Rath v. Rath, 20140012.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: VANDE WALLE
• Citation: 852 N.W.2d 377,2014 ND 171
• Parties: Kayla RATH, Plaintiff v. Mark RATH, Defendant and Appellant.
• Docket Number: No. 20140012.,20140012.
• Decision Date: 23 September 2014

852 N.W.2d 377
2014 ND 171

Kayla RATH, Plaintiff
v.
Mark RATH, Defendant and Appellant.

No. 20140012.

Supreme Court of North Dakota.

Aug. 28, 2014.
Rehearing Denied Sept. 23, 2014.

[852 N.W.2d 378]

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.
Kayla Rath, plaintiff; no appearance.

Mark Rath, Bismarck, N.D., defendant and appellant; self-represented.

VANDE WALLE, Chief Justice.

[¶ 1] Mark Rath appealed from a district court order finding him in contempt of court for violating provisions of a divorce judgment, refusing to find Kayla Rath in contempt of court, and modifying the divorce judgment. We conclude the district court did not abuse its discretion in refusing to find Kayla Rath in contempt of court and in finding Mark Rath in contempt, but we conclude the court erred in amending the judgment without a motion or notice. We, therefore, affirm in part and reverse in part.

I

[¶ 2] Mark Rath and Kayla Rath were divorced in January 2013. The divorce judgment awarded Kayla Rath primary residential responsibility for the parties' two children, and Mark Rath received supervised parenting time at the Family Safety Center. The judgment also allowed Mark Rath to make one telephone call to the children each Monday, and every other Friday and Saturday when he does not have the children, between the hours of 7:00 p.m. and 8:00 p.m. In March 2013, Mark Rath moved the district court for an order to hold Kayla Rath in contempt for violating divorce judgment provisions, which was denied. In Rath v. Rath, 2013 ND 243, ¶¶ 1, 16, 840 N.W.2d 656, we affirmed the district court's order denying his contempt motion.

[¶ 3] In October 2013, Mark Rath again moved the district court for an order finding Kayla Rath in contempt of court, alleging she had denied him telephone calls with the children. Kayla Rath filed a cross-motion for an order finding Mark Rath in contempt, alleging he had called

[852 N.W.2d 379]

and texted Kayla Rath's phone at all hours of the day despite the judgment's limitations and had been calling Kayla Rath and her attorney derogatory names.

[¶ 4] After a December 2013 hearing, the district court denied Mark Rath's motion, granted Kayla Rath's motion, and found Mark Rath in contempt for calling the children at times not allowed through the judgment and for not paying his previously ordered attorney fees to Kayla Rath's attorney. The court's order permitted Kayla Rath to dispose of certain personal property that Mark Rath had failed to retrieve under the divorce judgment and amended the divorce judgment's provision addressing Mark Rath's telephone contact with the children.

II

[¶ 5] Mark Rath argues the district court erred in failing to find Kayla Rath in contempt of court and erred in finding him in contempt. He also claims the court's amendment of the divorce judgment violated his due process rights.

A

[¶ 6] Our standard for reviewing a district court's decision imposing contempt sanctions is well-established:

A party seeking a contempt sanction under N.D.C.C. ch. 27–10 must clearly and satisfactorily prove the alleged contempt was committed. Berg v. Berg, 2000 ND 37, ¶ 10, 606 N.W.2d 903; Flattum–Riemers v. Flattum–Riemers, 1999 ND 146, ¶ 5, 598 N.W.2d 499. “Under N.D.C.C. § 27–10–01.1(1)(c), ‘[c]ontempt of court’ includes ‘[i]ntentional disobedience, resistance, or obstruction of the authority, process, or order of a court or other officer.’ ” Harger v. Harger, 2002 ND 76, ¶ 14, 644 N.W.2d 182. “To warrant a remedial sanction for contempt, there must be a willful and inexcusable intent to violate a court order.” Harger, at ¶ 14; see also Berg, at ¶ 10; N.D.C.C. § 27–10–01.1(4).... Determining whether a contempt has been committed lies within the district court's sound discretion, which will not be overturned on appeal absent an abuse of that discretion. Millang v. Hahn, 1998 ND 152, ¶ 7, 582 N.W.2d 665. “[A] court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law.” Id.

Sall v. Sall, 2011 ND 202, ¶ 7, 804 N.W.2d 378 (quoting Prchal v. Prchal, 2011 ND 62, ¶ 5, 795 N.W.2d 693). The district court has “broad discretion” to decide whether to hold a person in contempt. Sall, at ¶ 7. See also Woodward v. Woodward, 2009 ND 214, ¶ 6, 776 N.W.2d 567. We have also explained that our review of a district court's contempt decision is “very limited.” Sall, at ¶ 7 (quoting Glasser v. Glasser, 2006 ND 238, ¶ 12, 724 N.W.2d 144).

[¶ 7] Mark Rath essentially argues the district court misapplied the statutory provisions for contempt in N.D.C.C. ch. 27–10. He contends the court's order allowing Kayla Rath to dispose of certain personal property was a punitive sanction, rather than a remedial sanction. He contends the court erred in finding Kayla Rath had not intentionally violated the divorce judgment and claims Kayla Rath lied and deceived the court regarding whether a cell phone belonged to the children. Mark Rath also argues the district court erred in finding him in contempt of court because, he claims, the divorce judgment allows both parents to contact the children via telephone and other electronic means at reasonable time intervals, in addition to providing the specific times when he was permitted to contact the children.

[852 N.W.2d 380]

[¶ 8] The district court made specific findings on the cross-motions for contempt at the December 2013 hearing, explaining:

THE COURT: Well, we're out of time. I think you had an opportunity to present your case today. Part of the confusion may be because we have competing orders. We have a criminal judgment that has part of the divorce case attached as a condition of probation. And those conditions in the divorce case were entered before the final judgment. And the divorce case contains slightly different conditions. But the conditions attached to the Appendix A were not...