Porter v. Porter

2006 ND 123, 714 N.W.2d 865, 2006 WL 1493820
CourtNorth Dakota Supreme Court
DecidedJune 1, 2006
Docket20050358
StatusPublished
Cited by17 cases

This text of 2006 ND 123 (Porter v. Porter) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Porter v. Porter, 2006 ND 123, 714 N.W.2d 865, 2006 WL 1493820 (N.D. 2006).

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] Brandon Porter appealed from a district court order denying his motion to move with his child from North Dakota to Alaska. We conclude the district court erred in applying the Stout-Hawkinson factors, and we therefore reverse and remand.

I

[¶ 2] Brandon Porter is a member of the United States Air Force. Brandon and Olga Porter were married in 1996. The parties’ -minor child was born in 1999, while Brandon Porter was stationed in Alaska at Eielson Air Force Base. In 2002, Brandon Porter was transferred to Minot [868]*868Air Force Base in North Dakota. Brandon and Olga Porter were divorced in 2003, and judgment was entered, consistent with the parties’ stipulation, awarding the parties joint legal custody of their child and awarding Brandon Porter primary physical custody.

[¶ 3] In March 2005, Brandon Porter received notice he was being transferred back to Eielson Air Force Base in Alaska. In April 2005, Brandon Porter moved for permission from the court to remove the parties’ child from North Dakota. After a hearing, the district court denied Brandon Porter’s motion, concluding he orchestrated the transfer from North Dakota to Alaska in an effort to distance himself from Olga Porter and to limit her involvement in raising the child. The court also concluded it doubted whether there was a realistic way to provide visitation that would preserve and foster Olga Porter’s relationship with the child, and it was questionable whether Brandon Porter would comply with any court-ordered visitation.

II

[¶ 4] Section 14-09-07, N.D.C.C., provides, “[a] parent entitled to the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent.” The court’s primary consideration in relocation cases is whether it is in the child’s best interests to move to another state. Oppegard-Gessler v. Gessler, 2004 ND 141, ¶ 7, 681 N.W.2d 762. The custodial parent has the burden to prove, by a preponderance of the evidence, that the move is in the child’s best interests. Id.

[¶ 5] The district court’s decision on relocation is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. Stout v. Stout, 1997 ND 61, ¶ 7, 560 N.W.2d 903. A finding of fact is clearly erroneous if “it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made.” Id. This Court will not reweigh the evidence or reassess credibility when there is evidence to support the district court’s findings, and we will not reverse the decision merely because we might have reached a different conclusion. See Hentz v. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694.

[¶ 6] To determine whether a contemplated move is in the child’s best interests, a district court must consider the four factors that were enumerated in Stout and modified in Hawkinson:

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, and
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 the likelihood that each parent will comply with such alternate visitation.

Stout, 1997 ND 61, ¶33, 560 N.W.2d 903; Hawkinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144 (modifying the fourth factor). One factor is not dominant, and what may not be important in one case [869]*869may be of more significance in another case. Oppegard-Gessler, 2004 ND 141, ¶ 8, 681 N.W.2d 762. The district court must analyze all four factors when determining whether the move is in the child’s best interest; failure to address all four factors is reversible error. Dvorak v. Dvorak, 2005 ND 66, ¶ 19, 693 N.W.2d 646.

A

[¶ 7] Brandon Porter argues the district court clearly erred because it failed to address the first Stout-Hawkinson factor. We agree.

[¶ 8] The first factor requires the court to consider the prospective advantages of the move, and in doing so, the court is not limited to only considering the enhanced economic opportunities for the custodial parent, but must also consider the other less tangible benefits of the relocation. Stout, 1997 ND 61, ¶ 33, 560 N.W.2d 903. Essential. to the analysis .is the “importance of maintaining continuity and stability in the custodial family.” Goff v. Goff, 1999 ND 95, ¶ 14, 593 N.W.2d 768. The court should consider any. evidence presented regarding the relationship between the custodial parent and the child, and may also presume the custodial parent plays a significant role in the child’s life due to the nature .of their relationship. This Court has stated, “[w]e will reverse, if the trial court’s analysis fails to give sufficient credence to the need for keeping the custodial family intact.” Id.

[¶ 9] Olga Porter claims Brandon Porter is not the child’s custodial parent and that they are in fact joint custodians. The parties stipulated they would receive joint legal custody with Brandon Porter receiving primary physical custody of the child. We give a great deal of deference to custody provisions in a stipulated decree because the parties agreed to those terms and the terms were adopted by the court. Oppegard-Gessler, 2004 ND 141, ¶ 12, 681 N.W.2d 762. We encourage divorced parents to cooperate and allow flexible visitation to provide a healthy environment for the child, and as we have previously stated, we will not punish a custodial parent “for allowing, either voluntarily or out of necessity, the child [] to exercise flexible, liberal visitation with [the noncustodial parent].”' Id. at.1I13. However, notwithstanding - Olga Porter’s additional visitation, for purposes of N.D.C.C. § 14-09-07 the parties are not joint custodians. Brandon Porter is the child’s primary custodian, and therefore the district court must consider the benefits of maintaining the custodial relationship that exists between. Brandon Porter and the child.

[¶ 10] Although Olga Porter argues Brandon Porter failed to present any evidence on the first' Stout-Hawkinson factor which would allow the court to make findings, her argument is' unpersuasive. The evidence presented to the district court included the economic benefits, the recreational benefits, and the benefits of maintaining the custodial parent/child relationship. Brandon Porter testified to his daily involvement in the child’s life, including helping her with school work and his involvement in her daily routine. He testified to the recreational activities he participates in with the child, including hockey, soccer, snowmobiling, four wheeling, and other outdoor activities.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 ND 123, 714 N.W.2d 865, 2006 WL 1493820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-porter-nd-2006.