This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-98-1950

In Re the Marriage of:

Elizabeth Marie Lockwood, petitioner,

Appellant,

vs.

Terry Lee Lockwood,

Respondent.

Filed March 9, 1999

Reversed and remanded; motion denied

Harten, Judge

Douglas County District Court

File No. F4-96-990

Corenia A. Kollasch Walz, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., 110 North Mill Street, P.O. Box 866, Fergus Falls, MN 56538-0866 (for appellant)

Shelly D. Rohr, Wolf & Rohr, P.A., 960 Norwest Tower, 55 East Fifth Street, St. Paul, MN 55101 (for respondent), and

Clea D. Burns, Yerigan Law Office, P.A., 7714 Brooklyn Blvd., Suite 105, Brooklyn Park, MN 55443 (for respondent)

Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

The district court denied appellant permission to move with the parties' son to Texas so she could take advantage of an employment opportunity. Because we conclude that the district court abused its discretion, we reverse the denial and remand for resolution of issues arising from granting appellant permission to move.

FACTS

When their marriage was dissolved, appellant Elizabeth Lockwood and respondent Terry Lockwood stipulated that appellant would have custody of their six-year-old son, N.T.L. Appellant works alternate weekends and irregular shift hours as a part-time registered nurse, earning about $28,000 annually. Visitation was arranged so that N.T.L. is with respondent on the weekends appellant works, for extended periods during the summer months, and on alternate holidays.

N.T.L. attends first grade near where he and appellant live with appellant's mother. N.T.L. also has significant relationships with his paternal grandparents and other extended family members in Minnesota. Appellant has a brother who lives with his wife and two children in Texas.

Appellant seeks full-time work that does not involve patient care and that has regular hours so she is off work when N.T.L. is not in school. She applied for and received a Texas job offer meeting these specifications, with an annual salary of $43,000. She and N.T.L. were invited to live with her brother and his family in a nearby town until she could find suitable accommodations.

Appellant moved the court for permission to relocate herself and N.T.L. to Texas. The district court denied her motion without an evidentiary hearing on the grounds that similar job opportunities are available in Minnesota and the relocation would not be in N.T.L.'s best interests.

Appellant seeks either reversal or reversal with a remand for an evidentiary hearing.[1]

D E C I S I O N

Minn. Stat. § 518.175, subd. 3 (1998), provides:

The custodial parent shall not move the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, when the noncustodial parent has been given visitation rights by the decree. If the purpose of the move is to interfere with visitation rights given to the noncustodial parent by the decree, the court shall not permit the child's residence to be moved to another state.

The appropriate standard of review is abuse of discretion. See Manthei v. Manthei, 268 N.W.2d 45, 46 (Minn. 1978) (a trial court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of that discretion).

Auge v. Auge, 334 N.W.2d 393 (Minn. 1983), interpreted Minn. Stat. § 518.175, subd. 3: "permission to remove should be granted where there is no showing that the move is against the child's interests * * *." Id. at 398-99. The burden of proving that the move is against the child's interests is on the noncustodial parent. Id. Gordon v. Gordon, 339 N.W.2d 269, 271 (Minn. 1983), applied the presumption of granting requests for permission to move to cases where the parents have joint legal custody, but the parent seeking to remove the child has sole physical custody. Id. at 271.

The district court found that employment opportunities similar to the Texas opportunity are available in Minnesota. But this finding, however accurate, is irrelevant in light of caselaw. Auge reversed the denial of a custodial parent's motion for permission for the child to accompany the custodial parent and her new husband to Hawaii for eight months of each year.

The [child], after the parents' divorce * * *, belong[s] to a different family unit than [he] did when the parents lived together. The new family unit consists only of the [child] and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interest of the [child].

* * * *

The court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable life style for the mother and [child] be forfeited solely to maintain weekly visitation by the father where reasonable alternative visitation is available and where the advantages of the move are substantial.

Auge, 334 N.W.2d at 398 (citations omitted). See also Silbaugh v. Silbaugh, 543 N.W.2d 639, 640 (Minn. 1996) (no error in denying noncustodial parent's motion for evidentiary hearing and granting motion of custodial parent who "had a career opportunity in Arizona that had the potential for a better lifestyle for herself and her children" to take the children with her to Arizona); Gordon, 339 N.W.2d at 271-72 (granting custodial parent who had obtained employment in Illinois permission to change children's residence so they could remain with her); Geiger v. Geiger, 470 N.W.2d 704 (Minn. App. 1991) (permitting custodial parent who had been remarried to a husband living and working in North Dakota to take the children with her and providing an alternative visitation schedule), review denied (Minn. Aug. 1, 1991); Meyer v. Meyer, 346 N.W.2d 369 (Minn. App. 1984) (permitting custodial parent who had been offered a position in Seattle with shorter work hours and increased income to move children to Seattle).

The Meyer court reasoned:

The trial court failed to apply the Auge standard to this case. The court found that the mother sought to move to obtain a better job, not to deprive the father of visitation. But instead of presuming the move was in the best interests of the children, the court weighed the economic necessity for the move against the preservation of the father's existing visitation rights. The court found the move was not "reasonably necessary" because relocation was not a condition of continued employment and because the mother could adequately support the children if she stays in the Winona area. To preserve the father's visitation rights, the court required the mother to sacrifice the chance to take a better paying job that would give her more time with her children.

The court's reasoning and conclusion ignore Auge. The mother has custody of the children. She is responsible for their primary care. So long as reasonable visitation can be arranged, Auge requires she be free to go where her best interests lie.

Id. at 371. Analogously, the issue before the district court was not whether appellant could obtain suitable employment in Minnesota, but whether it is in her best interests, economically and otherwise, to remain in Minnesota. Like the custodial parent in Meyer, appellant was required by the district court's decision to sacrifice a better paying job that would give her more time with N.T.L.

Meyer also sets out criteria for "reasonable visitation." Again, the situation is similar to that before us.

It is true that the father would no longer be able to visit the boys every other weekend. However, a visitation schedule calling for regular telephone calls and extended summer and holiday visits would be a reasonable alternative.

["]It is at least arguable * * * that the alternative of uninterrupted visits of a week or more in duration several times a year, where the father is in constant and exclusive parental contact with children and has to plan and provide for them on a daily basis, may well serve the paternal relationship better than the typical weekly visit which involves little if any exercise of real paternal responsibility.["]

Meyer, 346 N.W.2d at 372 (quoting Auge, 334 N.W.2d at 398). Respondent also would no longer have visitation every other week, but would have extended visitation during the summers and other school breaks.

Based on affidavits, the district court also found that N.T.L. has close relationships with both parents, that he is very close to his paternal grandparents and close to other extended family members in Minnesota, and that removing him from Minnesota would endanger his emotional stability and well-being. Similar findings were made in Silbaugh, which recognized, however, that

[a]ny geographic change inevitably creates some anxiety for children, but evidence of the disruption typically associated with such a move is not sufficient to overcome the Auge presumption that removal is in the best interests of the children.

Silbaugh, 543 N.W.2d at 642.

Respondent did not make a prima facie showing that the move to Texas is against N.T.L.'s interests. "Unless the party opposing the motion for removal makes a prima facie showing against removal, permission may be granted without an evidentiary hearing." Auge, 334 N.W.2d at 399 (citation omitted). Given the Auge presumption, the district court abused its discretion in denying appellant permission to move. We therefore reverse and grant appellant permission to move to Texas.

While we have decided the issue of permission to move, we remand for an evidentiary hearing to determine collateral issues that will arise from the move, such as timing, visitation, transportation arrangements, and any other collateral issues that the district court identifies in its discretion.

Reversed and remanded; motion denied.

[1] Respondent argues that the issue is moot because the Texas job offer has now expired. But an issue is not moot if it is "capable of repetition but likely to evade review." Everest Dev., Ltd. v. City of Roseville, 566 N.W.2d 341, 343 (Minn. App. 1997) (quotation omitted). This issue is capable of repetition: appellant could obtain another out-of-state job offer and again move for permission to relocate. The issue is also likely to evade review, unless a job offer remains open for the time necessary to bring a motion, hold a hearing, obtain a decision, and possibly obtain appellate review. In connection with his mootness argument, respondent moves to strike appellant's affidavit submitted to this court asserting that she now has another similar job offer in Texas. An appellate court has the "power to look beyond the record where the orderly administration of justice commends doing so." Crystal Beach Bay Ass'n v. Koochiching County, 243 N.W.2d 40, 43 (Minn. 1976). At the time this case was before the district court, appellant had a job offer open in Texas. Her affidavit presents a similar fact situation. We therefore deny respondent's motion to strike.