Peters-Riemers v. Riemers
Decision Date | 17 June 2003 |
Docket Number | No. 20020225.,20020225. |
Citation | 2003 ND 96,663 N.W.2d 657 |
Parties | Jenese A. PETERS-RIEMERS, Plaintiff and Appellee, v. Roland C. RIEMERS, Defendant and Appellant. |
Court | North 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.
[¶ 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.
[¶ 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:
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:
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:
[¶ 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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