Opinion
No. C5-00-2024.
Filed June 12, 2001.
Appeal from the District Court, Wright County, File No. F2982009.
Wayne Alan Jagow, (for appellant)
John C. McIntosh, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
The district court denied appellant's motion to remove the parties' children from Minnesota based on its findings the removal would endanger the children and was not in their best interests, and that the removal was a pretext to interfere with respondent's visitation. We affirm.
FACTS
On August 12, 1998, the district court dissolved the marriage of Shannon Marie Koivisto (mother) and John Kaarlo Koivisto (father) and awarded the parties joint legal custody of their five children — two daughters and three sons. Mother was granted sole physical custody subject to the visitation rights of father.
Mother filed motion to modify the custody order to allow her to relocate with the children to Larium, Michigan, where she was raised and where much of her family resides. Father opposed the motion. The district court appointed a guardian at litem and held a full evidentiary hearing.
At the hearing, the two daughters testified to mixed emotions about moving to Michigan. Father testified that the three sons were "adamantly opposed" to the move, angry about it, and frightened about spending less time with him. Mother testified that the sons were not opposed to the move. The guardian ad litem for the most part confirmed father's testimony as to the children's opinions. Furthermore, the guardian at litem testified that father's account of the children's feelings about the move was more consistent with what she understood from the children than mother's account.
The court found that, except for a two-month period when the parties lived in Michigan, the children have lived in their present home since birth and have continuously attended school in the Dassel-Cokato school district. They have had difficulty adjusting to their parents' divorce. The court also found that father has consistently exercised regular visitation with the children since 1998. But the parties have experienced significant difficulty agreeing upon the "reasonable and liberal visitation" permitted under the decree beyond the visitation schedule explicitly contained in that decree.
The district court found that mother "knowingly and intentionally failed to comply with the alternate care provision" of the divorce decree; denied continuation of visitation described as "Mondays with dad;" and interfered with father's visitation schedule. The district court concluded that the proposed move to Michigan was intended to "reduce and interfere with the [father's] ongoing visitation" and was, in reality, a pretext permitting her to interfere with the father's visitation.
The district court also concluded that the proposed move has caused a significant degree of endangerment to the children's emotional development and well being, and that the move was not in the children's best interest. The district court denied the motion to relocate and this appeal followed.
DECISION
Mother argues that the evidence at the hearing did not support the district court's findings that the move would endanger the children's health and well-being and was not in their best interest. She also alleges that the court erred by finding that the move was intended to interfere with father's visitation rights.
A trial court has broad discretion to provide for the custody of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Our review of removal and custody modification cases is limited in nature. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (1996). We will not reverse a custody determination unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). A trial court's findings will be sustained unless they are clearly erroneous. Id.
Under Minn. Stat. § 518.18 (2000), an implicit presumption exists that a custodial parent's request to move a child's residence out of state be granted. Auge v. Auge, 334 N.W.2d 393, 398-99 (Minn. 1983). To defeat that presumption, the party opposing a child's relocation must establish by a preponderance of the evidence that relocation (a) would endanger the child's health and well being andis not in the best interests of the child, or (b) is intended to interfere with visitation. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Minn. Stat. § 518.175, subd. 3 (2000) (if purpose of moving child's residence to another state is to interfere with noncustodial parent's parenting time, court shall not permit move).
The concept of "endangerment" is amorphous. Ross v. Ross, 477 N.W.2d 753, 756 (Minn.App. 1991). Its existence must be determined on the particular facts of each case. Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn.App. 2000). When considering the interests of children, Minnesota courts have previously noted that any geographic change almost invariably creates anxiety for them, and evidence of the disruption typically associated with relocation is not sufficient to overcome the presumption that relocation is in the child's best interests. Silbaugh, 543 N.W.2d at 642.
Here, the guardian ad litem, Lorelei Lechner, testified that she thought a relocation of the children's residence could be harmful. She also testified that when asked about the relocation, the children were sincere in expressing emotions, which she characterized as angry, sad, and lonesome. They also appeared depressed. For instance, Lechner testified that, when interviewed, the youngest child, "first came into the room * * * bubbly and had a big smile on his face, [but] as soon as I bought up the move he became very sad and looked like he was on the verge of tears." Lechner also testified that two sons stated that they did not want to move because they would miss their father and wanted to continue to spend time with him.
Father testified that two sons were emotionally disturbed about the move and that one son was very adamant that he was not going to go and another son cried often about the move. He also testified that the children wanted to stay in Minnesota. He actively helped to raise the children. Lechner thought that father's characterization of the children's emotions was consistent with what the children were telling her. The parties agreed that the children were well adjusted to their life in Minnesota and had strong relationships with family members in the Cokato area.
The district court's findings were supported by the evidence at the hearing and are not clearly erroneous. Because the district court's denial of the motion is supported by the findings that the move was not in the best interests of the children, we need not examine whether the district court's finding that the move was intended to interfere with father's visitation was in error.