Tibor v. Tibor
| Decision Date | 29 July 1999 |
| Docket Number | No. 990020,990020 |
| Citation | 598 N.W.2d 480,1999 ND 150 |
| Parties | Bryan C. TIBOR, Plaintiff and Appellee, v. Kathleen E. TIBOR, n/k/a Kathleen E. Zich, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Gregory Ian Runge, Bismarck, for plaintiff and appellee.
Melissa Ann Hauer, Wheeler Wolf, Bismarck, for defendant and appellant.
¶1 Kathleen Zich appealed from a trial court order denying her request to move with her three children to Macon, Georgia. We conclude the trial court's finding the move is not in the children's best interests is clearly erroneous. We reverse and remand with directions the trial court enter an order granting the motion and restructuring visitation to preserve and foster the children's relationship with their father, Bryan Tibor.
¶2 Zich and Tibor were married in 1986 and have three children. The parties were divorced in October 1995, and judgment was entered upon their stipulation. They were awarded "joint legal and physical custody" of the children, with each having physical custody for considerable time, but with Zich having physical custody of the children more days per year than Tibor. The judgment also provided the parties must retain their residence within North Dakota for five years.
¶3 Each party remarried following the divorce. Zich married Terrence Zich in March 1996. Shortly thereafter, Terrence Zich, an environmental engineer and hydro-geologist, lost his job through company downsizing. In November 1996, Zich filed a motion requesting that the court designate her as sole physical custodian of the children, set support amounts according to the child support guidelines, and abolish the five-year restriction on the parties' ability to move out of state. In January 1997, the trial court ordered amendments to the original divorce judgment, designating Zich the primary custodian of the children and eliminating the five-year residency requirement. The court's order quite clearly implied Zich would be granted approval to relocate the children out of state with a minimal showing:
I am satisfied that upon a showing of a proper reason for leaving this state, this Court would grant such proposal with an effort at that time to establish proper visitation with the children. If this cannot be accomplished by agreement, this Court orders that the parties must return to Court for the purpose of establishing appropriate levels of visitation and child support.
¶4 Soon thereafter, Terrence Zich was offered an engineering position in Macon, Georgia, and Zich filed a motion for permission to move there with the children. The court denied the motion. In September 1997 Terrence Zich accepted the position and moved to Georgia. Zich then filed a motion for a new trial again seeking permission to relocate with the children to Georgia. The trial court granted the motion for new trial, but the judge recused himself from presiding over future proceedings. In its memorandum opinion, the judge explained why he was recusing himself:
This matter comes before the Court upon a motion for new trial....
One of the issues raised by [Zich] is that this Court misled the parties as to their burden of proof in the ultimate hearing on the request to leave the state....
.... I am satisfied that I indeed misled [Zich] into believing that [her] burden on the request to leave the state would be somewhat less than the decisions of the Supreme Court might require. As a result, I believe I may have caused a situation where [Zich] presented less testimony than was available to satisfy the Court. I believe that I even indicated the same at the time of my oral ruling on July 15. Although my intentions were good each time, I believe that my subsequent actions caused a surprise which should be allowed to be corrected if possible.
....
[S]ince this Court has listened to the testimony and I believe I have been tainted to some degree, I hereby recuse myself from all further proceedings in this matter....
¶5 The new trial on the motion was held in July 1998 before a different judge. After the hearing, the court entered an order denying Zich's motion on two grounds: (1) Zich is not a parent entitled to custody of the children for purposes of bringing a motion under N.D.C.C. § 14-09-07 to move the children from this state; and (2) Zich failed to demonstrate the move would be in the children's best interests. Zich appealed.
¶6 Under N.D.C.C. § 14-09-07 "[a] parent entitled to the custody of a child" must get judicial permission to change the child's residence to another state if the other parent does not consent to the move. The trial court found "the children spend virtually equal amounts of time with both parties," and concluded Zich "is not a parent entitled to custody" under this provision and, therefore, is not entitled to seek permission to move with the children to another state. We conclude the trial court's interpretation and application of this statute is much too narrow.
¶7 In its January 1997 order for amendments to the judgment, the court designated Zich the "primary custodian" of the children. Clearly, she is a "parent entitled to the custody" of the children. Although both parents have physical custody of the children for significant amounts of time, under the judgment Zich has physical custody more of the time than does Tibor. N.D.C.C. § 14-09-07 "specifically requires a custodial parent to seek permission" to change the children's residence to another state. Hanson v. Hanson, 1997 ND 151, p 8, 567 N.W.2d 216. For purposes of N.D.C.C. § 14-09-07, assuming both parties had physical custody of the children for equal amounts of time, each would be deemed a parent entitled to custody and each would be required to seek court authorization to relocate the children out of state. We agree with the analysis of the Minnesota courts. Even where there is joint legal custody or joint legal and physical custody, the statute governing a change of the child's residence applies. The party seeking relocation must comply with the statutory requirements. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn.1996); Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn.1993). We conclude N.D.C.C. § 14-09-07, applies and requires Zich to seek court approval to move with the children to Georgia.
¶8 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, 1997 ND 151, p 10, 567 N.W.2d 216. The custodial parent has the burden of proving the proposed move is in the best interests of the children. Keller v. Keller, 1998 ND 179, p 10, 584 N.W.2d 509. A trial court's decision whether the move is in the best interests of the children is a finding of fact which will not be overturned on appeal unless it is clearly erroneous. Id. 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, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. Id.
¶9 To determine whether the move is in the children's best interests, the court must apply a four-factor analysis enunciated by this Court in Stout v. Stout, 1997 ND 61, p 34, 560 N.W.2d 903:
3. The integrity of the noncustodial parent's motives for opposing the move, [and]
4. 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. 1
¶10 Although the trial court determined Zich was not entitled to bring the motion under N.D.C.C. § 14-09-07, it nevertheless determined the merits of the motion and, after considering the four factors, found Zich had failed to meet her burden of demonstrating the requested move would be in the children's best interests. Because the trial court applied an erroneous interpretation of Stout and because we are left with a definite and firm conviction the trial court made a mistake, we conclude the trial court's finding the move is not in the children's best interests is clearly erroneous.
¶11 Under the first Stout factor the trial court must weigh the advantages of the requested move "while recognizing the importance of maintaining continuity and stability in the custodial family." Hawkinson v. Hawkinson, 1999 ND 58, p 11, 591 N.W.2d 144. A trial court's failure to give sufficient credence to the need for keeping the custodial family intact constitutes reversible error. Goff v. Goff, 1999 ND 95, p 14, 593 N.W.2d 768. The court must give due weight to the possibility the move will enhance both the economic and non-economic aspects of the custodial family's life. Id. This factor must be considered in light of the importance of maintaining the stability of the custodial parent/child relationship. Hawkinson, 1999 ND 58, p 12, 591 N.W.2d 144; Goff, 1999 ND 95, p 13, 593 N.W.2d 768. 2
¶12 The trial court found the evidence did not demonstrate the children's quality of life would be improved by permitting the move. In making that finding, the trial court afforded little consideration to keeping the custodial family intact. The trial court recognized Terrence Zich's job prospects in North Dakota are "limited or nonexistent," and the Georgia job is permanent and pays $60,000 per year plus benefits. The court found "Kathleen's quality of life as measured by income would likely improve should she move to Georgia." Unexplainably, however, the court found "no evidence suggests the children's quality of life by that measurement would improve."
¶13 The children's best...
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