Novak v. Novak, 880355
| Citation | 441 N.W.2d 656 |
| Decision Date | 06 June 1989 |
| Docket Number | No. 880355,880355 |
| Parties | Jacque S. NOVAK, now known as Jacque S. Olson, Plaintiff and Appellee, v. Richard R. NOVAK, Defendant and Appellant. Civ. |
| Court | United States State Supreme Court of North Dakota |
McConn, Fisher, Olson & Daley, Grand Forks, for plaintiff and appellee; argued by Patrick W. Fisher.
Pearson, Christensen & Fischer, Grand Forks, for defendant and appellant; argued by Douglas A. Christensen.
Richard R. Novak appealed from a judgment which permitted his former spouse, Jacque S. Olson, to move with their son, Joel, to Colorado Springs, Colorado and which denied his request for a change of custody. We affirm.
Richard and Jacque were divorced in October 1984. The stipulated decree placed Joel, then age nine, in Jacque's principal custody with reasonable visitation for Richard. An older son, Daniel, diagnosed as being autistic, resides at the Grafton State School.
In June 1986 Jacque married David Olson, an Air Force officer, who has now retired. Jacque and David have adopted a nine year old girl.
In September 1988 Jacque requested judicial permission to change Joel's residence to Colorado Springs. Supporting that request, Jacque submitted an affidavit showing that Colorado Springs offered excellent opportunities in her career field of nursing as well as job opportunities for David in computers and personnel management. Shortly after Jacque's motion, Richard moved for a change of custody, requesting the district court to give him principal custody of Joel. The trial court approved the change of residence and denied the change of custody.
NDCC 14-09-07 requires a custodial parent to obtain a court order to change a child's residence to another state if the noncustodial parent does not consent to the move. The custodial parent must demonstrate that the change of residence is in the best interest of the child. Olson v. Olson, 361 N.W.2d 249 (N.D.1985). The trial court has the principal responsibility for determining whether a change of residence is in the child's best interest. Hedstrom v. Berg, 421 N.W.2d 488 (N.D.1988). This court will not substitute its judgment for that of the trial court unless the trial court's decision is clearly erroneous. Id.
Richard asserted that the trial court's approval of this change of Joel's residence was clearly erroneous. Having had an opportunity to judge the credibility of the parties and witnesses, the trial court concluded that it would be in Joel's best interest to move with his mother and her present family to Colorado Springs. We are not convinced that the trial court made a mistake.
The trial court recognized the increased opportunities for David and Jacque in their respective fields of computers and nursing. The trial court had the testimony of Dr. Douglas Knowlton, a practicing clinical psychologist, that Joel is a "well-adjusted" and "stable" boy who should be able to easily adapt to such a move. The trial court weighed that evidence over other evidence that Joel preferred to reside with his father and the opinion of another expert, Dr. Leland Lipp, that Joel should remain in Grand Forks. The trial court appropriately weighed relevant factors in determining that Joel's best interest was to continue residing with his mother when she moved to Colorado.
The trial court recognized the importance of also continuing Joel's close and loving relationship with Richard. The trial court expanded Richard's visitation rights to encourage and foster their parent-child relationship. The trial court decreed that, instead of bi-weekly weekend visits, Richard receive at least eight weeks of visitation during the summer, one week over the Christmas holiday season, alternating on other major holidays, and "other reasonable visitation that the parties may arrange." The trial court also encouraged Jacque to foster additional visitation and ordered Jacque to keep Richard "informed of the telephone number and whereabouts" of Joel to facilitate visitation.
We conclude that the trial court's authorization of the change of residence was not clearly erroneous.
Richard asserted that the trial court erred in denying his request to have Joel placed in his custody. Custody should be changed only when: (1) there has been a significant change of circumstances since the original custody decree, and (2) the changed circumstances show a significant need for a change of custody in the best interest of the child. Wright v. Wright, 431 N.W.2d 301 (N.D.1988). The trial court's decision to modify custody, or refusing to do so, will not be overturned on appeal unless it is clearly erroneous. Id.
The trial court found that "both parents have the love, affection and emotional ties to the child and the disposition to provide for the child." The trial court acknowledged that Joel's preference to reside with his father "seems natural" because they enjoyed doing many things together and because Richard provided many things for Joel. However, the trial court found that Jacque provided more discipline for Joel and that she was less indulgent and permissive with Joel. The trial court determined that Jacque had provided "a stable loving environment" for Joel in which Joel has done relatively well in school. Declaring that "children need stability and consistency to thrive," the trial court concluded that it was in Joel's best interest to remain with his mother.
The preference of a child who is capable of intelligently choosing between his parents for custody can be significant in determining the best interest of the child. Mertz v. Mertz, 439 N.W.2d 94 (N.D.1989). "[A] child's preference to live with the noncustodial parent may, in some instances, be motivated by goals and ambitions which undermine the significance of that preference and may, in fact, be detrimental to the child's best interests." Id. at 97. Thus, the child's preference is "only one factor" to consider and is not usually determinative. Roen v. Roen, 438 N.W.2d 170 (N.D.1989). The trial court emphasized another important factor: the stability and continuity of the integrated family unit in which Joel has been residing. Orke v. Olson, 411 N.W.2d 97 (N.D.1987). The trial court appropriately weighed relevant factors.
The...
To continue reading
Request your trial
-
Winer v. Winer
...a custodial parent unless there is proof that such a move would be against the best interests of the child[ren]. See, e.g., Novak v. Novak, 441 N.W.2d 656 (N.D.1989); Bohms v. Bohms, 144 Wis.2d 490, 424 N.W.2d 408 (1988); Blake v. Blake, 207 Conn. 217, 541 A.2d 1201 (1988); Pintado v. Legge......
-
Stout v. Stout
...providing for longer periods of continuous visitation could be used in the balancing of these different interests. ¶26 In Novak v. Novak, 441 N.W.2d 656 (N.D.1989), this court recognized that increased career opportunities for the custodial parent or a step-parent in another state, a well a......
-
Hammeren v. Hammeren
...interest of the child,” but the “child's preference is ‘only one factor’ to consider and is not usually determinative.” Novak v. Novak, 441 N.W.2d 656, 658 (N.D.1989) (emphasis added); see Frueh v. Frueh, 2009 ND 155, ¶ 14, 771 N.W.2d 593. [¶ 17] Here, under best-interest factor (i), the tr......
-
Tank v. Tank
...in result); Barstad v. Barstad, 499 N.W.2d 584, 589 (N.D.1993) (VandeWalle, C.J., dissenting); Novak v. Novak, 441 N.W.2d 656, 658 (N.D.1989) (VandeWalle, J., concurring specially)). In further explaining this issue, we have said, "`if the child's preference ... stems from, for example, all......