Sumra v. Sumra, 960129

• Decision Date: 01 April 1997
• Docket Number: No. 960129,960129
• Parties: Elizabeth Jane SUMRA, Plaintiff and Appellee, v. Kulvinder Singh SUMRA, Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 290

561 N.W.2d 290

1997 ND 62

Elizabeth Jane SUMRA, Plaintiff and Appellee, v. Kulvinder Singh SUMRA, Defendant and Appellant.

Civil No. 960129.

Supreme Court of North Dakota.

April 1, 1997.

Maureen Holman (argued), Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for defendant and appellant.

Jay H. Fiedler (argued), Pearson, Christensen, Larivee, Clapp, Fiedler & Fischer, Grand Forks, for plaintiff and appellee.

MARING, Justice.

¶1 Kulvinder Sumra appeals that portion of the judgment of divorce entered March 15, 1996, which grants Elizabeth Sumra permission to move with the parties' three minor children to Wales. We affirm the judgment.

¶2 Kulvinder and Elizabeth Sumra were married in February 1981 in both India and Great Britain. At the time of their marriage, Kulvinder was working as a physician in Bangor, Wales, where Elizabeth was a nursing student. Six months after their marriage, in August of 1981, Kulvinder went to Newfoundland, Canada, to seek work as a physician. Elizabeth completed her nursing exams and joined her husband in October 1981 with the understanding that the couple would live in Canada a short time and return to Wales. In June 1983 the parties moved to Cincinnati, Ohio, where Elizabeth worked as a nurse. Shortly after arriving in Ohio, Kulvinder left to visit his brother in British Columbia, Canada, and to investigate job opportunities in North Dakota. This trip lasted four to five months. In October 1983 Kulvinder obtained permanent employment as a physician in Park River, North Dakota, and Elizabeth joined him in Park River, where the couple has since lived.

¶3 Three children were born of the marriage--Amar, born August 1984; Sarvan, born February 1986; and Nesta, born December 1987. Kulvinder has devoted the majority of his time to his profession, and Elizabeth has worked in her husband's clinic sporadically since the children were born. Elizabeth has always maintained close ties to her family in Wales, and has continually expressed a desire to return to Wales throughout her marriage to Kulvinder. Kulvinder became a naturalized United States citizen, and Elizabeth maintains her Welsh citizenship. Elizabeth took the children on several extended visits to Wales to see her family, and the children attended school in Wales, participated in many activities, and have gained a rough understanding of the Welsh language.

¶4 In October 1994 Elizabeth sued for divorce. Trial on the matter was held in October and November of 1995. The parties contested all issues including custody, child support, property division, and whether Elizabeth should be permitted to take the children with her to live in Wales. The trial court heard testimony from over twenty witnesses and issued detailed findings of fact, conclusions of law, and order for judgment which awarded custody of the children to Elizabeth and granted Elizabeth permission to move to Wales, taking the children with her.

¶5 Kulvinder asserts the trial court erred when it found it was in the best interests of the children to move to Wales with their mother. Specifically, Kulvinder alleges the harm to his relationship with the children is not outweighed by the advantages of the children moving to Wales with Elizabeth; the trial court placed too much weight on the children's expressed preference; and he does not have a forum to enforce visitation rights. Kulvinder does not seek a change of custody, rather, only that Elizabeth remain in North Dakota with the children.

¶6 This case differs in two ways from Stout v. Stout, 1997 ND 61, 560 N.W.2d 903 also released today. First, Stout dealt with a motion for removal of the child from North Dakota after the original divorce decree had been entered and second, Stout dealt with removal to another state (emphasis added). In this case, Elizabeth's motion to remove the children was made as part of the initial custody determination, not as a motion after the initial custody award ¹ and involves removing the children to another country. Because Kulvinder does not seek a change of custody, but opposes removal of the children to Wales, we apply the same analysis we applied in Stout to this case. Id.; N.D.C.C. § 14-09-07. When making an original custody award N.D.C.C. § 14-09-06.2 ² lists thirteen factors which a trial court is to consider. The trial court heard six days of testimony from twenty-two witnesses, including experts presented by both parties, and conducted an in camera interview with each of the three children. In the extensive findings of fact, conclusions of law, and order for judgment, the trial court presented a detailed analysis of the application of each of these statutory factors in reaching its decision to award sole legal and physical custody to Elizabeth.

¶7 On the issue of custody, the trial court found both parents to be fit and loving, but the best interests of the children would be served by granting sole legal and physical custody to Elizabeth, taking into account her plans to move to Wales. The court found Elizabeth has always been the children's primary caretaker and the children have a significantly closer relationship with Elizabeth than with Kulvinder, and the children have had "significant conflicts with Kulvinder in the past in terms of his discipline, temperament, and his lack of interest and attention to them." The court also found the methods in which Kulvinder disciplined his eldest son Amar, constituted abuse under N.D.C.C. § 50-25.1-02(2), and § 50-25.1-02(4), and as a result, all three children have been left with a fear of their father's temperament. The court found the children have expressed a preference to remain with their mother, and the children's preference is reasonable and they are of sufficient age, intelligence, and experience to express a preference. The court also noted the expert testimony presented by both sides agree Elizabeth is the more appropriate custodial parent.

¶8 It is clear the trial court also gave Elizabeth's proposed move to Wales careful consideration. A determination that it is in the best interests of the children to grant permission to the custodial parent to change their residence is a finding of fact and will not be disturbed unless it is clearly erroneous. Stout v. Stout, 1997 ND 61, p 7, 560 N.W.2d 903, 906. 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. McDonough v. Murphy, 539 N.W.2d 313, 316 (N.D.1995); Stout at p 7, 560 N.W.2d at 906. After reviewing all the evidence presented we determine the trial court's decision to grant Elizabeth the right to move the children to Wales is not clearly erroneous.

¶9 Our court has long articulated the standard for resolving disputes over the removal of a child from the state is "the best interests of the child." Stout at p 9, 560 N.W.2d at 906; Thomas v. Thomas, 446 N.W.2d 433, 434 (N.D.1989). The burden of proof is on the custodial parent wishing to remove the children. Id. In Stout, we establish a four factor analysis which is to be applied to the facts of each case with the primary concern being the best interests of the child:

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 non-custodial parent,

3. The integrity of the non-custodial parent's motives for opposing the move,

4. Whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the non-custodial parent's relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Stout at p 34, 560 N.W.2d at 913.

¶10 Our review of this case begins with the application of the first factor to the facts of this case. The record indicates Elizabeth was born and raised in Wales, United Kingdom and Kulvinder was born in Punjab, India. The parties met in Wales where Kulvinder was working at the time. Kulvinder immigrated to Newfoundland and then to the United States, specifically to Cincinnati, Ohio, and finally to Park River, North Dakota. Elizabeth followed him but continually expressed her wishes to remain near her home and family in Wales. The record indicates Elizabeth's extended family from Wales has been a frequent visitor at the Sumra home and Elizabeth has visited Wales with the minor children. The children have on occasion briefly attended school in Wales and the children have a rudimentary knowledge of the Welsh language and culture. The trial court found Kulvinder also has family in England and the Sumra children have no relatives who live in the United States other than their parents.

¶11 The court found Elizabeth has always been the children's primary caretaker and they are emotionally very attached to her. We said in Stout, a court shall not limit itself solely to enhanced economic opportunities for the custodial parent, but must also assess less tangible benefits of the relocation. Stout at p 34, p 44, 560 N.W.2d at 913, 915. In this case, prospective advantages include a supportive extended family.

¶12 In addition, the trial court found North Wales where the children would reside, is similar to North Dakota in that it is a rural and agricultural area, the English language is used and the dress is similar. Based on this evidence, the trial court found the children would be able to adjust to the geographical move with their Mother to Wales.

¶13 The evidence in the record establishes the likelihood of Elizabeth obtaining satisfactory employment for her and the children in Park River is not strong. Elizabeth was not suitably trained or experienced for most...