Sayler v. Sayler

994 N.W.2d 351

Mari Emilie SAYLER, Plaintiff and Appellee v. Jason Paul SAYLER, Defendant and Appellant

No. 20230004

Supreme Court of North Dakota.

Filed August 17, 2023

Corrected Opinion Filed August 21, 2023

Joshua Nyberg, Fargo, ND, for plaintiff and appellee.

Jacey L. Johnston (argued) and Cassidy A. Violet (on brief), Grand Forks, ND, for defendant and appellant.

Bahr, Justice.

[¶1] Jason Sayler appeals from an amended judgment entered after a bench trial on the issue of parental responsibility. He argues the district court's award of primary residential responsibility to Mari Sayler in Minnesota was procedurally improper because she did not make a motion to relocate the children to Minnesota, the court erred by failing to apply the Stout - Hawkinson factors, and the court erred by considering circumstances created by the interim order. He further argues the court's findings on the best interest factors and decision-making authority are clearly erroneous. Finally, he argues the court abused its discretion by awarding attorney's fees. We affirm the amended judgment in part, reverse in part, and remand.

I

[¶2] The parties married in June 2013 and had two children. The parties separated on October 21, 2021 when Mari Sayler left with the children for Austin, Minnesota.

[¶3] Mari Sayler filed a summons and complaint in November 2021 initiating divorce and custody proceedings. The complaint specifically alleged Mari Sayler "resides in Austin, Minnesota" and Jason Sayler "resides in Devils Lake, North Dakota." Mari Sayler simultaneously filed an application for ex parte interim order and a motion for interim order. In her application and motion, Mari Sayler requested temporary primary residential responsibility of the children. The motion requested "Mari's parent's home in Austin, Minnesota (where Mari is currently residing) shall be considered the legal residence of the child[ren]." Mari Sayler further alleged in her declaration she and the children reside with her parents in Austin, Minnesota, and addressed the best interest factors based on her Minnesota residence.

[¶4] The district court found a threat of imminent danger to both Mari Sayler and the children and other circumstances indicating an ex parte interim order is necessary because Mari Sayler's "declaration and exhibits demonstrate that Jason is threatening self-harm and that there are serious concerns about his anger and mental health." The court awarded Mari Sayler temporary primary residential responsibility of the children and Jason Sayler no parenting time until further hearing.

[¶5] Jason Sayler filed an answer and counterclaim, a countermotion for interim order, and a declaration. The answer and counterclaim acknowledged Mari Sayler resides in Austin, Minnesota. The countermotion for interim order requested the district court order Mari Sayler to return the children to Devils Lake, North Dakota. Jason Sayler's declaration addressed the best interest factors based on the children's current residence in Austin, Minnesota.

[¶6] After a hearing, the district court issued an interim order assessing the best interest factors, noting most of the factors favored neither party but some favored Mari Sayler due to Jason Sayler's mental health issues, domestic violence issues, and the safety of his home. The interim order found Mari Sayler currently lives "with her parents in Austin, MN, along with the parties’ two children[.]" The court further explained while her move from Devils Lake, North Dakota to Austin, Minnesota obviously "changed the location and environment of the children" and "certainly upset that continuity[,]" "there were valid reasons Mari chose to leave the marital home with the children and establish residence elsewhere." The court concluded it was in the best interests of the children that Mari Sayler be awarded temporary primary residential responsibility, subject to Jason Sayler's reasonable parenting time, and joint decision-making responsibility.

[¶7] The parties entered a stipulation for partial judgment regarding division of assets, debts, and spousal support. The stipulation identified Mari Sayler's residence as Austin, Minnesota, and stipulated she currently resides in Minnesota. A two-day trial was held on the remaining child-related issues. The district court entered amended findings and an amended judgment. The court concluded the best interest factors favored Mari Sayler and awarded her primary residential responsibility, in Minnesota, and final decision-making authority regarding medical issues. Jason Sayler appeals.

II

[¶8] Jason Sayler argues Mari Sayler did not specifically plead for relocation of the children, he did not receive notice of Mari Sayler's intent to move with the children, and the district court erred in failing to make findings under the Stout – Hawkinson relocation factors. See Stout v. Stout , 1997 ND 61, ¶¶ 34-37, 560 N.W.2d 903 ; Hawkinson v. Hawkinson , 1999 ND 58, ¶ 9, 591 N.W.2d 144.

[¶9] Jason Sayler raises these issues as matters of law. This Court reviews questions of law de novo. State v. K.J.A. , 2023 ND 56, ¶ 3, 988 N.W.2d 595 ; Twete v. Mullin , 2020 ND 264, ¶ 3, 952 N.W.2d 91.

A

[¶10] Jason Sayler argues the award of primary residential responsibility to Mari Sayler in Minnesota was procedurally improper because Mari Sayler failed to make the necessary motion to relocate the children to Minnesota.

[¶11] Section 14-09-07, N.D.C.C., governs relocation of the residence of a child after a district court has entered an order establishing residential responsibility. "The purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent's visitation rights if the custodial parent seeks to move out of state." Jelsing v. Peterson , 2007 ND 41, ¶ 7, 729 N.W.2d 157.

[¶12] Section 14-09-07(3), N.D.C.C., does not apply to this case. ¹ Section 14-09-07(1) and (2), N.D.C.C., provides:

1. 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.

2. A parent with equal residential responsibility for a child may not change the residence of the child to another state except with consent of the other parent or order of the court allowing the move and awarding that parent primary residential responsibility.

Neither party alleges Mari Sayler had Jason Sayler's consent to move the children to Minnesota. Thus, the issue is whether she was required to obtain a court order under N.D.C.C. § 14-09-07.

[¶13] Section 14-09-07(1) and (2) prohibit a parent from changing a child's primary residence without a court order when an order granting primary or equal residential responsibility exists. See Maynard v. McNett , 2006 ND 36, ¶ 21, 710 N.W.2d 369 (holding " 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" (emphasis added)); Paulson v. Bauske , 1998 ND 17, ¶ 6, 574 N.W.2d 801 ("A custodial parent must get judicial permission to move with her child to another state if the noncustodial parent does not consent to the move." (emphasis added)). Mari Sayler moved to Minnesota before initiating these proceedings. An order establishing residential responsibility did not exist when she moved the children to Minnesota. Therefore, N.D.C.C. § 14-09-07(1) and (2) do not apply in this case.

[¶14] Jason Sayler does not provide authority for his position a parent, who has not been awarded primary or equal residential responsibility, and who relocates before initiating proceedings, must obtain permission from the district court to remain at the parent's present residence. Under the facts of this case, we conclude Mari Sayler was not required to obtain the court's permission under N.D.C.C. § 14-09-07 to relocate to—or more accurately, remain in—Austin, Minnesota with the children.

B

[¶15] Jason Sayler also argues the lack of pleading to relocate resulted in lack of proper notice Mari Sayler intended to remain in Austin, Minnesota.

[¶16] Contrary to Jason Sayler's assertion, both parties’ pleadings presume Mari Sayler resides in Minnesota. As previously noted, Mari Sayler's complaint specifically alleged Mari Sayler "resides in Austin, Minnesota," and her motion for interim order requested "Mari's parent's home in Austin, Minnesota (where Mari is currently residing)" be considered the legal residence of the children. Her declaration stated she and the children now reside with her parents in Austin, Minnesota and she therein addressed the best interest factors based on her Minnesota residence. Mari Sayler's pleadings gave Jason Sayler notice Mari Sayler intended to reside in Minnesota. This is in part evidenced by Jason Sayler's answer, which acknowledged Mari Sayler resides in Minnesota, and his declaration, which addressed the best interest factors based on the children's current residence in Minnesota. The parties also stipulated Mari Sayler resides in Minnesota.

[¶17] After a hearing on the interim motions, the district court considered the evidence and arguments and entered a detailed interim order. The interim order found Mari Sayler currently lives "with her parents in Austin, MN, along with the parties’ two children." The court further found her move from Devils Lake, North Dakota to Austin, Minnesota "changed the location and environment of the children[,]" and "certainly upset that continuity[,]" but "there were valid reasons Mari chose to leave the marital home with the children and establish residence elsewhere." After weighing the best interest factors, including Mari Sayler's move to Minnesota and the reasons for it, the court determined it is in the best interests of the children Mari be awarded primary residential...