Rath v. Rath

• Decision Date: 07 June 2017
• Docket Number: No. 20160338,20160338
• Citation: 895 N.W.2d 315
• Parties: Kayla RATH, n/k/a Kayla Jones, Plaintiff v. Mark RATH, Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest and Appellee
• Court: North Dakota Supreme Court

895 N.W.2d 315

Kayla RATH, n/k/a Kayla Jones, Plaintiff

v. Mark RATH, Defendant and AppellantandState of North Dakota, Statutory Real Party in Interest and Appellee

No. 20160338

Supreme Court of North Dakota.

Filed June 7, 2017

Sheila K. Keller, Bismarck, N.D., for statutory real party in interest and appellee.

Mark A. Rath, Bismarck, N.D., defendant and appellant.

McEvers, Justice.

[¶ 1] Mark Rath appeals from orders denying his demands for a change of judge, an order denying his motion for an order to show cause, and an order modifying his child support obligation. We affirm, concluding Mark Rath did not meet the statutory requirements for a change of judge, the district court did not abuse its discretion by denying the motion for an order to show cause, and the court did not err in modifying the child support obligation.

I

[¶ 2] In January 2013, Mark Rath and Kayla Rath were divorced. The divorce judgment awarded Kayla Rath primary residential responsibility for the parties' two children, and Mark Rath received supervised parenting time. Mark Rath was ordered to pay $243 per month in child support. Since entry of the divorce judgment, Mark Rath has filed numerous post-judgment motions in the district court, some of which have been addressed by this Court in prior cases. See Rath v. Rath , 2017 ND 128, 895 N.W.2d 306 ; 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 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.

[¶ 3] On April 25, 2016, the Child Support Enforcement Unit moved to modify Mark Rath's child support obligation, requesting the amount be increased to $475 per month. The Enforcement Unit explained it calculated the requested child support amount after obtaining Mark Rath's 2015 tax return and wage information from his employer and considering Mark Rath's duty to support other children. Mark Rath responded to the motion to modify, arguing his health insurance expenses should be deducted from his income because he is required to have health insurance or pay a tax penalty under federal law.

[¶ 4] On May 1, 2016, Mark Rath moved for joinder of claims, requesting the district court join the child support modification proceedings in this case with child support proceedings in another case. On May 13, 2016, Judge Hill denied the motion for joinder, finding joinder was not appropriate because the two cases were different situations involving different parties and were assigned to different judges.

[¶ 5] On May 17, 2016, Mark Rath filed a demand for change of judge under N.D.C.C. § 29–15–21(3) against Judge Hill for purposes of the child support modification. The demand was denied on May 18, 2016. The district court explained the demand was untimely because the parties had ten days from the time the judge was assigned to the case to demand a change of judge and Judge Hill was assigned to the matter in October 2014.

[¶ 6] On May 18, 2016, Mark Rath filed a second demand for change of judge, arguing the first demand was incorrectly denied because the motion to modify child support is considered a separate proceeding from the original action. On May 20, 2016, the district court denied the demand, concluding it was untimely.

[¶ 7] On May 23, 2016, Mark Rath filed a third demand for change of judge for the child support proceedings. On May 23, 2016, the district court denied the third demand for change of judge, finding it was filed in an untimely manner.

[¶ 8] On August 3, 2016, Mark Rath moved for an order to show cause, arguing Kayla Rath should be held in contempt for failing to comply with the judgment. He claimed Kayla Rath violated the terms of the judgment by failing to inform him of the children's medical expenses and failing to give him copies of unpaid medical bills so he could pay half of the children's medical expenses.

[¶ 9] On August 30, 2016, the district court denied the motion for an order to show cause. The court found Kayla Rath's failure to provide copies of the unpaid medical bills was not a violation of the judgment because she did not request reimbursement. The court concluded the motion was meritless. The court noted this was the thirteenth motion of this type and stated it was another pleading that harasses Kayla Rath and appeared to be offered for an improper purpose. The court advised Mark Rath that if the pattern continues it will consider imposing sanctions under N.D.R.Civ.P. 11(c).

[¶ 10] On September 15, 2016, after a hearing, the district court granted the motionto modify child support. The court denied Mark Rath's request to deduct the amount he pays for health insurance from his income. The court adopted the Enforcement Unit's calculations and ordered Mark Rath to pay $445 per month in child support. An amended judgment was entered.

II

[¶ 11] Mark Rath argues the district court erred by denying his three demands for change of judge. He contends he was entitled to a change of judge under N.D.C.C. § 29–15–21 because the child support modification proceedings were separate from the original divorce action.

[¶ 12] Under N.D.C.C. § 29–15–21, a party to a civil proceeding may obtain a change of judge, but the demand for a change of judge must be filed not later than ten days after the earliest of any of the following:

a. The date of the notice of assignment or reassignment of a judge for trial of the case;

b. The date of notice that a trial has been scheduled; or

c. The date of service of any ex parte order in the case signed by the judge against whom the demand is filed.

N.D.C.C. § 29–15–21(2). Section 29–15–21(3), N.D.C.C., provides further requirements for a demand and states:

In any event, no demand for a change of judge may be made after the judge sought to be disqualified has ruled upon any matter pertaining to the action or proceeding in which the demanding party was heard or had an opportunity to be heard. Any proceeding to modify an order for alimony, property division, or child support pursuant to section 14–05–24 or an order for child custody pursuant to section 14–05–22 must be considered a proceeding separate from the original action and the fact that the judge sought to be disqualified made any ruling in the original action does not bar a demand for a change of judge.

The judge sought to be disqualified has no authority or discretion to determine the timeliness or validity of the demand and the presiding district court judge decides whether the demand should be denied. N.D.C.C. § 29–15–21(6).

[¶ 13] Three different acting presiding district court judges denied Mark Rath's demands for change of judge. The order denying Mark Rath's first demand for change of judge stated the demand was untimely because "[p]arties have 10 days from the date the Judge was assigned to the case. Judge Hill was assigned on 10/22/2014." Judge Hill was assigned to the original divorce proceedings in October 2014; however, the Enforcement Unit moved to modify Mark Rath's child support obligation on April 25, 2016, and that proceeding is separate from the original divorce action. See N.D.C.C. § 29–15–21(3). Mark Rath was entitled to demand a change of judge for the child support modification proceedings if he met the requirements of N.D.C.C. § 29–15–21.

[¶ 14] Although the district court's reason for denying the first demand was incorrect, the court did not err in denying the motions. "[A] district court's decision will not be set aside merely because the court applied an incorrect reason if, under the correct law and reasoning, the result is the same." Goodall v. Monson , 2017 ND 92, ¶ 12, 893 N.W.2d 774. Section 29–15–21(3), N.D.C.C., states no demand for a change of judge may be made after the judge sought to be disqualified has ruled upon any matter pertaining to the action in which the demanding party was heard. This Court has previously interpreted the meaning of the language "ruled upon any matter pertaining to the action or proceeding," and held it means "all" or "every" matter pertaining to the action. See State v. Zueger , 459 N.W.2d 235, 237 (N.D. 1990).

[¶ 15] Mark Rath filed his demands for change of judge on May 17, 2016; May 18, 2016; and May 23, 2016. Before Mark Rath requested a change of judge, he moved for joinder of claims on May 1, 2016, requesting the district court join the child support modification proceedings in this case with child support proceedings in a separate case related to a support obligation for a child he has with a different mother. On May 13, 2016, Judge Hill denied the motion for joinder. Judge Hill ruled upon Mark Rath's motion for joinder before Mark Rath filed his first demand for change of judge. The motion for joinder was a matter pertaining to the modification of child support.

[¶ 16] During oral argument, Mark Rath argued his demand for change of judge should have been granted because the district court was required to wait at least fourteen days after the motion was filed to allow Kayla Rath to respond under N.D.R.Ct. 3.2. He contends the court did not follow the time requirements of N.D.R.Ct. 3.2 and, therefore, his demand for change of judge met statutory requirements. He did not raise the issue in his brief on appeal. We generally do not consider arguments raised for the first time at oral argument on appeal. See Paulson v. Paulson , 2011 ND 159, ¶ 9, 801 N.W.2d 746.

[¶ 17] Because Mark Rath did not file a demand for change of judge before the judge he sought to be disqualified ruled on his motion for joinder, he did not meet statutory requirements for a change of judge. We conclude the district court properly denied his three demands for change of judge.

III

[¶ 18] Mark Rath argues the district court erred when it denied his motion for an order to show cause. Mark Rath claims he clearly showed Kayla Rath violated two specific portions of the judgment by failing to inform him of the children's medical...