Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.
The opinion of the court was delivered by: Crothers, Justice.
N.D. Supreme CourtVining v. Renton, 2012 ND 86
This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect] Conccurence filed
Opinion of the Court by Crothers, Justice.
[¶1] Ashley Vining appeals a district court amended judgment granting Michael Renton's motion to modify primary residential responsibility for their child. Vining argues the district court's decision was clearly erroneous. We affirm.
[¶2] Vining and Renton are the parents of a 4-year-old child. They never married and have not lived together since the child was born. On April 24, 2008, Vining and Renton filed with the district court a stipulated child custody agreement giving Vining primary residential responsibility subject to Renton's right to exercise parenting time as agreed to by the parties. The agreement provided Renton's parenting time would be supervised by Vining with no overnight parenting time unless the parties otherwise agreed. When the agreement was filed, both Vining and Renton resided in Bismarck, North Dakota. On April 29, 2008, the district court entered a judgment incorporating the stipulated agreement.
[¶3] In May 2009, Vining met Matthew Corcione while vacationing in Las Vegas. After returning to North Dakota, Vining began dating Corcione, who lived in Georgia. During the summer of 2009, Corcione made a number of trips to North Dakota to visit Vining and the child. Vining also visited Corcione in Georgia, making some trips with the child and others without the child. Vining and Corcione became engaged in October 2009, and Vining started planning to move to Georgia.
[¶4] In January 2010, without informing Renton, Vining took the child to Georgia for several weeks. During that time, Vining and Corcione planned a June wedding, looked at houses and decided Vining and the child would move to Georgia before Vining and Corcione were married. While the child was in Georgia, Vining allowed Renton periodic phone contact with the child but would not tell Renton when she planned to return the child to North Dakota.
[¶5] Vining and the child returned to North Dakota in February 2010. While in North Dakota, Vining allowed Renton to visit the child. On March 2, 2010, Vining left North Dakota with the child, intending to move to Georgia to live with Corcione. Vining did not obtain a court order or receive Renton's consent to relocate the child. After leaving North Dakota, Vining notified Renton of the move by leaving a message on his cell phone. When Renton received the message, he contacted Vining and requested she return the child to North Dakota. Vining refused to return the child and refused to give Renton her Georgia address.
[¶6] On March 19, 2010, Renton moved the district court to find Vining in contempt for moving the child to another state without permission and for refusing to give Renton the child's current address. That same day, the district court ordered Vining to appear with the child on April 8, 2010, to show cause why she should not be held in contempt. After Vining received the show cause order, Vining and Corcione accelerated their wedding date and were married on April 1, 2010. On April 8, 2010, Vining and the child appeared at the show cause hearing in North Dakota. On April 30, 2010, the district court found Vining in contempt. The district court prohibited Vining from leaving North Dakota with the child more than once per month for no more than five days at a time and ordered Vining and Renton to arrange a parenting schedule, stating Renton was entitled to substantial parenting time, including overnights.
[¶7] On April 26, 2010, Vining, who lived with her parents in Jamestown, North Dakota, moved for permission to relocate the child to Georgia. On May 7, 2010, Renton resisted Vining's motion to relocate the child and moved to modify the April 29, 2008 judgment incorporating the stipulated parenting plan. Renton argued the district court should grant him primary residential responsibility and grant parenting time to Vining. Renton stated he currently lived in Fessenden, North Dakota where he was employed as a deputy sheriff and he hoped to get a job with the Bismarck Police Department and move to Bismarck. Renton also requested that the court establish a parenting schedule because he and Vining had been unable to reach an agreement. On May 27, 2010, the district court issued an interim order for parenting time.
[¶8] On September 14, 2010, the district court held a hearing on Vining's motion for permission to relocate the child and on Renton's motion to modify primary residential responsibility. On October 5, 2010, Vining moved to withdraw her motion to relocate the child, stating she no longer intended to leave North Dakota but providing no explanation for the change. The interim order for parenting time expired at the end of 2010. On January 7, 2011, the parties informed the district court they could not agree on a continued parenting schedule and submitted proposed parenting schedules. On January 21, 2011, Renton requested the district court adopt a parenting schedule because Vining was not allowing him to exercise parenting time. On January 28, 2011, the district court issued an order implementing Renton's proposed parenting schedule.
[¶9] On February 28, 2011, the district court ordered Vining and Renton to submit affidavits addressing Vining's changes in address, employment and marital status. On March 11, 2011, Vining and Renton filed affidavits. Vining stated she lived in Bismarck, was employed full-time as a data specialist at Medcenter One and was no longer married. Vining also stated Renton had introduced the child to his girlfriend and Renton and his girlfriend had purchased a house. Renton agreed with Vining's assertions that she lived in Bismarck and was no longer married but stated he believed Vining had been terminated from Medcenter One. Renton also stated he was employed by the Wells County Sheriff's Office, had applied to be transferred to Bismarck and had purchased a house in Lincoln, North Dakota. On March 18, 2011, Renton and Vining filed response affidavits. Renton stated he was certain Vining was terminated from Medcenter One and believed Vining may be living in Jamestown. Renton included a ...