Hruby v. Hruby

776 N.W.2d 530

2009 ND 203

Candice Nicole HRUBY (nee Kaler), n/k/a Candice Nicole Valnes, Plaintiff and Appellee v. Casey James HRUBY, Defendant and Appellant.

No. 20090010.

Supreme Court of North Dakota.

December 15, 2009.

John D. Bullis (argued) and Jenna Howell (appeared), Wahpeton, N.D., for plaintiff and appellee.

Samuel S. Johnson, Wahpeton, N.D., for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Casey Hruby appeals from a district court order granting Candice Valnes's motion to change the residence of their child to North Carolina and an order denying Hruby's motion to amend the findings and for a new trial. We conclude the district court's decision to grant Valnes's motion is not clearly erroneous. We affirm the district court's relocation decision, but we remand for the court to correct an error in the visitation schedule.

I

[¶ 2] Hruby and Valnes have one minor child together and were divorced in July 2006. A divorce judgment was entered incorporating the parties' stipulation, awarding Hruby and Valnes joint legal custody, awarding Valnes physical custody of the child, and ordering Hruby to pay child support. Hruby was also awarded visitation with the child every other weekend, every other holiday, and three weeks each summer.

[¶ 3] In November 2006, Valnes moved for an order finding Hruby in contempt, claiming Hruby failed to pay the ordered child support. In response, Hruby moved for an order finding Valnes in contempt and to modify his visitation with the child. Hruby claimed Valnes was constantly interfering with his visitation, she had moved to Bemidji, Minnesota without his permission, she was often late for visitation exchanges, she refused to meet half-way in Detroit Lakes for visitation exchanges, she switched weekends whenever she wanted but would not accommodate his requests to switch weekends, and she arbitrarily changed the exchange times. Hruby requested a more defined visitation schedule and proposed the parties exchange the child in Detroit Lakes, Minnesota.

[¶ 4] After a hearing, the district court denied Valnes's motion to find Hruby in contempt and amended the judgment to modify the visitation provisions. The court set a more detailed visitation schedule, including changing the visitation times and specifying where the exchanges should occur.

[¶ 5] Valnes married Clint Valnes in May 2008. Clint Valnes is a member of the United States Army and will be stationed at Fort Bragg in North Carolina after he completes his training. Clint Valnes's military orders indicated he was going to be deployed for a year to Afghanistan in May 2009. Valnes is not employed outside the home, and plans to stay at home with the child until the child starts school.

[¶ 6] In August 2008, Valnes moved for permission to relocate with the parties' child to North Carolina. Hruby opposed Valnes's motion, arguing the move would not benefit the child and would have a negative impact on his relationship with the child because Valnes has a history of interfering with his visitation and will continue to do so. After an evidentiary hearing, the district court granted Valnes's motion to relocate and modified the visitation schedule. In November 2008, Hruby moved to amend the findings and for a new trial. The court denied his motion.

II

[¶ 7] Hruby argues the district court's decision to grant Valnes's motion is clearly erroneous because the evidence does not support the court's finding that the move is in the child's best interests and the court did not correctly apply the Stout-Hawkinson factors. He claims the court failed to recognize the importance of extended family, keeping the custodial family intact considering Clint Valnes's deployment, and Valnes's repeated failure to comply with the court ordered visitation.

[¶ 8] A district court's decision whether to allow relocation is a finding of fact, which will not be reversed on appeal unless the decision is clearly erroneous. Gilbert v. Gilbert, 2007 ND 66, ¶ 6, 730 N.W.2d 833. 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 based on the entire record we are left with a definite and firm conviction that a mistake has been made. Id.

[¶ 9] A custodial parent may not change the residence of the child to another state except with the noncustodial parent's consent or upon order of the court, if the noncustodial parent has visitation rights. N.D.C.C. § 14-09-07(1).¹ A court's primary consideration in a relocation case is whether the move is in the child's best interests. Gilbert, 2007 ND 66, ¶ 7, 730 N.W.2d 833. The parent moving for permission to relocate has the burden of proving by a preponderance of the evidence that the move is in the child's best interests. Id.

[¶ 10] To determine whether relocation is in the child's best interests, the court must apply the four factors enumerated in Stout v. Stout, 1997 ND 61, ¶ 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, and

....

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.

Gilbert, 2007 ND 66, ¶ 8, 730 N.W.2d 833 (quoting Hawkinson, at ¶¶ 6, 9). One factor is not dominant and the importance of each factor will depend on the facts of the case. Gilbert, at ¶ 8.

[¶ 11] Here, the district court made findings on all four factors. Hruby does not challenge the court's findings regarding his motive for opposing the move.

A

[¶ 12] The first Stout-Hawkinson factor requires the court to consider the prospective advantages of the move, including both the economic and noneconomic benefits. Gilbert, 2007 ND 66, ¶ 10, 730 N.W.2d 833. Maintaining continuity and stability in the custodial family is an essential part of the analysis, and a court commits reversible error if it fails to give sufficient credence to the importance of keeping the custodial family together. Id.

[¶ 13] The district court found the first factor favored allowing Valnes to relocate with the child to North Carolina, stating:

The prospective advantages of the move will improve the quality of life of both [Valnes] and [the child]. There are a number of inherent benefits to the move including keeping the custodial family intact which in turn gives [the child] the benefits of living in a two parent household where the parents are able to share household tasks which, from the testimony, indicate that [Valnes] will be able to spend more quality time with [the child]. In addition, allowing [Valnes] to rejoin her husband, from the testimony, will make [Valnes] a happier and a much less conflicted person which in turn will also inherently inure to the benefit of [the child]. Finally, the Court finds that allowing the custodial family to remain intact will result in various economic benefits to that family including an increase in the standard of living of [the child].

[¶ 14] The court also made oral findings after the evidentiary hearing which were incorporated in the written order. The court found keeping the custodial family intact was the paramount factor in the case. The court considered that Clint Valnes may be deployed to Afghanistan for a year, and said:

Now, I've heard a great deal of argument about the fact that in this case Mr. Valnes may be deployed. And in fact, the latest and best evidence I have is that he will be. However, that is five months from now at a minimum. Even so, it would absolutely—absolutely be against public policy, in my view, to prevent this couple from being together for that five months. The atmosphere that Mr. Valnes will enter, if he is deployed within five months, may be such that this could be the last five months that they have together and it was—it is not the position of this court, and I think it would be a horrible public policy for me to deny this move on that basis, and I won't do it. I will say this. If Mr. Valnes is deployed, depending on the circumstances where you are, it may be best for you and the child to move back to be closer to your family, his family, and the Hruby family. And that's something I think you should deeply consider as it affects your child, but I'm not gonna make that decision for you. That's a decision that will be between the husband and wife that are the custodial family in this situation.

[¶ 15] Hruby contends the evidence does not support the court's findings that the move will keep the family intact and allow Valnes to spend more time with the child because Clint Valnes will be deployed to Afghanistan for a year. He claims the first factor does not support allowing Valnes to move with the child because Valnes will not be living with her husband, her husband will not be around to share the household tasks, and Valnes will not have a support system. He claims the court failed to properly consider the presence of extended family in the child's current location as a significant factor in denying the motion because there was evidence the child's extended family lives in North Dakota and South Dakota, and Valnes will not have a family support network in North Carolina to help her when her husband is gone.

[¶ 16] This case is factually similar to the circumstances in Gilbert, 2007 ND 66, 730 N.W.2d 833. The custodial parent moved for permission to relocate with the parties' child from North...