                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-2214

                                  In re the Marriage of:
                               Rory Lane Smoot, petitioner,
                                        Appellant,

                                            vs.

                                  Jacqueline Ann Smoot,
                                       Respondent.

                                    Filed July 7, 2014
                                        Affirmed
                                     Peterson, Judge

                              Olmsted County District Court
                                File No. 55-FA-08-2850

Steven C. Youngquist, Youngquist Law Office, Rochester, Minnesota (for appellant)

David L. Liebow, Restovich Braun & Associates, Rochester, Minnesota (for respondent)


       Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and

Connolly, Judge.

                         UNPUBLISHED OPINION

PETERSON, Judge

       In this appeal from an order granting respondent-mother’s motion to relocate to

another state with the parties’ children and a judgment for attorney fees for mother,

appellant-father argues that (1) the evidence does not support the district court’s findings
on the children’s best interests, and (2) the district court abused its discretion in awarding

mother need-based attorney fees. We affirm.

                                          FACTS

       Appellant-father Rory Lane Smoot and respondent-mother Jacqueline Ann Smoot

were married in 2000 and divorced in 2008 by stipulated judgment and decree. They are

the parents of five minor children. The dissolution judgment awarded the parties joint

legal custody and awarded mother sole physical custody. Father was granted parenting

time of a minimum of one non-overnight visit per week for all children, alternate

weekends for children over age four from Friday evening until Sunday evening, a

minimum of two weeks each summer for children age two and older, and alternating

holidays. The dissolution judgment states, “It is intended that as the children get older

[father] will spend more time with them consistent with their best interests and needs.”

       At the time of the divorce, the parties lived in Rochester, Minnesota, and father

was employed by the Mayo Clinic. In 2012, father moved to Toronto, Canada, for two

years of specialized medical training. In November 2012, mother filed a motion to

relocate with the children to Chanute, Kansas.

       At the evidentiary hearing on mother’s motion, father testified that the medical

training was required for him to obtain a permanent position with Mayo. Father testified

that, before moving to Toronto, he explained to mother that the move was part of a plan

to have a long-term, close relationship with the children. Father testified that, when he

moved, he requested parenting time for the entire summer but was granted three and one-

half weeks during the summer of 2012 and seven weeks during the summer of 2013.


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Father was also granted one weekend of parenting time every other month but testified

that, except for May and October 2013, he went to Rochester to see the children every

month.

       Mother testified that she planned to enroll at Pittsburg State University, which is

near Chanute, to finish her education. Mother testified that her mother and other relatives

live near Chanute and will be able to help her with the children. Mother testified that she

could finish her education one or two semesters earlier in Kansas.

       The district court granted mother’s motion to relocate with the children to Chanute

and awarded mother $10,000 in need-based attorney fees. The district court denied

father’s motion for amended findings and awarded mother an additional $1,120 in need-

based attorney fees. Father appeals. Although the judgment for attorney fees was not

entered until after this appeal was filed, this court extended review to the attorney-fee

awards.

                                     DECISION

                                             I.

       This court’s review of a removal decision “is limited to considering whether the

[district] court abused its discretion by making findings unsupported by the evidence or

by improperly applying the law.” Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn.

2008) (quotation omitted). This court will set aside a district court’s findings of fact only

if clearly erroneous. Id.

       A parent who has physical custody of a child subject to a parenting-time order

may not remove the child to another state except upon a court order or with the consent


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of the noncustodial parent. Minn. Stat. § 518.175, subd. 3(a) (2012). If the move is an

attempt to defeat parenting time, the district court shall not permit the move. Id. In

determining whether to permit a parent to change the children’s residence to another state

when the other parent opposes the move, the district court must base its decision on the

best interests of the children by assessing eight statutory factors. Minn. Stat. § 518.175,

subd. 3(b) (2012). The burden of proof is on the parent seeking to remove the children.

Id., subd. 3(c) (2012).

       Father argues that, in assessing the first statutory factor, the children’s relationship

with both parents, siblings, and other significant persons, the district court’s finding that

father’s role as a parent has been limited to the traditional father’s role as breadwinner

and authority figure is not supported by the parties’ testimony. The district court found:

                     By all accounts the children have a good relationship
              with their father, although perhaps the parent-child
              relationship is somewhat strained due to each child’s
              understanding of Father’s decisions regarding the family.
              There is no reason to believe the children cannot benefit from
              the love and support of both parents working together for
              their best interests.

                      Father has played an important role in his children’s
              lives. He has attended the children’s school conferences and
              activities when his work schedule permits. But because of
              Father’s demanding school and work schedules, his role as a
              parent has been limited to the traditional Father’s role as
              bread-winner and authority figure.

       The finding that father has attended the children’s school conferences and

activities when his work schedule permits indicates that father’s role as a parent has been

greater than the role of breadwinner and authority figure.          But, when read in their



                                              4
entirety, the findings indicate that although father has played an important role in the

children’s lives, father’s demanding schedule has limited his role as a parent, which is

supported by the parties’ testimony. Also, father’s expert, Judy Dawley, testified that the

children felt “some anger” about father’s “long, long work hours” and that “their dad left

them” and recommended counseling to repair the relationship. Father objects to the

district court’s failure to consider the effect of relocation on the children’s relationship

with father’s son with his fiancée. Dawley testified that, if the children relocate, “[t]hey

won’t get to develop much of a sibling relationship with him.” The evidence supports the

district court’s findings that mother is the children’s primary caretaker and that the

children have close relationships with members of mother’s family who live in the

Chanute area, and, in addressing another statutory factor, the district court found that

mother has supported the relationship between the children and their youngest brother.

The district court did not clearly err in finding that the family-relationship factor favors

mother.

       Father argues that the district court erred in assessing the second statutory factor,

the age, developmental stage, needs of the child, and the likely impact of relocation on

those needs. One of the children suffers from a medical condition that requires yearly

monitoring, and the Mayo Clinic is one of only 12 or 13 recognized centers in the country

that specialize in treatment of the condition. Father argues that the district court’s finding

that “[t]his judge is not persuaded and does not find that a move to Chanute, Kansas,

would jeopardize the health or safety of any of the children” improperly placed the

burden of proof on father to establish that relocation would harm the child. The finding


                                              5
does not suggest a shifting of the burden of proof but rather indicates that the court

accepted mother’s testimony that she would continue to bring the child to Rochester for

monitoring after moving to Chanute.

       Father argues that the district court erred in assessing the third statutory factor, the

feasibility of preserving the relationship between father and the children through suitable

parenting-time arrangements. Father argues that it is unrealistic for him to have one

weekend of parenting time each month when the distance between Rochester and

Chanute is 530 miles. But father’s own testimony shows that options are available to

make the schedule workable, including him traveling by plane to Chanute to exercise

parenting time or the parties meeting in Des Moines, where father’s brother resides.

       Father argues that the district court erred in assessing the fifth statutory factor,

whether there is an established pattern of conduct of the person seeking relocation to

promote or thwart the relationship between the children and the nonrelocating parent.

Father argues that the district court erred in finding that “Mother has done her best to

promote each child’s relationship with Father.” This finding is supported by mother’s

testimony that she has always encouraged a healthy relationship between the children and

father, believes that relationship is very important to the children, and will continue to

work hard to support it.

       Father argues that the district court erred in considering mother’s happiness as a

factor favoring relocation. In assessing the sixth statutory factor, whether relocation will

enhance the general quality of life for both the custodial parent and children, the district

court found:


                                              6
                      Mother also testified that she would be substantially
              happier back in her hometown with her family. The court
              finds Mother’s testimony credible, and further finds that the
              children will reap the benefit of Mother being less stressed
              and having a happier disposition. Father claims that Mother’s
              happiness is not relevant. But this Judge finds that happiness
              includes such characteristics as a sense of well-being, self-
              fulfillment and peace of mind. Mother should be entitled to
              pursue her happiness, not to the exclusion of her obligation to
              the children, but to strengthen her for the hard work of raising
              teenagers that lies ahead. Father has chosen to pursue his
              career by moving to Toronto, Canada. This factor favors
              Mother.

       Father argues that the evidence does not support the district court’s finding that the

children are affected by mother’s stress, but mother testified that her stress does affect the

children.   Father also argues that the children are well-adjusted in Rochester.          But

mother’s testimony supports the district court finding that mother could not attain her

education in Rochester without compromising her parenting style.

       Father argues that the evidence does not support the district court’s finding that

father has been financially controlling or otherwise manipulative. Mother’s testimony

about father manipulating her during and after the divorce and her need to complete her

education to become financially stable supports this finding.

       Father argues that comments by the district court during the hearing and its

findings on father’s plan to return to Rochester in 2014 show a bias against father.

During the hearing, the district court commented on father’s decision to move to Toronto

for two years during the children’s formative years. The district court’s comments do not

show bias. Just as father needed to leave Rochester to complete his education, mother

presented valid reasons for moving to Chanute to complete her education, including that


                                              7
having her family nearby to help with the children will enable her to complete her

education sooner. Regarding father’s plan to return to Rochester, although the district

court noted that the future is always uncertain, it found that father’s return to Rochester

was likely and that the seventh statutory factor, the reasons of each parent for seeking or

opposing relocation, was neutral.

       The district court made detailed findings on the children’s best interests, and those

findings support the decision to permit mother to relocate to Chanute with the children.

                                             II.

       The court “shall” award attorney fees if it finds that (1) the fees are necessary for a

good-faith assertion of rights; (2) the payor has the ability to pay the award; and (3) the

recipient does not have the means to pay his or her own fees. Minn. Stat. § 518.14 subd.

1 (2012). In a dissolution case, the issue of attorney fees “rests almost entirely within the

discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”

Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review

denied (Minn. Feb. 18, 1999).

       Father argues that mother did not file a motion for attorney fees as provided for in

Minn. R. Gen. Pract. 119.01. But in its January 13, 2013 order, the district court stated

that it might consider an award of attorney fees, and mother requested attorney fees at the

evidentiary hearing. The evidence supports the district court’s finding that father was not

prejudiced by the lack of a formal motion.

       Father’s income is $244,000 per year. Mother receives $1,200 per month in

maintenance and $3,256 in child support. The district court awarded $10,000 in attorney


                                              8
fees, one-half of the amount incurred in pursuing the relocation motion, and an additional

$1,120 incurred in responding to father’s motion for amended findings. The evidence

supports the district court’s findings that father has the ability to contribute to mother’s

attorney fees and that mother did not have sufficient resources or income to pay all of the

fees. The district court did not abuse its discretion in awarding mother $11,120 in

attorney fees.

       Affirmed.




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