Thomas v. Thomas, 880374

• Decision Date: 26 September 1989
• Docket Number: No. 880374,880374
• Citation: 446 N.W.2d 433
• Parties: Kimberly S. THOMAS, a/k/a Kimberly S. Nelson, Plaintiff and Appellee, v. Bernard J. THOMAS, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 433

446 N.W.2d 433

Kimberly S. THOMAS, a/k/a Kimberly S. Nelson, Plaintiff and Appellee, v. Bernard J. THOMAS, Defendant and Appellant.

Civ. No. 880374.

Supreme Court of North Dakota.

Sept. 26, 1989.

Bair, Brown & Kautzmann, Mandan, for plaintiff and appellee; argued by Dwight C.H. Kautzmann.

Vogel Law Firm, Mandan, for defendant and appellant; argued by Colette M. Bruggman.

MESCHKE, Justice.

Bernard Thomas appealed an amended custodial decree which permitted his former spouse, Kimberly Nelson, to move their children from Bismarck to Brainerd, Minnesota, and which denied his request for transfer of custody. We affirm.

Bernard and Kimberly were divorced in January 1985 in Bismarck. They had three children: Jason, then age twelve; Tammy, then age nine; and Tanya, then age eight. The decree placed principal custody of the children with Kimberly during the school year and with Bernard during the summer, with each parent to have reasonable visitation while the children were in the custody of the other.

In May 1987, Kimberly married Dan Nelson. In the fall of 1988, Dan's job required him to move to Brainerd. In early October 1988, planning to accompany Dan, Kimberly asked Bernard's permission to move the children with her to Brainerd. Bernard refused and moved to transfer custody so that he would have the children during the school year, with Kimberly to have them during the summer and with the other parent to have reasonable visitation during non-custodial periods. Kimberly then moved for judicial permission to change the physical residence of their children to Brainerd for each school year. Initially, she also sought temporary permission to do so pending hearings on the motions. But, shortly, Kimberly withdrew the motion for temporary permission and the children stayed with their father in Bismarck on November 1 when she moved to Brainerd with Dan. After hearings in late November, the trial court permitted the change of residence and denied the transfer of custody. In the December 1, 1988 decision, the trial court directed that the children "should remain in the Bismarck school system until the Christmas holidays have passed but should be in Brainerd in time to enroll in the Brainerd school system when the schools reconvene after the holidays."

The trial court concluded that it was "in the best interests of the children to stay with their mother, even though she is changing her residence" and that it was also in the best interests of the children "to maintain a relationship with their father." Accordingly, the trial court permitted the change of residence, but required additional visitation at alternate Thanksgivings, Christmases and Easters with Bernard, "Teachers Convention holiday" with Bernard each year, and alternate fourths of July and a one-week vacation each summer with Kimberly. Bernard argued on appeal that the trial court's approval of the change of residence for Jason, Tammy, and Tanya was clearly erroneous.

NDCC 14-09-07 compels a custodial parent to get judicial permission to change the residence of children to another state if the noncustodial parent does not consent to the move. Although a showing of exceptional circumstances is not necessary, the custodial parent must show that the change of residence is in the best interests of the children. Olson v. Olson, 361 N.W.2d 249 (N.D.1985). The trial court has the principal responsibility for determining whether a change of residence is in the best interests of the children. Hedstrom v. Berg, 421 N.W.2d 488 (N.D.1988). This court will not substitute its judgment for that of the trial court unless the trial court's decision is clearly erroneous under NDRCivP 52(a). Id. We are not convinced that the trial court made a mistake in this case.

The trial court emphasized that the children had been doing well in their mother's principal care since birth and in the family home that she had formed. The trial court found that "[t]here is a happy and loving relationship with both their mother and their stepfather Mr. Nelson." At the same time, the trial court recognized that the children "also love their father and have in fact expressed a wish to live with him rather than move to Brainerd. This is understandable, since they have always lived in Bismarck, have their friends here, and are familiar with the schools and the community. They also have extended family here." With the opportunity to evaluate the credibility of the children and each of the parents, it is evident that the trial court carefully weighed relevant factors.

The preference of a child who is capable of intelligently choosing between parents for custody can be a factor in a trial court's determination of that child's best interests. NDCC 14-09-06.2(9); Mertz v. Mertz, 439 N.W.2d 94 (N.D.1989). "[A] child's preference to live with the noncustodial parent may, in some instances, be motivated by goals and ambitions which undermine the significance of that preference and may, in fact, be detrimental to the child's best interests." Id., at 97, n. 2. Consequently, a child's preference is "only one factor." Similarly, while community stability can also be a factor, it is not overriding and can be outweighed by other factors. Roen v. Roen, 438 N.W.2d 170 (N.D.1989). In this case, the trial court found that the children's preferences for remaining in Bismarck were not the paramount concerns. Those preferences were outweighed by the continuity and stability of the integrated family unit in which Jason, Tammy and Tanya had been residing with their mother. See Novak v. Novak, 441 N.W.2d 656 (N.D.1989). We cannot say that the trial court was wrong in the weight it attached to these relevant factors.

The trial court was mindful that the best interests of the children governed his determination, but was also concerned that "we must be careful in cases of this kind not to convert a request for change of residency to a custody fight" when the "children have been in a stable, loving relationship with the parents and their step-parent." The trial court concluded that the move by Kimberly and Dan was necessary and that it "will not interfere with the status quo except for the limited effect it has on the visitation rights." The trial court carefully assessed the need for particularizing visitation, observing:

"If the court refuses to grant permission for the children to leave the state and the custodial parent leaves, the roles are reversed, but the problem is the same: The move has interfered with or restricted the ability of one parent to exercise visitation rights."

The trial court calculated, however, that the visitation factor was not as significant in this case as it sometimes might be. The trial court reasoned that the father's extensive summer visitation would remain the same. While "it must be recognized that the informal sort of 'running back and forth' which has been going on would no longer be possible," the trial court concluded that additional holiday visitation would balance the "informal" visitation practiced in Bismarck and would enable continuation of the nurture and stability furnished by Kimberly. Again, the trial court thoughtfully weighed important factors affecting the children.

Bernard argued that "testimony regarding Dan Nelson's relationship with his step-daughters is disturbing at the very least and raises issues that should be further developed...." Tammy testified that her stepfather touched her in ways that made her uncomfortable. ¹ In effect, Bernard argued that the trial court did not treat this testimony with sufficient seriousness. Kimberly responded that, unjustifiably, Bernard was trying to turn this custody dispute into a sexual abuse case. Tammy's stepfather testified that the touching had not been sexual, merely playful and usually with other people present. The trial court decided that the touching was "unintentional" and gave it no weight. The trial court heard and saw the witnesses, evaluated their demeanor, and concluded that the children had a good and loving relationship with their step-father. On this record, we will not second-guess that determination.

Citing Wright v. Wright, 431 N.W.2d 301 (N.D.1988), Bernard argued that "[t]he trial court erred by failing to affirmatively decide [Bernard's] motion to change physical custody even though its granting of [Kimberly's] motion to remove the children effectively denie[d] [Bernard's] companion motion." This argument falls flat. The trial court clearly recognized that approval of the move to Brainerd had the effect of denying the transfer of custody: "If I deny the request for change of residence of the children, their physical custody would change to [Bernard], which is to say it is conceded his countermotion for a change in physical custody would of necessity be granted." The trial court correctly treated the motions as inseparable and "intermingled."

The trial court understood that "Mrs. Nelson is moving regardless of this decision." Thus, the trial court was fully conscious that the move out-of-state was a significant change in circumstances necessitating an analysis of the best interests of the children. Wright v. Wright, supra; Novak v. Novak, supra. By permitting the change of residence, the trial court effectively concluded that the move did not necessitate a transfer of custody. Therefore, the trial court correctly denied Bernard's motion to transfer custody.

We affirm.

LEVINE and VANDE WALLE, JJ., concur.

GIERKE, Justice, dissenting.

This Court will not reverse a trial court's finding of fact unless it is clearly erroneous. A finding of fact is clearly erroneous only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Sorum v. Schwartz, 411 N.W.2d 652, 654 (N.D.1987).

Bernard Thomas contends that the trial court's approval of the change of residence of his children,...