Trent v. Trent

• Decision Date: 02 March 1995
• Docket Number: No. 24741,24741
• Citation: 890 P.2d 1309,111 Nev. 309
• Parties: Christi Marie TRENT, Appellant, v. Kenneth Robert TRENT, Respondent.
• Court: Nevada Supreme Court

Page 1309

890 P.2d 1309

111 Nev. 309

Christi Marie TRENT, Appellant, v. Kenneth Robert TRENT, Respondent.

No. 24741.

Supreme Court of Nevada.

March 2, 1995.

Stephen R. Minagil, Las Vegas, for appellant.

Jolley, Urga, Wirth & Woodbury and Kathryn E. Stryker, Las Vegas, for respondent.

OPINION

PER CURIAM:

Appellant Christi Trent (Christi) and respondent Kenneth Trent (Kenneth) are divorced. They have joint legal custody of their son Corey, with Christi having primary physical custody. Christi wishes to marry a man from Dover, Ohio, and move to Dover with Corey. Pursuant to NRS 125A.350, Christi sought permission from Kenneth to move with Corey. When Kenneth denied her request, Christi petitioned the district court for removal. The district court denied her petition, finding that Corey would lose a great deal if he moved to Dover. For the following reasons, we reverse the order of the district court and remand with instructions to grant Christi's petition.

FACTS

Christi and Kenneth separated in March, 1991, and divorced on August 5, 1992. Pursuant to the parties' settlement agreement, Christi and Kenneth share joint legal custody of their minor son, Corey; Christi has primary physical custody. ¹ Kenneth, in turn, pays $400 per month in child support and maintains health insurance for Corey. The settlement agreement grants Kenneth reasonable visitation rights, including every other weekend, two days during the week, four weeks during the summer, and certain holidays.

At the time the district court considered this matter, Christi was taking care of Corey on Monday, Tuesday, and Wednesday and was working on Thursday, Friday, and Saturday. On Thursday and Friday, Kenneth's sister was caring for Corey from 8:00 a.m. until approximately 3:00 p.m., when Kenneth finished work for the day. Kenneth was taking care of Corey on alternating weekends (including Friday nights) and some additional Saturdays and Saturday nights, in light of Christi's work schedule.

Kenneth was born and raised in Las Vegas, and his mother, father, sister, brother, four uncles, three aunts, and numerous cousins live in Las Vegas. Kenneth works as a construction electrician and has been employed by the same company for approximately seven years. His gross monthly income is approximately $4,167. Kenneth presently lives in a condominium, but he owns a lot that is adjacent to his sister's house and plans to construct a house on this lot.

Christi was raised in Las Vegas, and her mother, father, sister, brother-in-law, nieces, and nephews reside in the Las Vegas area. When the district court considered this matter, Christi lived in an apartment without security and had fears about her safety. ² Christi works as a manicurist three days per week and makes $1,000 per month from this In May of 1992, Christi met Douglas Albert (Douglas), who is from Dover, Ohio, while he was visiting Las Vegas. She has visited Douglas in Dover on numerous occasions (on four of these visits, Corey accompanied her). Douglas, in turn, has visited Christi and Corey in Las Vegas. Since they first met, Christi and Douglas have visited each other nine times, each time for approximately one week. In addition, Christi and Douglas speak to each other over the telephone two or three times per day.

employment. At the time this matter was heard, Christi's rent was $550 per month, and she was unable to save money. She was forced to borrow money from her parents on occasion.

Douglas is a homeowner and is vice-president of his family's construction company. In addition, most of Douglas's family members reside in or near Dover. Christi and Douglas want to be married, and Christi desires to move, with Corey, to Dover. Douglas's income is more than sufficient to support Christi and Corey, and Christi will stay home with Corey if she marries Douglas and moves to Dover. ³ If Christi is not permitted to take Corey to Dover, she will then remain with Corey in Las Vegas.

Travel time from Las Vegas to Dover by aircraft and automobile is approximately six and one-half hours: a direct flight from Las Vegas to Columbus, Ohio, takes approximately four and one-half hours, ⁴ and the Columbus airport is one and one-half to two hours from Dover by automobile. In light of the distance, Christi has proposed that Kenneth's visitation time with Corey be modified so that Corey visits Kenneth for three one-week periods during the year and four weeks in the summer, with Corey's visits to increase by one week each year. Christi has also offered to split the cost of plane tickets with Kenneth and to serve as Corey's travel companion.

At the hearing, Kenneth introduced the testimony of Dr. Elizabeth Richett, a licensed clinical psychologist, who had examined Kenneth and Corey on January 19, 1993. Dr. Richett reported that Corey and Kenneth appear to have "a warm and close bond" and that Corey exhibited appropriate behavior for a two year old. Dr. Richett also testified that boys less than five years old who are separated from their fathers often experience increased aggression and "non-compliant acting out behavior at home," possibly because they are confused about the loss and feel somehow responsible. She added that if Corey were able to bond with Douglas, any such negative effect of his separation from Kenneth might be mitigated. In addition, Dr. Richett opined that some children are unable to bond with a stepparent if they feel guilty about "abandoning" the natural parent.

At the conclusion of the hearing, Judge Marren ruled that both parties had acted in good faith. He also determined that the move would undoubtedly improve Christi's financial situation and that Corey's housing and environmental living conditions would probably improve. However, he found that Corey's positive family care and support, including that of the extended family, would not be enhanced.

Judge Marren also explained that early in his career, he had been separated from his two-year-old son for approximately four months and that this separation greatly strained their relationship. He opined that because of Corey's young age, Corey would either feel that Kenneth had betrayed him or would replace Kenneth with Douglas. ⁵

On March 10, 1993, the court entered its findings of fact and conclusions of law, in which it denied Christi's motion. In its findings Additionally, the court found:

and conclusions, the court determined that "[f]ollowing [the parties'] separation, Kenneth Trent maintained frequent and substantial contact with Corey, and had visitation every weekend, at a minimum. This schedule of substantial contact continued after the parties' divorce was finalized...."

Although Christie Trent has demonstrated that an actual advantage will be realized by Christie Trent should she relocate to Dover, Ohio, she has not clearly demonstrated that the parties' minor child will also realize such an advantage. It is clear ... that Christie Trent would comply with substitute visitation orders issued by the court, and that Christie Trent's financial outlook will improve. On the other hand, it is also clear ... that the positive family care and support, including that of the extended family, will not be enhanced by the move, and that there will not be a realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the non-custodial parent should the move be allowed. No educational advantage has been demonstrated, and the child has no special needs which could be addressed.

The court also based its decision on the substantial, regular contact between Kenneth and Corey, Corey's gender and young age, Corey's close relationship with Kenneth's sister, Corey's relationship with other extended family members, and the "short length of time that Christie Trent has known Douglas Albert, and the small amount of time they have spent together since meeting."

In weighing these factors, the court concluded that Corey stood to lose a great deal if the relocation to Ohio were allowed and that relocation was not in Corey's best interest. This timely appeal followed.

DISCUSSION

Christi contends that the district court abused its discretion in denying her motion. Specifically, Christi asserts that under the court's reasoning, a custodial parent will be prevented from leaving Nevada unless the noncustodial parent has little or no relationship with the child.

Under NRS 125A.350, a custodial parent who intends to move with the child to a location outside of Nevada must attempt to obtain the other parent's written consent. If the other parent refuses permission, then the parent planning to move must petition the court for permission to move the child.

This court first interpreted NRS 125A.350 in Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). In Schwartz, we explained that the statute's "overall purpose ... is to preserve the rights and familial relationship of the noncustodial parent." Id. at 382, 812 P.2d at 1270. In summarizing the district court's role in evaluating a move, we explained that "[t]he proper calculus involves a balancing between 'the custodial parent's interest in freedom of movement as qualified by his or her custodial obligation, the State's interest in protecting the best interests of the child, and the competing interests of the noncustodial parent.' " Id. at 382, 812 P.2d at 1270 (quoting Holder v. Polanski, 111 N.J. 344, 544 A.2d 852, 855 (1988)).

In addition, Schwartz provides guidelines for the district court to follow. Schwartz, 107 Nev. at 382-83, 812 P.2d at 1271-72. In considering a motion for permission to move a minor child from Nevada, the district court must first determine "whether the custodial parent has demonstrated that an actual advantage will be realized by both the children and the custodial parent in moving to a location so far removed from the current residence that weekly visitation by the...