899 N.W.2d 648
N.D.2017Background
- Cody Booen and Jessica Appel are parents of a nonmarital minor child; 2015 judgment awarded Appel primary residential responsibility and Booen reasonable parenting time.
- Booen filed an order to show cause in April 2016 alleging Appel interfered with his parenting time; Appel moved to dismiss and responded.
- Appel filed a May 2016 motion to relocate the child to Arizona; she and her fiancé (Knoff) planned to marry and Knoff asserted potential business opportunities in Arizona.
- August 2016 evidentiary hearing considered both the relocation motion and Booen’s contempt allegations.
- December 2016 the district court (1) found Appel in contempt on four of eight allegations and awarded Booen half his attorney fees, and (2) granted Appel’s motion to relocate, applying the Stout–Hawkinson factors and adopting a restructured parenting plan.
- This appeal: Booen challenges the relocation decision; Appel cross-appeals the contempt finding, the parenting plan, and the fee allocation. The Supreme Court affirmed the district court; one justice dissented on the relocation issue.
Issues
| Issue | Plaintiff's Argument (Booen) | Defendant's Argument (Appel) | Held |
|---|---|---|---|
| Whether the relocation to Arizona was in the child’s best interest under Stout–Hawkinson | District court misapplied/failed to properly weigh Stout–Hawkinson factors; findings inconsistent and relocation harms father–child relationship | Move improves custodial parent’s and child’s quality of life (intact household, potential financial improvement); parenting plan can preserve relationship | Affirmed: trial court’s factual findings supported; not clearly erroneous (relocation allowed) |
| Whether the district court properly applied factor 1 (quality of life) | No evidence relocation would yield material or educational/health benefits; findings conflict | Custodial family likely to remain intact (fiancé, planned marriage); potential material and well‑being benefits support move | Affirmed: court’s factor‑1 finding supported by evidence and was within discretion |
| Whether relocation’s negative impact (factor 4) requires denial given factors 2–3 | Relocation would impair relationship; father lacks funds for travel; mother’s motives partly to deter visitation | A restructured parenting plan (including virtual contact and travel allocation) can preserve and foster father–child relationship | Affirmed: factor 4 favored relocation because a realistic visitation plan could be fashioned; not clearly erroneous |
| Whether Appel was in contempt and whether fee award was proper | Booen sought contempt finding and fees for interference with parenting time and communication | Appel argued violations were technical and court did not identify specific judgment provisions breached | Affirmed: court did not abuse discretion finding contempt on four allegations; awarding 50% of Booen’s attorney fees as remedial sanction was within discretion |
Key Cases Cited
- Larson v. Larson, 878 N.W.2d 54 (N.D. 2016) (clearly erroneous standard for relocation findings)
- Stout v. Stout, 560 N.W.2d 903 (N.D. 1997) (establishes relocation factors)
- Hawkinson v. Hawkinson, 591 N.W.2d 144 (N.D. 1999) (modifies Stout factors)
- Stai-Johnson v. Johnson, 862 N.W.2d 823 (N.D. 2015) (balancing quality‑of‑life and continuity for factor one)
- Tibor v. Tibor, 598 N.W.2d 480 (N.D. 1999) (parental well‑being tied to child’s best interests)
- Hruby v. Hruby, 776 N.W.2d 530 (N.D. 2009) (virtual visitation and restructuring visitation to preserve relationships)
- Votava v. Votava, 865 N.W.2d 821 (N.D. 2015) (remedial contempt standard requires willful, inexcusable intent)
- Peterson v. Peterson, 883 N.W.2d 449 (N.D. 2016) (attorney fees may be awarded as remedial contempt compensation)