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Booen v. Appel

Supreme Court of North Dakota

July 31, 2017

Cody Allen Booen, Plaintiff, Appellant, and Cross-Appellee
v.
Jessica Marie Appel, Defendant, Appellee, and Cross-Appellant

         Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

          Pamela F. Coleman, Grand Forks, ND, for plaintiff, appellant, and cross-appellee.

          Patti Jo Jensen, East Grand Forks, MN, for defendant, appellee, and cross-appellant.

          OPINION

          Crothers, Justice.

         [¶ 1] Cody Booen appeals from a district court's order granting Jessica Appel's motion to relocate. Appel cross-appeals from the orders granting her motion to relocate and to show cause finding her in contempt. Booen argues the district court erred by granting the motion to relocate because it did not properly analyze and weigh the Stout-Hawkinson factors. Appel argues the district court erred in establishing a parenting plan, by finding her in contempt and requiring her to pay half of Booen's attorney fees. We affirm the district court's orders.

         I

         [¶ 2] Booen and Appel have a non-marital minor child. In September 2015 the district court entered a judgment adjudicating Booen as the father, awarding both parties shared legal responsibility and decision making and awarding Appel primary residential responsibility of the child, subject to Booen's reasonable parenting time. The judgment also established a parenting time schedule for the parties. In November 2015 the district court entered an amended judgment to reflect a correction regarding health care.

         [¶ 3] In April 2016 Booen filed an application for an order to show cause accompanied by a brief and exhibits, seeking to hold Appel in contempt for disregarding the terms of the amended judgment. Booen alleged Appel was interfering with his relationship with the child. Following unsuccessful court-ordered mediation, Appel filed a motion to dismiss Booen's application and a response to the order to show cause.

         [¶ 4] In May 2016 Appel filed a motion to relocate the child to Arizona. Appel argued that since entry of the 2015 amended judgment she had a child with her fiancé, Kory Knoff, and Knoff intended to relocate to Arizona for business opportunities. According to Knoff, he has the opportunity to open pizza franchises in Arizona. Booen objected to Appel's motion.

         [¶ 5] In August 2016 an evidentiary hearing was held on both the application for an order to show cause and the motion to relocate. In December 2016 the district court granted Booen's application for an order to show cause, in part finding Appel in contempt. The district court also granted Appel's motion to relocate the child to Arizona, finding the move was in the child's best interests.

         II

         [¶ 6] Booen argues the district court erred in granting Appel's motion to relocate.

         [¶ 7] "A district court's decision on a motion to relocate is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous." Larson v. Larson, 2016 ND 76, ¶ 21, 878 N.W.2d 54. "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, if there is some evidence to support the finding, on the entire record we are left with a definite and firm conviction a mistake has been made." Graner v. Graner, 2007 ND 139, ¶ 12, 738 N.W.2d 9. "In applying the clearly erroneous standard, we will not reweigh evidence, reassess witness credibility, retry a custody case, or substitute our judgment for the trial court's decision merely because this Court may have reached a different result." Hammeren v. Hammeren, 2012 ND 225, ¶ 8, 823 N.W.2d 482.

         [¶ 8] Section 14-09-07(1), N.D.C.C., provides "[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." "The parent moving for permission to relocate has the burden of proving by a preponderance of the evidence the move is in the child's best interests." Larson v. Larson, 2016 ND 76, ¶ 21, 878 N.W.2d 54. To determine whether relocation is in the child's best interest the district court must apply the four factors outlined in Stout v. Stout, 1997 ND 61, ¶ 33, 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 noncustodial parent,
3. The integrity of the noncustodial parent's motives for opposing the move, ....
4. 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 ...

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