Lead Opinion
[¶ 1] Jeffery Maynard appeals an order allowing his former wife, Christa McNett, formerly known as Christa Maynard, to move from Fargo, North Dakota, to Bran-
I
[¶ 2] Maynard and McNett- were married on June 26,. 1993. The parties had one child born in 1996. On June 2, 1999, Maynard and McNett were divorced, and the parties stipulated to “joint legal and joint physical custody” of the child. The stipulation was incorporated into the judgment. Following the divorce, the child spent approximately twelve nights per month with Maynard and the remainder of each month with McNett.
[¶ 3] In July 2004, McNett brought a motion to move her child out of state to Branson so she could pursue a job in her field of study, corporate community fitness. If McNett moved to Branson, she planned to take a position managing a “Why Weight? Women’s Total Fitness” franchise. McNett’s mother had agreed to pay for the start-up costs of the franchise and was planning to open two new “Why Weight?” stores on property she owned near Branson. Maynard, who lives in Fargo, opposed McNett’s requested move to Branson, arguing that a move would infringe on his parental rights.
[¶ 4] On August 30, 2004, a hearing was held before judicial referee Scott A. Griffeth. After hearing testimony, the judicial referee granted McNett’s motion to move out of state. On September 28, 2004, Maynard requested a review of the judicial referee’s decision. On October 21, 2004, after a de novo review of the record, Judge Wade L. Webb issued an order adopting the referee’s findings and affirming the decision of the judicial referee. Maynard then moved to amend the findings of fact and judgment. The motion was denied. Maynard attempted to stay the judgment at the district court and this Court, but neither court granted a stay. This appeal followed.
[¶ 5] On appeal, Maynard argues that McNett failed to show that the prospective move would be advantageous and in the best interests of the child, and that the court did not give sufficient weight to the joint physical custody arrangement. McNett argues the court properly weighed the evidence and concluded the move was in the best interests of the child.
[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.
II
[¶ 7] Section 14-09-07, N.D.C.C., provides a custodial parent “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, if the noncustodial parent has been given visitation rights by the decree.” “The purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent’s visitation rights if the custodial parent wants to move out of state.” State ex. rel Melling v. Ness,
Ill
[¶8] McNett argues that because the child lived more days per month with her, as directed by the divorce judgment, the trial court properly determined she was the custodial parent. Whether the divorce judgment declared a primary custodian requires an interpretation of the judgment. Interpretation of a judgment is a question of law, and the interpretation of a judgment by a different trial judge than the one who ordered its entry is entitled to no deference.
[¶ 9] Under N.D.C.C. § 14-09-06.1:
An order for custody of an unmarried minor child entered pursuant to this chapter must award the custody of the child to a person, agency, organization, or institution as will, in the opinion of the judge, promote the best interests and welfare of the child. Between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child.
Section 1-01-35, N.D.C.C., explicitly provides, “Words used in the singular number include the plural and words used in the plural number include the singular, except when a contrary intention plainly appears.” Therefore, the designation of a single custodian is not required. Each parent can be declared a custodian and enjoy all the rights under the law designated to a custodial parent.
[1110] A custody arrangement stipulated to by the parties must be given a great deal of deference, and the parties must be bound by it to provide certainty in future disputes. Oppegard-Gessler,
[¶ 11] The district court failed to properly analyze the divorce judgment and decree, which established not a custodial parent but joint legal and joint physical custody. The district court wrote the grant of joint legal and joint physical custody out of the divorce judgment and decree and analyzed the case as though there were only one custodial parent.
[¶ 12] There is, in fact, joint legal and physical custody in this case, and the district court wrongly wrote the joint custody award out of the decree. This is an erroneous view of North Dakota law and ig-
IV
[¶ 13] In Stout v. Stout, this Court discussed how the courts of North Dakota should decide whether allowing a custodial parent to relocate with a child under N.D.C.C. § 14-09-07 was in the best interests of the child.
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,
4. 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, at ¶ 34.
[¶ 14] The fourth factor was altered in Hawkinson v. Hawkinson to address the negative effect a move can have on the noncustodial parent’s relationship with the child:
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.
[¶ 15] Stout recognized, however, the differences between a motion to relocate in a sole custody arrangement and a joint custody arrangement. In Stout, the majority said, “We emphasize that motions to relocate are not motions for change of custody.... In contrast, in a motion to relocate, the primary physical custody decision has already been made, and custody is not the issue.” Stout,
Michael did not assert before the referee, the district court, or this court that, in view of the joint custody ar*375 rangement agreed to by the parties and incorporated in the divorce decree, Judith’s proposed move with Patrick to the Twin Cities area and its resulting effect on Michael’s “shared parenting schedule” would constitute a modification of the custody provisions of the divorce decree requiring Judith to show not only that the move is in Patrick’s best interests, but also that there has been a significant change of circumstances since the original divorce decree was entered. See, e.g., Anderson v. Anderson,448 N.W.2d 181 , 182 (N.D.1989). Because the parties have neither raised nor addressed this issue, we do not resolve it in this case.
[f 16] This case presents a motion to relocate when there is true joint legal and joint physical custody. As acknowledged by the majority in Stout, this case requires a determination of primary custody before MeNett may be granted permission to relocate with the child because primary custody has not been decided. To allow one parent to relocate without first deciding primary custody would completely undermine the joint custody rights the parties agreed to share.
[¶ 17] The courts of other jurisdictions have recognized that before a motion to relocate can be granted in joint custody cases, there must be a declaration of primary custody. In Voit v. Voit, the father wanted to move from New Jersey to Arizona.
[¶ 18] In Brown v. Brown, the mother wanted to move from Nebraska to New York.
[¶ 19] In Ayers v. Ayers, the Minnesota Supreme Court held that Minnesota’s statutory best-interests-of-the-child factors should be applied in a joint custody relocation case rather than the presumption standard that Minnesota follows in a primary custody child relocation case.
[¶ 20] Recently, the Nevada Supreme Court considered whether Nevada’s relocation statute still applied to joint custody cases after the legislature had amended it. Potter v. Potter,
[¶ 21] A motion to relocate and the Stout-Hawkinson factors alone are inadequate in handling the ease of a parent with joint custody of a child wishing to relocate with the child. We hold that a parent with joint legal and physical custody may not be granted permission to move with the parties’ child, unless the district court first determines the best interests of the child require a change in primary custody to that parent. A parent with joint custody who wishes to relocate with the child must make two motions: one for a
[¶ 22] ■ McNett argues that the Stout-Hawkinson factors must be considered when deciding whether, in a true joint custody case, th,e proposed move is in the best.interests of a child. Stout,
[¶23] Actually, this Court’s opinion in Tibor provides an excellent example of why the Stout-Hawkinson test is inadequate in addressing the relocation of a child' whose parents share joint custody. After their divorce, the parents shared joint legal and physical custody, with the mother having physical custody for more days per year than the father. Id. at ¶ 2. Each party remarried, and the mother moved to have the original judgment amended, granting her primary custody of the children. Id. at ¶ 3'. The mother’s husband then accepted an engineering position in Macon, Georgia, and the mother moved for court permission to.-relocate with the children. Id. at ¶ 4. While holding that the mother was a parent entitled to custody of the child, the majority said, “For purposes of N.D.C.C. § 14-09-07, assuming both parties had physical custody of the children for equal amounts of time, each would be deemed a parent entitled to custody and each would be required to seek court authorization to relocate the children out of state.” Id. at ¶ 7. This
[¶ 24] The majority in Tibor then applied the Stout-Hawkinson factors to decide whether the move was in the best interests of the children. Tibor, at ¶ 9. While applying the first factor, the majority delineated the first factor’s considerations:
Under the first Stout factor the trial court must weigh the advantages of the requested move “while recognizing the importance of maintaining continuity and stability in the custodial family.” Hawkinson v. Hawkinson,1999 ND 58 , ¶ 11,591 N.W.2d 144 . A trial court’s failure to give sufficient credence to the need for keeping the custodial family intact constitutes reversible error. Goff v. Goff,1999 ND 95 , ¶ 14,593 N.W.2d 768 . The court must give due weight to the possibility the move will enhance both the economic and non-economic aspects of the custodial family’s life. Id. This factor must be considered in light of the importance of maintaining the stability of the custodial parent/child relationship. Hawkinson,1999 ND 58 , ¶ 12,591 N.W.2d 144 ; Goff,1999 ND 95 , ¶ 13,593 N.W.2d 768 .
Tibor, at ¶ 11 (emphasis added) (footnote omitted). Furthermore, in Tibor the majority said, “[t]he children’s best interests are inextricably interwoven with the quality of life of the custodial parent, with whom they live and upon whom they rely emotionally.” Id. at ¶ 13 (emphasis added) (citing Stout,
[¶ 25] The fourth Stout-Hawkinson factor requires the court to consider
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.
Hawkinson,
■ [¶ 26] This Court’s decision in Oppe-gard-Gessler is also distinguishable. In Oppegardr-Gessler, the mother was' awarded sole physical custody in the divorce judgment, and the father enjoyed “reasonable and liberal visitation.”
V
[¶ 27] There was no motion to change custody and therefore the motion to relocate could not have been properly granted. We reverse.
Notes
. Justice Kapsner’s dissent erroneously analyzes the interpretation of a judgment as a finding of fact, not as a question of law.
. The dissents erroneously analyze the move in this case as one involving a sole custodial parent.
Dissenting Opinion
dissenting.
[¶ 30] I respectfully ' dissent. There are two main points that I feel the majority opinion has failed to adequately consider. First, there was a finding that McNett was the primary custodial parent for purposes of the motion-to-reloeate statute and, second, evén though there was joint custody, Oppegard-Gessler v. Gessler,
[¶ 31] This case is governed by the terms of the divorce judgment, the court’s findings, and our past caselaw. The divorce judgment, which incorporated the parties’ stipulation, recognized that the child would reside the majority of the time with McNett. The judgment also stated that for purposes of statutes requiring a determination of custody,- McNett would be the custodial parent of the child. The divorce judgment states:
The plaintiff [Maynard] and defendant [McNett] shall have joint legal and joint physical custody of the minor'child.
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The child named in this agreement is scheduled to reside the majority of the time with defendant [McNett]. ' This parent is designated the custodian of the child solely for purposes of all other state and federal statutes which require a designation or determination of custody. This designation shall not affect either parent’s rights or responsibilities under the current parenting schedule.
[¶ 32] Approximately five years after the divorce judgment was filed, McNett requested permission from the district court to move to Branson, Missouri, with the child to pursue a new career opportu
[¶ 33] Based on the evidence presented at the hearing, the judicial referee made detailed factual findings, including:
2. The divorce decree awarded the parties joint legal and joint physical custody of the parties’ daughter, [] born [] 1996. The decree further provided that [the child] “is scheduled to reside the majority of the time with Defendant.”
3. The parties have adhered to the intent of the judgment, with [the child] spending approximately 12 nights per month with Plaintiff Jeffery J. Maynard (hereinafter, “Jeff’) and spending the remainder of each month with Defendant Christa M. McNett (hereinafter, “Christa”). In addition, even on those days when Jeff has [the child] overnight, [the child] is often with her mother during the day.
4. Although Jeff has [the child] approximately 1/3 of the nights, he has never had extended visitation with [the child], with the exception of a one-week visitation in July 1999. The 1999 visitation is the only time in the last 5 years in which Jeff has had [the child] for as long as one week.
[¶ 34] The judicial referee then made a thorough analysis of the Stout-Hawkinson factors. The court noted that McNett’s motives for moving out of state were not to deny Maynard contact with his daughter. The court also found that: “Jeff has been involved with his daughter and there is no reason to question his motives in opposing the move.” Thus, the case was properly analyzed under factors 1 and 4 of the Stout-Hawkinson factors: the prospective advantage of the move and the potential negative impact of the move. The court recognized that although a move out of state would add cost and distance to visitations making it impossible to continue the frequency of visits between Maynard and his daughter, the relationship could still be preserved by a restructured visitation schedule. After weighing these factors, the court concluded, based on the evidence in the record, that a move to Branson, Missouri, was in the best interest of the child.
[¶ 35] The father requested a review of the judicial referee’s decision. The district court, after a de novo review of the record, adopted the judicial referee’s findings. The district court came to the same conclusion as the judicial referee: a move to Branson, Missouri, was in the best interest of the child. Specifically, the district court noted that although the divorce decree states the parties are to have joint legal and physical custody, McNett had primary physical custody of the child.
[¶ 36] The North Dakota statute for relocation uses the phrase “parent entitled to the custody of a child” and does not make reference to the custody description in the relevant judgment. See N.D.C.C. § 14-09-07. The parties anticipated situations that require a custodial designation. The parties’ stipulation, incorporated into the judgment, recognized McNett as “the custodian of the child solely for purposes of all other state and federal statutes
[¶ 37] Both the referee and the district judge examined the prior judgment and the facts of the custodial arrangements and both determined that McNett was, in fact, the primary physical custodian. Those findings are not clearly erroneous. Both the referee and the district judge analyzed the two applicable Stout-Haw-kinson factors. None of the findings made in the application of the factors were clearly erroneous.
[¶ 38] I do not feel it is the province of this Court to second guess the district court’s factual findings especially given our highly deferential standard of review. Instead, the majority opinion ignores the findings of the trial court, calls this “true joint legal and joint physical custody,” and requires a prior motion for change of custody. See majority opinion supra, at ¶¶ 16, 21. Not only does the majority fail to demonstrate how the court’s finding that McNett is the primary physical custodian is clearly erroneous, it declares this a situation of “true joint custody” despite the court’s findings and despite the language of the judgment: “The child named in this agreement is scheduled to reside the majority of the time with defendant [McNett].”
[¶ 39] The majority cites Oppegardr-Gessler for the proposition that “[a] custody arrangement stipulated to by the parties must be given a great deal of deference, and the parties must be bound by it to provide certainty in future disputes.” See majority opinion supra, at ¶ 10 (citing Oppegard-Gessler,
[¶ 40] The second error the majority makes is in failing to recognize our past caselaw. The majority cites to both Oppe-gard-Gessler and Tibor without acknowledging that the majority opinion specifically overrules a part of each case. Even though there was joint custody in this ■case, our past caselaw has recognized that the motion-to-relocate statute still applies. The district court correctly followed the law of this State citing Oppegard-Gessler,
The divorce decree states that Christa and Jeff have joint legal and physical custody, but as previously stated, the Referee found that Christa had primary physical custody of [the child] allowing Jeff flexible and liberal visitation. Even when there is joint legal and physical custody, the statute governing a change of the child’s residence applies.
[¶ 41] The majority now implicitly overrules in part Oppegard-Gessler, at ¶ 12 and Tibor,
[¶ 42] “The rule of stare decisis is grounded upon the theory that when a legal principle is accepted and established rights may accrue under it, security and certainty require that the principle be recognized and followed thereafter.” Dickie v. Farmers Union Oil Co.,
[¶ 43] Rather than create uncertainty, I would affirm the district court and follow precedent. In determining whether a parent should be allowed to move with the child, this Court has given substantial weight to the actual custodial relationship, the conduct of the parties, and the divorce judgment. A review of this Court’s past decisions shows that the majority’s opinion is a deviation from our past precedent in motion-to-relocate cases. In Stout v. Stout, this Court recognized the proximity of the extended family was an important consideration in motion-to-relocate cases.
[¶ 44] Here, the majority ignores the importance of the extended family in McNett’s decision to move, ignores the benefits of an increased salary and more flexible work schedule, and ignores the restructured visitation schedule to preserve the relationship between Maynard and the child. Instead, the majority’s reading of the divorce judgment focuses solely on the label of “joint custody” without examining, as did the judicial referee and the district judge, how joint custody is defined in the actual agreement and how joint custody is carried out in the actual custody relationship.
[¶ 45] In Tibor, this Court followed the lead of Minnesota cases, holding that the relocation statute, N.D.C.C. § 14-09-07, applies even when “the children spend virtually equal amounts of time with both parties.” Tibor,
Under N.D.C.C. § 14-09-07 “[a] parent entitled to the custody of a child” must get judicial permission to change the child’s residence to another state if the other parent does not consent to the move. The trial court found “the children spend virtually equal amounts of time with both parties,” and concluded Zich “is not a parent entitled to custody” under this provision and, therefore, is not entitled to seek permission to move with the children to another state. We conclude the trial court’s interpretation and application of this statute is much too narrow.
In its January 1997 order for amendments to the judgment, the court designated Zich the “primary custodian” of the children. Clearly, she is a “parent entitled to the custody” of the children. Although both parents have physical custody of the children for significant amounts of time, under the judgment Zich has physical custody more of the time than does Tibor. N.D.C.C. § 14-09-07 “specifically requires a custodial parent to seek permission” to change the children’s residence to another state. Hanson v. Hanson,1997 ND 151 , ¶ 8,567 N.W.2d 216 . For purposes of N.D.C.C. § 14-09-07, assuming both parties had physical custody of the children for equal amounts of time, each would be deemed a parent entitled to*383 custody and each would be required to seek court authorization to relocate the children out of state. We agree with the analysis of the Minnesota courts. Even where there is joint legal custody or joint legal and physical custody, the statute governing a change of the child’s residence applies. The party seeking relocation must comply with the statutory requirements. Silbaugh v. Silbaugh,543 N.W.2d 639 , 641 (Minn.1996); Ayers v. Ayers,508 N.W.2d 515 , 521 (Minn.1993). We conclude N.D.C.C. § ,14-09-07, applies and requires Zich to seek court approval to move with the children to Georgia.
Tibor, at ¶¶ 6-7.
[¶ 46] Tibor, like the Minnesota cases on which it relied, recognized that even cases where joint physical custody existed, either parent would be in a position to bring a motion under N.D.C.C. § 14-09-07 with the Stowh-Hawkinson factors applied to determine the outcome of the motion. The analysis was properly done in this case. I would affirm.
Dissenting Opinion
dissenting.
[¶ 48] I agree with much of the analysis in the majority opinion. In particular I would apply that analysis where the parties had joint legal and true joint physical custody. Here, however, as Justice Kaps-ner notes at ¶ 31 of her dissent, the divorce judgment, entered on stipulation of the parties, provided that McNett would be the designated custodian of the child solely for purposes of all other state and federal statutes which require a designation or determination of custody. I believe N.D.C.C. § 14-09-07 does require a determination of custody and I would apply the stipulated judgment to that statute and conclude McNett is the custodial parent for purposes of that statute. I therefore would affirm the order of the trial court allowing McNett to change the residence of the child to another state.