Maynard v. McNett

710 N.W.2d 369

2006 ND 36

Jeffery J. MAYNARD, Plaintiff and Appellant v. Christa M. McNETT, f/k/a Christa M. Maynard, Defendant and Appellee.

No. 20050090.

Supreme Court of North Dakota.

February 8, 2006.

COPYRIGHT MATERIAL OMITTED

DeAnn M. Pladson, Maring Williams Law Office, Fargo, N.D., for plaintiff and appellant.

Maureen Holman, Serkland Law Firm, Fargo, N.D., for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] Jeffery Maynard appeals an order allowing his former wife, Christa McNett, formerly known as Christa Maynard, to move from Fargo, North Dakota, to Branson Missouri, with their nine-year-old daughter. The district court found that a move to Branson was in the best interests of the child. Because the parents have joint legal and physical custody, the district court erred in allowing one parent to move with the child. We hold that a parent with joint legal and physical custody may not be granted permission to move with the parties' child, unless the district court first determines the best interests of the child require a change in primary custody to that parent. There was no motion to change custody. We therefore reverse.

I

[¶ 2] Maynard and McNett were married on June 26, 1993. The parties had one child born in 1996. On June 2, 1999, Maynard and McNett were divorced, and the parties stipulated to "joint legal and joint physical custody" of the child. The stipulation was incorporated into the judgment. Following the divorce, the child spent approximately twelve nights per month with Maynard and the remainder of each month with McNett.

[¶ 3] In July 2004, McNett brought a motion to move her child out of state to Branson so she could pursue a job in her field of study, corporate community fitness. If McNett moved to Branson, she planned to take a position managing a "Why Weight? Women's Total Fitness" franchise. McNett's mother had agreed to pay for the start-up costs of the franchise and was planning to open two new "Why Weight?" stores on property she owned near Branson. Maynard, who lives in Fargo, opposed McNett's requested move to Branson, arguing that a move would infringe on his parental rights.

[¶ 4] On August 30, 2004, a hearing was held before judicial referee Scott A. Griffeth. After hearing testimony, the judicial referee granted McNett's motion to move out of state. On September 28, 2004, Maynard requested a review of the judicial referee's decision. On October 21, 2004, after a de novo review of the record, Judge Wade L. Webb issued an order adopting the referee's findings and affirming the decision of the judicial referee. Maynard then moved to amend the findings of fact and judgment. The motion was denied. Maynard attempted to stay the judgment at the district court and this Court, but neither court granted a stay. This appeal followed.

[¶ 5] On appeal, Maynard argues that McNett failed to show that the prospective move would be advantageous and in the best interests of the child, and that the court did not give sufficient weight to the joint physical custody arrangement. McNett argues the court properly weighed the evidence and concluded the move was in the best interests of the child.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.

II

[¶ 7] Section 14-09-07, N.D.C.C., provides a custodial parent "may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree." "The purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent's visitation rights if the custodial parent wants to move out of state." State ex. rel Melling v. Ness, 1999 ND 73, ¶ 7, 592 N.W.2d 565. In determining whether a custodial parent should be allowed to relocate with a child to another state, the best interests of the child are the primary consideration. Negaard v. Negaard, 2002 ND 70, ¶ 7, 642 N.W.2d 916. The custodial parent has the burden of proving, by a preponderance of the evidence, that a move is in the best interests of the child. Dickson v. Dickson, 2001 ND 157, ¶ 7, 634 N.W.2d 76. The trial court's decision that a move is in the best interests of the child is a finding of fact that will not be reversed unless it is clearly erroneous. Tibor v. Tibor, 1999 ND 150, ¶ 8, 598 N.W.2d 480. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made." Id.

III

[¶ 8] McNett argues that because the child lived more days per month with her, as directed by the divorce judgment, the trial court properly determined she was the custodial parent. Whether the divorce judgment declared a primary custodian requires an interpretation of the judgment. Interpretation of a judgment is a question of law, and the interpretation of a judgment by a different trial judge than the one who ordered its entry is entitled to no deference.¹ Anderson v. Anderson, 522 N.W.2d 476, 478-79 (N.D.1994). North Dakota law recognizes and permits joint legal and physical custody and does not require that the child reside equally with both parents in such an arrangement.

[¶ 9] Under N.D.C.C. § 14-09-06.1:

An order for custody of an unmarried minor child entered pursuant to this chapter must award the custody of the child to a person, agency, organization, or institution as will, in the opinion of the judge, promote the best interests and welfare of the child. Between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child.

Section 1-01-35, N.D.C.C., explicitly provides, "Words used in the singular number include the plural and words used in the plural number include the singular, except when a contrary intention plainly appears." Therefore, the designation of a single custodian is not required. Each parent can be declared a custodian and enjoy all the rights under the law designated to a custodial parent.

[¶ 10] A custody arrangement stipulated to by the parties must be given a great deal of deference, and the parties must be bound by it to provide certainty in future disputes. Oppegard-Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762. Maynard and McNett stipulated to joint legal and physical custody and should be bound by it. Therefore, we hold that both Maynard and McNett are custodial parents with parenting rights to their child.

[¶ 11] The district court failed to properly analyze the divorce judgment and decree, which established not a custodial parent but joint legal and joint physical custody. The district court wrote the grant of joint legal and joint physical custody out of the divorce judgment and decree and analyzed the case as though there were only one custodial parent.

[¶ 12] There is, in fact, joint legal and physical custody in this case, and the district court wrongly wrote the joint custody award out of the decree. This is an erroneous view of North Dakota law and ignores the parental rights granted to Maynard in the divorce decree.

IV

[¶ 13] In Stout v. Stout, this Court discussed how the courts of North Dakota should decide whether allowing a custodial parent to relocate with a child under N.D.C.C. § 14-09-07 was in the best interests of the child. 1997 ND 61, ¶¶ 7, 34, 560 N.W.2d 903. The Court emphasized that when one parent has sole custody and the other parent has visitation rights, the child will look to the custodial parent for support, and when a custodial parent experiences a psychological adjustment, the child will also. Id. at ¶¶ 18, 31 (quoting Judith S. Wallerstein and Tony J. Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Fam. L.Q. 305, 314-15 (Summer 1996)). Relying on D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (1976), this Court developed a four factor test for considering whether a move is in the best interest of a child:

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. 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.

Stout, at ¶ 34.

[¶ 14] The fourth factor was altered in Hawkinson v. Hawkinson to address the negative effect a move can have on the noncustodial parent's relationship with the child:

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.

1999 ND 58, ¶ 9, 591 N.W.2d 144.

[¶ 15] Stout recognized, however, the differences between a motion to relocate in a sole custody arrangement and a joint custody arrangement. In Stout, the majority said, "We emphasize that motions to relocate are not motions for change of custody. . . . In contrast, in a motion to relocate, the primary physical custody decision has already been made, and custody is not the issue." Stout, 1997 ND 61, ¶ 54, 560 N.W.2d 903. The majority also...