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Green v. Swiers

Supreme Court of North Dakota

December 6, 2018

Brittany Lynn Green, Plaintiff and Appellant
v.
Scott James Swiers, Defendant and Appellee and State of North Dakota, Statutory Real Party in Interest

          Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Donald Hager, Judge.

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

          Kelsey L. Hankey, Grand Forks, ND, for defendant and appellee.

          OPINION

          JENSEN, JUSTICE.

         [¶ 1] Brittany Green appeals from a district court's order denying her motion to relocate with the parties' minor child and granting Scott Swiers' motion to modify parenting time. Green argues the district court erred in denying the motion to relocate because it did not properly analyze and weigh the Stout-Hawkinson factors. Green also argues the district court erred in finding a material change in circumstance sufficient to justify modification of parenting time. We affirm.

         I

         [¶ 2] Green and Swiers are the parents of a minor child, ILS, born in June 2016. Shortly after ILS's birth, the parties terminated their relationship and a disagreement arose regarding their parenting time with ILS. After participating in North Dakota's family law mediation program, the parties stipulated to the terms of their parenting time. In October 2016, the district court adopted the parties' stipulation and ordered the entry of a judgment providing Green with primary residential responsibility of ILS subject to a parenting schedule for Swiers.

         [¶ 3] In May 2017, Swiers filed a motion to modify primary residential responsibility or in the alternative, modify parenting time. Green opposed Swiers' motion and sought approval from the district court to relocate to Seattle, Washington, where she planned to reside with her fiancé. The district court denied Swiers' request to modify primary residential responsibility, granted his motion to modify the parenting time schedule, and denied Green's motion to relocate with ILS.

         II

         [¶ 4] Green argues the district court erred by denying her motion to relocate with the minor child. "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.

         [¶ 5] 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, 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. Those factors generally read as follows:

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 ...

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