Rath v. Rath
| Decision Date | 26 May 2022 |
| Docket Number | 20210120 |
| Citation | 974 N.W.2d 652 |
| Parties | Kayla RATH, n/k/a Kayla Jones, Plaintiff and Appellee v. Mark RATH, Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest |
| Court | North Dakota Supreme Court |
Thomas M. Jackson, Bismarck, ND, for plaintiff and appellee.
Mark A. Rath, self-represented, Bismarck, ND, defendant and appellant.
[¶1] Mark Rath appeals after the district court entered a third amended judgment in this divorce action from Kayla Rath, now known as Kayla Jones. He appeals from an order denying his motion in limine; an order allowing written, but not oral, closing arguments on his motion to amend the judgment; and an order amending the judgment regarding parenting time and denying his petitions for a new trial and for recusal. He also appeals from the court's subsequent order determining he is a vexatious litigant. We conclude the court did not abuse its discretion in denying his motion in limine; in conducting the hearing; and in allowing written, but not oral, closing arguments. We affirm the denial of his requests for new trial and recusal and affirm the third amended judgment.
[¶2] We conclude, however, the district court erred in denying his demand for a change of judge and erred in referring Jones's motion for a vexatious litigant determination under N.D. Sup. Ct. Admin. R. 58 to the presiding judge, who had previously been disqualified in this case. We therefore vacate the May 2021 order determining Mark Rath a vexatious litigant. We further hold that Rath has not met his burden to show his constitutional challenge to N.D. Sup. Ct. Admin. R. 58 has merit, and we exercise our authority under N.D. Sup. Ct. Admin. R. 58(7) to determine Mark Rath is a vexatious litigant under the rule.
[¶3] Rath and Jones were divorced in 2013. This Court has since addressed numerous issues, primarily relating to Mark Rath's voluminous post-judgment motions. See, e.g. , Rath v. Rath , 2020 ND 96, 942 N.W.2d 464 ; Rath v. Rath , 2019 ND 303, 936 N.W.2d 538 ; Rath v. Rath , 2018 ND 138, 911 N.W.2d 919; Rath v. Rath , 2018 ND 98, 909 N.W.2d 666 ; Rath v. Rath , 2017 ND 138, 895 N.W.2d 315 ; Rath v. Rath , 2017 ND 128, 895 N.W.2d 306 ; Rath v. Rath , 2017 ND 80, 892 N.W.2d 205 ; Rath v. Rath , 2016 ND 105, 879 N.W.2d 735 ; Rath v. Rath , 2016 ND 83, 878 N.W.2d 85 ; Rath v. Rath , 2016 ND 71, 877 N.W.2d 298 ; Rath v. Rath , 2016 ND 46, 876 N.W.2d 474 ; Rath v. Rath , 2015 ND 22, 861 N.W.2d 172 ; Rath v. Rath , 2014 ND 171, 852 N.W.2d 377 ; Rath v. Rath , 2013 ND 243, 840 N.W.2d 656.
[¶4] In September 2020 Rath moved the district court to amend the judgment seeking to modify his parenting time and to provide him authority to take the minor children outside of the state. Rath subsequently filed a motion in limine seeking to exclude one of his children, H.R., from testifying at the hearing on his motion. The court denied his motion in limine.
[¶5] On February 22, 2021, the district court held an evidentiary hearing and received testimony from the parties, the child H.R., and a social worker. Rath objected at the end of the hearing when the court did not allow him to make an oral closing argument. The day after the hearing, before the court ruled on his motion, Rath petitioned for a new trial and to recuse the judge. The court thereafter entered an order allowing written closing arguments on the motion to modify parenting time. Rath objected to the order, and both parties submitted written closing briefs.
[¶6] On March 2, 2021, Rath filed a motion to hold Jones in contempt. Jones filed a cross-motion requesting the district court to determine Mark Rath to be a vexatious litigant under N.D. Sup. Ct. Admin. R. 58.
[¶7] On March 23, 2021, the district court entered its findings and an order amending the judgment to increase Rath's parenting time and denying his petitions for a new trial and for the judge's recusal. A third amended judgment was entered granting Rath unsupervised parenting time every other weekend and on every other Tuesday evening, granting extended summer parenting time, and allowing for removal of the children from the state for temporary periods of vacation.
[¶8] On March 30, 2021, the assigned judge recused himself from the case. A new judge was assigned, who recused herself from the case. The current judge was then assigned, who entered an order on March 31, 2021, referring Jones's vexatious litigant motion to the presiding judge. In April 2021 Rath filed multiple demands for a change of judge for the currently assigned judge which were denied. He also filed a motion "challenging the jurisdiction" of the presiding judge to rule on the vexatious litigant motion.
[¶9] On May 7, 2021, the presiding judge entered an order granting Jones's vexatious litigant motion under N.D. Sup. Ct. Admin. R. 58, determining Mark Rath is a vexatious litigant, and prohibiting further filings from him without leave of court. The court entered an order staying further proceedings on May 18, 2021. Several motions remain pending in the district court, including Rath's motion for contempt and motions regarding child support and Jones's motion for a protective order.
[¶10] Rath argues the district court abused its discretion in denying his motion in limine to prevent his child, H.R., from testifying at the evidentiary hearing; micromanaging him at the hearing; and allowing written, but not oral, closing arguments.
[¶11] The district court has broad discretion on evidentiary matters, and this Court reviews a ruling on a motion in limine under the abuse of discretion standard. Linstrom v. Normile , 2017 ND 194, ¶ 12, 899 N.W.2d 287 ; State v. Kuruc , 2014 ND 95, ¶ 26, 846 N.W.2d 314. We have also explained that the "court has broad discretion over the conduct of a hearing." Sollin v. Klein , 2021 ND 75, ¶ 12, 958 N.W.2d 144 ; see also Jalbert v. Eagle Rigid Spans, Inc. , 2017 ND 50, ¶ 9, 891 N.W.2d 135 ; Gullickson v. Kline , 2004 ND 76, ¶ 15, 678 N.W.2d 138. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner; when it misinterprets or misapplies the law; or when its decision is not the product of a rational mental process leading to a reasoned determination. Sollin , at ¶ 12.
[¶12] Rath asserts the district court abused its discretion in allowing his child to testify at the February 2021 evidentiary hearing because the child was improperly influenced by Jones and the manner in which the testimony was received. Rath's assertions attack the credibility of the child's testimony, a consideration within the trial judge's discretion, and we conclude the court did not abuse its discretion with regard to the child's testimony. We address, however, his argument that the court abused its discretion in allowing written closing, but not oral, arguments after the hearing.
[¶13] In Fuhrman v. Fuhrman , 254 N.W.2d 97, 101 (N.D. 1977), this Court held that "litigants in civil nonjury cases ... have a right to have their attorneys make a final argument." See also Isaacson v. Isaacson , 2010 ND 18, ¶ 13, 777 N.W.2d 886 ; Union State Bank v. Woell , 434 N.W.2d 712, 715 n.1 (N.D. 1989). This Court has further explained:
The right to closing arguments can be waived by the parties and narrowed by the courts, but it cannot be unilaterally denied. The protections afforded closing arguments flow from the important functions they serve. Closing arguments can correct premature misjudgments by the court and bring opposing viewpoints to the court's attention, leading courts to fewer erroneous decisions.
Isaacson , at ¶ 13 (discussing Fuhrman , at 101-02 ) (internal citation omitted).
[¶14] Rath did not waive his right to closing argument, objecting both at the hearing and when the district court issued its order, 17 days after the hearing, allowing for written closing arguments. At the outset of the hearing, the court noted on the record that two hours were provided for the hearing and instructed the parties to "construct your arguments and leave time for each other." Although the court unilaterally denied closing arguments at the end of the evidentiary hearing, the court subsequently provided the parties an opportunity to file written closing arguments from the parties before reaching its final decision.
[¶15] Rath asserts that too much time had passed after the hearing, he could not remember everything to make his arguments, and there was insufficient time to obtain a hearing transcript or recording. Under these facts and circumstances, we conclude the district court did not abuse its discretion by denying an oral summation at the end of the hearing and subsequently permitting written summations. To the extent the court ran afoul of our holding in Fuhrman by initially denying closing arguments at the hearing, we conclude the error was harmless. See N.D.R.Civ.P. 61 ().
[¶16] Rath argues the district court erred in modifying the judgment and abused its discretion in not addressing all of his requested modifications to the divorce judgment and in failing to explain why the court denied his other requests.
[¶17] Under N.D.C.C. § 14-05-22(2), the district court has continuing jurisdiction to modify parenting time. "To modify parenting time, the movant must establish a material change of circumstances has occurred since the prior parenting time order and that it is in the best interests of the child to modify the order." Williams v. Williams , 2021 ND 134, ¶ 3, 962 N.W.2d 601 (quoting Green v. Swiers , 2018 ND 258, ¶¶ 12-13, 920 N.W.2d 471 ). A court's decision on parenting time and modification of parenting time are findings of fact, subject to the clearly erroneous standard of review. Williams , at ¶ 3 (citing Curtiss v. Curtiss , 2016 ND 197, ¶ 10, 886 N.W.2d 565 ). Whether to grant a new trial motion rests entirely within the court's...
To continue reading
Request your trial