Stout v. Stout

Decision Date01 April 1997
Docket NumberNo. 960150,960150
Citation560 N.W.2d 903,1997 ND 61
PartiesJames R. STOUT, Jr., Plaintiff and Appellee, v. Julene L. STOUT, Defendant and Appellant. Civil
CourtNorth Dakota Supreme Court

Shirley A. Dvorak (argued), Moosbrugger, Dvorak & Carter, Grand Forks, for defendant and appellant.

Kevin B. Spaeth (argued), Spaeth, Thelen, Dearstyne & Van Voorhis, Grand Forks, for plaintiff and appellee.

MARING, Justice.

¶1 Julene Stout appeals from the May 24, 1996, order denying her permission to move from North Dakota to Arkansas with the parties' minor child. We reverse the trial court's denial and grant Julene's request to move. We remand to the trial court to establish a reasonable visitation schedule and to enter an amended judgment in accordance herewith.

¶2 Julene and James Stout were married in Iowa in 1983, and one child was born of the marriage, William Tell Stout (Tell), in December, 1993. James works for the U.S. Marshal service, and was transferred to Grand Forks in 1987, where the family has since lived.

¶3 In 1995, the couple divorced, and the decree became final on February 2, 1996. Julene was awarded primary physical custody of Tell, and James was granted visitation on alternating weekends, two evenings per week, alternating holidays, Father's Day, and six weeks during the summer. James was ordered to pay $653.00 per month in child support and $500.00 per month in spousal support for four years. During the original divorce proceeding, Julene requested that she be allowed to move to Arkansas with Tell to be closer to her family and to seek employment. The court denied the move.

¶4 Both Julene and James have their master's degrees in criminal justice. Since their marriage in 1983, Julene has not pursued a career in this field, but has followed James in pursuit of his career from Iowa to Kansas to Mississippi to North Dakota. After Tell's birth in 1993, Julene did not work outside the home, but stayed home to provide full-time care for Tell. After the couple's divorce, Julene obtained a part-time position as an office assistant in a law firm, working for $6.00 per hour with no benefits. She contends this position is soon to be eliminated.

¶5 In March of 1996, Julene moved to change Tell's residence to Arkansas, and James resisted. At the time of this motion, Julene had been offered a full-time position in Springdale, Arkansas, at J.V. Manufacturing Company earning $8.50 per hour with full benefits. Julene presented documentation to the court to show that she has been unable to find suitable employment in North Dakota. She testified she found an apartment in Arkansas; found day-care placement for Tell; would be living in close proximity to her parents and a sister with small children; and would be only two hours from James' parents. Neither James nor Julene has any extended family in North Dakota.

¶6 The trial court denied Julene's motion on May 24, 1996. It reasoned first, James had exercised his visitation rights and the relationship would suffer; second, the court had denied Julene's request to move at the time of the divorce; and third, the $2.50 per hour wage increase was not a "sufficient enough economic advantage to justify the separation" of Tell and James. The court noted that Julene should be able to rehabilitate herself while remaining in Grand Forks, and "[t]hat is precisely why the court ordered the combination of child support and spousal support in order to allow [Julene] to stay in this area, even if she were making a relatively low income." The court also stated that there had been no "change of circumstances" since Julene's last request to move.

¶7 Section 14-09-07 of the North Dakota Century Code compels a custodial parent to receive judicial permission to change the residence of children to another state if the noncustodial parent does not consent to the move. The custodial parent must show that the change of residence is in the best interests of the children. Thomas v. Thomas, 446 N.W.2d 433, 434 (N.D.1989), (citing Olson v. Olson, 361 N.W.2d 249 (N.D.1985)). It is the principal responsibility of the trial court to decide whether a change of residence is in the best interests of the child. Thomas, 446 N.W.2d at 434. This court will not substitute its judgment for that of the trial court unless the trial court's decision is clearly erroneous under Rule 52(a), N.D.R.Civ.P. Id. A finding is clearly erroneous under Rule 52(a), N.D.R.Civ.P., only 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. McDonough v. Murphy, 539 N.W.2d 313, 316 (N.D.1995).

¶8 In the present case, after reviewing all the evidence presented, this court concludes that the trial court's decision is clearly erroneous because it was induced by an erroneous view of the law, and although there is some evidence to support it, on the entire record we are left with a definite and firm conviction that a mistake has been made. We take this opportunity to clarify the standards that apply to a petition for removal of a child to another state by the custodial parent when the noncustodial parent refuses to consent.

¶9 It has long been the policy in this state that "the best interests of the child" is the primary consideration in determining whether or not a custodial parent may change the residence of the child. Burich v. Burich, 314 N.W.2d 82, 85 (N.D.1981). Presently our statute regarding removal, N.D.C.C. § 14-09-07 (1991), states if the noncustodial parent who has visitation rights does not agree to the removal, the custodial parent must seek a court order. The custodial parent must prove, by a preponderance of the evidence, that the move is in the best interests of the child. Olson v. Olson, 361 N.W.2d 249, 252 (N.D.1985). In Hedstrom v. Berg, 421 N.W.2d 488, 490 (N.D.1988), we held that in removal cases the trial court should weigh the favorable factors of the move against the negative impact on the relationship between the child and the noncustodial parent.

¶10 It is necessary to look at the history of N.D.C.C. § 14-09-07 to clarify our analysis and decision in this case. Prior to 1979, N.D.C.C. § 14-09-07, stated:

A parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child. [Emphasis added]

¶11 In 1979, the North Dakota Legislative Assembly amended N.D.C.C. § 14-09-07, removing the language which granted the custodial parent the "right" to remove a child. 1979 N.D. Session Laws, ch. 194, § 5. The statute then read:

A parent entitled to the custody of a child shall not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, where the noncustodial parent has been given visitation rights by the decree, however, a court order shall not be required if the noncustodial parent has not exercised such visitation rights for a period of one year. [Emphasis added]

N.D.C.C. § 14-09-07 (1979). The legislative history indicates the statute was so amended to minimize the possibility of the custodial parent defeating the visitation rights of the noncustodial parent by moving the children out of North Dakota. See Hearing on H.B. 1585, before the Committee on Social Welfare & Veteran's Affairs, 46th Legislative Assembly (1979), (March 2, 1979, testimony of Rep. Wayne Stenehjem). The statute requires the custodial parent to obtain permission of the court before changing the residence of the child.

¶12 In 1991, the legislature again amended section 14-09-07, N.D.C.C., 1991 N.D. Session Laws, ch. 150, § 1. The statute presently reads:

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, if the noncustodial parent has been given visitation rights by the decree. A court order is not required if the noncustodial parent (1) has not exercised visitation rights for a period of one year or (2) has moved to another state and is more than fifty miles [80.47 kilometers] from the residence of the custodial parent. [Emphasis added]

N.D.C.C. § 14-09-07 (1991). The word "shall" was changed to "may" with regard to the custodial parent's entitlement to change the residence of the child to another state. In construing a statute, words are to be understood in their ordinary sense. N.D.C.C. § 1-02-02. Although the word "may" ordinarily is construed as permissive, we construe it as "must" in this statute, because the context compels such construction. See North Dakota Com'n on Medical Competency v. Racek, 527 N.W.2d 262, 268 (N.D.1995). The 1991 amendments also added another exception to when a court order is required to move a child's residence out of state. 1991 N.D. Sessions Laws, ch. 150, § 1; N.D.C.C. § 14-09-07 (1991). If the noncustodial parent has moved out of North Dakota and is more than fifty miles from the custodial parent's residence, a court order is not required. Id. It is simply logical not to require the custodial parent to obtain a court order to move when the noncustodial parent has already moved out of North Dakota. During a hearing on these amendments, it was reiterated that the reason for requiring a court order or permission of the noncustodial parent before changing the residence of a child is to prevent the custodial parent from moving out of state with the intention of defeating the noncustodial parent's visitation rights. Hearing on S.B. 2270, before the Senate Judiciary Committee, 52nd Legislative Assembly (1991) (Jan. 21, 1991, statement of Senator Wayne Stenehjem). It is clear that the limited purpose of the statute is to safeguard the visitation rights of the noncustodial parent...

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