Norby v. Hinesley , 2020 ND 153 ( 2020 )

Filed 7/22/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 153Aimee Norby, Plaintiff and Appellant
v.
Robert Hinesley, Defendant and Appellee
and
State of North Dakota, Statutory Real Party in Interest
No. 20190337
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Paul W. Jacobson, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice, in which Chief Justice Jensen and
Justices McEvers and Tufte joined, and Justice VandeWalle concurred in the
result.
Elizabeth L. Pendlay, Crosby, ND, for plaintiff and appellant; submitted on
brief.
Deanna F. Longtin, Williston, ND, for defendant and appellee; submitted on
brief.
Norby v. Hinesley
No. 20190337
Crothers, Justice.
Aimee Norby appeals from a district court order denying her motion to
relocate out of state with the parties’ minor child. We affirm.
I
Norby and Robert Hinesley are the parents of a child born in 2012. In
2014, Norby filed and served a complaint seeking primary residential
responsibility over the child. Norby was awarded primary residential
responsibility, and Hinesley was awarded parenting time.
In March 2019, Norby married Lyle Anderson. Anderson works as a
diesel mechanic in the Williston, North Dakota, area. Anderson grew up in
Smithville, Missouri, and owns a home there. Smithville is a town of
approximately 10,000 people about twenty minutes north of Kansas City,
Missouri. Norby and Anderson currently reside in Williston with the Norby’s
and Hinesley’s child. Hinesley also lives in Williston.
Norby filed a motion to relocate to Smithville with the child. Hinesley
opposed Norby’s motion and filed a motion to change primary residential
responsibility or modify parenting time. The district court denied Norby’s
motion to relocate. On appeal, Norby argues the district court erred in denying
her motion.
II
We review a district court’s order on a motion to relocate under our
clearly erroneous standard of review. Larson v. Larson, 2016 ND 76, ¶ 8, 878
N.W.2d 54. Under that standard, “A district court’s decision on a motion to
relocate is a finding of fact, which will not be reversed on appeal unless it is
clearly erroneous.” Green v. Swiers, 2018 ND 258, ¶ 4, 920 N.W.2d 471 (quoting
Larson, at ¶ 21). “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
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and firm conviction a mistake has been made.” Id. (quoting 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.” Id. (quoting Hammeren v.
Hammeren, 2012 ND 225, ¶ 8, 823 N.W.2d 482). We also recognize “that a trial
court may draw inferences from facts presented and may make a finding of fact
based upon an inference supported by the evidence.” American Hardware Mut.
Ins. Co. v. Nat’l Farmers Union Prop. & Cas. Co., 422 N.W.2d 402, 404 (N.D.
1988) (citing Poyzer v. Amenia Seed & Grain Co., 409 N.W.2d 107 (N.D.1987)).
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.” Green, 2018 ND 258, ¶ 5, 920 N.W.2d 471 (quoting 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, ¶¶ 33-34, 560 N.W.2d 903, and modified in Hawkinson v.
Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144:
“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 child if relocation is allowed, and the
likelihood that each parent will comply with such alternate
visitation.”
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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.” Green, at ¶ 5 (quoting Stai-Johnson v. Johnson, 2015 ND 99, ¶ 6, 862
N.W.2d 823). Norby argues the district court’s findings on factors one, two, and
four are clearly erroneous.
A
Norby argues the district court’s findings under the first Stout-
Hawkinson factor were clearly erroneous. She argues the evidence
demonstrated an out of state move had prospective advantages that would
improve her and the child’s quality of life. We conclude sufficient evidence
supports the district court’s finding on factor one.
“In analyzing the first Stout-Hawkinson factor, ‘the district court must
balance the advantages of the move, while recognizing the importance of
maintaining continuity and stability.’” Booen v. Appel, 2017 ND 189, ¶ 10, 899
N.W.2d 648 (quoting Stai-Johnson, 2015 ND 99, ¶ 9, 862 N.W.2d 823). “The
district court must give due weight to both economic and noneconomic
advantages of the move.” Id. Information the district court may consider when
analyzing factor one includes:
“[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.”
Id. (quoting Graner, 2007 ND 139, ¶ 15, 738 N.W.2d 9).
The district court found factor one did not favor relocation. The court
found Norby’s employment opportunities in Smithville are equal to what they
are in Williston. Norby works in accounts payable for an oil company. Norby
testified she had not secured employment in Smithville but did research
various job opportunities including working as a receptionist for a law firm and
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as an accountant for Dairy Farmers of America. Norby testified these were
lateral employment opportunities and would not be an improvement from her
current job in Williston. Norby contended moving to Smithville would provide
her with a more stable career because she has been laid off twice in the past
twelve years in Williston. However, Norby worked continuously for the past
six years in her current employment.
Norby testified she wanted to leave Williston because she did not like the
weather and wanted a change of scenery. However, these reasons are not
compelling. See Larson, 2016 ND 76, ¶¶ 24-25, 878 N.W.2d 54 (“While many of
the prospective advantages that [Conceicao] suggests—better year-round
weather . . . may improve [Conceicao’s] quality of life, the Court does not view
that the suggested advantages would significantly improve the quality of the
children’s lives.”). Norby also testified the home in Smithville is better suited
to raise a child than the apartment in Williston. The child would have his own
room in the Smithville home, rather than sleeping on a toddler mattress on the
floor in Norby’s apartment as he currently does in Williston. The home in
Smithville also has a large backyard. Norby and Anderson also testified the
cost of living in Smithville is less than in Williston.
Other than Norby’s and Anderson’s testimony, no evidence was
introduced comparing the cost of living between Smithville and Williston. The
district court found the testimony regarding the cost of living not credible
because it had been three years since Anderson resided in Smithville and
Norby had never resided in Smithville. Anderson testified making the
transition to Williston would not be difficult. The district court found Anderson
could sell the home in Smithville and purchase a similar home in Williston
without difficulty.
Analysis of the first factor also requires focus on the “importance of
maintaining continuity and stability in the custodial family.” Graner, 2007 ND
139, ¶ 15, 738 N.W.2d 9 (quoting Porter v. Porter, 2006 ND 123, ¶ 8, 714 N.W.2d
865). Allowing a custodial parent to relocate to keep the custodial home intact
is in the child’s best interest. Booen, 2017 ND 189, ¶ 13, 899 N.W.2d 648; Hruby
v. Hruby, 2009 ND 203, ¶¶ 17-20, 776 N.W.2d 530. In one case, this Court
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stated, “When the custodial parent desires to move to live with a new spouse,
we conclude that fact becomes dominant in favor of allowing the
move. . . .” Hruby, at ¶ 17 (quoting Gilbert v. Gilbert, 2007 ND 66, ¶ 14, 730
N.W.2d 833). But see Green, 2018 ND 258, ¶ 5, 920 N.W.2d 471 (“No single
factor is dominant, and what may be a minor factor in one case may have a
greater impact in another.”); id. at ¶ 8 (concluding denial of motion to relocate
was not clearly erroneous when custodial parent and new husband did not
have children together and court was skeptical of economic benefits of
relocation).
Anderson testified he would keep his current job in Williston, even if the
court granted Norby’s motion. Anderson testified that if the court denied
Norby’s motion he would sell the home in Smithville and move to Williston to
live with Norby and the child. Anderson testified this change in plans would
not be difficult. Norby and Anderson do not have children together, but they
both testified they would eventually like to have children. The district court
found denying Norby’s motion to relocate would not separate the custodial
family because Anderson still would travel to work in Williston or would sell
the Smithville home and move to Williston.
The evidence also established most of Norby’s extended family live near
Sidney and Fairview, Montana, within an hour of Williston. Most of Hinesley’s
extended family lives outside of North Dakota in North Carolina, Arizona, and
California. However, his grandmother lives in Bismarck, North Dakota.
Anderson’s extended family lives near Smithville. Relocating to Smithville
would move the child closer to Anderson’s extended family but would move him
away from Norby’s extended family. Norby testified the move to Smithville
might be five hours closer to Hinesley’s extended family. However, the record
was not clear on which relative(s) Norby was referring to or the travel time to
where Hinesley’s extended family reside. Anderson also testified he would keep
his job as a diesel mechanic in Williston, even if the court granted the motion
to relocate. Anderson works two-week-on, two-week-off shifts, which often
consist of twelve-hour days. Currently, Anderson spends approximately a week
of his two weeks off at the home in Smithville while Norby and the child remain
in Williston. If Norby, Anderson, and the child relocated to Smithville,
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Anderson would travel from Smithville to Williston to complete his two-week
shift. This arrangement would result in Anderson spending less time with
Norby and the child than he does now. The district court found Norby and the
child would not receive the benefits of extended family if they relocated.
Additionally, the court found relocating would result in a detriment to the child
because he would spend less time with both Hinesley and Anderson.
Norby argues the district court erred by not considering or adequately
weighing evidence that schools in Smithville are superior to those in Williston.
Anderson testified the schools in Smithville have received high national
rankings. Norby testified the child would be in a classroom with a twenty-to-
one student to teacher ratio if the child attended school in Williston, compared
to a sixteen-to-one ratio if he attended school in Smithville. Additionally, Norby
and Anderson testified there are additional activities to do in Smithville
including boating and camping, museums, zoos, and professional sports games
in Kansas City, Missouri. Other than the professional sports, the district court
found the same activities were available in Williston.
The district court found denying Norby’s motion to relocate was in the
best interests of the parties’ child because moving to Missouri would not be
beneficial to Norby or the child. The district court’s findings on factor one are
supported by the evidence and are not clearly erroneous.
B
Norby argues the district court’s findings were clearly erroneous because
there was no indication the move was premised upon an effort to limit
Hinesley’s parenting time. We conclude sufficient evidence supports the
district court’s finding on factor two.
Under its analysis of the second factor the district court found:
“The relocation should be denied because the parenting plan
stated by the Plaintiff gives very little parenting time to the father.
She offered two weeks in the beginning and at the end of summer,
that he would have to split with her family members, as well as
the major school breaks. In addition, this arrangement was not
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guaranteed and was instead conditioned on her work schedule and
financial ability. While the Defendant stated he would do whatever
it takes to see his child and would help financially if necessary, it
is unfair to expect the Defendant to financially support the
Plaintiff’s decision to move.”
The district court also found, “In addition, the Plaintiff has frustrated
the Defendant’s parenting time and has reneged on her offers of additional
parenting time when a confrontation has ensued in the past.” The court also
found Norby wants to move to Missouri where she knows nobody, has no
family, will see her husband less because he still will work in Williston two
weeks at a time, and she had not seriously looked for a job in Missouri. Both
evidence from the testimony and permissible inferences from that evidence
support the district court’s finding on factor two and are not clearly erroneous.
C
Norby argues the district court’s findings on factor four were clearly
erroneous because it based its decision on the possibility of hindering
Hinesley’s undefined informal parenting time schedule. She further argues the
evidence demonstrated she would comply with any visitation ordered by the
court. We conclude sufficient evidence supports the district court’s finding on
factor four.
The fourth factor requires consideration of, “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.” Hawkinson, 1999
ND 58, ¶ 9, 591 N.W.2d 144. “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.” Booen, 2017 ND 189, ¶ 15, 899 N.W.2d 648 (quoting Hruby, 2009 ND
203, ¶ 23, 776 N.W.2d 530).
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“Distance alone is not a sufficient basis to deny relocation; it must be
considered in the context of the ability to refashion a visitation schedule that
can foster the noncustodial parent/child relationship.” Porter, 2006 ND 123,
¶ 17, 714 N.W.2d 865 (quoting Goff v. Goff, 1999 ND 95, ¶ 17, 593 N.W.2d 768).
“Even though a move may add costs and distance to visitations, making it
impossible to continue the frequency of visits between the noncustodial parent
and child, the relationship between them can be preserved by a restructured
visitation schedule.” Booen, 2017 ND 189, ¶ 15, 899 N.W.2d 648 (quoting Stai-
Johnson, 2015 ND 99, ¶ 13, 862 N.W.2d 823); see Porter, at ¶ 18. “Virtual
visitation, using the telephone, Internet, and other technologies, can also
ensure the child has frequent meaningful contact with the noncustodial parent
and can be helpful to supplement in-person visitation.” Booen, at ¶ 15 (quoting
Hruby, 2009 ND 203, ¶ 28, 776 N.W.2d 530).
The district court combined its consideration of factors three and four
and found:
“The Defendant is contesting the Plaintiff’s move simply
because he wants his child to continue to have a relationship with
himself. The Defendant’s fiancé and her child, and their child
together. The child has a baby half-sister and prospective step-
brother in his father’s home. Testimony showed that the child calls
his siblings sister and brother. It is important to the child’s
development that he have a healthy and loving relationship with
these siblings. The Defendant and his immediate family should not
be stripped from the child. The Defendant has very good reason for
contesting this relocation as he has the right to play an active part
in the child’s upbringing and spending this important time of life
with him on a regular basis. The Defendant and the Defendant’s
fiancé as well as their children are involved in N.N.H.’s life. The
Defendant coached the child’s t-ball team this summer. The
Defendant’s fiancé has a strong, loving bond and relationship with
the child. In addition, she is available to help care for the child on
a regular basis. The Defendant stated in testimony and affidavit
that he has had substantial amounts of time when the Plaintiff
needed him to babysit and therefore has been very involved in N.N.
H.’s life.
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“The distance alone is a significant factor in this case as the
driving distance from Williston to Smithville is significant and will
deter the child’s parenting time with his father.
“The Defendant is not challenging the move for ill-intent as
the relocation would have a substantial negative impact on the
relationship between the child and his father, and the child’s
paternal family.”
The district court also found Norby’s proposal for Hinesley’s parenting
time would not allow Hinesley to preserve and foster his relationship with the
child, that Norby’s proposal for sharing transportation costs was unfair to
Hinesley, and that Norby frustrated Hinesley’s parenting time on prior
occasions. These findings consider the potential negative impact on the
relationship between Hinesley and the child, including whether there is a
realistic opportunity for parenting time which can provide an adequate basis
for preserving and fostering Hinesley’s relationship with the child if relocation
is allowed, and the likelihood each parent will comply with the proposed new
arrangements. We conclude evidence exists supporting the district court’s
findings so that they are not clearly erroneous.
III
The district court findings on factors one, two and four are supported by
the evidence and are not clearly erroneous. The district court order denying
Norby’s motion to relocate out of state with the parties’ child is affirmed.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Jon J. Jensen, C.J.
I concur in the result.
Gerald W. VandeWalle
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