In re the Marriage of: Rory Lane Smoot v. Jacqueline Ann Smoot ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2214
In re the Marriage of:
Rory Lane Smoot, petitioner,
Appellant,
vs.
Jacqueline Ann Smoot,
Respondent.
Filed July 7, 2014
Affirmed
Peterson, Judge
Olmsted County District Court
File No. 55-FA-08-2850
Steven C. Youngquist, Youngquist Law Office, Rochester, Minnesota (for appellant)
David L. Liebow, Restovich Braun & Associates, Rochester, Minnesota (for respondent)
Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and
Connolly, Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from an order granting respondent-mother’s motion to relocate to
another state with the parties’ children and a judgment for attorney fees for mother,
appellant-father argues that (1) the evidence does not support the district court’s findings
on the children’s best interests, and (2) the district court abused its discretion in awarding
mother need-based attorney fees. We affirm.
FACTS
Appellant-father Rory Lane Smoot and respondent-mother Jacqueline Ann Smoot
were married in 2000 and divorced in 2008 by stipulated judgment and decree. They are
the parents of five minor children. The dissolution judgment awarded the parties joint
legal custody and awarded mother sole physical custody. Father was granted parenting
time of a minimum of one non-overnight visit per week for all children, alternate
weekends for children over age four from Friday evening until Sunday evening, a
minimum of two weeks each summer for children age two and older, and alternating
holidays. The dissolution judgment states, “It is intended that as the children get older
[father] will spend more time with them consistent with their best interests and needs.”
At the time of the divorce, the parties lived in Rochester, Minnesota, and father
was employed by the Mayo Clinic. In 2012, father moved to Toronto, Canada, for two
years of specialized medical training. In November 2012, mother filed a motion to
relocate with the children to Chanute, Kansas.
At the evidentiary hearing on mother’s motion, father testified that the medical
training was required for him to obtain a permanent position with Mayo. Father testified
that, before moving to Toronto, he explained to mother that the move was part of a plan
to have a long-term, close relationship with the children. Father testified that, when he
moved, he requested parenting time for the entire summer but was granted three and one-
half weeks during the summer of 2012 and seven weeks during the summer of 2013.
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Father was also granted one weekend of parenting time every other month but testified
that, except for May and October 2013, he went to Rochester to see the children every
month.
Mother testified that she planned to enroll at Pittsburg State University, which is
near Chanute, to finish her education. Mother testified that her mother and other relatives
live near Chanute and will be able to help her with the children. Mother testified that she
could finish her education one or two semesters earlier in Kansas.
The district court granted mother’s motion to relocate with the children to Chanute
and awarded mother $10,000 in need-based attorney fees. The district court denied
father’s motion for amended findings and awarded mother an additional $1,120 in need-
based attorney fees. Father appeals. Although the judgment for attorney fees was not
entered until after this appeal was filed, this court extended review to the attorney-fee
awards.
DECISION
I.
This court’s review of a removal decision “is limited to considering whether the
[district] court abused its discretion by making findings unsupported by the evidence or
by improperly applying the law.” Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn.
2008) (quotation omitted). This court will set aside a district court’s findings of fact only
if clearly erroneous. Id.A parent who has physical custody of a child subject to a parenting-time order
may not remove the child to another state except upon a court order or with the consent
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of the noncustodial parent. Minn. Stat. § 518.175, subd. 3(a) (2012). If the move is an
attempt to defeat parenting time, the district court shall not permit the move. Id. In
determining whether to permit a parent to change the children’s residence to another state
when the other parent opposes the move, the district court must base its decision on the
best interests of the children by assessing eight statutory factors. Minn. Stat. § 518.175,
subd. 3(b) (2012). The burden of proof is on the parent seeking to remove the children.
Id., subd. 3(c) (2012).
Father argues that, in assessing the first statutory factor, the children’s relationship
with both parents, siblings, and other significant persons, the district court’s finding that
father’s role as a parent has been limited to the traditional father’s role as breadwinner
and authority figure is not supported by the parties’ testimony. The district court found:
By all accounts the children have a good relationship
with their father, although perhaps the parent-child
relationship is somewhat strained due to each child’s
understanding of Father’s decisions regarding the family.
There is no reason to believe the children cannot benefit from
the love and support of both parents working together for
their best interests.
Father has played an important role in his children’s
lives. He has attended the children’s school conferences and
activities when his work schedule permits. But because of
Father’s demanding school and work schedules, his role as a
parent has been limited to the traditional Father’s role as
bread-winner and authority figure.
The finding that father has attended the children’s school conferences and
activities when his work schedule permits indicates that father’s role as a parent has been
greater than the role of breadwinner and authority figure. But, when read in their
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entirety, the findings indicate that although father has played an important role in the
children’s lives, father’s demanding schedule has limited his role as a parent, which is
supported by the parties’ testimony. Also, father’s expert, Judy Dawley, testified that the
children felt “some anger” about father’s “long, long work hours” and that “their dad left
them” and recommended counseling to repair the relationship. Father objects to the
district court’s failure to consider the effect of relocation on the children’s relationship
with father’s son with his fiancée. Dawley testified that, if the children relocate, “[t]hey
won’t get to develop much of a sibling relationship with him.” The evidence supports the
district court’s findings that mother is the children’s primary caretaker and that the
children have close relationships with members of mother’s family who live in the
Chanute area, and, in addressing another statutory factor, the district court found that
mother has supported the relationship between the children and their youngest brother.
The district court did not clearly err in finding that the family-relationship factor favors
mother.
Father argues that the district court erred in assessing the second statutory factor,
the age, developmental stage, needs of the child, and the likely impact of relocation on
those needs. One of the children suffers from a medical condition that requires yearly
monitoring, and the Mayo Clinic is one of only 12 or 13 recognized centers in the country
that specialize in treatment of the condition. Father argues that the district court’s finding
that “[t]his judge is not persuaded and does not find that a move to Chanute, Kansas,
would jeopardize the health or safety of any of the children” improperly placed the
burden of proof on father to establish that relocation would harm the child. The finding
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does not suggest a shifting of the burden of proof but rather indicates that the court
accepted mother’s testimony that she would continue to bring the child to Rochester for
monitoring after moving to Chanute.
Father argues that the district court erred in assessing the third statutory factor, the
feasibility of preserving the relationship between father and the children through suitable
parenting-time arrangements. Father argues that it is unrealistic for him to have one
weekend of parenting time each month when the distance between Rochester and
Chanute is 530 miles. But father’s own testimony shows that options are available to
make the schedule workable, including him traveling by plane to Chanute to exercise
parenting time or the parties meeting in Des Moines, where father’s brother resides.
Father argues that the district court erred in assessing the fifth statutory factor,
whether there is an established pattern of conduct of the person seeking relocation to
promote or thwart the relationship between the children and the nonrelocating parent.
Father argues that the district court erred in finding that “Mother has done her best to
promote each child’s relationship with Father.” This finding is supported by mother’s
testimony that she has always encouraged a healthy relationship between the children and
father, believes that relationship is very important to the children, and will continue to
work hard to support it.
Father argues that the district court erred in considering mother’s happiness as a
factor favoring relocation. In assessing the sixth statutory factor, whether relocation will
enhance the general quality of life for both the custodial parent and children, the district
court found:
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Mother also testified that she would be substantially
happier back in her hometown with her family. The court
finds Mother’s testimony credible, and further finds that the
children will reap the benefit of Mother being less stressed
and having a happier disposition. Father claims that Mother’s
happiness is not relevant. But this Judge finds that happiness
includes such characteristics as a sense of well-being, self-
fulfillment and peace of mind. Mother should be entitled to
pursue her happiness, not to the exclusion of her obligation to
the children, but to strengthen her for the hard work of raising
teenagers that lies ahead. Father has chosen to pursue his
career by moving to Toronto, Canada. This factor favors
Mother.
Father argues that the evidence does not support the district court’s finding that the
children are affected by mother’s stress, but mother testified that her stress does affect the
children. Father also argues that the children are well-adjusted in Rochester. But
mother’s testimony supports the district court finding that mother could not attain her
education in Rochester without compromising her parenting style.
Father argues that the evidence does not support the district court’s finding that
father has been financially controlling or otherwise manipulative. Mother’s testimony
about father manipulating her during and after the divorce and her need to complete her
education to become financially stable supports this finding.
Father argues that comments by the district court during the hearing and its
findings on father’s plan to return to Rochester in 2014 show a bias against father.
During the hearing, the district court commented on father’s decision to move to Toronto
for two years during the children’s formative years. The district court’s comments do not
show bias. Just as father needed to leave Rochester to complete his education, mother
presented valid reasons for moving to Chanute to complete her education, including that
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having her family nearby to help with the children will enable her to complete her
education sooner. Regarding father’s plan to return to Rochester, although the district
court noted that the future is always uncertain, it found that father’s return to Rochester
was likely and that the seventh statutory factor, the reasons of each parent for seeking or
opposing relocation, was neutral.
The district court made detailed findings on the children’s best interests, and those
findings support the decision to permit mother to relocate to Chanute with the children.
II.
The court “shall” award attorney fees if it finds that (1) the fees are necessary for a
good-faith assertion of rights; (2) the payor has the ability to pay the award; and (3) the
recipient does not have the means to pay his or her own fees. Minn. Stat. § 518.14 subd.
1 (2012). In a dissolution case, the issue of attorney fees “rests almost entirely within the
discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”
Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review
denied (Minn. Feb. 18, 1999).
Father argues that mother did not file a motion for attorney fees as provided for in
Minn. R. Gen. Pract. 119.01. But in its January 13, 2013 order, the district court stated
that it might consider an award of attorney fees, and mother requested attorney fees at the
evidentiary hearing. The evidence supports the district court’s finding that father was not
prejudiced by the lack of a formal motion.
Father’s income is $244,000 per year. Mother receives $1,200 per month in
maintenance and $3,256 in child support. The district court awarded $10,000 in attorney
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fees, one-half of the amount incurred in pursuing the relocation motion, and an additional
$1,120 incurred in responding to father’s motion for amended findings. The evidence
supports the district court’s findings that father has the ability to contribute to mother’s
attorney fees and that mother did not have sufficient resources or income to pay all of the
fees. The district court did not abuse its discretion in awarding mother $11,120 in
attorney fees.
Affirmed.
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