Gilbert v. Gilbert , 2007 N.D. LEXIS 66 ( 2007 )

CROTHERS, Justice,

concurring in part and dissenting in part.

[¶ 26] I concur with the majority’s conclusion that the district court erred when applying factor 1. Majority opinion at ¶ 16. The case must be reversed, and should be remanded for the district court’s further analysis of factor 1.

[1Í 27] Depending on the district court’s findings and conclusions under factor 1, the district court might need to make additional findings and conclusions under factor 4. Making findings and conclusions under either factor 1 or factor 4 is, in the first instance, a job for the district court and not us. See Klein v. Larson, 2006 ND 236, ¶ 36, 724 N.W.2d 565 (Crothers, J., dissenting).

[¶ 28] I believe this Court is usurping the district court’s fact-finding function by requiring that the district court enter an order granting the motion to move. I would remand to allow the district court to finish its work. I therefore dissent from those portions of the opinion adjudicating the factors and granting the requested relief.

[¶ 29] DANIEL J. CROTHERS