Peters-Riemers v. Riemers

Decision Date17 June 2003
Docket NumberNo. 20020225.,20020225.
Citation2003 ND 96,663 N.W.2d 657
PartiesJenese A. PETERS-RIEMERS, Plaintiff and Appellee, v. Roland C. RIEMERS, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Michael L. Gjesdahl, Gjesdahl & Associates, Fargo, for plaintiff and appellee.

Jonathan T. Garaas, Garaas Law Firm, DeMores Office Park, Fargo, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Roland C. Riemers appealed from an order holding him in contempt, and a resulting warrant of attachment and money judgment, for failing to comply with the property distribution provisions of a divorce decree. Because the record does not show that Riemers was informed of his right to counsel when his incarceration became a likely result of the contempt proceedings, we reverse and remand for further proceedings.

I

[¶ 2] Jenese A. Peters-Riemers and Roland C. Riemers were divorced in May 2001 following a troubled two-year marriage. See Peters-Riemers v. Riemers, 2001 ND 62, 624 N.W.2d 83; Flattum-Riemers v. Peters-Riemers, 2001 ND 121, 630 N.W.2d 71. The amended divorce judgment ordered Roland to pay $1,150 per month child support for the couple's child and $500 per month spousal support to Jenese for five years. As part of the marital property distribution, Roland was awarded all financial accounts in his name and two parcels of real estate. The divorce judgment awarded Jenese all financial accounts in her name and further provided:

12. JENESE'S REAL ESTATE: Effective June 16, 2001, Jenese shall have sole ownership in fee simple absolute, including all right, title, possession and interest therein, free and clear of any claim of right, title or interest by Roland, in and to the following parcels of real estate:
Marital Residence, RR # 1, Box 43, Buxton, North Dakota: Legally described as "591 by 690 feet tract in the E ½ SE ¼ Section 13 Township 147 Range 51. 9.36 acre Tract."
217 Chestnut, Grand Forks, North Dakota: Legally described as "Lot 10, 12 Block 9 Traill's Addition to the City of Grand Forks."
309 5th Street N., Grand Forks, North Dakota: Legally described as "Lot 7, Block 12 Original Townsite Grand Forks."
Prior to June 1, 2001, Roland shall be solely and separately liable upon any and all debt, loan, utility and any other payment or liability relative to the above-referenced parcels of real estate.
In the event that, by no later than June 15, 2001, Roland fully complies with the terms of paragraph # 15 below, however, then Roland shall have sole ownership in fee simple absolute, including all right, title, possession and interest therein, free and clear of any claim of right, title or interest by Jenese, in and to the above-referenced parcels of real estate.

Paragraph 15 of the divorce judgment allowed Roland to pay Jenese a lump sum of $180,000 by June 15, 2001, and maintain sole ownership of the three parcels awarded to Jenese.

[¶ 3] Roland appealed the divorce judgment to this Court and the trial court granted a stay of execution of paragraph 12 of the divorce judgment effective through July 15, 2001 to allow Roland to procure a $175,000 supersedeas bond. Roland failed to obtain a satisfactory supersedeas bond and did not make the $180,000 lump sum payment to Jenese.

[¶ 4] After the stay expired and Roland failed to vacate the marital residence, Jenese brought eviction proceedings against him. This Court affirmed the order evicting Roland from the residence. See Peters-Riemers v. Riemers, 2002 ND 49, 641 N.W.2d 83. On November 26, 2001, while the appeal from the divorce judgment was pending in the Supreme Court, Jenese filed in this Court a contempt motion against Roland for violating the property distribution provisions of the divorce judgment, requesting:

1. An order requiring Roland to immediately vacate Jenese's Buxton property;
2. An order requiring Roland to turn over all keys to the properties awarded to Jenese in the Amended Judgment in their divorce action;
3. An order requiring Roland to turn over all security deposit[s] for all tenants of the building located 217 Chestnut and all the tenants of the building at 309 5th St. N.;
4. An order requiring Roland to pay the back taxes on the Grand Forks properties;
5. An order requiring Roland, and Roland's agents, to cease and desist any interference with Jenese's operation of her apartment buildings;
6. An order restraining Roland, and Roland's agents, from trespassing on the premises at 217 Chestnut and 309 5th St. N.
7. Such further relief as the Court deems necessary and just.

On November 28, 2001, we "temporarily REMANDED for the limited purpose of the trial court's consideration of the Contempt Motion, but the Supreme Court retains jurisdiction for purposes of the appeal."

[¶ 5] The trial court held a hearing on the contempt motion on December 18, 2001. Roland appeared pro se, as he has in several of these proceedings. Shortly after the hearing began, Jenese's attorney explained that he wanted a contempt "order that imposes a six month jail period," stayed until January 1, 2002, to give Roland time to comply with the relief sought. Jenese presented evidence that Roland, in addition to failing to comply with the property distribution provisions of the divorce decree, was also behind in his child and spousal support payments. The trial court issued a contempt order on December 20, 2001, finding Roland in contempt for:

([1]) his failure to relinquish possession of the Buxton farmstead; (2) his various efforts to obstruct and obscure Jenese's full complement of ownership rights and interests in and to the rental properties; (3) his collection of rental payments owed to Jenese after July 15, 2001; (4) his failure to account for and transfer to Jenese all security deposits for the current tenants in the rental properties; (5) and his failure to pay all liabilities due and owing on the rental properties, including but not limited to the 2000 property taxes.

The trial court ordered that "Roland is hereby sentenced and committed to a period of six (6) months incarceration in the Traill County jail," but stayed the sentence until another hearing could be held on January 22, 2002, to determine whether Roland had purged the contempt. At that time, the trial court also issued an order to show cause why Roland should not be held in contempt for failure to pay his child support and spousal support obligations imposed by the divorce decree.

[¶ 6] The second hearing was continued until February 19, 2002. Roland again appeared pro se. Both parties presented evidence. Roland testified that he had satisfied some of the conditions imposed by the December 20, 2001 order, but was currently "flat broke" and was expecting to file for bankruptcy.

[¶ 7] After the second hearing was held, this Court affirmed the divorce judgment in its entirety. See Peters-Riemers v. Riemers, 2002 ND 72, ¶ 31, 644 N.W.2d 197. On May 29, 2002, a hearing was held before a second trial court judge on the contempt motion against Roland for failure to pay spousal and child support. On June 6, 2002, the second trial court judge found Roland was not in contempt of court "because the financial information showed [Roland] did not have the income available to pay this monthly obligation." The court ordered that Roland's child and spousal support obligations would continue to accrue at the rate of $1,150 and $500 per month, respectively, but ordered the "enforcement of the monthly child support obligations shall continue in the sum of $500.00 each month, commencing June 1, 2002."

[¶ 8] On June 27, 2002, the trial court judge who had presided over the December 18, 2001 and February 19, 2002 hearings issued a contempt order. The trial court took judicial notice of the order of the second trial court judge finding Roland not to be in contempt for the unpaid child and spousal support and incorporated it in the opinion. The trial court found that Roland had purged himself of some of the mandated conditions, but continued to be in contempt regarding other conditions. The court ordered:

4. Amount Owed: Roland shall pay to Jenese the sum of $40,144.84, payable by certified or cashier's check and delivered to either Jenese Peters or her attorney of record, Michael L. Gjesdahl.
5. Money Judgment: The Clerk of Court shall enter a docketable money Judgment against Roland Riemers and in favor of Jenese Peters, in the amount of $40,144.84, comprised of the amounts set forth in paragraphs 2 and 3 above.
6. Incarceration: Roland shall be immediately incarcerated in the Traill County Jail for a period of six months or until he has paid Jenese the sum of $40,144.84, whichever occurs first.
7. Writ Warrant of Attachment: The Traill County Clerk of District Court shall immediately issue a Writ or Warrant of Attachment, requiring the Traill County Sheriff's [Department], the Grand Forks County Sheriff's Department, the Grand Forks Police Department, the Hillsboro Police Department and any other North Dakota law enforcement officer to detain Roland Riemers and deliver him into the custody of the Traill County Sheriff for incarceration in the Traill County jail.

[¶ 9] On July 8, 2002, Roland was incarcerated in the Traill County Jail. Roland obtained counsel and filed a writ of habeas corpus, which was granted by the second trial court judge who had found Roland to not be in contempt for failing to pay child and spousal support. Relying on N.D.C.C. §§ 27-10-01.1(1)(b) and 27-10-01.4(1)(b), the trial court reasoned Roland could not be incarcerated for failure to comply with the property distribution provisions of the divorce decree because execution could be awarded for the collection of the amount due. Jenese did not appeal from this order. Roland was released from jail and, through counsel, took this appeal from the June 27, 2002 contempt order. After the notice of appeal was filed, the second trial court judge vacated his June 6, 2002 order finding Roland to not be in contempt for failing to pay child and...

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