Larson v. Larson
2016 ND 76
| N.D. | 2016Background
- Gregory Larson and Ana Conceicao divorced in 2006; Conceicao was awarded primary residential responsibility for their two minor children and Larson liberal parenting time.
- In 2014 Larson moved to modify primary residential responsibility, alleging Conceicao interfered with his parenting time; the district court found a prima facie case and held an evidentiary hearing.
- Shortly before that hearing Conceicao filed a conditional motion to relocate to Florida with the children, stating she would not move if Larson was awarded custody; the court declined to hear the relocation motion unless it first denied Larson’s modification motion.
- The district court found a material change in circumstances but denied Larson’s request because a custody change was not required in the children’s best interests; the court awarded Conceicao $3,000 in attorney fees for defending the modification motion.
- After a later hearing the court denied Conceicao’s relocation motion and denied her request for attorney fees for the relocation proceeding.
- Both parties appealed: Larson challenged denial of his modification motion; Conceicao cross-appealed the denial of relocation and attorney fees. The Supreme Court affirmed on all points.
Issues
| Issue | Plaintiff's Argument (Larson) | Defendant's Argument (Conceicao) | Held |
|---|---|---|---|
| Whether the district court erred in denying Larson’s motion to modify primary residential responsibility | Court should have transferred custody because Conceicao’s conduct (interference and proposed relocation) warranted change | Maintain custody; relocation motion was conditional and not properly before the court | Affirmed — court found material change but change not in children’s best interests; refusal to consider conditional relocation in the custody analysis was not an abuse of discretion |
| Whether the court should have considered Conceicao’s pending relocation motion when assessing best‑interest factors | Relocation intention should be weighed under factors (d) and (h) because it affects continuity and community ties | Relocation motion was contingent and not yet heard; she would not move if custody changed | Affirmed — court permissibly gave no weight to the unadjudicated, conditional relocation motion in the custody determination |
| Whether the district court erred in denying Conceicao’s relocation motion to Florida | N/A (Conceicao is movant) | Move would improve family life (diversity, proximity to Brazil, personal quality of life) and benefits would inure to children | Affirmed — court applied Stout/Hawkinson factors and found advantages did not significantly improve children’s lives and had concerns about motive and compliance with parenting plans |
| Whether Conceicao should have been awarded attorney fees for the relocation motion | She sought fees based on need and Larson’s ability to pay and because she incurred fees defending the custody motion | She sought fees for the relocation proceeding | Affirmed — court did not abuse discretion; movant did not prevail and no compelling reason to award fees; no evidence Larson unreasonably increased costs |
Key Cases Cited
- Seibold v. Leverington, 837 N.W.2d 342 (N.D. 2013) (standards for modifying primary residential responsibility)
- Vining v. Renton, 816 N.W.2d 63 (N.D. 2012) (stability of custodial relationship and presumption favoring custodial parent in custody changes)
- Dunn v. Dunn, 775 N.W.2d 486 (N.D. 2009) (relocation intention may be considered in best-interest analysis when parent will move regardless of court decision)
- Wright v. Wright, 431 N.W.2d 301 (N.D. 1988) (procedural guidance for resolving competing custody and relocation motions)
- Stai-Johnson v. Johnson, 862 N.W.2d 823 (N.D. 2015) (standard and Stout/Hawkinson framework for relocation requests)
- Dvorak v. Dvorak, 719 N.W.2d 362 (N.D. 2006) (articulation of Stout/Hawkinson factors for relocation analysis)
- Graner v. Graner, 738 N.W.2d 9 (N.D. 2007) (factors to weigh economic and non‑economic advantages in relocation)
- Hentz v. Hentz, 624 N.W.2d 694 (N.D. 2001) (appellate review principles — do not reweigh evidence; consider remoteness of past incidents)