840 N.W.2d 656 (N.D. 2013), 20130184, Rath v. Rath

Docket Nº:20130184.
Citation:840 N.W.2d 656, 2013 ND 243
Opinion Judge:KAPSNER, Justice.
Party Name:Kayla RATH, Plaintiff and Appellee v. Mark RATH, Defendant and Appellant.
Attorney:Bobbi B. Weiler, Bismarck, N.D., for plaintiff and appellee. Mark A. Rath, Bismarck, N.D., defendant and appellant; self-represented.
Case Date:December 19, 2013
Court:Supreme Court of North Dakota

Page 656

840 N.W.2d 656 (N.D. 2013)

2013 ND 243

Kayla RATH, Plaintiff and Appellee


Mark RATH, Defendant and Appellant.

No. 20130184.

Supreme Court of North Dakota.

December 19, 2013

Page 657

[Copyrighted Material Omitted]

Page 658

Bobbi B. Weiler, Bismarck, N.D., for plaintiff and appellee.

Mark A. Rath, Bismarck, N.D., defendant and appellant; self-represented.

KAPSNER, Justice.

[¶ 1] Mark Rath appeals from an order denying his motion to hold Kayla Rath in contempt and denying his request that the district court judge recuse himself from the case. We affirm, concluding the court did not abuse its discretion in denying the contempt motion and request for recusal.


[¶ 2] The parties were divorced in January 2013 and Kayla Rath was awarded primary residential responsibility for the couple's two minor children. Mark Rath was awarded supervised parenting time to occur at the Family Safety Center while he was undergoing a domestic violence offender treatment program and a psychological evaluation, after which he could move for review of his parenting time schedule. A " no contact" order was in place during the divorce proceedings.

[¶ 3] In March 2013, less than two months after entry of the divorce judgment, Mark Rath brought a motion for an order to show cause why Kayla Rath should not be held in contempt for violating provisions of the divorce judgment. Mark Rath submitted two affidavits claiming Kayla Rath violated various parenting provisions contained in the judgment. Kayla Rath submitted an affidavit in response to the motion and denied the allegations. The district court held a hearing during which Kayla Rath's attorney and Mark Rath presented argument. Toward the end of the hearing, Mark Rath requested the judge to recuse himself from the case. The court denied the contempt motion, finding Kayla Rath " did not intentionally disobey the terms of the Judgment and ... her conduct did not constitute contempt as defined by N.D.C.C. § 27-10-01.1." The court also denied the request for recusal, reasoning Mark Rath " stated no specific instances or evidence to support his claim of lack of impartiality."


[¶ 4] Mark Rath argues the district court erred in failing to find Kayla Rath in contempt. In Bachmeier v. Bachmeier, 2013 ND 76, ¶¶ 4-5, 830 N.W.2d 546, we recently explained:

Determining whether a contempt has been committed lies within the district court's sound discretion, which will not be overturned on appeal absent an abuse of that discretion. Millang v. Hahn, 1998 ND 152, ¶ 7, 582 N.W.2d 665. " [A] court abuses its discretion

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when it acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law." Id.

Sall v. Sall, 2011 ND 202, ¶ 7, 804 N.W.2d 378 (quoting Prchal v. Prchal, 2011 ND 62, ¶ 5, 795 N.W.2d 693).

" A party seeking a contempt sanction under N.D.C.C. ch. 27-10 must clearly and satisfactorily prove the alleged contempt was committed." Sall, 2011 ND 202, ¶ 7, 804 N.W.2d 378 (citing Berg v. Berg, 2000 ND 37, ¶ 10, 606 N.W.2d 903; Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, ¶ 5, 598 N.W.2d 499). " Under N.D.C.C. § 27-10-01.1(1)(c), ‘ [c]ontempt of court’ includes ‘ [i]ntentional disobedience, resistance, or obstruction of the authority, process, or order of a court or other officer.’ " Sall, at ¶ 7 (quoting Harger v. Harger, 2002 ND 76, ¶ 14, 644 N.W.2d 182). " To warrant a remedial sanction for contempt, there must be a willful and inexcusable intent to violate a court order." Sall, at ¶ 7 (quoting Harger, at ¶ 14). The district court has broad discretion to decide whether a person is in contempt of court. Sall, at ¶ 7.

[¶ 5] Mark Rath appears to focus on four allegations of contempt allegedly committed by Kayla Rath. First, he contends that Kayla Rath violated the divorce judgment by monitoring his phone conversations with the children and ending the calls when she determined the subject matter was inappropriate. The judgment provides that " [e]ach parent shall be entitled to speak with the child by telephone, or by other electronic means, at reasonable times and intervals, without interference from the other parent ... Mark shall not unnecessarily prolong the conversations if the children do not want to continue talking. Mark shall not talk to the children about inappropriate subjects, including the divorce and other adult issues." In her affidavit, Kayla Rath stated:

These phone calls that Mark has with the children are ridiculous. He uses the phone calls to get information from the girls to use in court. He uses them to find out what I am doing. He questions loyalty. He criticizes the children. He criticizes me. He violates the children's need for emotional space. He tries to be overly controlling of the children's behavior. So in this instance He was criticizing me ... to my daughter. Something Mark has no right to do.

Kayla Rath also said in the affidavit, " [i]f Mark didn't use the phone calls to obtain information for court use or to badger our children, I wouldn't have to intervene on their phone calls." Mark Rath submitted a purported transcript of a conversation with the children which was ended by Kayla Rath. But this transcript bolsters Kayla Rath's affidavit testimony and indicates the children are uncomfortable speaking with him. The district court's finding that her termination of these phone calls was not an intentional violation of the divorce judgment is supported by the evidence.

[¶ 6] Mark Rath argues that allowing Kayla Rath to terminate inappropriate phone calls impermissibly gives her discretion to decide whether he is in contempt. He relies on Vande Hoven v. Vande Hoven, 399...

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