Booen v. Appel

Kapsner, Justice,

dissenting.

[1136] The district court’s findings do not match the result in this case. Because I am left with a definite and firm conviction a mistake has been made, I would reverse the order granting Appel’s motion to relocate.

[1137] As the majority correctly notes, the district court found factors two and three of the Stout-Hawkinson factors did not favor relocation. Factor one of the Stout-Hawkinson factors requires consideration of the “prospective advantages of the move in improving the custodial parent’s' and child’s quality of life.” Hawkinson v. Hawkinson, 1999 ND 58, ¶ 6, 591 N.W.2d 144. In a case in which such “prospective advantages” are speculative, as reflected by the district court’s findings, the impact of the district court’s findings on factors two and three should result in a denial of the motion for relocation. The district court noted Knoff anticipated opening up to twenty-five pizzeria locations in Arizona and estimated he could make “$100,000 to $150,000 annually.” The district court noted the pizzeria company had reportedly done market research and financial projections, but did not provide profit and loss estimates or project annual income. The district court stated, “None of this information, research or projections reportedly generated by [the pizzeria company] was offered into evidence.” (Emphasis in original). The district court also noted Knoff has not received any documentation showing he has been approved to open twenty-five stores and found that it “simply is [Knoffs] personal goal to open 25 stores in a ‘years long process.’ ” The district court noted,' despite Knoff purportedly knowing the pizzeria company’s representative who provided a Tetter in support of Knoff s franchise opportunities, Knoff could hot identify where the individual was located and speculated about what that individual’s position was within the company. The district court even noted, “[t]his vagueness about key personnel is troubling in light of a request to relocate to establish financial stability.” In light of these findings, the district court found Knoff s plans only “present the possibility for additional financial security, if the pizzerias are successful.”

. [¶38] Under factor two, the. district court found Appel’s motive for relocation was partially motivated to defeat or deter Booen’s parenting time with the child. Under factor three, the district court found Booen’s concerns about the relocation were valid. While no single factor is dominant, the findings on these two fac*660tors impact factor four. “Under the fourth factor, the court considers the negative impact of the proposed move on the relationship between the children and the noncustodial parent and the ability to restructure parenting time to preserve the relationship.” Larson v. Larson, 2016 ND 76, ¶ 27, 878 N.W.2d 54. A motivation to defeat or deter a noncustodial parent’s visitation necessarily contributes to a negative impact on the relationship between the noncustodial parent and the child. The district court’s finding on factor two also necessarily shows a decreased “likelihood that each parent will comply with ... alternate visitation.” Hawkinson, 1999 ND 58, ¶ 6, 591 N.W.2d 144. Further complicating the consideration of this factor, the district court found the co-parenting relationship between Booen and Appel is impaired by Knoffs behavior and interference. Among other concerns about Knoffs behavior, the district court noted “Knoffs comment that he is more of a father to LVB than Booen is to her, simply because she lives in his home, is troubling, to the extent that it undermines Booen’s role in LVB’s life.” Elaborating, the district court stated, “viewing the evidence and testimony from Booen as a whole, the court finds that Knoff, with Appel’s tacit consent, has interfered in the parties’ co-parenting relationship.”

[¶39] Under factor three, the district court considered the impact of the relocation on the child’s relationship with extended family. The court recognized the move would cause the child to lose “the frequent contact with [Booen’s] mother, brother and his family, or LVB’s paternal grandparents, great-grandparents, aunt, uncle and cousins, which she currently has.” As the district court described, the requested relocation would cause all of these relationships to be curtailed. The court noted if relocation is granted, “Appel would be taking LVB away from both Booen’s extended family, as well as her own extended family who live in the Grand Forks, ND/Bemidji, MN geographical area.” The court specifically noted the child is “particularly close to her paternal grandfather, who cannot travel by air due to health issues.” In contrast to Appel, Booen made efforts to foster the relationship between the child and her extended family on the mother’s side.

[¶40] The same order granting Appel’s motion for relocation also found Appel was in contempt of court for four of the eight issues raised. Of the four issues for which the district court found Appel was in contempt, the most concerning and applicable to the relocation motion was: “Appel has interfered with Booen’s parenting time and has failed to cooperatively co-parent with Booen with respect to daily telephone contacts.” Such a finding does not bode well for Appel’s “ability to restructure parenting time to preserve the relationship!,]” especially considering the distance of the requested relocation. Larson, 2016 ND 76, ¶ 27, 878 N.W.2d 54. The district court found Booen’s testimony about the difficulties associated with securing affordable air travel to Arizona more credible that Knoffs. The district court noted, “reliance upon Allegiant for air travel would not assure Booen and LVB could continue to nurture and foster their parent/child relationship.”

[1141] The district court ultimately found factor four favored relocation after describing the impact of travel on Booen’s and the child’s relationship. The district court noted travel to Arizona would be unaffordable for Booen, that Booen’s concerns about reduced parenting time were valid, and stated it was unlikely that Appel would honor a parenting plan like the one she had proposed. After recognizing these facts, the district court determined factor four favored relocation because a tailored *661parenting plan “can be developed.” The district court’s solution to the numerous issues involved was to delineate a parenting plan that satisfied neither party. The parenting plan included extended 'summer parenting time. The district court determined the parenting plan’s specificity would alleviate the concerns about Appel’s inability to co-parent because, “[hjistorically, Appel has honored specifically designated parenting times. Therefore, Appel is likely to follow this plan.” The history recited by the district court makes me skeptical of this assumption.

[¶42] Even before Stout v. Stout, 1997 ND 61, 560 N.W.2d 903, was decided, this Court has recognized that in relocation cases the trial court should weigh favorable factors of the move against the negative impact on the relationship between the child and the noncustodial parent. Stout at ¶ 9 (citing Hedstrom v. Berg, 421 N.W.2d 488, 490 (N.D. 1988)). Where, as here, the benefits are largely speculative, I am convinced those potential benefits are not shown to outweigh the negative impact on the child’s relationship both with the father and with the extended family in the Grand Forks area. Given the troubling history of the mother’s and the potential stepfather’s lack of concern for and actual interference with those relationships, I have a definite and firm conviction a mistake has been made.

[¶43] Carol Ronning Kapsner