Opinion
No. A04-390.
Filed November 23, 2004.
Appeal from the District Court, Carver County, File No. F3-98-1754.
Dennis P. Moriarty, Jaspers, Moriarty Walburg, P.A., (for respondent).
William R. Lindman, Joseph A. Field Associates, P.A., (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Walter Neal Bowman challenges the district court's order permitting respondent Karen Belinda Hahn, f/k/a Bowman, to permanently remove F.B., the parties' minor child, from the state. Appellant argues that respondent sought to remove the child in order to defeat parenting time. Appellant further argues that the district court abused its discretion by refusing to permit him to view treatment and session notes made by the child's treating therapist, or to view respondent's counseling and treatment records.
Because there is sufficient evidence in the record to support its order, we conclude that the district court did not abuse its discretion. We therefore affirm the removal order.
DECISION
A district court order permitting permanent removal of a child from the state is reviewed for an abuse of discretion. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). An abuse of discretion occurs when the court makes a finding that is unsupported by evidence or when the court misapplies the law. Id. Findings of fact are reviewed for clear error. Rutz v. Rutz, 644 N.W.2d 489, 493 (Minn.App. 2002), review denied (Minn. July 16, 2002).
A physical custodian may not remove a child from the state without the consent of the other parent or a court order permitting removal. Minn. Stat. § 518.175, subd. 3 (2002). It is presumed, however, that removal will be permitted. Auge v. Auge, 334 N.W.2d 393, 397 (Minn. 1983). The removal of a child from the state is a change in circumstances. Minn. Stat. § 518.18 (d) (2002); Sefkow v. Sefkow, 427 N.W.2d 203, 214 (Minn. 1988). The district court must maintain the current custody arrangement unless the noncustodial parent can show that the removal is not in the child's best interests and that the removal will endanger the child's physical or emotional health. Id.
Additionally, "[i]f the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child's residence to be moved to another state." Minn. Stat. § 518.175, subd. 3; see also Rutz, 644 N.W.2d at 494 (stating that while presumption exists that favors custodial parent's ability to remove child from state, that presumption is defeated when removal is intended to interfere with visitation). The issue of whether a move is being proposed in order to interfere with visitation is a fact issue involving a credibility determination. See Rutz, 644 N.W.2d at 493. This court must defer to the district court's credibility determinations. Id.
The district court here was familiar with the parties, having presided over several hearings during the course of their dissolution of marriage proceeding. The district court found that appellant did not sustain his burden of proving by a preponderance of the evidence that removal of the child from the state was not in the child's best interests or that it was harmful to the child's emotional or mental health. The court further found that the request to remove the child was not being made in order to defeat appellant's visitation rights. The district court based its findings primarily on the summary report of Dr. Kathleen Jacobson, who was the child's treating therapist. This report provides a sufficient factual basis for the district court's findings.
Appellant argues that the district court abused its discretion by receiving Dr. Jacobson's summary report without requiring the release of the underlying treatment and session notes. District court decisions regarding the admission or exclusion of evidence are reviewed for abuse of discretion. Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). Before the child began therapy, both parties signed a contract with Dr. Jacobson agreeing that they would not request this type of material for any purpose, including litigation. This alone provides a sufficient reason for the district court's denial of appellant's request to release the underlying treatment and session notes. We therefore conclude that the district court did not abuse its discretion by receiving Dr. Jacobson's summary report and by denying appellant access to the underlying materials.
Appellant also has not demonstrated how the district court abused its discretion by denying his request for respondent's counseling and treatment records; the issue of respondent's fitness to retain custody was not raised below.
Because the district court did not abuse its discretion by permitting respondent to permanently remove the child from the state, we affirm the district court's removal order.