Interest of A.L.E. , 2018 ND 257 ( 2018 )

Filed 12/6/18 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2018 ND 258Brittany Lynn Green, Plaintiff and Appellant
v.
Scott James Swiers, Defendant and Appellee
and
State of North Dakota, Statutory Real Party in Interest
No. 20180114
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Donald Hager, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Justice.
Pamela F. Coleman, Grand Forks, ND, for plaintiff and appellant.
Kelsey L. Hankey, Grand Forks, ND, for defendant and appellee.
Green v. Swiers
No. 20180114
Jensen, Justice.
[¶1] Brittany Green appeals from a district court’s order denying her motion to
relocate with the parties’ minor child and granting Scott Swiers’ motion to modify
parenting time. Green argues the district court erred in denying the motion to relocate
because it did not properly analyze and weigh the Stout-Hawkinson factors. Green
also argues the district court erred in finding a material change in circumstance
sufficient to justify modification of parenting time. We affirm.
I
[¶2] Green and Swiers are the parents of a minor child, ILS, born in June 2016.
Shortly after ILS’s birth, the parties terminated their relationship and a disagreement
arose regarding their parenting time with ILS. After participating in North Dakota’s
family law mediation program, the parties stipulated to the terms of their parenting
time. In October 2016, the district court adopted the parties’ stipulation and ordered
the entry of a judgment providing Green with primary residential responsibility of ILS
subject to a parenting schedule for Swiers.
[¶3] In May 2017, Swiers filed a motion to modify primary residential responsibility
or in the alternative, modify parenting time. Green opposed Swiers’ motion and
sought approval from the district court to relocate to Seattle, Washington, where she
planned to reside with her fiancé. The district court denied Swiers’ request to modify
primary residential responsibility, granted his motion to modify the parenting time
schedule, and denied Green’s motion to relocate with ILS.
II
[¶4] Green argues the district court erred by denying her motion to relocate with the
minor child. “A district court’s decision on a motion to relocate is a finding of fact,
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which will not be reversed on appeal unless it is clearly erroneous.” Larson v.
Larson, 2016 ND 76, ¶ 21, 878 N.W.2d 54. “A finding of fact is clearly erroneous
if it is induced by an erroneous view of the law, there is no evidence to support it, or,
if there is some evidence to support the finding, on the entire record we are left with
a definite and firm conviction a mistake has been made.” Graner v. Graner, 2007 ND
139, ¶ 12, 738 N.W.2d 9. “In applying the clearly erroneous standard, we will not
reweigh evidence, reassess witness credibility, retry a custody case, or substitute our
judgment for the trial court’s decision merely because this Court may have reached
a different result.” Hammeren v. Hammeren, 2012 ND 225, ¶ 8, 823 N.W.2d 482.
[¶5] Section 14-09-07(1), N.D.C.C., provides “[a] parent with primary residential
responsibility for a child may not change the primary residence of the child to another
state except upon order of the court or with the consent of the other parent, if the other
parent has been given parenting time by the decree.” “The parent moving for
permission to relocate has the burden of proving by a preponderance of the evidence
the move is in the child’s best interests.” Larson, 2016 ND 76, ¶ 21, 878 N.W.2d 54.
To determine whether relocation is in the child’s best interest, the district court must
apply the four factors outlined in Stout v. Stout, 1997 ND 61, ¶ 33, 560 N.W.2d 903,
and modified in Hawkinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144. Those
factors generally read as follows:
1. The prospective advantages of the move in improving the custodial
parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation,
considering whether it is to defeat or deter visitation by the
noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the
move,
4. 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
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child if relocation is allowed, and the likelihood that each parent will
comply with such alternate visitation.
Stout, at ¶¶ 33-34; Hawkinson, at ¶¶ 6, 9. “No single factor is dominant, and what
may be a minor factor in one case may have a greater impact in another.” Stai-
Johnson v. Johnson, 2015 ND 99, ¶ 6, 862 N.W.2d 823. Green asserts the district
court erred in its analysis of factors one, two, and four.
[¶6] Factor one requires the district court to determine the prospective advantages
of the move in improving the custodial parent’s and child’s quality of life. Stout,
1997 ND 61, ¶ 34, 560 N.W.2d 903. When determining the prospective advantages
of the move in improving the custodial parent’s and child’s quality of life, a district
court may consider:
[T]he custodial parent’s proposed employment at the relocation site,
whether the custodial parent’s and child’s health and well-being are
benefitted, whether the custodial parent has remarried and requests to
move to live with the new spouse, whether the custodial parent will
have more time to spend with the child, whether there are family
members who will provide a support network, the child’s reasonable
preference, and educational opportunities.
Graner, 2007 ND 139, ¶ 15, 738 N.W.2d 9.
[¶7] Green testified she did not plan to seek employment if allowed to move with
ILS to Seattle. Instead, she would be a stay-at-home mother and her fiancé would
provide support for her and ILS. The district court questioned whether the move
would provide any economic benefit because Green would be terminating her current
employment. The district court also rejected Green’s suggestion that Seattle will be
a better social and educational environment for ILS. Additionally, the district court
noted that Green, Green’s fiancé, and Swiers all had a significant number of family
members in the Red River Valley area and leaving the area would negate the existing
support network.
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[¶8] Green analogizes her situation to Booen v. Appel, where this Court affirmed
a district court ruling which granted a mother’s motion to relocate a minor child in
order to follow her fiancé. 2017 ND 189, ¶¶ 4-5, 899 N.W.2d 648. However, the
matters are distinguishable. In Booen, the district court placed great weight on the
fiancé and mother having a child together and the benefit of keeping that family unit
united. Green and her fiancé have no children together. The district court in Booen
also believed the fiancé’s business opportunities associated with the move were likely
to benefit the minor child, whereas here, the district court was skeptical of the fiancé’s
ability to make ends meet for the entire household. There is sufficient evidence in the
record to support the district court’s findings under the first Stout-Hawkinson factor
regarding the prospective advantages of the move in improving the custodial parent’s
and child’s quality of life. The district court did not misapply the law, this Court does
not reweigh the evidence, and we are not left with a definite and firm conviction the
district court made a mistake.
[¶9] In analyzing the integrity of Green’s motive for relocation, the district court
found the potential relocation was motivated, at least in part, by Green’s desire to
distance ILS from Swiers and his family. Generally, a custodial parent’s relocation
cannot be motivated by a desire to put distance between the minor child and the other
parent. See Porter v. Porter, 2006 ND 123, ¶ 13, 714 N.W.2d 865. The district court
heard testimony and received evidence of Green’s animosity towards Swiers, as well
as her desire to replace Swiers with her fiancé. Green responded by challenging the
credibility of the evidence and the weight that should be given to that evidence. There
is sufficient evidence to support the district court’s findings under the second Stout-
Hawkinson factor. This Court does not reweigh that evidence, the district court did
not misapply the law, and we are not left with a definite and firm conviction the
district court made a mistake.
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[¶10] When considering the potential negative impact on the relationship between
the noncustodial parent and the child, the ability to restructure parenting time to
preserve the relationship is relevant. See Larson, 2016 ND 76, ¶ 27, 878 N.W.2d 54.
“A relocation should be denied based on the fourth factor only in exceptional
circumstances, including when the court finds a custodial parent would not foster the
child’s relationship with the noncustodial parent and would not comply with any
visitation schedule the court could order.” Hruby v. Hruby, 2009 ND 203, ¶ 23, 776
N.W.2d 530.
[¶11] The district court found that Green would not foster ILS’s relationship with
Swiers and she was unlikely to comply with a parenting time schedule. The district
court heard testimony and received evidence indicating Green believes Swiers is a bad
father and would like her fiancé to replace him as ILS’s father figure. The district
court also heard much testimony regarding whether Green unilaterally limited Swiers’
parenting time, and the district court found Swiers’ version of events more credible.
The district court did not base its decision solely on the fourth factor, but did find that
Green was unlikely to comply with a parenting time schedule if she moved with ILS
to Seattle. There is sufficient evidence to support the district court’s findings under
the fourth Stout-Hawkinson factor. This Court does not reweigh that evidence, the
district court did not misapply the law, and we are not left with a definite and firm
conviction the district court made a mistake.
III
[¶12] Green argues the district court erred in finding a material change in
circumstance sufficient to justify modification of parenting time. Under N.D.C.C. §
14-05-22(2), the district court has continuing jurisdiction to modify parenting time.
Capes v. Capes, 2015 ND 254, ¶ 6, 870 N.W.2d 448. The standard for modifying
parenting time has been established through our caselaw. Bredeson v. Mackey, 2014
ND 25, ¶ 6, 842 N.W.2d 860. To modify parenting time, the movant must establish
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a material change of circumstances has occurred since the prior parenting time order
and that it is in the best interests of the child to modify the order. Id.[¶13] A material change in circumstances sufficient to amend a parenting time order
is similar to, but distinct from, a material change in circumstances sufficient to change
primary residential responsibility. Wolt v. Wolt, 2011 ND 170, ¶ 19, 803 N.W.2d 534(citing Young v. Young, 2008 ND 55, ¶ 13, 746 N.W.2d 153). A material change of
circumstances may be sufficient to modify parenting time, but insufficient to modify
primary residential responsibility. See Dufner v. Trottier, 2010 ND 31, ¶ 12, 778
N.W.2d 586. For the purpose of modifying parenting time, a material change in
circumstances is defined as “important new facts that were unknown at the time of the
initial custody decree or initial parenting time order.” Wolt, at ¶ 19.
[¶14] “A district court’s decision to modify [parenting time] is a finding of fact,
which will not be reversed unless clearly erroneous.” Hanson v. Hanson, 2005 ND
82, ¶ 20, 695 N.W.2d 205. “A finding of fact is clearly erroneous if it is induced by
an erroneous view of the law, there is no evidence to support it, or if . . . on the entire
evidence, we are left with a definite and firm conviction a mistake has been made.”
Kienzle v. Selensky, 2007 ND 167, ¶ 14, 740 N.W.2d 393. In applying the clearly
erroneous standard, we do “not reweigh evidence or reassess witness credibility when
the evidence supports the [district] court’s findings.” Id.[¶15] The district court found both parties to lack maturity and neither were fully
credible, but ultimately concluded Green had frustrated Swiers’ visitation and
attempted to hinder his relationship with ILS. “[A] material change of circumstances
can exist . . . when there has been an attempt to alienate a child’s affection for a
parent[.]” Dufner, 2010 ND 31, ¶ 16, 778 N.W.2d 586. The record before the district
court included evidence suggesting Green attempted to impair the relationship
between Swiers and ILS by replacing him with her fiancé and by limiting his
parenting time. Green disputed this evidence during the hearing, but this Court does
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not retry a custody case or substitute our judgment for that of the district court. The
district court’s finding of a material change sufficient to support modification of
parenting time is supported by the record and not clearly erroneous.
IV
[¶16] We affirm the district court’s order denying Green’s motion to relocate with
the minor child and modification of the parties’ parenting time schedule.
[¶17] Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Gerald W. VandeWalle, C.J.
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