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Dunn v. Dunn

November 17, 2009

GARRY K. DUNN, PLAINTIFF AND APPELLEE
v.
MICHELLE DYE DUNN, DEFENDANT AND APPELLANT



Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Allan L. Schmalenberger, Judge.

The opinion of the court was delivered by: Crothers, Justice.

AFFIRMED.

[¶1] Michelle Dunn appeals from an amended divorce judgment granting Garry Dunn physical custody of the parties' two youngest children and allowing him to move with the children to Wyoming. Michelle Dunn argues the district court's finding of a substantial change of circumstances warranting a change of custody as a prerequisite to move the children to Wyoming was induced by an erroneous view of the law because the court did not specifically find the change adversely impacted the children. We hold the court did not misapply the law, and we affirm.

I.

[¶2] In a February 2007 divorce judgment entered after the parties stipulated to custody and visitation, Garry Dunn received custody of the parties' oldest minor child and the parties agreed to joint custody of their two youngest children. The parties' stipulation specified a visitation schedule for each child. Garry Dunn subsequently accepted a job as a radiologist in Wyoming beginning in March 2009, and he sought a change of custody for the two youngest children and permission to move with all three children to Wyoming.

[¶3] The district court granted Garry Dunn's motions after recognizing that the parties had joint physical custody of their two youngest children and that it needed to determine whether a change in custody for those children was appropriate before it could consider Garry Dunn's motion to move the children to Wyoming. The court said it could modify the custody order for the two youngest children if a material change in the children's circumstances existed and if the modification served the best interests of the children. The court found Garry Dunn's move constituted a material and significant change in circumstances requiring modification of custody for those children:

"Changed circumstances are only present if there are new facts which were unknown at the time the decree was entered. Wright v. Wright, 431 N.W.2d 301, 303 (N.D. 1988). Although a move may not always constitute a material change of circumstances, it does here. See Thomas v. Thomas 446 N.W.2d 433, 436 (N.D. 1989) (citing Wright v. Wright, 431 N.W.2d 301 (N.D. 1988) supra) (where the mother was moving regardless of the court's decision and the move thereby created a significant change of circumstances necessitating an analysis of the best interests of the children), Wright v. Wright, 431 N.W.2d at 304 (`Only in the event a custodial parent will move without the children does that move constitute a change of circumstances for purposes of deciding a companion motion for change of custody.'). Garry Dunn is moving regardless of the Court's decision. Since the parents will be residing in different states, it constitutes a significant change of circumstances requiring a modification of the current custody and visitation arrangement."

[¶4] The court then analyzed the factors for the best interests of the children under N.D.C.C. § 14-09-06.2 and found most of the factors were equal, but two factors, N.D.C.C. § 14-09-06.2(d) and (e), favored Garry Dunn. The court granted Garry Dunn physical custody of the two youngest children and then decided the children's best interests were to move with him to Wyoming.

II.

[¶5] Michelle Dunn argues the district court erred in finding a substantial change in circumstances warranting a change in custody of the parties' two youngest children. She argues the court erred in deciding Garry Dunn's move to Wyoming, by itself, constituted a substantial change in circumstances warranting a change in custody. She claims the court erred in deciding a substantial change in circumstances had occurred requiring a change in custody without specifically finding the change adversely impacted the children. She asserts that the court did not make a specific finding the changed circumstance, Garry Dunn's move, was so adverse to the childrens' best interests that custody should be modified and that the court did not find her conduct adversely impacted the children or required or compelled modification of custody. She argues Garry Dunn's relocation was insufficient to warrant a change of custody and the court was required, as a matter of law, to deny his motions and to grant her sole custody of the two youngest children.

[¶6] A district court's decision to modify custody is a finding of fact, which will not be reversed on appeal unless clearly erroneous. Stanhope v. Phillips-Stanhope, 2008 ND 61, ¶ 7, 747 N.W.2d 79. "A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made." Id. A district court's findings of fact must be "sufficient to enable the appellate court to understand the factual determinations made by the district court and the basis for its conclusions of law." Haugrose v. Anderson, 2009 ND 81, ¶ 7, 765 N.W.2d 677. A district court's "findings of fact . . . should be stated with sufficient specificity to assist the appellate court's review and to afford a clear understanding of the [] court's decision." Rothberg v. Rothberg, 2006 ND 65, ¶ 14, 711 N.W.2d 219. A district court's "findings are adequate if this Court can discern from them the factual basis for the [district] court's determination." Id.

[¶7] Here, the parties do not challenge the district court's determination that the initial divorce granted them joint physical custody of their two youngest children. This Court has recognized "that relocation cases involving joint custody are special, requiring a determination of primary custody before the parent may be allowed to move with the child." Maynard v. McNett, 2006 ND 36, ¶ 23, 710 N.W.2d 369. In Maynard, this Court examined decisions from other jurisdictions about motions to relocate in the context of joint custody and explained:

"A motion to relocate and the Stout-Hawkinson factors alone are inadequate in handling the case of a parent with joint custody of a child wishing to relocate with the child. [Stout v. Stout, 1997 ND 61, 560 N.W.2d 903; Hawkinson v. Hawkinson, 1999 ND 58, 591 N.W.2d 144.] 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. A parent with joint custody who wishes to relocate with the child must make two motions: one for a change of custody, governed by N.D.C.C. § 14-09- 06.2, and one to relocate with the child, governed by N.D.C.C. § 14-09-07. The change-of-custody motion requires the party wishing to relocate to show there has been a significant change in circumstances and the best interests of the child would be served by the child's moving with the relocating parent. McDonough v. Murphy, 539 N.W.2d 313, 316 (N.D. 1995). The best-interests-of-the-child factors in N.D.C.C. § 14-09- 06.2 must be applied rather than the Stout-Hawkinson factors. McDonough, at 317. The Stout-Hawkinson factors are designed to address the best interests of the child for cases in which a primary custodian has already been designated and the custodial parent wishes to move. Stout, 1997 ND 61, ¶¶ 34, 54, 560 N.W.2d 903. That is not the situation in a joint custody case. No primary custodian has been determined. Id. at ¶ 54 n.7. Therefore, the Stout-Hawkinson factors are incapable of addressing the issue fully, and the statutory factors provided in N.D.C.C. § 14-09-06.2 must be used to decide which primary custody arrangement will serve the best interests of the child. The district court may consider the intention of the parent making the motion to relocate with the child in judging the child's best interests under § 14-09- 06.2. See Potter v. Potter, 119 P.3d 1246, 1250 (Nev. 2005) (`The issue is whether it is in the best interest of the child to live with parent A in a different state or parent B in Nevada.'); Chen v. Heller, 334 N.J. Super. 361, 759 A.2d 873, 885 (2000) (the children's best interests were better served by relocating with their mother to Texas); Voit [v. Voit], 721 A.2d [317, 327 (N.J. Super. Ct. Ch. Div.1998)] (`after assuming that the doctor will move, this court has simply considered whether going with his father or remaining with his mother is in [the child's] best interests'); Murnane v. Murnane, 229 N.J. Super. 520, 552 A.2d 194, 198 (1989) (`If the two parties claiming custody each proposes to live in a different jurisdiction, the court is bound to take that fact into consideration.'). After assuming [the mother] will move to Missouri, the district court simply has to decide whether the child's best interest are better served with [the mother] in Missouri or with [the father] in North Dakota. Voit, 721 A.2d at 327."

2006 ND 36, ¶ 21, 710 N.W.2d 369. See 2009 N.D. Sess. Laws ch. 149, § 9 and Hearing on S.B. 2042 Before Senate Judiciary Comm., 61st N.D. Legis. Sess. (Jan. 19, 2009) (written testimony of Sherry Mills Moore, explaining 2009 amendment to N.D.C.C. § 14-09-07(2) was intended to codify Maynard).

[¶8] Section 14-09-06.2, N.D.C.C., outlines factors for a court's evaluation of the best interests and welfare of a child. As relevant to this case, N.D.C.C. § 14-09-06.6 authorizes post-judgment modification of a decision about custody which, effective August 1, 2009, is called "primary residential responsibility." See 2009 N.D. Sess. Laws ch. 149, §§ 4, 8. Under N.D.C.C. § 14-09-06.6(6), a court may modify a custody order if it has been more than two years since the order was entered, and the court finds:

"a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the ...


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