Tibor v. Tibor

• Decision Date: 05 March 2001
• Docket Number: No. 20000040.,20000040.
• Citation: 623 N.W.2d 12,2001 N.D. 43
• 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

623 N.W.2d 12

2001 ND 43

Bryan C. TIBOR, Plaintiff and Appellee, v.Kathleen E. TIBOR, n/k/a Kathleen E. Zich, Defendant and Appellant.

No. 20000040.

Supreme Court of North Dakota.

March 5, 2001.

Gregory I. Runge, Bismarck, ND, for plaintiff and appellee.

Steven L. Latham, Wheeler Wolf, Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1]Kathleen Zich appeals from the trial court's Amended Judgment as to Visitation Schedule and Child Support which granted the children's father, Bryan Tibor, a fixed seven-week summer visitation and a downward deviation from the child support guidelines based on his anticipated travel expenses for purposes of visiting his children.We conclude the trial court's extended summer visitation schedule of seven weeks is not clearly erroneous.The trial court was also not clearly erroneous in finding the child support guideline presumption was rebutted by evidence of a reduced ability to make child support payments based on court-ordered visitation travel expenses.However, the trial court erred in allowing a downward deviation from the child support guidelines based on discretionary visitation travel expenses, as only court-ordered visitation travel expenses may rebut the child support guidelines.Therefore, we affirm the trial court's decision on visitation, but reverse in part on the rebuttal of the presumptively correct child support guidelines, remanding for the trial court to properly calculate the downward deviation from the guidelines in accordance with this opinion.

I

[¶ 2] Zich and Tibor were married in 1986 and have three children who were born in 1986, 1989, and 1992.The parties were divorced in October 1995, and judgment was entered on their stipulation, granting the parties joint legal and physical custody of the children and restricting the parties' residence to North Dakota for five years.Both parties remarried after the divorce.In 1996, after Zich's husband lost his job through company downsizing, Zich requested the court's permission to move out of state with the children because her husband received a job offer in Georgia.The trial court denied Zich's motion to relocate.On appeal, we reversed and remanded, directing the trial court to grant the relocation motion and to restructure visitation so as to preserve and foster the children's relationship with their father.Tibor v. Tibor,1999 ND 150, ¶ 1, 598 N.W.2d 480.[¶ 3] On December 6, 1999, the trial court held a hearing to establish a visitation schedule.The court entered its order awarding Tibor eight weeks of summer visitation from May 31 to July 31; one week during Christmas; and alternating visitation during Easter, Thanksgiving, and spring break.The court also allowed Tibor to visit the children any time in Georgia, provided he gives Zich one week's notice.The court ordered the parties to split equally the children's travel costs for visitation in North Dakota, but Tibor would have to pay his own costs if he visited the children in Georgia.

[¶ 4] Subsequently, Zich moved the trial court to reconsider its order, arguing that it would be too expensive to alternate the one-day Easter holiday and that the eight-week summer visitation in North Dakota would not allow the children sufficient time to get ready for the start of school in Georgia.Tibor's reply agreed to eliminating the Easter rotation, requested the children every spring break, requested a reduction in his child support by the amount of visitation travel expenses, and requested that he take full responsibility for the travel arrangements for purposes of visiting the children.Tibor included an affidavit projecting his anticipated travel expenses.To rebut Tibor's estimated expenses, Zich provided an affidavit of actual costs she incurred for the children's travel to visit Tibor at Christmas.Zich opposed the child support reduction because at that date Tibor had not incurred any travel expenses, and Zich alleged the expenses Tibor provided were exaggerated.Zich again offered to pay half of the travel expenses, as the trial court had previously ordered.

[¶ 5] On February 3, 2000, the trial court entered an Amended Judgment as to Visitation and Child Support, eliminating Easter visitations; shortening summer vacation to seven weeks from May 31 to July 24; alternating Christmas, Thanksgiving, and spring break; allowing Tibor to visit any time in Georgia with one week's notice; and ordering Tibor to make all travel arrangements and pay all travel expenses incurred by both Tibor and the children for visitation purposes.In addition, the trial court granted Tibor a downward deviation from the child support guidelines because (1) a preponderance of the evidence showed rebuttal of the child support presumption would be in the children's best interests; (2) Tibor would be unable to pay child support and the visitation travel expenses; and (3) calculating a reduction in child support only after travel expenses were actually incurred would lead to an unwieldy process of annual hearings.The trial court calculated Tibor's child support deviation based on "unrebutted evidence" at the December 6, 1999 hearing that Tibor's annual travel expenses would be $15,583.After the trial court deducted items from Tibor's anticipated expenses, such as tickets for his wife to accompany him to Georgia, rental car costs, and travel costs for alternating spring break rather than giving Tibor every spring break, the annual amount totaled $11,372.On that basis, the trial court reduced Tibor's child support obligation of $995 per month to $50 per month for three children, but continued an additional $200 per month in arrearages until fully paid.

II

[¶ 6] Zich argues the trial court erred in awarding Tibor seven weeks of summer visitation because it is not in the best interests of the three children.

[¶ 7] Under N.D.C.C. § 14-05-22(2), the trial court shall grant visitation rights which "will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds ... visitation is likely to endanger the child's physical or emotional health."The decision of the trial court regarding visitation is a finding of fact which will not be reversed on appeal unless the finding is clearly erroneous under N.D.R.Civ.P. 52(a).Schiff v. Schiff,2000 ND 113, ¶ 10, 611 N.W.2d 191.A finding of fact is clearly erroneous only if induced by an erroneous view of the law; if no supporting evidence exists; or if, after reviewing the entire evidence, the appellate court has a definite and firm conviction the trial court made a mistake.Id.

[¶ 8] Visitation is not merely a privilege of the noncustodial parent, but also a right of the children and is presumed to be in the children's best interests.Hendrickson v. Hendrickson,2000 ND 1, ¶ 21, 603 N.W.2d 896.The primary purpose of visitation is not to promote the wishes or desires of the parents, but to promote the best interests of the children.Moilan v. Moilan,1999 ND 103, ¶ 29, 598 N.W.2d 81.

[¶ 9] Visitation of the noncustodial parent is a critical factor in determining whether a custodial parent will be allowed to move the children out of state.SeeStout v. Stout,1997 ND 61, ¶ 34, 560 N.W.2d 903.A trial court's relocation decisions are based on a four-factor analysis when determining whether a custodial parent's proposed move is in the best interests of the children.Id.The fourth factor of the Stout analysis, specifically pertaining to visitation of the noncustodial parent after a relocation, was restated in Hawkinson v. Hawkinson,1999 ND 58, ¶ 9, 591 N.W.2d 144:

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.

[¶ 10]We have concluded that a noncustodial parent's right to maintain and develop a relationship with his or her children after removal from the state can be satisfied by modifying the visitation schedule to include less frequent but more extended periods of time.Stout,1997 ND 61, ¶ 31, 560 N.W.2d 903.When there is a long distance between the homes of the noncustodial and custodial parents, we have approved visitation schedules providing less frequent, but extended, visitation periods to preserve the noncustodial parent's ability to foster relationships with the children.Schiff,2000 ND 113, ¶ 27, 611 N.W.2d 191.In such circumstances, extended visitation during the summer months may be the only feasible method of facilitating visitation, from the standpoint of transportation and economics.Love v. DeWall,1999 ND 139, ¶ 13, 598 N.W.2d 106.

[¶ 11] Zich argues the trial court erred in granting Tibor a fixed seven weeks of summer visitation because such a schedule leaves insufficient time for (1) the children's extracurricular and church summer activities; (2) relationships with friends, extended family, and the custodial parent; and (3) preparations to return to school in the fall.Zich testified a flexible six weeks of uninterrupted summer visitation is more appropriate, citing our statement when we approved her relocation: "Zich offered a very generous alternative visitation schedule, including six weeks of uninterrupted visitation in the summer...."Tibor v. Tibor,1999 ND 150, ¶ 25, 598 N.W.2d 480.Zich testified the children participate in Brownies, Girl Scouts, church group, music lessons, and soccer, some of which have ongoing summer activities such as camping trips.Zich testified Tibor has not named any specific summer activities he had planned for the children in North Dakota.Zich testified the trial court's order allows the children only 12 days of free time at the...