Gerdon) v. Prchal
Decision Date | 22 March 2011 |
Docket Number | No. 20100128.,20100128. |
Citation | 795 N.W.2d 693,2011 ND 62 |
Parties | Sara Renae PRCHAL (n/k/a Sara Renae Gerdon), Plaintiff and Appelleev.Bradley Lawrence PRCHAL, Defendant and Appellant. |
Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Janel Brudvik Fredericksen, Wahpeton, N.D., for plaintiff and appellee.Jonathan T. Garaas, DeMores Office Park, Fargo, N.D., for defendant and appellant.CROTHERS, Justice.
[¶ 1] Bradley Prchal appeals from a district court order and amended divorce judgment denying his motion to find Sara Prchal, now Sara Gerdon, in contempt and granting Gerdon's motion to amend the divorce judgment. We conclude the district court did not abuse its discretion in denying Prchal's motion to find Gerdon in contempt and did not err in modifying the parties' existing parenting time schedule. We further conclude the court did not err in appointing a parenting coordinator and ordering the parents to undergo counseling. We affirm.
[¶ 2] Prchal and Gerdon were married in 1995 and were divorced in 2002 under a stipulated divorce and property settlement agreement. Prchal and Gerdon have three children, born in 1992, 1997, and 1999. The divorce judgment granted Gerdon primary residential responsibility of the parties' three children and awarded Prchal parenting time. The judgment was amended in 2003, in part, to address scheduling parenting time. The record reflects the parties have had difficulty implementing the divorce judgment's parenting time schedule including multiple motions to amend in 2003 and 2005, motions in January and June 2005 denied as untimely and a contempt citation in 2006 against Prchal for nonpayment of medical bills.
[¶ 3] In September 2009, Prchal filed a motion to find Gerdon in contempt, and Gerdon responded with a motion to modify the existing schedule for parenting time, to appoint a parenting coordinator, and to mandate co-parenting counseling. The parties' 2009 motions involve a continuing dispute regarding Prchal's summer parenting time. During those months, Prchal receives two additional weeks of parenting time each month, which he schedules. After a December 2009 hearing, the district court denied Prchal's contempt motion and granted Gerdon's motion to modify Prchal's parenting time.
[¶ 4] Prchal argues the district court abused its discretion in denying his motion to find Gerdon in contempt.
[¶ 5] A party seeking a contempt sanction under N.D.C.C. ch. 27–10 must clearly and satisfactorily prove the alleged contempt was committed. 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.’ ” 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.” Harger, at ¶ 14; see also Berg, at ¶ 10; N.D.C.C. § 27–10–01.1(4). An inability to comply with an order is a defense to contempt proceedings, but the alleged contemnor has the burden to prove the defense. Harger, at ¶ 15. 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 when it acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law.” Id.
[¶ 6] Prchal contends the district court should have found Gerdon in contempt because clear and “uncontroverted evidence” showed she unreasonably denied him parenting time, primarily during the summer of 2009. Prchal asserts that he controls the timing for the summer custodial visitation under the amended judgment and that Gerdon has no good-faith defense for failing to follow the scheduled visitation.
[¶ 7] Gerdon responds she did not intentionally interfere with Prchal's parenting rights. She cites continuing conflicts over interpretation of the parties' scheduling of parenting time in the summer months, and that some of Prchal's “litigation letters” to her, which Prchal submitted as evidence of Gerdon's non-compliance, were sent after Prchal had approved Gerdon's request for vacation time and that Prchal had not requested time be made-up. Gerdon testified that she did not intentionally or repeatedly deny Prchal parenting time and that the parties have conflicting interpretations of the judgment concerning scheduling summer visitation.
[¶ 8] In denying Prchal's motion, the district court held Prchal did not meet his burden of showing Gerdon was in contempt and specifically found Gerdon had not frustrated his parenting time. The court also found that although scheduling changes in the parenting time were made, Prchal's parenting time was not interrupted or disturbed and he clearly received his parenting time. Although evidence existed of some non-compliance with the amended judgment's required parenting time, the court denied Prchal's motion to find Gerdon in contempt. Under our standard of review and the district court's responsibility to weigh the witnesses' credibility, we are not persuaded the court's decision to deny Prchal's contempt motion was arbitrary, unreasonable or unconscionable, or was a misinterpretation or misapplication of the law. We therefore conclude the district court did not abuse its discretion in denying Prchal's contempt motion.
[¶ 9] Prchal contends Gerdon had no legal basis to seek a modification of the parenting time schedule. He also argues the district court erred in modifying his parenting time because no material change in circumstances existed and the change was not in the children's best interests.
[¶ 10] Section 14–05–22, N.D.C.C., as amended in August 2009, applies to Gerdon's motion in this case and provides district courts with continuing jurisdiction over parenting rights and responsibilities, including disputes regarding parenting time after the initial divorce judgment:
(Emphasis added.) “Parental rights and responsibilities” is defined as “all rights and responsibilities a parent has concerning the parent's child.” N.D.C.C. § 14–09–00.1(2). “ ‘Primary residential responsibility’ means a parent with more than fifty percent of the residential responsibility.” N.D.C.C. § 14–09–00.1(6). “ ‘Parenting time’ means the time when the child is to be in the care of a parent.” N.D.C.C. § 14–09–00.1(5). Additionally, N.D.C.C. § 14–09–33 provides that “[a]ny law that refers to the ‘custody’ of a child means the allocation of parental rights and responsibilities as provided in this chapter” and that “[a]ny law that refers to a ‘custodial parent’ or ‘primary residential responsibility’ means a parent with more than fifty percent of the residential responsibility and any reference to a noncustodial parent means a parent with less than fifty percent of the residential responsibility.”
[¶ 11] In Helfenstein v. Schutt, we said that “once an initial custody decision has been made, [parenting time] modifications are governed by” N.D.C.C. § 14–05–22(2) and by standards set forth in caselaw. 2007 ND 106, ¶¶ 15–16, 735 N.W.2d 410. “To modify [parenting time], the moving party must demonstrate a material change in circumstances has occurred since entry of the previous [parenting time] order and that the modification is in the best interests of the child.” Dufner v. Trottier, 2010 ND 31, ¶ 6, 778 N.W.2d 586 (citing Ibach v. Zacher, 2006 ND 244, ¶ 8, 724 N.W.2d 165). “ ‘A district court's decision to modify [parenting time] is a finding of fact, which will not be reversed on appeal unless clearly erroneous.’ ” Dufner, at ¶ 6 (quoting Hanson v. Hanson, 2005 ND 82, ¶ 20, 695 N.W.2d 205). “ ‘A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if ... on the entire evidence we are left with a definite and firm conviction a mistake has been made.’ ” Dufner, at ¶ 6 (quoting Kienzle v. Selensky, 2007 ND 167, ¶ 14, 740 N.W.2d 393). In applying that standard, we do “not reweigh evidence or reassess witness credibility when the evidence supports the [district] court's findings.” Id.
[¶ 12] To modify parenting time, “a material change of circumstances occurs when important new facts arise that were unknown at the time of the initial [parenting time] order.” Dufner, 2010 ND 31, ¶ 7, 778 N.W.2d 586 (citing Helfenstein, 2007 ND 106, ¶ 18, 735 N.W.2d 410). See also Young v. Young, 2008 ND 55, ¶¶ 14–15, 746 N.W.2d 153 ( )(citing Ibach v. Zacher, 2006 ND 244, ¶ 10, 724 N.W.2d 165 ( ); Simburger v. Simburger, 2005 ND 139, ¶ 18, 701 N.W.2d 880 ( ); Reinecke v. Griffeth, 533 N.W.2d 695, 698–99 (N.D.1995) (...
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