Harger v. Harger, 20010186.

CourtUnited States State Supreme Court of North Dakota
Citation644 N.W.2d 182,2002 ND 76
Docket NumberNo. 20010186.,20010186.
PartiesKathleen Susan HARGER, Plaintiff and Appellee, v. Marion Rick HARGER, Defendant and Appellant.
Decision Date14 May 2002

644 N.W.2d 182
2002 ND 76

Kathleen Susan HARGER, Plaintiff and Appellee,
v.
Marion Rick HARGER, Defendant and Appellant

No. 20010186.

Supreme Court of North Dakota.

May 14, 2002.


644 N.W.2d 183
Cathy Howe Schmitz, Williston, N.D., for plaintiff and appellee

Kelly Ann Dillon, Minot, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶1] Marion Rick Harger appealed from an order1 denying his motion to reduce child support and holding him in contempt for failing to comply with a previous court order directing him to observe provisions of a divorce decree. We conclude the trial court did not err in denying the motion to reduce child support or in holding Marion Harger in contempt. We affirm the order and remand for a determination of the amount of attorney fees to be awarded to Kathleen Susan Harger for this appeal.

I

[¶2] After a 16-year marriage, Kathleen Harger and Marion Harger were divorced on January 3, 2000. The couple have a daughter, who was born on February 23, 1993. The divorce decree was based on the parties' stipulation giving Kathleen Harger custody of the child and ordering Marion Harger to pay child support of $459.50 per month, consistent with the child support guidelines, based on his 1998 income as reflected in his tax return. Marion Harger was also ordered to pay an additional $70 per month "in lieu of paying one-half of any uninsured medical and dental expenses incurred on behalf of the minor child." The divorce decree ordered Marion Harger to "maintain a decreasing life insurance policy, starting with a term or death benefit of $100,000.00, ... naming the minor child as beneficiary," and to provide Kathleen Harger proof of insurance. As part of the property distribution, Kathleen Harger was awarded $25,000 to be "rolled over from defendant's retirement account, subject to tax consequences, if any." After the parties' separation, Marion Harger, who had been employed as an emergency medical technician, left Williston and moved to Ohio.

[¶3]On May 19, 2000, Kathleen Harger moved to modify Marion Harger's child support obligation to conform with the current child support guidelines and moved to hold him in contempt for failing to transfer $25,000 from his retirement account to her and for failing to provide proof he had secured a $100,000 life insurance policy for the child's benefit. On September 25, 2000, Marion Harger moved to reduce his child support obligation because his income had decreased. He agreed to stipulate to modify the decree to reflect a correct calculation of his 1998 income, but reserved the right to seek modification based on his 1999 income.

[¶4]Following a hearing on the contempt motion, the trial court, on February 26, 2001, found Marion Harger "has willfully failed to comply with the divorce judgment to do anything to effect the transfer of funds from his retirement account

644 N.W.2d 184
count or prove insurance coverage." The court further ruled
This finding of contempt of court may be purged if the Defendant, before March 6, 2001, transfers to the Plaintiff either in cash or into a separate fund in the sole name of the Plaintiff an amount of money equal to the total of the following:

• $25,000.00 from the date of the judgment plus any additions and interest on the money

or

• 7% interest on the $25,000.00 from January 25, 2000 until the Defendant transfers the money in cash, should he be forced to do so to comply with the order of the Court if he is unable to secure a QDRO from the retirement account

Plus, the Defendant shall be ordered to pay an additional $500.00 in attorney fees and costs within 30 days of this order necessitated by his failure to abide by the order of the Court dated January 3, 2000.

The court also ordered Marion Harger to turn over completed forms showing proof that he had maintained a $100,000 life insurance policy for the child's benefit and warned him, "[t]he Court reserves the specific right to consider penalties beyond what is included in this order contemplating monetary penalties of an additional $5,000.00 plus any other remedies within the discretion of the Court, if this order is not fully and completely complied with on or before March 6, 2001." The court approved the parties' stipulation to amend the divorce judgment and increase child support to $483.50 per month in accordance with the child support guidelines, plus $70 per month for medical expenses.

[¶ 5] The hearing reconvened on April 11, 2001. The court denied the motion to reduce child support, reasoning Marion Harger's "stated decline in income is due to a voluntary resignation of employment," he "still has the capacity to gain employment at his previous level of income," and he "continues to have the capacity to pay support at the level ordered in January 2000 in the amount of $553.50 per month." The court found Marion Harger in "ongoing contempt of court" for failing to comply with any part of the court's February 26, 2001, contempt order. The court awarded Kathleen Harger a judgment for the amounts owed plus interest from February 26, 2001, and assessed a $5,000 penalty against Marion Harger.

[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Marion Harger's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction...

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23 cases
  • Rath v. Rath, 20150088.
    • United States
    • United States State Supreme Court of North Dakota
    • February 24, 2016
    ...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......
  • Devine v. Hennessee, 20130347.
    • United States
    • United States State Supreme Court of North Dakota
    • June 24, 2014
    ...Moreover, since Schumacher was decided, this Court has clearly established the need for documentation. See, e.g., Harger v. Harger, 2002 ND 76, ¶ 10, 644 N.W.2d 182 (“As evidence of his 2000 income, he presented an unsigned, unfiled tax return prepared by a certified public accountant.... N......
  • Gerdon) v. Prchal, 20100128.
    • United States
    • United States State Supreme Court of North Dakota
    • March 22, 2011
    ...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......
  • Peters-Riemers v. Riemers, 20020225.
    • United States
    • United States State Supreme Court of North Dakota
    • June 17, 2003
    ...Therefore, this Court had jurisdiction to remand Jenese's contempt motion to the trial court for disposition. Cf. Harger v. Harger, 2002 ND 76, ¶ 16, 644 N.W.2d 182 (recognizing this Court has concurrent jurisdiction with the trial court to award attorney fees on appeal and remanding to the......
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