Oppegard-Gessler v. Gessler, 20030205.

• Decision Date: 30 June 2004
• Docket Number: No. 20030205.,20030205.
• Parties: Janell Marie OPPEGARD-GESSLER, Plaintiff and Appellant, v. Richard Matthew GESSLER, Defendant and Appellee.
• Court: North Dakota Supreme Court

681 N.W.2d 762

2004 ND 141

Janell Marie OPPEGARD-GESSLER, Plaintiff and Appellant, v. Richard Matthew GESSLER, Defendant and Appellee.

No. 20030205.

Supreme Court of North Dakota.

June 30, 2004.

Jay H. Fiedler, Pearson Christensen, Grand Forks, ND, for plaintiff and appellant.

Patrick W. Fisher (argued) and Troy J. LeFevre (on brief), Fisher & Olson, Ltd., Grand Forks, ND, for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Janell Oppegard-Gessler ("Oppegard") appealed from a district court order denying her motion to move the residence of her and Richard Gessler's ("Gessler") two sons from Grand Forks, North Dakota, to Baxter, Minnesota. We reverse and remand.

I

[¶ 2] Oppegard and Gessler divorced in October 2000 after eighteen years of marriage. Four children were born of the marriage, and Oppegard was awarded sole physical custody of the children in the divorce judgment. The amended judgment provided Gessler with reasonable and liberal visitation and an alternative schedule if the parties could not agree on visitation. After one child reached the age of majority, a second amended judgment was entered giving Gessler sole physical custody of the couple's sixteen-year-old daughter and Oppegard sole physical custody of the couple's two sons, who were twelve and eleven years old at the time of the hearing on the motion to relocate. Flexible, liberal visitation has been the practice between the parties.

[¶ 3] Oppegard became engaged to Daniel Viau, who lives and works as an engineer in the Baxter area, and the couple planned to marry in July 2003. Baxter is approximately 210 miles from Grand Forks. Under N.D.C.C. § 14-09-07, Oppegard sought judicial permission to relocate to Baxter with the boys. Oppegard, who works as a nurse in Grand Forks, and Viau testified that Oppegard would not work outside the home if she were allowed to relocate so she would have more time to spend with the children. Oppegard testified that she would still marry Viau if the trial court denied her motion to relocate. However, she did not indicate whether she intended to move if the court denied the motion. Both boys expressed a "strong preference" to remain in Grand Forks because that is where their friends and family are located.

[¶ 4] The district court found Gessler and Oppegard have a de facto joint physical custody arrangement in which, although the divorce decree awarded Oppegard sole physical custody of the children, the parties have a very spontaneous policy of frequent, almost daily contact between the children and both parents. It found the children to be well-adjusted socially, comfortable with the current custody arrangement, and dependent upon the arrangement for their stability and well-being. The court weighed the advantages and disadvantages of the move and considered whether there was a realistic opportunity for adequate visitation if the move was allowed. It found the disadvantages outweighed the advantages and it would not be in the best interests of the children to move with Oppegard. Further, the district court concluded an adequate visitation schedule could not be devised to preserve the relationship between the boys and their father, sister, extended family, school, friends, activities, and community. Consequently, the district court denied Oppegard's motion to relocate with the boys.

[¶ 5] On appeal, Oppegard contends the district court's denial of her motion to relocate was clearly erroneous.

II

[¶ 6] Section 14-09-07, N.D.C.C., provides 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 wants to move out of state. State ex rel. Melling v. Ness, 1999 ND 73, ¶ 7, 592 N.W.2d 565.

In every relocation dispute, the court must try to accommodate the competing interests of the custodial parent who desires to seek a better life for herself and the children in a different geographical area; the child's interest in maintaining a meaningful relationship with the noncustodial parent; the noncustodial parent's interest in maintaining a meaningful relationship with the child; and finally, the state's interest in protecting the best interests of the child.

Stout v. Stout, 1997 ND 61, ¶ 32, 560 N.W.2d 903. In determining whether a custodial parent should be allowed to relocate with a child to another state, the best interests of the child is the primary consideration.

Negaard v. Negaard, 2002 ND 70, ¶ 7, 642 N.W.2d 916.

[¶ 7] 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. A trial court's decision whether a proposed move to another state is in the best interests of a child is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Id. at ¶ 18. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Keller v. Keller, 1998 ND 179, ¶ 10, 584 N.W.2d 509.

[¶ 8] The relevant factors in evaluating whether a custodial parent should be allowed to move children out of state were enumerated in Stout and refined in Hawkinson v. Hawkinson, 1999 ND 58, 591 N.W.2d 144. They are:

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.

Hawkinson, at ¶¶ 6, 9. No single factor is dominant, and a minor factor in one case may have a greater impact in another. Hentz v. Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694.

[¶ 9] Oppegard and Gessler agree that factors two and three are not at issue in this case. Therefore, factors one and four control whether Oppegard should be allowed to relocate to Baxter with the boys.

A.

[¶ 10] It is apparent from the trial court's decision that the first Stout factor was the primary reason for denying Oppegard's motion to relocate. Under the first factor, the trial court must weigh the advantages of the move "while recognizing the importance of maintaining continuity and stability in the custodial family." Tibor v. Tibor, 1999 ND 150, ¶ 11, 598 N.W.2d 480 (quoting Hawkinson, 1999 ND 58, ¶ 11, 591 N.W.2d 144). A trial court that fails to give sufficient credence to the importance of keeping the custodial family intact commits reversible error. Id. Both the economic and noneconomic advantages of the move must be given due weight. Id.

The children's best interests are inextricably interwoven with the quality of life of the custodial parent, with whom they live and upon whom they rely emotionally. A move which benefits the health and well-being of a custodial parent is certainly beneficial to the parent's child, and is consequently in the child's best interests. It is axiomatic that a newly-wed couple wants to live together and that the child is benefitted by the satisfaction that the custodial parent derives from residing with her spouse.

Id. at ¶ 13 (citations and quotations omitted). It is also relevant if the mother will have more time to spend with the children because she will not have to work in the new location. Id. at ¶ 16. "[T]he benefits a network of close family members would provide" are also considered under the first factor. Stout, 1997 ND 61, ¶ 45,560 N.W.2d 903. A child's preference is relevant in assessing the first factor, and a court may consider it in determining the best interests of the child in the context of a motion to remove the child from the state. Tishmack v. Tishmack, 2000 ND 103, ¶¶ 21-22, 611 N.W.2d 204.

[¶ 11] At the time of the original divorce judgment, Oppegard and Gessler stipulated that Oppegard was to have sole physical custody of the boys. A review of the record indicates she continues to be the boys' sole physical custodian while allowing Gessler to have very flexible and liberal visitation with them. Yet, the trial court determined a de facto joint physical custody arrangement existed. This is similar to Goff v. Goff, in which we held, under the first Stout factor,

the trial court must weigh the advantages of a move "while recognizing the importance of maintaining continuity and stability in the custodial family."... We must recognize a relocation request does not involve a custody determination. That determination has previously been made. Because of the emphasis on maintaining the continuity of the custodial arrangement, consideration of factor one must give due weight to the possibility the move will enhance both the economic and noneconomic aspects of the custodial family unit. This the trial court failed to do as is evidenced by its blending of fourth factor considerations into its analysis of the prospective advantages of the move.

Here, the trial court's repeated references to a "co-parenting arrangement between [the custodial and noncustodial parent]" thwarted that important consideration. There was no "co-parenting arrangement" with regard to primary physical custody; [the mother] was the

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