Jacobs-Raak v. Raak

Citation942 N.W.2d 879
Decision Date07 May 2020
Docket NumberNo. 20190123,20190123
Parties Danel JACOBS-RAAK , n/k/a Danel Jacobs, Plaintiff and Appellee v. Daniel RAAK , Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest and Appellee
CourtUnited States State Supreme Court of North Dakota

Arnold V. Fleck, Bismarck, ND, for defendant and appellant.

Rodney E. Pagel, Bismarck, ND, for plaintiff and appellee.

Sheila K. Keller, Bismarck, ND, for State of North Dakota.

Crothers, Justice.

[¶1] Daniel Raak appeals from a district court order denying his postjudgment motion to redistribute property and request for an evidentiary hearing, from an order finding him in contempt and from a third amended judgment modifying his child support obligation. We dismiss as untimely Raak’s appeal from the order denying his motion to redistribute property and request for a hearing. We conclude the court did not abuse its discretion by finding him in contempt but erred in determining the parties’ child support obligations. We dismiss in part, affirm in part, reverse in part and remand for further proceedings.

I

[¶2] In 2015 Daniel Raak and Danel Jacobs-Raak, now known as Danel Jacobs, were divorced after an approximately 15-year marriage. In the original divorce judgment, the district court distributed the parties’ marital property, awarded Jacobs primary residential responsibility for their three children, and ordered Raak to pay child support. In Jacobs-Raak v. Raak , 2016 ND 240, ¶¶ 1, 35, 888 N.W.2d 770, this Court affirmed in part, reversed in part, and remanded for further proceedings on the division of the parties’ mineral interests. In January 2017 the district court entered an order modifying the judgment after appeal, dividing the remainder interest in the minerals.

[¶3] This appeal arises from subsequent post-judgment proceedings. In August 2017 Raak and Jacobs agreed to allow their oldest child to move from Bismarck to reside with Raak in Iowa and attend school. Raak had relocated to Iowa in 2016. In September 2017 the parties executed a written "Informal Agreement," addressing the oldest child’s move to Iowa, child support and other financial obligations. On February 1, 2018, Raak filed a motion in district court seeking to amend the judgment to modify primary residential responsibility for the oldest child and his child support obligation, in addition to requesting an ex parte order. Jacobs responded and filed motions seeking to amend the judgment regarding parenting time and to hold Raak in contempt for an alleged failure to pay certain child financial obligations under the judgment and parenting plan.

[¶4] In a March 21, 2018, memorandum, the district court accepted that Jacobs was not contesting the change in primary residential responsibility for the oldest child and further determined there was no need for an ex parte interim hearing at that time. On March 29, 2018, the State, as a statutory real party in interest, filed a notice of substitution of counsel and a brief in response to the parties’ motions reserving its right to object to any potential proposed child support obligation. An evidentiary hearing was rescheduled for January 2019.

[¶5] On August 20, 2018, before the hearing on the pending motions, Raak filed a motion to redistribute property, seeking an order requiring Jacobs to compensate Raak for an alleged failure to comply with the original judgment’s property distribution that required the parties to split the family photo scrapbooks as agreed upon at trial. He requested an evidentiary hearing on his motion to redistribute property. Jacobs opposed his motions. On October 31, 2018, the district court entered an order denying both Raak’s motion to redistribute property and request for hearing. A notice of entry of order was served and filed on November 2, 2018.

[¶6] On January 25, 2019, the district court held an evidentiary hearing on modifying the parties’ parenting plan and parenting time for the minor children, modifying the parties’ child support obligations, and Jacobs’ contempt motion. On February 12, 2019, the court issued its findings of fact, conclusions of law and order for judgment, modifying the parties’ parenting time and parenting plan; modifying the parties’ child support obligations for three specified periods between September 2017 and January 2019 going forward; and holding Raak in contempt of court, ordering him to reimburse certain expenses and awarding attorney’s fees. A second amended judgment and order on contempt was entered on February 15, 2019. On February 22, 2019, the court entered a corrected second amended judgment and order on contempt. A notice of entry of judgment was served and filed on February 27, 2019.

[¶7] On March 5, 2019, the State filed a motion to alter or amend the judgment under N.D.R.Civ.P. 59(j), requesting the district court to reconsider the corrected second amended judgment’s child support provisions. The State also submitted exhibits containing worksheets with its proposed calculations under the child support guidelines. The parties responded to the State’s motion. On April 14, 2019, Raak filed a notice of appeal, appealing from the October 2018 order denying his motion to redistribute property and request for hearing and from the February 2019 order on contempt. On April 19, 2019, Raak moved to remand the matter to the district court for disposition of the State’s motion to alter or amend the judgment, which this Court granted.

[¶8] On April 30, 2019, the district court entered its findings of fact, conclusions of law and order for third amended judgment, granting in part the State’s motion and modifying its child support calculations for the relevant periods. On May 14, 2019, the court entered a third amended judgment, and a notice of entry of judgment was served and filed on May 15, 2019. On May 17, 2019, Raak filed an amended notice of appeal, appealing from the October 2018 order denying his motion to redistribute property and request for hearing, from the February 2019 order on contempt, and from the May 2019 third amended judgment.

II

[¶9] Raak argues the district court erred in denying his motion to redistribute property and in denying his motion for an evidentiary hearing on the motion to redistribute property.

[¶10] "Generally, a district court does not retain continuing jurisdiction to modify a final property distribution." Lewis v. Smart , 2017 ND 214, ¶ 11, 900 N.W.2d 812. Under N.D.C.C. § 14-05-24(3), however, "[t]he court may redistribute property and debts in a postjudgment proceeding if a party has failed to disclose property and debts as required by rules adopted by the supreme court or the party fails to comply with the terms of a court order distributing property and debts." (Emphasis added.) See also Walstad v. Walstad , 2012 ND 204, ¶¶ 10-13, 821 N.W.2d 770 (discussing the nature of the separate statutory remedy).

[¶11] Raak argues N.D.C.C. § 14-05-24(3) allows for a separate remedy in a post-judgment proceeding and his motion should have been consolidated for hearing with Jacobs’ contempt motion. He contends the court erred in denying his motion without a hearing. He further asserts a separate evidentiary hearing would need to be held on his motion regarding Jacobs’ alleged failure to turn over certain scrapbooks.

[¶12] "Before we consider the merits of an appeal, we must have jurisdiction." Desert Partners IV, L.P. v. Benson , 2014 ND 192, ¶ 6, 855 N.W.2d 608. "The time limit for filing a notice of appeal is jurisdictional, and we dismiss an appeal if we conclude we do not have jurisdiction." Id. A notice of appeal "must be filed with the clerk of the supreme court within 60 days from service of notice of entry of the judgment or order being appealed." N.D.R.App.P. 4(a).

[¶13] "Only judgments and decrees constituting a final judgment and specific orders enumerated by statute are appealable." Inv'rs Title Ins. Co. v. Herzig , 2010 ND 138, ¶ 23, 785 N.W.2d 863. We utilize a two-step analysis to evaluate the finality of orders for review, i.e. , the order or judgment must be appealable under N.D.C.C. § 28-27-02, and the requirements of N.D.R.Civ.P. 54(b), if applicable, be met. Herzig , at ¶ 23. Under N.D.C.C. § 28-27-02(2), "[a] final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment" is appealable. For purposes of appellate review, we generally have treated post-judgment proceedings as separate litigations from the action that produced the underlying judgment. See, e.g. , Herzig , at ¶¶ 29-30.

[¶14] An order denying a party’s post-judgment motion to redistribute property under N.D.C.C. § 14-05-24(3) effectively concludes the "postjudgment proceeding" contemplated by the statute and is therefore a final appealable order under N.D.C.C. § 28-27-02. This comports with our prior decisions. Cf. First W. Bank & Trust v. Wickman , 527 N.W.2d 278, 279 (N.D. 1995) (order denying motion to partially vacate prior judgment appealable under N.D.C.C. § 28-27-02(2) ); In re C.W. , 453 N.W.2d 806, 808-09 (N.D. 1990) (order denying motion to vacate a final judgment appealable under N.D.C.C. § 28-27-02(2) ); B.R.T. v. Exec. Dir. of Soc. Serv. Bd. , 391 N.W.2d 594, 597 (N.D. 1986) (same). Although other post-judgment motions to amend the judgment and for contempt were pending, the court’s order denying Raak’s motion to redistribute property under N.D.C.C. § 14-05-24(3) and request for hearing was final in that it was a complete denial and contemplated no further proceedings on the motion. Because no other claim for relief or party was involved in Raak’s postjudgment motion to redistribute property, N.D.R.Civ.P. 54(b) does not apply.

[¶15] Here, the district court entered its order denying Raak’s motion to redistribute property and request for hearing on October 31, 2018, and a notice of entry of order was served and filed on November 2, 2018. Raak filed his initial notice of...

To continue reading

Request your trial
3 cases
  • Orwig v. Orwig
    • United States
    • United States State Supreme Court of North Dakota
    • June 21, 2023
    ...proceeding when a party fails to comply with the terms of the order distributing property. Jacobs-Raak v. Raak, 2020 ND 107, ¶ 10, 942 N.W.2d 879. We review the decision whether to exercise its equitable powers for an abuse of discretion. Wald, at ¶ 29; Estate of Albrecht, 2018 ND 67, ¶ 23,......
  • Albrecht v. Albrecht
    • United States
    • United States State Supreme Court of North Dakota
    • May 7, 2020
    ...because the account did not exist at the time of Sharleen Albrecht’s death and he never acquired an interest in the "sums on deposit."942 N.W.2d 879 [¶13] We note courts have held, in some circumstances, that a plaintiff has standing to sue when beneficiary designations on P.O.D. accounts h......
  • Gerving v. Gerving
    • United States
    • United States State Supreme Court of North Dakota
    • June 2, 2020
    ...However, the court cannot retain jurisdiction to modify a final property distribution. See Jacobs-Raak v. Raak , 2020 ND 107, ¶ 10, 942 N.W.2d 879 ; Keita v. Keita , 2012 ND 234, ¶ 28, 823 N.W.2d 726. The court erred by attempting to retain jurisdiction to ensure the distribution remained e......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT