Nygaard v. Taylor
| Decision Date | 29 August 2017 |
| Docket Number | No. 20170016, No. 20170017,20170016 |
| Parties | Aarin John NYGAARD, Plaintiff and Appellee v. Tricia Bernice TAYLOR, Defendant and Appellant Terrance L. Stanley, Plaintiff and Appellee v. Tricia Bernice Taylor, Defendant and Appellant |
| Court | North Dakota Supreme Court |
Tracy J. Lyson (argued), Fargo, N.D., for plaintiffs and appellees.
Stormy R. Vickers (argued), Fargo, N.D., for defendant and appellant.
[¶ 1] Tricia Taylor appeals from orders denying her motions to quash contempt and for immediate release from incarceration. We exercise our supervisory jurisdiction and conclude the judicial referee erred in denying Taylor's motions for immediate release from incarceration. We reverse.
[¶ 2] These consolidated cases involve custody disputes between the mother, Tricia Taylor, and Aarin Nygaard and Terrance Stanley, the two fathers of her minor children. Stanley and Taylor were married in 2009 and divorced in 2011. They are the parents of a child born in 2007. Nygaard and Taylor were never married but had a child together who was born in 2013. All of the parties resided in Fargo. Nygaard and Stanley were eventually awarded primary residential responsibility for their respective children, and Taylor was granted supervised visitation. In September 2014, Taylor fled with both of the minor children to the Cheyenne River Indian Reservation in South Dakota, and Nygaard and Stanley have not had any contact with the children since then.
[¶ 3] Taylor was found in contempt for violating multiple district court orders for refusing to return the minor children to their fathers. In addition, Taylor was arrested and pled guilty to class C felony parental kidnapping and has been incarcerated in North Dakota since November 2014. In January 2015, the Cheyenne River Sioux Tribal Court entered a temporary order awarding custody of the children to Taylor's sister on the reservation. Shortly before Taylor was scheduled to be released on parole in November 2015 on the parental kidnapping conviction, the district court issued interlocutory orders in both custody cases finding her in contempt for refusing to return the children to their fathers and issued warrants for her arrest. Immediately upon her release from incarceration on the parental kidnapping conviction, Taylor was served with the arrest warrants and remained in custody for contempt.
[¶ 4] At a December 2015 hearing on the interlocutory orders, Taylor argued she did not have the ability to return the minor children to their fathers. A judicial referee rejected the argument in January 2016 and found Taylor was "voluntarily electing to continue to withhold" the minor children from their fathers. Taylor requested the judicial referee to review the contempt findings, and in March 2016 the referee confirmed her prior rulings and ordered that Taylor "shall remain in custody until such time as she returns the minor child[ren] to" their fathers. Taylor requested the district court to review the referee's orders, and in April 2016 the court adopted and affirmed the referee's orders. Taylor did not appeal. Taylor has not returned the children to their fathers and has remained incarcerated.
[¶ 5] In October 2016, Taylor filed motions to quash the contempt orders and for immediate release from imprisonment, claiming she had been incarcerated for contempt longer than the six months authorized under N.D.C.C. § 27–10–01.4(1)(b). On December 7, 2016, the judicial referee issued identical orders in the two cases stating:
[¶ 6] On December 8, 2016, the date for the hearing was rescheduled to December 14, 2016, but on that day the parties stipulated to continue the hearing because Taylor's attorney was ill. The hearing was rescheduled for January 13, 2017, but on that day Taylor appealed the December 7, 2016 orders and no hearing was held.
[¶ 7] Nygaard and Stanley argue that Taylor's appeals should be dismissed because the orders are not appealable under N.D.C.C. §§ 27–10–01.3(3) or 28–27–02.
[¶ 8] The right to appeal is purely statutory, and if there is no statutory basis for appeal we must take notice of the lack of jurisdiction and dismiss the appeal. See, e.g. , Holbach v. City of Minot , 2012 ND 117, ¶ 5, 817 N.W.2d 340. Although an appeal may be taken from "any order or judgment finding a person guilty of contempt" under N.D.C.C. § 27–10–01.3(3), these orders did not determine Taylor was guilty of contempt. The orders scheduled an evidentiary hearing to decide whether Taylor remained in contempt or whether she should be released from incarceration.
[¶ 9] Taylor contends the orders are appealable under N.D.C.C. § 28–27–02. We have described our two-step analysis for evaluating appealability as follows:
" "
Holverson v. Lundberg , 2015 ND 225, ¶ 9, 869 N.W.2d 146 (quoting In re Estate of Hollingsworth , 2012 ND 16, ¶ 9, 809 N.W.2d 328 ).
[¶ 10] Taylor relies on N.D.C.C. § 28–27–02(2) which authorizes appeals from a "final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment." We have held that this provision authorizes an appeal from an order dismissing or quashing an order to show cause why a party should not be held in contempt. See Glasser v. Glasser , 2006 ND 238, ¶ 9, 724 N.W.2d 144 ; Johnson v. Johnson , 527 N.W.2d 663, 666 (N.D. 1995). The first part of the judicial referee's orders does not dismiss Taylor's motions to quash contempt but schedules an evidentiary hearing to decide the issue. This part of the decision is not "final" because it contemplates further proceedings and does not resolve the issue. See Ziegler v. Meadowbrook Ins. Grp., Inc. , 2009 ND 192, ¶ 14, 774 N.W.2d 782. Although the second part of the referee's order states the requests for immediate release from incarceration are "DENIED," the referee orders Taylor to remain incarcerated "pending the hearing." We have said this Court "will not consider interlocutory appeals unless it can be affirmatively established that the underlying order was ‘meant to be, in all aspects, final.’ " N.D. State Elec. Bd. v. Boren , 2008 ND 182, ¶ 4, 756 N.W.2d 784 (citation omitted). The referee did not intend that its December 7, 2016 orders were final orders.
[¶ 11] Nevertheless, in State ex rel. Harris v. Lee , 2010 ND 88, ¶ 6, 782 N.W.2d 626, we explained:
Under N.D. Const. art. VI, § 2, and N.D.C.C. § 27–02–04, this Court may examine a district court decision by invoking our supervisory authority. Mann v. N.D. Tax Comm'r , 2005 ND 36, ¶ 20, 692 N.W.2d 490. We exercise our authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists. E.g. , Forum Commc'ns Co. v. Paulson , 2008 ND 140, ¶ 8, 752 N.W.2d 177 ; Trinity Hosps. v. Mattson , 2006 ND 231, ¶ 6, 723 N.W.2d 684. Our authority to issue a supervisory writ is " ‘purely discretionary,’ " State v. Paulson , 2001 ND 82, ¶ 6, 625 N.W.2d 528 (quoting Patten v. Green , 369 N.W.2d 105, 106 (N.D. 1985) ), and we determine whether to exercise supervisory jurisdiction on a case-by-case basis, considering the unique circumstances of each case. See Forum Commc'ns , at ¶ 8 ; State v. Holte , 2001 ND 133, ¶ 5, 631 N.W.2d 595 ; Central Power Elec. Coop., Inc. v. C–K, Inc. , 512 N.W.2d 711, 715 (N.D. 1994). Exercise of supervisory jurisdiction may be warranted when issues of vital concern regarding matters of important public interest are presented. See Forum Commc'ns , at ¶ 9 ; Trinity Hosps. , at ¶ 7 ; Mitchell v. Sanborn , 536 N.W.2d 678, 683 (N.D. 1995).
[¶ 12] Taylor has been incarcerated solely for contempt for well over 400 straight days. The issue raised in this case is a question of first impression in this jurisdiction and involves a district court's authority to incarcerate persons found to be in contempt of court indefinitely. We believe this is an issue of vital concern regarding matters of important public interest, and we exercise our discretion to review the issue raised in this case.
[¶ 13] The parties agree that the applicable contempt statute is N.D.C.C. § 27–10–01.1(1)(c), which defines "[c]ontempt of court" as the "[i]ntentional disobedience, resistance, or obstruction of the authority, process, or order of a court or other officer, including a referee or magistrate." A "[r]emedial sanction" includes "a sanction that is conditioned upon performance or nonperformance of an act required by court order." N.D.C.C. § 27–10–01.1(4). Remedial sanctions for contempt of court are set forth in N.D.C.C. § 27–10–01.4(1), which provides:
To continue reading
Request your trial
- Welch v. Workforce Safety & Ins.
-
Wilkinson v. Bd. of Univ.
...statutory and if no statutory basis for appeal exists, we must take notice of the lack of jurisdiction and dismiss the appeal. Nygaard v. Taylor , 2017 ND 206, ¶ 8, 900 N.W.2d 833. We have a two-step process for evaluating appealability:"First, the order appealed from must meet one of the s......
-
Manning v. Jaeger
...of important public interest are presented. Wilkinson v. Bd. of Univ. & Sch. Lands , 2020 ND 179, ¶ 17, 947 N.W.2d 910 (quoting Nygaard v. Taylor , 2017 ND 206, ¶ 11, 900 N.W.2d 833 ) (quotation marks omitted). This Court generally will not exercise its supervisory jurisdiction when the pro......
-
Knutson v. Foughty
...2022 ND 86, ¶ 7, 973 N.W.2d 207 (emphasis added) (quoting Wilkinson v. Bd. of Univ., 2020 ND 179, ¶ 17, 947 N.W.2d 910); see also Nygaard v. Taylor, 2017 ND 206, ¶ 11, 900 N.W.2d 833. "Courts generally will not exercise supervisory jurisdiction 'where the proper remedy is an appeal merely b......