Rath v. Rath

• Citation: 876 N.W.2d 474
• Decision Date: 24 February 2016
• Docket Number: No. 20150088.,20150088.
• Parties: Kayla RATH, Plaintiff v. Mark RATH, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

876 N.W.2d 474

Kayla RATH, Plaintiff

v.Mark RATH, Defendant and Appellant.

No. 20150088.

Supreme Court of North Dakota.

Feb. 24, 2016.

Rehearing Denied March 23, 2016.

Kayla Rath, plaintiff; no appearance.

Mark A. Rath, Bismarck, N.D., defendant and appellant; on brief.

McEVERS, Justice.

[¶ 1] Mark Rath appeals from orders denying his various motions, including motions for orders to show cause, for an ex parte interim order to modify a judgment, and for recusal. We conclude the district court did not err in refusing to hold Kayla Rath in contempt, did not err in denying his request to modify the judgment, and did not err in conducting a hearing on his motions. We further conclude the court did not abuse its discretion in its award of attorney fees to Kayla Rath and in refusing to recuse himself from this case. We affirm.

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 received supervised parenting time at the Family Safety Center. Since entry of the divorce judgment, Mark Rath has filed numerous post-judgment motions in the district court, some of which have been previously addressed by this Court. See 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] Mark Rath has continued making numerous motions in the district court, and the court has entered orders addressing those motions. In September 2014, Mark Rath moved the court for an order to show cause, again seeking to hold Kayla Rath in contempt and asserting she was frustrating his visitation and interfering with his telephone visitations. In November 2014, he filed a request for an ex parte interim order to modify the judgment. In December 2014, he filed what he captioned a "Challenge to Jurisdiction and Motion to Set Aside Void Orders." The court held a hearing on March 9, 2015. On the same day as the hearing, Mark Rath filed another motion seeking to hold Kayla Rath in contempt. He also moved the court for recusal. The court ultimately entered several orders denying his various requests for relief and also ordered him to pay attorney fees of $750.

[¶ 4] On March 20, 2015, Mark Rath filed a notice of appeal from an "order denying motion for order to show cause dated March 09, 2017[sic], conclusion of law and order dated March 17, 2015, Order denying Order to show cause and motion for recusal dated March 18, 2015." On the same day, he filed an "amended" notice of appeal, appealing from the "order denying motion for order to show cause dated March 17, 2017 [sic], conclusion of law and order dated March 17, 2015[,] Order denying Interim Order dated March 17, 2015, Order denying Order to show cause and motion for recusal dated March 18, 2015." On March 23, 2015, Mark Rath filed a "supplemental" notice of appeal, which, in addition to the orders previously identified in his amended notice, added the "Order denying Jurisdictional Challenge dated March 17, 2015," and "order denying demand for Jury Trial dated March 20, 2015."

II

[¶ 5] Mark Rath raises a number of issues on appeal. He argues the district court violated due process and statutory law by not holding Kayla Rath in contempt for "unilaterally" forcing his telephone calls with the children to be supervised and setting up visitation restrictions; the court's order denying his interim request to modify the judgment was a "misapplication of the order [']s intent and law"; and the court misinterpreted the judgment and the law in denying the interim request. He also asserts that forcing him and the children to be on speaker phone violates wiretapping and eavesdropping laws and the court erred when it failed to address Kayla Rath's alleged interference with the telephone calls to argue with him and her alleged "increasing frustrations on setting up visitations." He contends the court did not give him a full and fair hearing when it denied him calling Kayla Rath as a witness and erred in not having her attorney submit documentation of her attorney costs.

A

[¶ 6] Mark Rath argues the district court violated his due process rights and statutory law by not holding Kayla Rath in contempt for "unilaterally" forcing his phone calls to be supervised and setting up visitation "restrictions."

[¶ 7] Our standard for reviewing the district court's decision whether to impose 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.

Rath, 2014 ND 171, ¶ 6, 852 N.W.2d 377

(quoting Sall v. Sall, 2011 ND 202, ¶ 7, 804 N.W.2d 378 ). The district court has "broad discretion" in deciding whether to hold a person in contempt, and our review of a district court's contempt decision is "very limited." Id.

[¶ 8] Mark Rath argues the district court erred when it failed to address Kayla Rath's latest alleged interference with his telephone calls with the children and "increasing frustrations in setting up visitation." He argues that Kayla Rath has in effect modified the judgment, and the court has violated his due process rights by permitting this modification and not holding her in contempt. He contends the "unilateral" modifications demonstrate intentional interference and disregard for the court's decree. He also argues the divorce judgment says nothing about supervised telephone communications and that Kayla Rath has forced him into a schedule of visitation that she will not follow.

[¶ 9] After a hearing, the district court held Mark Rath failed to meet his burden to establish Kayla Rath had engaged in contempt. The court concluded that there was no credible evidence to indicate Kayla Rath intentionally violated the terms of the judgment as it relates to terminating or interfering with telephone conversations between him and the minor children; that Mark Rath did not produce any credible evidence to suggest Kayla Rath canceled and rescheduled visitation to intentionally interfere with his parenting time or to intentionally disobey the court's order; that no credible evidence indicates she intentionally withheld her new phone number from him in violation of the judgment; and that no evidence suggested Kayla Rath vilified him to the children or discussed legal matters in front of the children. The court held Mark Rath had "failed completely" to establish she willfully disobeyed the court's order. The court concluded that while Kayla Rath had been reasonable and respectful of the court's order, Mark Rath's motion bordered on being frivolous.

[¶ 10] Although Mark Rath disagrees with the district court's findings and conclusions, the court found no credible evidence established Kayla Rath intentionally violated the terms of the judgment. Based on our review of the record, we conclude the court did not abuse its discretion in denying his contempt motions.

B

[¶ 11] Mark Rath argues that the district court's order denying his interim request to modify the judgment was a "misapplication of the order[']s intent and law."

[¶ 12] Under N.D.C.C. § 14–05–22

, the district court has continuing jurisdiction to modify parenting time. See Hoverson v. Hoverson, 2015 ND 38, ¶ 12, 859 N.W.2d 390 ; Prchal v. Prchal, 2011 ND 62, ¶ 10, 795 N.W.2d 693. "To modify [parenting time], the moving party must demonstrate a material change in circumstances has occurred since entry of the previous [parenting time] order and that the modification is in the best interests of the child." Prchal, at ¶ 11 (quoting Dufner v. Trottier, 2010 ND 31, ¶ 6, 778 N.W.2d 586 ). The district court's decision to modify parenting time is a finding of fact, which this Court will not reverse on appeal unless clearly erroneous. Hoverson, at ¶ 12; Prchal, at ¶ 11. To modify parenting time, "a material change of circumstances occurs when important new facts arise that were unknown at the time of the initial [parenting time] order." Dufner, at ¶ 7.

[¶ 13] Regarding Mark Rath's supervised parenting time, the parties' January 2013 divorce judgment states:

Until such time that Mark completes the Court ordered Domestic Violence Offender Treatment Program and the Court ordered Psychological Evaluation, Mark's parenting time shall consist of supervised parenting time at the Family Safety Center.... After Mark completes the Court ordered Domestic Violence Offender Treatment Program and the Court ordered Psychological Evaluation, he may file a motion to review his Parenting Time. No motion is necessary if the parties agree to a revised Parenting time schedule.

(Emphasis added.)

[¶ 14] Here, although his motion was designated as seeking an "interim" order, the district court properly treated his motion as one to modify the divorce judgment to grant him additional and unsupervised parenting time with the parties' minor children, including overnight visitation. The court found, however, that he had failed to submit documentation that he completed the domestic violence course or...