Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hruby v. Hruby

December 15, 2009

CANDICE NICOLE HRUBY (NEE KALER), N/K/A CANDICE NICOLE VALNES, PLAINTIFF AND APPELLEE
v.
CASEY JAMES HRUBY, DEFENDANT AND APPELLANT



Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

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

AFFIRMED AND REMANDED WITH DIRECTIONS.

[¶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 non-custodial parent's consent or upon order of the court, if the non-custodial parent has visitation rights. N.D.C.C. § 14-09-07(1).*fn1 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 non-custodial parent,

3. The integrity of the non-custodial parent's motives for opposing the move, and

4. The potential negative impact on the relationship between the non-custodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the non-custodial 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.

[ΒΆ11] Here, the district court made findings on all four factors. Hruby does not challenge the court's findings regarding ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.