Porter v. Porter

• Decision Date: 01 June 2006
• Docket Number: No. 20050358.,20050358.
• Citation: 2006 ND 123,714 N.W.2d 865
• Parties: Brandon J. PORTER, Plaintiff and Appellant v. Olga V. PORTER, Defendant and Appellee.
• Court: North Dakota Supreme Court

Page 865

714 N.W.2d 865

2006 ND 123

Brandon J. PORTER, Plaintiff and Appellant v. Olga V. PORTER, Defendant and Appellee.

No. 20050358.

Supreme Court of North Dakota.

June 1, 2006.

COPYRIGHT MATERIAL OMITTED

Jonathan Edward Alm, Louser and Zent, PC, Minot, N.D., for plaintiff and appellant.

Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, N.D., for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Brandon Porter appealed from a district court order denying his motion to move with his child from North Dakota to Alaska. We conclude the district court erred in applying the Stout-Hawkinson factors, and we therefore reverse and remand.

I

[¶ 2] Brandon Porter is a member of the United States Air Force. Brandon and Olga Porter were married in 1996. The parties' minor child was born in 1999, while Brandon Porter was stationed in Alaska at Eielson Air Force Base. In 2002, Brandon Porter was transferred to Minot Air Force Base in North Dakota. Brandon and Olga Porter were divorced in 2003, and judgment was entered, consistent with the parties' stipulation, awarding the parties joint legal custody of their child and awarding Brandon Porter primary physical custody.

[¶ 3] In March 2005, Brandon Porter received notice he was being transferred back to Eielson Air Force Base in Alaska. In April 2005, Brandon Porter moved for permission from the court to remove the parties' child from North Dakota. After a hearing, the district court denied Brandon Porter's motion, concluding he orchestrated the transfer from North Dakota to Alaska in an effort to distance himself from Olga Porter and to limit her involvement in raising the child. The court also concluded it doubted whether there was a realistic way to provide visitation that would preserve and foster Olga Porter's relationship with the child, and it was questionable whether Brandon Porter would comply with any court-ordered visitation.

II

[¶ 4] Section 14-09-07, N.D.C.C., provides, "[a] parent entitled to the custody of a child 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." The court's primary consideration in relocation cases is whether it is in the child's best interests to move to another state. Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 7, 681 N.W.2d 762. The custodial parent has the burden to prove, by a preponderance of the evidence, that the move is in the child's best interests. Id.

[¶ 5] The district court's decision on relocation is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Stout v. Stout, 1997 ND 61, ¶ 7, 560 N.W.2d 903. 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." Id. This Court will not reweigh the evidence or reassess credibility when there is evidence to support the district court's findings, and we will not reverse the decision merely because we might have reached a different conclusion. See Hentz v. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694.

[¶ 6] To determine whether a contemplated move is in the child's best interests, a district court must consider the four factors that were enumerated in Stout and modified in Hawkinson:

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.

Stout, 1997 ND 61, ¶ 33, 560 N.W.2d 903; Hawkinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144 (modifying the fourth factor). One factor is not dominant, and what may not be important in one case may be of more significance in another case. Oppegard-Gessler, 2004 ND 141, ¶ 8, 681 N.W.2d 762. The district court must analyze all four factors when determining whether the move is in the child's best interest; failure to address all four factors is reversible error. Dvorak v. Dvorak, 2005 ND 66, ¶ 19, 693 N.W.2d 646.

A

[¶ 7] Brandon Porter argues the district court clearly erred because it failed to address the first Stout-Hawkinson factor. We agree.

[¶ 8] The first factor requires the court to consider the prospective advantages of the move, and in doing so, the court is not limited to only considering the enhanced economic opportunities for the custodial parent, but must also consider the other less tangible benefits of the relocation. Stout, 1997 ND 61, ¶ 33, 560 N.W.2d 903. Essential to the analysis is the "importance of maintaining continuity and stability in the custodial family." Goff v. Goff, 1999 ND 95, ¶ 14, 593 N.W.2d 768. The court should consider any evidence presented regarding the relationship between the custodial parent and the child, and may also presume the custodial parent plays a significant role in the child's life due to the nature of their relationship. This Court has stated, "[w]e will reverse if the trial court's analysis fails to give sufficient credence to the need for keeping the custodial family intact." Id.

[¶ 9] Olga Porter claims Brandon Porter is not the child's custodial parent and that they are in fact joint custodians. The parties stipulated they would receive joint legal custody with Brandon Porter receiving primary physical custody of the child. We give a great deal of deference to custody provisions in a stipulated decree because the parties agreed to those terms and the terms were adopted by the court. Oppegard-Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762. We encourage divorced parents to cooperate and allow flexible visitation to provide a healthy environment for the child, and as we have previously stated, we will not punish a custodial parent "for allowing, either voluntarily or out of necessity, the child[] to exercise flexible, liberal visitation with [the noncustodial parent]." Id. at ¶ 13. However, notwithstanding Olga Porter's additional visitation, for purposes of N.D.C.C. § 14-09-07 the parties are not joint custodians. Brandon Porter is the child's primary custodian, and therefore the district court must consider the benefits of maintaining the custodial relationship that exists between Brandon Porter and the child.

[¶ 10] Although Olga Porter argues Brandon Porter failed to present any evidence on the first Stout-Hawkinson factor which would allow the court to make findings, her argument is unpersuasive. The evidence presented to the district court included the economic benefits, the recreational benefits, and the benefits of maintaining the custodial parent/child relationship. Brandon Porter testified to his daily involvement in the child's life, including helping her with school work and his involvement in her daily routine. He testified to the recreational activities he participates in with the child, including hockey, soccer, snowmobiling, four wheeling, and other outdoor activities. Brandon Porter also testified to the economic benefit his family would receive, including an increased cost of living allowance of $500 per month, a housing allowance of $600 per month, and his wife would receive a pay raise of $5,000 to $6,000 per year. He also testified if he refused the transfer he would effectively end his military career because he would likely be denied re-enlistment. Brandon Porter is not required to provide the district court "with a comparative cost-of-living analysis to prove the economic advantage of the proposed move." See Dickson v. Dickson, 2001 ND 157, ¶ 19, 634 N.W.2d 76. Although Olga Porter claims the cost of living is greater in Alaska and Brandon Porter will not see an economic benefit from the move, she failed to present any evidence supporting this claim. The district court may have considered the first factor and this evidence in reaching its conclusion, but the court's analysis fails to address the factor or the relevant evidence.

[¶ 11] We conclude the district court misapplied the law and clearly erred in failing to address the first Stout-Hawkinson factor. On remand, the court must consider the advantages of the move, including the stability of the custodial relationship and the evidence presented regarding the economic and non-economic advantages. In doing so, the court should consider that Brandon Porter is unable to reconsider the decision to relocate due to his position in the military and he must relocate to Alaska whether or not the court gives him permission to relocate with the child.

B

[¶ 12] The district court made specific findings on the second Stout-Hawkinson factor, concluding Brandon Porter's motive for relocating to Alaska was improper. It is apparent from the court's decision that this was the primary reason the court denied Brandon Porter's motion to relocate.

[¶ 13] The district court found this was not the usual military transfer case, instead the evidence presented led the court to conclude Brandon Porter orchestrated his transfer from North Dakota to Alaska. The evidence the court found supporting its conclusion included Brandon Porter's "Dream Sheet," filled out six months after the parties' divorce, listing Eielson Air Force Base as an installation he would accept a transfer to. The court found Brandon Porter's actions in filling out the "Dream Sheet" were suspect and questioned whether he was attempting to put...