Martodam v. Martodam
| Decision Date | 19 March 2020 |
| Docket Number | No. 20180432,20180432 |
| Citation | 940 N.W.2d 664 |
| Parties | Crystal Beth MARTODAM, Plaintiff and Appellee v. Jason James MARTODAM, Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest |
| Court | North Dakota Supreme Court |
Kyle R. Craig, Minot, N.D., for plaintiff and appellee.
Jason J. Martodam, self-represented, Leeds, N.D., defendant and appellant.
[¶1] Jason Martodam appeals an amended divorce judgment and an order denying his motions for contempt and to amend the amended judgment. We conclude the district court did not err in entering the interim order, denying his ex parte motion, and denying his motions for sanctions. We conclude the court did not err in awarding primary residential responsibility to Crystal Martodam and did not abuse its discretion in not holding her in contempt and in excluding exhibits that he had offered. We further conclude the court did not err in failing to order a parenting investigator and in calculating child support. We conclude, however, the court erred in allowing the minor children to decide whether to have parenting time. We affirm the amended judgment as modified and affirm the subsequent order denying the motions.
[¶2] In 2015, Jason Martodam and Crystal Martodam were divorced after the parties stipulated to terms in a marital termination agreement. The parties agreed to equal residential responsibility for their four minor children. In April 2018, Crystal Martodam moved the district court to modify the divorce judgment to award her primary residential responsibility, to issue an interim order, and to change the venue.
[¶3] In May 2018, after venue was changed, the district court also denied a pending ex parte motion seeking temporary primary residential responsibility filed by Jason Martodam. After a hearing the court entered an interim order awarding Crystal Martodam primary residential responsibility of the children and setting a child support amount. In June 2018, Jason Martodam moved for a default judgment, claiming no response had been filed to his ex parte motion, which the court denied.
[¶4] After an August 2018 evidentiary hearing, the district court entered findings of fact, conclusions of law, and an order to amend the judgment, awarding primary residential responsibility to Crystal Martodam. In December 2018, Jason Martodam filed a notice of appeal.
[¶5] In January 2019, while the appeal was pending, Jason Martodam filed motions for contempt and to amend the amended judgment. The case was remanded. After a March 2019 hearing, the court denied his motions. In April 2019, Jason Martodam filed a second notice of appeal.
[¶6] Although Jason Martodam raises approximately 19 issues on appeal, we will address the dispositive issues.
[¶7] Jason Martodam raises several issues related to the amended interim order signed in June 2018. Under N.D.R.App.P. 35(a)(2), "[u]pon an appeal from a judgment, the court may review any intermediate order or ruling which involves the merits and affects the judgment appearing upon the record." As such, "[g]enerally, interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of that judgment." Rhodenbaugh v. Rhodenbaugh , 2019 ND 109, ¶ 6, 925 N.W.2d 742 (quoting Tibbetts v. Dornheim , 2004 ND 129, ¶ 11, 681 N.W.2d 798 ). This Court has also said that a final judgment "supersedes the interim order’s parenting provisions, which are by nature temporary." Rhodenbaugh , at ¶ 11.
[¶8] Jason Martodam argues that the district court erred in granting Crystal Martodam interim residential responsibility, that his ex parte motion should have been heard at the May 2018 hearing rather than her interim motion, that the court erred in immediately denying his ex parte motion, that the court erred in not enforcing the rules of court by failing to require certain evidence from Crystal Martodam, and that the court erred in not serving and filing the interim order in a timely manner.
[¶9] Crystal Martodam argues that the interim order, although a temporary determination of primary residential responsibility, has no permanent bearing on the outcome of the trial. She asserts this issue was addressed at the trial during which evidence was presented and this aspect of the appeal should be dismissed. She also asserts the court did not err in denying Jason Martodam’s ex parte motion under N.D.R.Ct. 8.2(a) because no exceptional circumstances existed, and the court did not abuse its discretion in denying sanctions for late discovery responses because it did not change the court’s final decision nor did Jason Martodam request a continuance.
[¶10] While Jason Martodam was given notice of the June 2018 interim order sometime later, he also appears to concede he was aware of and followed its provisions. Here, the district court denied his motion for ex parte interim relief because it found no exceptional circumstances existed to justify the requested relief. We conclude he failed to establish he was prejudiced by any alleged errors leading to the entry of the interim order. Nevertheless, Jason Martodam’s main contentions on appeal relate to the district court’s decision in awarding primary residential responsibility.
[¶11] Jason Martodam argues the district court erred in granting primary residential responsibility to Crystal Martodam.
[¶12] Section 14-09-06.6, N.D.C.C., governs post-judgment modification of residential responsibility. See Dickson v. Dickson , 2018 ND 130, ¶ 7, 912 N.W.2d 321 (). Under N.D.C.C. § 14-09-06.6(6), after two years, the district court may modify residential responsibility when: 1) there is a material change in circumstances of the child or the parties, and 2) modification is necessary to serve the child’s best interests.
[¶13] "When the parents have joint residential responsibility, an original determination to award ‘primary residential responsibility’ is necessary." Dickson , 2018 ND 130, ¶ 14, 912 N.W.2d 321 (citing Maynard v. McNett , 2006 ND 36, ¶ 21, 710 N.W.2d 369 ). "The district court must consider all relevant evidence, including pre-divorce conduct and activities, when determining residential responsibility in the best interests of the children if the previous residential responsibility award was based on the stipulation of the parties and not determined by the court-based consideration of the evidence." Dickson , at ¶ 14.
A court must award primary residential responsibility in light of the child’s best interests, considering all the relevant best-interest factors under N.D.C.C. § 14-09-06.2(1).
[¶14] We exercise only a limited review of primary residential responsibility decisions. Zuo v. Wang , 2019 ND 211, ¶ 11, 932 N.W.2d 360 ; Grasser v. Grasser , 2018 ND 85, ¶ 17, 909 N.W.2d 99. The district court’s decisions to modify residential responsibility and to modify parenting time present findings of fact, which will not be reversed on appeal unless clearly erroneous. Valeu v. Strube , 2018 ND 30, ¶ 8, 905 N.W.2d 728 ; Green v. Swiers , 2018 ND 258, ¶ 14, 920 N.W.2d 471. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire record, we possess a definite and firm conviction that a mistake has been made. Bertsch v. Bertsch , 2006 ND 31, ¶ 5, 710 N.W.2d 113.
[¶15] The district court also has wide discretion in evidentiary matters, and this Court will not overturn a decision to admit or exclude evidence unless the district court abused its discretion. Zuo , 2019 ND 211, ¶ 7, 932 N.W.2d 360 ; Vandal v. Leno , 2014 ND 45, ¶ 26, 843 N.W.2d 313. Vandal , at ¶ 26 (quoting State v. Gipp , 2013 ND 134, ¶ 5, 833 N.W.2d 541 ).
[¶16] Jason Martodam contends the district court erred in granting primary residential responsibility. He also raises several evidentiary issues relating to the credibility and weight given to the evidence at trial. He argues that Crystal Martodam did not submit her own exhibits but attempted to rely on "his" exhibits and evidence, that the court erred in relying on alleged conflicting testimony of the children and failed to examine his exhibits, and that the court erred in considering his interaction with the children during his cross-examination of them. He further asserts the court erred in not considering certain children’s testimony which conflicted with prior affidavits and in not wanting to separate the children.
[¶17] Jason Martodam further argues the district court erred by not encouraging an ongoing relationship between him and the four children. He contends the court erred in allowing the oldest children the choice of whether to have parenting time and the court abused its discretion by not ordering some type of parental investigator and counseling for the children.
[¶18] Crystal Martodam responds that evidence showed the 50-50 shared parenting arrangement was not feasible and the oldest child expressed a mature preference for residing with his mother, supporting a material change in circumstances. She further asserts the court properly considered the best-interest factors, finding that none of the factors favored Jason Martodam while some factors favored Crystal Martodam.
[¶19] In August 2018, the district court held an evidentiary hearing on the parties’ competing motions to modify primary residential responsibility. After trial, the court issued extensive findings of fact, conclusions of law, and an order to amend the judgment. In its findings, the court specifically discussed the testimony received at trial from Crystal Martodam; Jason’s father, James Martodam; Jason Martodam; and the parties’ two oldest children. The court found the...
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...633. An interim order is interlocutory and subject to revisions prior to a final order. Id. ; see Martodam v. Martodam , 2020 ND 70, ¶ 7, 940 N.W.2d 664 ("[A] final judgment supersedes the interim order's parenting provisions, which are by nature temporary.") (Citation and quotation marks o......