Schmidt v. Bakke

• Decision Date: 19 January 2005
• Docket Number: No. 20030377,20030377
• Citation: 691 NW 2d 239,2005 ND 9
• Parties: Michael E. Schmidt, Plaintiff and Appellant v. Kelley Bakke, f/k/a Kelley Jo Schmidt, Defendant and Appellee.
• Court: North Dakota Supreme Court

2005 ND 9

691 NW 2d 239

Michael E. Schmidt, Plaintiff and Appellant v. Kelley Bakke, f/k/a Kelley Jo Schmidt, Defendant and Appellee.

No. 20030377

Supreme Court of North Dakota.

Filed January 19, 2005

Patti J. Jensen, Galstad, Jensen & McCann, PA, 411 Second Street NW, Suite D, P.O. Box 386, East Grand Forks, Minnesota 56721-0386, for plaintiff and appellant.

Mary Ellen Seaworth, Howe & Seaworth, 421 DeMers Avenue, Grand Forks, N.D. 58201, for defendant and appellee.

Opinion of the Court by Maring, Justice.

Maring, Justice.

[¶1] Michael Schmidt appeals a district court order granting Kelley Bakke's request to move two of their four children to Belle Plaine, Minnesota. We affirm.

I

[¶2] Schmidt and Bakke were married in November 1985 and divorced in February 1993. They had four children during their marriage. After the divorce, Bakke lived in Larimore and had permanent custody of the four children. Schmidt had liberal visitation rights and continued to live in the parties' original farmhouse near Larimore. Bakke has remarried since the divorce and has one minor child with her new husband.

[¶3] Bakke petitioned the district court on September 17, 2003, to move the three younger children to Belle Plaine, Minnesota, after Schmidt refused to consent to the move. Their eldest son lived with Schmidt during the summer of 2003 to accommodate his employment and continued to live with Schmidt after he reached the age of majority in August 2003. He graduated from Larimore High School in 2004. After learning of Bakke's desire to move to Belle Plaine, the second-eldest child, who was 15 years old at the time of the hearing, expressed a preference to stay in Larimore and live with his father so he could finish high school in Larimore. Bakke consented to the change of custody, and both older siblings have been living with Schmidt since the summer of 2003. After Bakke agreed to the change of custody, her petition to move to Belle Plaine concerned only the two younger children, who were 12 and 9 years old at the time of the trial.

[¶4] At the hearing on the proposed move, Bakke testified that the company she was working for in Grand Forks, North Dakota, had closed and relocated to Bloomington, Minnesota, and she could continue working for the company at the new location. Bakke testified Belle Plaine is only about 20 minutes from Bloomington, and the new position will pay her $6.45 more per hour than she was earning at her job in Grand Forks. Bakke also testified her new husband was working in the Minneapolis area, and moving to Belle Plaine would eliminate the need for him to commute between Minneapolis and Grand Forks. Bakke testified Belle Plaine is a smaller community that provides many of the advantages that living in North Dakota provides, along with other activities facilitated by a larger community.

[¶5] The second-youngest child has been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder. Bakke believes the Belle Plaine area and school have the resources to accommodate his disorders, including a community center, a YMCA center, and extracurricular activities such as tae kwon do, which was recommended by his doctor as a self-esteem builder.

[¶6] Schmidt argued the move is not in the children's best interest, because all of the activities touted as a benefit by Bakke are also available in the Larimore and Grand Forks area. Schmidt also contended the relocation was not financially viable, because of a large restitution order resulting from the criminal conviction of Bakke's new husband's employer, and Schmidt argued the district court should have admitted evidence of the criminal restitution order. Schmidt also argued that any advantage of Bakke's following her most recent employer was negated by her history of frequent job changes, Bakke having changed employment 10 to 12 times since she graduated from high school. He also argued that separating the siblings would be detrimental to the younger brothers, especially to the second-youngest child because of his need for stability and a strong sibling relationship.

[¶7] The district court ruled the two younger children could move with Bakke to Belle Plaine, Minnesota, because the move would benefit both Bakke and the children under the Stout-Hawkinson factors. See Stout v. Stout, 1997 ND 61, 560 N.W.2d 903; Hawkinson v. Hawkinson, 1999 ND 58, 591 N.W.2d 144. Under the first Stout-Hawkinson factor, the district court cited Belle Plaine's additional social, recreational, and academic opportunities for the two boys and said Bakke will not have to drive them around after work because these activities will be close to their home. The district court also said the job in Minneapolis is the difference between no job and a $16.50-per-hour job because of the closing of the Grand Forks plant. The district court found there was no improper motive under the Stout-Hawkinson second and third factors, and stated it believed Bakke would comply with the Stout-Hawkinson fourth factor by adhering to a new visitation agreement.

II

[¶8] Bakke contends Schmidt failed to adequately raise or preserve his objection to her move to Minnesota. Bakke argues Schmidt's response to her "Motion to Move Out of the State of North Dakota" and supporting brief was improper because he responded with a "Brief in Support of Motion for Temporary Order, Change of Custody and Suspending Child Support." Schmidt's brief was not accompanied by a motion or notice of service, and Bakke argues it thus fails under N.D.R.Ct. 3.2.

[¶9] Rule 3.2(a), N.D.R.Ct., provides, in part:

Notice must be served and filed with a motion. The notice must indicate the time of oral argument, or that the motion will be decided on briefs unless oral argument is timely requested.

[¶10] To effectively appeal any proper issue, a party must have raised the matter in the district court so that the court could rule on it, and a failure to object to an irregularity at trial is a waiver of the issue. Kautzman v. Kautzman, 2003 ND 140, ¶ 10, 668 N.W.2d 59 (citing Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 7, 646 N.W.2d 681).

[¶11] Rule 3.2(b), N.D.R.Ct., provides:

Failure to file a brief by the moving party may be deemed an admission that, in the opinion of party or counsel, the motion is without merit. Failure to file a brief by the adverse party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.

[¶12] "`Although a party who fails to respond or make an appearance assumes a substantial risk that the trial court will act favorably on the motion, the moving party has the burden of demonstrating to the trial court's satisfaction that he is entitled to the relief requested.'" Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, ¶ 15, 609 N.W.2d 90 (quoting City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D. 1996)). A district court does not abuse its discretion by not considering an untimely response an admission. State v. Haverluk, 2000 ND 178, ¶ 27, 617 N.W.2d 652. In Haverluk, the defendant argued this Court should affirm the district court's holding because the State did not comply with N.D.R.Ct. 3.2(a) and N.D.R.Civ.P. 6(e). Id. at ¶ 25. We held the State assumed the risk of an unfavorable action by not responding on time with a brief, but the defendant still had to demonstrate he was entitled to the relief requested. Id. at ¶ 27.

[¶13] The district court never ruled on Bakke's objection to Schmidt's possibly untimely response and continued to hold hearings on the relocation motion. Bakke also said in her opening statements, after the court asked her where they were procedurally, that she would waive her objection to the timeliness of Schmidt's response.

[¶14] We hold Schmidt preserved his right to appeal because the district court did not consider Schmidt's response to be untimely and because it continued to hold hearings regarding the motion in which Schmidt objected to the move. Bakke, furthermore, waived any right she had to object to the timeliness of the motion when she told the district court, during opening statements, that she would waive her objection to the issue of timely response.

III

[¶15] The custodial parent has the burden of proving, by a preponderance of the evidence, that a move is in the best interest of the child. Dickson v. Dickson, 2001 ND 157, ¶ 7, 634 N.W.2d 76. A district court's decision whether a proposed move to another state is in the best interest of a child is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Id. at ¶ 8. "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.

IV

[¶16] Schmidt argues the district court improperly found it was in the children's best interest for them to move to Minnesota with their mother.

[¶17] North Dakota statute requires a custodial parent to seek court approval to move out of state with the children if the noncustodial parent refuses to consent to the move. N.D.C.C. § 14-09-07. The statute and its application are based on the "best interest of the child" standard. Hearing on H.B. 1585 Before the Senate Social Welfare & Veterans Affairs Comm., 46th N.D. Legis. Sess. (March 2, 1979) (testimony of Rep. Wayne Stenehjem, co-sponsor of bill); Burich v. Burich, 314 N.W.2d 82, 85 (N.D. 1981); Stout, 1997 ND 61, ¶ 13, 560 N.W.2d 903; Negaard v. Negaard, 2002 ND 70, ¶ 7, 642 N.W.2d 916.

In every relocation dispute, the court must try to accommodate the competing interests of the custodial parent who desires to seek a better

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