Kristina Hacker Tompach v. Paul Christopher Tompach ( 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This opinion will be unpublished and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
A14-0060
Kristina Hacker Tompach, petitioner,
Appellant,
vs.
Paul Christopher Tompach,
Respondent.
Filed August 18, 2014
Affirmed
Rodenberg, Judge
Hennepin County District Court
File No. 27-FA-09-6820
Kay Nord Hunt, Lommen, Abdo, Cole, King & Stageberg, P.A., Minneapolis, Minnesota;
and
Eric J. Braaten, Gena A. Braaten, Braaten & Braaten, P.A., Chaska, Minnesota (for
appellant)
Joani C. Moberg, Henschel Moberg, P.A., Minneapolis, Minnesota (for respondent)
Considered and decided by Chutich, Presiding Judge; Johnson, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant-mother Kristina Hacker Tompach challenges the district court’s denial
of her motion to relocate. Because the district court did not abuse its discretion in
weighing the best-interests factors, we affirm.
FACTS
Appellant and respondent-father Paul Christopher Tompach were married in
September 2000. Two children were born to the marriage, a daughter born June 23,
2003, and a son born February 1, 2007. Father is a self-employed oral surgeon. Mother
is trained as a nurse practitioner with both a bachelor and master’s degree in nursing, but
has been out of the workforce since March 2005, working as a stay-at-home mother.
The parties’ marriage was dissolved in February 2011. Mother was awarded the
homestead in Eden Prairie, and rehabilitative spousal maintenance in the amount of
$8,500 per month until August 31, 2014. The district court incorporated the parties’
stipulated parenting plan into the judgment and decree, providing that the parties share
joint legal custody, with mother having primary physical custody of the children. The
parenting plan provides father with parenting time every other weekend from Thursday at
4:00 p.m. until Sunday at 6:00 p.m., every Tuesday from 4:00 p.m. to 7:30 p.m., and an
additional non-overnight visit with the children on the Thursdays before mother’s
weekend parenting time. The parenting plan further provides that “[n]either party shall
move the residence of the minor children of the parties from Minnesota except upon
order of the court or with the consent of the other party.”
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Although the parties agreed to the terms of the parenting plan, they were unable to
settle a number of financial issues, which were tried to the district court in November
2010. During the trial, mother requested permission to relocate the children’s residence
to Madison, Wisconsin, contending that the primary reason for the proposed relocation
was to be near her extended family and to “seek a better life financially.” Mother
testified about a possible romantic interest in Madison.
The district court found1 that “it is not in the children’s best interests to grant
[mother’s] request to relocate the children’s residence to Wisconsin.” In analyzing the
children’s best interests, the district court found that (1) a move to Wisconsin will hinder
the children’s relationship with father; (2) moving the children farther away from father
would have an adverse emotional and developmental impact on them; and (3) mother was
unable to demonstrate that her financial circumstances would be better in Wisconsin or
that she would be able to find employment that would benefit the family. The district
court found that, although mother has familial support in Wisconsin, “[i]t is more
important for the children to remain in Minnesota and maintain a greater relationship
with [father].” It also found that, although father had been verbally abusive to her,
mother did not prove domestic abuse under Minn. Stat. § 518B.01, nor did she allege that
father was ever abusive to the children. The district court denied mother’s motion to
relocate the children to Wisconsin. Mother did not appeal from the denial.
1
We confine our recitation of the facts to those pertinent to this appeal. The district court
made extensive and detailed findings in its 27-page findings of fact, conclusions of law,
order for judgment, and judgment and decree, many of which pertain solely to the then-
disputed financial issues.
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Mother then became engaged to marry a man who resides in Madison. Mother
submitted a request to the parties’ parenting consultant that the parties move to an every-
other-week parenting time schedule to accommodate her intended move to Madison.
Mother claimed that she intended to keep a Minnesota residence where she would spend
her parenting time with the parties’ children.
The parenting consultant denied mother’s request to change the parenting-time
schedule. Mother moved the district court for an order reversing or modifying the
parenting consultant’s decision. Mother also moved for a modification of the parenting-
time schedule to one where father would have the children every other weekend without
mid-week parenting time but would have longer periods of parenting time in the
summers. The district court construed mother’s motion as one to “move the children’s
primary residence to Madison.” It found that the “only thing that has changed since
[mother] lost this request following trial is that she has become engaged to a man who
lives in Madison. This is not enough.” And it denied mother’s motion without an
evidentiary hearing because “[t]here is no substantial change in circumstances from those
present at the time of the February 2011 decree to support an alternate outcome to a
request to move the children’s residence out of state.”
Mother appealed. We reversed and remanded for the district court to make the
required findings under section 518.175, subdivision 3 of the Minnesota Statutes. On
remand, the parties submitted the factual issues to the district court for resolution on
written affidavits and without live testimony. The district court denied mother’s motion
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to relocate the residence of the children in a detailed order addressing the statutory
criteria. This appeal followed.
DECISION
Our 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). We will set aside a district court’s findings of fact only when
they are clearly erroneous. Id. But the interpretation of a statute is a question of law,
which we review de novo. Id. at 282.
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 of the
noncustodial parent. Minn. Stat. § 518.175, subd. 3(a) (2012). In determining whether to
permit a parent to move a child’s residence to another state when the other parent
opposes the move, the district court must base that decision on the best interests of the
child by assessing eight statutory factors. Id., subd. 3(b) (2012). These factors are: (1)
the child’s relationship with the parents and others; (2) the child’s development and
needs; (3) the feasibility of preserving the child’s relationship with the nonrelocating
parent; (4) the child’s preference; (5) whether there is a pattern by the relocating parent to
promote or thwart the child’s relationship with the other parent; (6) whether relocation
will enhance the child and the relocating parent’s quality of life; (7) each parent’s reasons
for opposing or supporting relocation; and (8) the safety and welfare of the child or
relocating parent relating to domestic abuse. Id. The parent seeking to remove a child
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from Minnesota bears the burden of proof unless that party has been a victim of domestic
abuse by the other parent. Id., subd. 3(c) (2012).
Here, the district court analyzed each of the statutory factors and recited
evidentiary support for its findings. It considered that the proposed relocation would
have a negative impact on the children’s development because there would be long
periods of time between visits with each parent. The district court concluded that, if it
granted the request for relocation, the children would not see their father for periods of 12
days at a time. It found that this irregular schedule “would not be developmentally
appropriate” and “would likely negatively impact [the children’s] emotional
development, particularly though not solely because they have already experienced their
parents’ divorce and at least two moves and at least one (brief) school change since 2009
and the significant hostility of the parents’ conflict.”
The district court also considered the impact of the effectiveness of the parties’
ability to co-parent if mother relocated. It determined that, “in light of the parties’ poor
ability to cooperate as co-parents, it is very likely that [father’s] ability to be
meaningfully involved in legal custody decisions,” such as educational options and
medical decisions, would be diminished by relocation.
Mother argues that the record does not support the district court’s conclusion that
mother’s proposed schedule “would negatively impact [the children’s] emotional
development.” There was no expert testimony about the impact of relocation and
particularly the reduction of frequency in father’s parenting time. But the district court
credited father’s affidavit, stating that the children have emotional difficulty when away
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from either parent for an extended amount of time. In his affidavit, father stated that,
because of their age, the children struggle emotionally when they are away from each
parent for extended periods. He stated that he has “received sad voicemails and text
messages from [daughter] because she missed [him,] and [son] had been teary when [he
talks] with him on the telephone.”
In Anh Phuong Le v. Holter, we affirmed the district court’s denial of a mother’s
motion to relocate the children out of state. 838 N.W.2d 797, 804-05 (Minn. App. 2013),
review denied (Minn. Dec. 31, 2013). The district court credited the father’s argument
that the children would be negatively affected if he had less frequent contact with his
children, even if the total number of parenting days decreased only slightly. Id. at 803.
We held that “[t]he district court did not abuse its discretion in giving greater weight to
[the father’s] prediction as to the impact the move would have on the children’s
relationship with [the father].” Id. Here, as in Anh Phuong Le, the record supports the
district court’s findings and conclusions concerning the impact a move to Wisconsin
would have on the children.
Mother argues that the district court erred in insufficiently considering father’s
parenting deficiencies. She contends that these claimed deficiencies dictate a different
result concerning her request to relocate the residence of the children. It is true that
father declined even the statutorily presumed 25% parenting time in the parties’ original
agreement. He also left a practice group of which he was formerly a part to work in a
solo surgical practice that requires a rigid schedule, which schedule is often inconsistent
with father interacting with the children as their needs would indicate. Many of mother’s
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arguments are not only supported by the record, they also have considerable persuasive
value. But our task is not to reweigh the evidence. See Goldman, 748 N.W.2d at 284.
That the record would support a conclusion other than those of the district court is not a
basis for reversal. Zander v. Zander, 720 N.W.2d 360, 368 (Minn. App. 2006)
(upholding custody determination and observing that, while record could support
different custody decision, we may not substitute our judgment for that of district court),
review denied (Minn. Nov. 14, 2006).
The district court is best situated to make findings of the sort involved here. The
same judicial officer has decided several litigated questions in this case and (despite this
particular issue having been submitted for decision on affidavits) has had the opportunity
to observe the parties and their interaction in this protracted and acrimonious litigation. It
specifically considered father’s disdain for mother, which has motivated some of father’s
actions. It also considered that, although mother’s actions have not been motivated by a
desire to thwart the children’s relationship with father, her “desire to be with her fiancé”
has led her to make decisions that have negative consequences for the children. Because
there is evidentiary support for the district court’s decision, it is not for us to substitute
our judgment for that of the district court concerning the children’s best interests. The
law “leaves scant if any room for an appellate court to question the [district] court’s
balancing of best-interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468,
477 (Minn. App. 2000).
Mother also vigorously argues that the district court abused its discretion in
declining to consider an additional factor concerning the proposed relocation of the
8
children: the impact of its order if it denied mother’s motion for relocation and she
moved to Wisconsin anyway. But the district court did consider this argument and
rejected the proposed factor as favoring a grant of her motion, stating:
[Mother] argues that, if relocation is denied and she moves
away anyway, the detriment to the children from being
separated from her would be worse than the separation from
[father]. . . . This argument is flawed because [mother] does
not have to move to Madison. If she moves to Madison after
this court order and leaves the children behind, such would be
her choice and not by court order; the negative impact of her
voluntarily and unnecessarily choosing to move away from
her children is not a factor to be considered in deciding a
relocation motion.
The statute requires the district court to consider the eight factors identified above.
Minn. Stat. § 518.175, subd. 3(b). The district court may, in its discretion, consider other
factors. Id.; Anh Phuong Le, 838 N.W.2d at 802. The district court here acted within its
discretion in analyzing each of the eight statutorily prescribed factors and in not weighing
mother’s proposed additional factor as favoring relocation.2
The district court’s discretion in a motion to relocate the residence of a child is
broad. See Goldman, 748 N.W.2d at 284. Mother’s motion to relocate the children, and
her announced decision to relocate herself regardless of the outcome of her motion,
coupled with father’s disdain for mother, presented the district court with a question to
2
We do not hold, and our opinion should not be read as suggesting, that this proposed
factor could never be considered by a district court. Here, after considering the proposed
additional factor, the district court determined that it did not weigh in favor of granting
the motion to relocate the residence of the children. Section 518.175, subdivision 3(b)
authorizes the district court to make the best-interests determination by identifying a
nonexclusive list of factors, and it is easy to imagine another case, where a parent has no
choice at all but to relocate, where the additional factor of the inevitability of the move
might be weighed differently by a district court.
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which there is no universally or provably correct answer (despite each parent maintaining
that his or her own position is the only acceptable answer for the children). 3 Any judge
who might consider these facts would likely weigh the evidence differently. But it is not
our proper role on appeal to weigh the evidence. Rather, it is for us to review whether
mother has shown that, in weighing that evidence, the district court abused its discretion.
Id. We discern no abuse of the district court’s discretion.
Affirmed.
3
Except for their intransigence with one another, the parties appear to be good parents.
They are educated and capable people who love their children. And their children love
each of them. It would be far better that the parents cooperate to find agreement on what
is in the best interests of the children, or at least that they cooperatively find the “least
detrimental alternative.” See The Hon. W. Dennis Duggan, Rock-Paper-Scissors:
Playing the Odds with the Law of Child Relocation in America, 45 FAM. CT. REV. 193,
193 (2007).
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