Kautzman v. Kautzman, 20030038.
| Citation | 2003 ND 140,668 N.W.2d 59 |
| Decision Date | 22 August 2003 |
| Docket Number | No. 20030038.,20030038. |
| Parties | Rachel M. KAUTZMAN, n/k/a Rachel M. Dietz, Plaintiff and Appellee, v. Robert A. KAUTZMAN, Defendant and Appellant. |
| Court | United States State Supreme Court of North Dakota |
Steven A. Johnson, Vogel Law Firm, Fargo, N.D., for plaintiff and appellee.
Jonathan T. Garaas, Garaas Law Firm, Fargo, N.D., for defendant and appellant.
[¶ 1] Robert A. Kautzman ("Kautzman") appealed a bench warrant and an order dated January 16, 2003, denying his motions to vacate the bench warrant and to determine that Rachel M. Kautzman, n/k/a Rachel M. Dietz ("Dietz") has no right to enforce her equitable liens three years after judgment. We affirm and remand for a determination on Dietz's request for attorney fees.
[¶ 2] This is the sixth appeal1 arising out of a 1995 divorce action. See Kautzman v. Kautzman, 2002 ND 118, 647 N.W.2d 684
("Kautzman IV"); Kautzman
v. Kautzman, 2000 ND 190, 618 N.W.2d 500 ("Kautzman III"); Kautzman v. Kautzman, 2000 ND 116, 611 N.W.2d 883 (two appeals) ("Kautzman II"), and Kautzman v. Kautzman, 1998 ND 192, 585 N.W.2d 561 (Kautzman I).
[¶ 3] The second amended judgment granted Dietz a divorce, divided the marital property, and ordered Kautzman to pay Dietz spousal support of $4,000, which included rehabilitative support of $2,000 per month from December 1, 1997, through December 2002 and $2,000 per month from December 1, 1997, until Dietz reaches age 65, dies, or remarries after December 31, 2002. Kautzman I, at ¶ 18. The judgment awarded Kautzman the parties' construction company ("KCI") and ordered him to pay Dietz $200,000 within 60 days and an additional $180,000 within four years after entry of judgment. Id. at ¶ 4. Kautzman appealed, challenging the property distribution and spousal support, and Dietz cross-appealed, challenging the trial court's valuation of KCI, its failure to require Kautzman to return $50,000 withdrawn from a savings account, and its failure to award attorney fees. We ruled against Kautzman on his appeal. We reversed in part, affirmed in part and remanded for, among other things, "a redetermination of the value of KCI and a redetermination of the property distribution in light of the revaluation of KCI." Id. at ¶ 38.
[¶ 4] After the decision in Kautzman I, the trial court increased the valuation of KCI by $280,859 and ordered Kautzman to pay Dietz an additional $140,429 as a property distribution. A third amended judgment issued on May 24, 1999, required Kautzman to pay Dietz $200,000, with interest, within 60 days and an additional $320,429, with interest, in seven annual installments, with an option to prepay at any time. The third amended judgment gave Dietz liens on the parties' lake home and homestead and in Kautzman's interest in KCI. It required Dietz "to subordinate her liens on the lake home and homestead to the interests of a mortgagee who loans money to [Kautzman] to make payments to [Dietz], to the extent of the payments received by her to satisfy the obligations under paragraphs 8 and 9." The trial court also awarded Dietz attorney fees of $50,000 for the trial and $10,000 for the initial appeal, found Kautzman in contempt of court, ordered entry of money judgments against Kautzman, and denied Kautzman's request to eliminate or reduce his spousal support obligation. Kautzman filed two appeals:
In appeal No. 990328, Robert Kautzman appealed the district court's third amended judgment, dated May 24, 1999; a memorandum opinion dated August 26, 1999; a September 30, 1999, order finding Robert Kautzman in contempt of court, denying Robert Kautzman's motion to amend the third amended judgment or grant an evidentiary hearing, denying Robert Kautzman's motion for relief from the judgment, and directing the entry of money judgments; and money judgments entered on October 15 and 18, 1999, and January 3, 2000, in the amounts of: $1,500 for household goods and personal effects; $50,000 for money withdrawn from a bank account awarded to Rachel Kautzman; $322,139.18 for unpaid property distribution payments and interest; $41,893.88 for past-due spousal support; and $60,000 for attorney fees. In appeal No. 990386, Robert Kautzman appealed from the district court's November 3, 1999, order denying his motion to vacate paragraph 3 of the second amended judgment or to amend it to provide a reduced amount of spousal support or an earlier termination date, and from the district court's December 9, 1999, order denying Robert Kautzman's motion for reconsideration.
Kautzman II, at ¶ 4. Except for an issue about credit for spousal support payments, we summarily affirmed under N.D.R.App.P. 35.1. Kautzman II, at ¶ 10.
[¶ 5] In his fourth appeal, Kautzman "appealed from a memorandum opinion rejecting his claim of exemptions from execution, and from an order confirming a sheriff's sale." Kautzman III, at ¶ 1. Id. at ¶ 4. Id. at ¶ 6. Among other things, we rejected Kautzman's argument for application of N.D.C.C. ch. 32-19:
. Kautzman was not statutorily entitled to a one-year redemption period, and, under the circumstances, we conclude the trial court did not abuse its discretion in granting a 30-day redemption period.
Kautzman III, at ¶¶ 14, 15. We affirmed the trial court's order confirming the sheriff's sale. Id. at ¶ 22.
[¶ 6] Kautzman IV, Kautzman's fifth appeal in this divorce litigation, involved the trial court's March 7, 2001, "order finding Kautzman in contempt of court and ordering Kautzman `taken into custody for a period of thirty days, or until [Kautzman] begins paying [Dietz] $4,000 a month in spousal support and an additional 10% of that amount to reduce the arrearage that has accrued'" and a June 1, 2001, judgment awarding "Dietz $48,359.18 for a property distribution payment due June 1, 2000, with interest." Id. at ¶ 3. We ruled Kautzman's contention "`the doctrine of extinguishment controls' and his `debt has been paid' ... is without merit." Id. at ¶ 5. We said Kautzman's reliance on a number of decisions was "misplaced, because those decisions involved the foreclosure of a junior mortgage when there was an outstanding senior mortgage or the foreclosure of a mortgage subject to a senior tax lien—situations not at issue in this appeal." Id. We continued:
Kautzman's argument has not persuaded us that a party in a divorce action who gets a judgment for unpaid property distribution payments, forecloses a judgment lien, and purchases the judgment debtor's property at a sheriff's sale is precluded from seeking payment for any deficiency because the underlying debt was extinguished by the sheriff's sale.
Id. at ¶ 5. We also held "the trial court did not abuse its discretion in finding Kautzman in contempt of court." Id. at ¶ 12. The orders and judgments appealed from were affirmed. Id. at ¶ 14. [¶ 7] The trial court, the Honorable Georgia Dawson, issued a bench warrant on December 3, 2002, directing that Kautzman be apprehended, brought before a referee or judge, and "be released after serving 30 days in jail or upon posting $10,000.00 cash bail while awaiting appearance before this Court, whichever occurs first," for Kautzman's failure to purge himself of the contempt found in the March 7, 2001, order affirmed in Kautzman IV. Kautzman moved to vacate the bench warrant, for an order confirming his application of a payment by a surety on a supersedeas bond, and "for an order determining that [Dietz] has no right to enforce her equitable liens three (3) years after judgment pursuant to N.D.C.C. § 32-19-06." The court denied Kautzman's motions in an order issued January 16, 2003.
[¶ 8] Kautzman appealed, stating a number of issues. For the sake of convenience, we will address Kautzman's arguments as he framed them in the table of contents of his appellate brief:
[¶ 9] Kautzman contends Judge Dawson should not have decided any issue, asserting she "failed to certify familiarity with the record and/or a determination that the proceedings in the case may be completed without prejudice to the parties" and alleging she acted in violation of Christl v. Swanson, 2001 ND 98, ¶ 2 n. 1, 626 N.W.2d 690, N.D.C.C. § 27-05-27, and N.D.R.Civ.P. 63.
[¶ 10] Under N.D.R.Civ.P. 63, "[i]f a trial or hearing has been commenced and the judge is unable to proceed, any...
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