State ex rel. Melling v. Ness

• Decision Date: 27 April 1999
• Docket Number: No. 980074,980074
• Citation: 1999 ND 73,592 N.W.2d 565
• Parties: STATE of North Dakota, County of Cass, ex rel. Kelly A. MELLING, and Tyler Christian Ness, a minor child, Plaintiffs and Appellees v. Jeff Paul NESS, Defendant and Appellant
• Court: North Dakota Supreme Court

Page 565

592 N.W.2d 565

1999 ND 73

STATE of North Dakota, County of Cass, ex rel. Kelly A.

MELLING, and Tyler Christian Ness, a minor child, Plaintiffs and Appellees v. Jeff Paul NESS, Defendant and Appellant

No. 980074.

Supreme Court of North Dakota.

April 27, 1999.

Kelly A. Melling, pro se, Largo, FL. Submitted on brief.

Alisha L. Ankers, Fargo, ND, for defendant and appellant.

NEUMANN, Justice.

¶1 Jeff Ness appealed from an amended judgment denying his request for a change of custody of his son, Tyler Christian Ness, from the child's mother, Kelly Melling, and granting Melling's request to move with Tyler to Florida. We conclude the referee's findings, confirmed by the trial court, that it would be in Tyler's best interests to be allowed to leave North Dakota and reside with Melling in Florida, and that there was no significant change in circumstances warranting a change of custody, are not clearly erroneous. We therefore affirm.

I

¶2 Tyler was born out-of-wedlock on May 27, 1989, after Melling and Ness ended their relationship. The couple never lived together or married. Tyler has resided with Melling in West Fargo since his birth, and Ness, who resides in Fargo, has visited with the child on a regular basis. A judicial determination of Tyler's paternity was not entered until September 1996, after Melling became married for a second time. The paternity judgment granted Melling and Ness "joint legal custody" of Tyler, awarding Melling physical custody and Ness liberal visitation. Ness was ordered to pay $275 per month in child support and to maintain medical insurance for Tyler. The parties were required to split Tyler's other medical expenses. Melling's second marriage ended in divorce in 1997. Ness has never been married.

¶3 In August 1997, Ness learned Melling and her boyfriend intended to move with Tyler to Florida. Ness moved for an order changing physical custody and prohibiting Melling from moving to Florida with Tyler. Melling responded with a motion to hold Ness in contempt and restrain him from coming onto her property except during visitation. Melling also sought permission from the court to relocate to the Largo, Florida area with Tyler, and moved to increase Ness's child support obligation and to require Ness to pay certain medical expenses.

¶4 The court appointed a guardian ad litem who prepared a custody study and recommended Tyler remain in Melling's custody and Melling be allowed to move to Florida. The matter was referred to a judicial referee who found it was in Tyler's best interests to move with Melling to Florida, provided Ness be allowed reasonable visitation. The referee found there had not been a significant change in circumstances warranting a change of custody and it would not be in Tyler's best interests for his care, custody and control to be changed to Ness. The referee further found, because of Ness's "admitted act of domestic violence" against Melling in the past, "Ness is precluded from obtaining custody of Tyler." The referee also increased Ness's child support obligation to $330 per month and ordered he reimburse Melling for Tyler's past medical expenses he failed to pay.

¶5 Ness requested judicial review of the referee's decision, arguing several of the referee's findings were clearly erroneous. Ness failed to provide the trial court with a transcript of the hearing held before the referee. The court confirmed the referee's findings and conclusions based on the record it had before it. An amended paternity judgment was entered, and Ness appealed to this Court. Melling moved to dismiss the appeal or, in the alternative, summarily affirm the trial court's ruling because Ness had failed to provide the trial court with a transcript for review. We denied that motion, but after the transcript had been prepared for this appeal, we temporarily remanded the case to the trial court for a review, under N.D. Sup.Ct. Admin. R. 13, of the transcript and record. Upon further review, the trial court vacated its earlier confirmation order and confirmed all of the referee's findings and conclusions except one. The court reversed, as erroneous as a matter of law, the referee's finding Ness committed an act of domestic violence which effectively precluded him from obtaining custody of Tyler.

II

¶6 When a trial court reviews a judicial referee's decision on the record, the court examines the referee's findings of fact under the clearly erroneous standard of N.D.R.Civ.P. 52(a). Benson v. Benson, 495 N.W.2d 72, 77 (N.D.1993). If the trial court confirms or accepts the referee's findings of fact, we likewise review the referee's findings under the clearly erroneous standard. See Mehl v. Mehl, 545 N.W.2d 777, 780 (N.D.1996). On appeal, Ness argues the referee and trial court erred in allowing Melling to move to Florida with Tyler and in failing to grant his motion for change of custody based on a significant change of circumstances.

A

¶7 A custodial parent must get judicial permission to move with her child to another state if the noncustodial parent does not consent to the move. N.D.C.C. § 14-09-07; Keller v. Keller, 1998 ND 179, p 10, 584 N.W.2d 509. 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. Hanson v. Hanson, 1997 ND 151, p 10, 567 N.W.2d 216. The custodial parent has the burden of proving the move is in the best interests of the child. Paulson v. Bauske, 1998 ND 17, p 6, 574 N.W.2d 801. A trial court's decision to allow the removal of a child from this state is a finding of fact that we will not reverse on appeal unless clearly erroneous. Matter of B.E.M., 1997 ND 134, p 9, 566 N.W.2d 414. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction that a mistake has been made. Sumra v. Sumra, 1997 ND 62, p 8, 561 N.W.2d 290.

¶8 When determining whether the move is in the child's best interests, the court must apply a four-factor analysis enunciated in Stout v. Stout, 1997 ND 61, p 34, 560 N.W.2d 903, and Hawkinson v. Hawkinson, 1999 ND 58, pp 6, 9:

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.

No one factor dominates, and a factor that has minor impact in one case may be the dominant factor in another. Stout, 1997 ND 61, p 37, 560 N.W.2d 903. The court must balance the prospective advantages of the proposed move in improving the custodial parent's and the child's quality of life with the potential negative impact on the relationship between the noncustodial parent and the child. Hawkinson, 1999 ND 58, p 8, 591 N.W.2d 144.

¶9 The referee found there were "significant advantages" for Melling and Tyler in their prospective move to Florida. Prospective advantages for a move are not limited to enhanced economic opportunities for the custodial parent. See Stout, 1997 ND 61, p 34, 560 N.W.2d 903. Melling suffers from Raynaud's phenomenon, osteoarthritis and lupus, which make it difficult for her to function when exposed to cold. North Dakota's cold winters cause her great discomfort and significantly affect her ability to use her fingers. Melling's physicians recommended she should move to a warmer climate because of the severity of her condition. One of Melling's physicians pointed out "[m]edical treatment for Raynaud's phenomenon is frequently only partially effective and avoiding the stimulus[,] i.e. cold exposure[,] is the best therapy if it is at all possible." 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. See Stout, 1997 ND 61, p 17, 560 N.W.2d 903. The referee specifically noted Melling would be "able to better manage her medical problems and she will be physically more able to interact and be outside with her son."

¶10 The referee also found there would be enhanced economic opportunities for Melling if she moved to Florida. Melling was employed for several years in the Fargo area in sales and management for telecommunications companies. Melling's last employer in the Fargo area was U.S. Link from which she resigned in August 1997 in anticipation of the move to Florida. She earned $34,000 per year selling long distance products and communications ideas, and managing other employees. Melling received a telecommunications job offer to start working on October 1, 1997 at LDDS WorldCom in Tampa, Florida as an account executive with a guaranteed starting salary of $36,000 per year. According to Melling, after her first month on the job, she would receive additional commissions which could increase her earnings to $80,000 per year, and eventually to $150,000 per year. Melling owned a home in West Fargo, but it was substantially damaged in the 1997 flood and she lost more than $60,000 in personal property. She no longer wants to live in the home and has made arrangements to rent it to others for additional income. Melling has also made arrangements to rent a comfortable home less than two blocks from a new school Tyler would be attending in Largo, Florida. Although Melling's prospective job was in Tampa, she would be allowed to...