Paulson v. Bauske

SANDSTROM, Justice,

dissenting.

[¶ 19]Because the trial court carefully, fairly, and properly followed the law and found the facts, I dissent from the majority’s reversal.

[¶ 20]The North Dakota Rules of Civil Procedure do not provide for a “motion to reconsider” or a “motion for reconsideration.” We have said we treat a “motion to reconsider” as a “motion to alter or amend the judgment under N.D.R.Civ.P. 59(j) ‘for purposes of tolling the time period for filing [a] notice of appeal.’ ” Austin v. Towne, 1997 ND 59, ¶ 7, 560 N.W.2d 895 (quoting Continental Cas. Co. v. Kinsey, 499 N.W.2d 574, 582 (N.D.1993)). Even though the trial court said Wodrich’s motion was untimely, it did not summarily dismiss it, but allowed her to proceed and held a full hearing with affidavits and testimony. The trial court then took the matter under advisement, and subsequently issued a written decision denying the motion. Wodrich then appealed the denial of the “motion to reconsider” and the denial of permission to relocate the child.

[¶ 21]Procedurally, the majority fails to independently analyze the main proceeding, and fails to apply the appropriate appellate standard of “abuse of discretion” to the “motion to reconsider.” Austin at ¶ 8 (“A decision on a N.D.R.Civ.P. 59 motion is within the sound discretion of the trial court.”).

[¶ 22]The trial court carefully followed the majority’s four-part analysis in Stout v. Stout, 1997 ND 61, 560 N.W.2d 903. Here, the majority’s analysis ignores the specific finding by the trial court as to the proximity to extended family, and to the special education needs of the child.

[¶ 23]The extended families of both parents live near the father. Under the first prong of the Stout analysis, the trial court specifically found:

“Most of the child’s extended family resides in the Fargo, North Dakota/Moor-head, Minnesota area and a move to Colorado will necessarily reduce contact between the child and his father, step mother, half-sisters and extended family.”

[¶ 24]In Stout at ¶¶ 38-39 and 45, the majority thought the proximity of the extended family was a very important consideration:

“[¶ 38]We begin our analysis of Julene’s request to move to Arkansas with Tell by applying the first factor articulated above — the prospective advantages of the move in improving the custodial parent’s and child’s quality of life.

“[¶ 39]Neither James nor Julene has any family in North Dakota. If allowed to move to Arkansas, Julene would be within fifty miles of her parents and a sister, as well as a two-hour drive from James’ parents. In the original divorce proceeding, the trial court incorporated by reference the partial transcript of proceedings of the original hearing into its December 6, 1995, Memorandum Decision and Order. In that transcript, the trial court specifically noted, ‘[t]here is an advantage on the other hand to having your family close and your support system. I don’t deny that it’s an advantage.’ The trial court clearly found it would be an advantage to Julene and Tell to have extended family close by.

* * * * * *

“[¶ 45]We believe the trial court erred in its analysis of the economic and non-economic advantages of the proposed move. The court failed to consider the benefits a network of close family members would provide and other non-eeonomie advantages.”

This analysis was unaffected by any evidence presented “on reconsideration.”

[¶ 25]The trial court also specifically found, and the majority ignores:

“3) Mitchell J. Bauske has difficulty in school and suffers from a learning disability which problems are being addressed in his current school system locally.

* ⅜ * * * *

“Finally, uncertainties exist as to housing, schools and other services available to the child upon relocation.”

[¶ 26]Even “on reconsideration,” Wodrich failed to present any admissible evidence as to meeting Mitchell’s special learning needs if relocation were permitted.

[Y27] Sadly, the majority continues its inexorable drive to substitute completely “the happiness of the custodial mother” for «the “best interests of the child.”

[¶28]1 would affirm the decision of the trial court.

[¶ 29]Dale V. Sandstrom