Hruby , at ¶ 17 (quoting Gilbert v. Gilbert , 2007 ND 66, ¶ 14, 730 N.W.2d 833 ). But see Green , 2018 ND 258, ¶ 5, 920 N.W.2d 471 ("No single factor is dominant, and what may be a minor factor in one case may have a greater impact in another."); id. at ¶ 8 (concluding denial of motion to relocate was not clearly erroneous when custodial parent and new husband did not have children together and court was skeptical of economic benefits of relocation).

[¶13] Anderson testified he would keep his current job in Williston, even if the court granted Norby's motion. Anderson testified that if the court denied Norby's motion he would sell the home in Smithville and move to Williston to live with Norby and the child. Anderson testified this change in plans would not be difficult. Norby and Anderson do not have children together, but they both testified they would eventually like to have children. The district court found denying Norby's motion to relocate would...