Rath v. Rath

• Citation: 911 N.W.2d 919
• Decision Date: 05 June 2018
• Docket Number: No. 20170239,20170239
• Parties: Kayla RATH, n/k/a Kayla Jones, Plaintiff v. Mark RATH, Defendant and Appellant
• Court: United States State Supreme Court of North Dakota

911 N.W.2d 919

Kayla RATH, n/k/a Kayla Jones, Plaintiff
v.
Mark RATH, Defendant and Appellant

No. 20170239

Supreme Court of North Dakota.

Filed June 5, 2018
Rehearing Denied July 11, 2018

Kayla Rath, plaintiff, no appearance.

Mark A. Rath, self-represented, Bismarck, ND, defendant and appellant.

VandeWalle, Chief Justice.

¶ 1] Mark Rath appealed from the district court’s second amended judgment modifying decisionmaking responsibility and parenting time, and from orders denying his other various motions. We conclude the court did not abuse its discretion in denying a new trial because no manifest injustice supports reversal, in denying his requests for recusal of the judge, and in denying his motion for reconsideration. We affirm.

I

[¶ 2] In January 2013, Mark Rath and Kayla Rath, now known as Kayla Jones, were divorced. The divorce judgment awarded Kayla Jones primary residential responsibility for the parties’ two children, and Mark Rath received supervised parenting time. Mark Rath has since made

[911 N.W.2d 923

numerous post-judgment motions in the district court, some of which this Court has addressed in prior cases. See 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 , 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. In September 2016, the district court entered an amended judgment increasing his child support obligation, which we affirmed. Rath , 2017 ND 138, ¶¶ 29–30, 895 N.W.2d 315.

¶ 3] In October 2016, Mark Rath moved the district court to amend the divorce judgment to adopt his proposed shared parenting plan, requesting joint residential responsibility or, in the alternative, granting him reasonable unsupervised parenting time. After a hearing on April 26, 2017, the court entered a second amended judgment, granting Kayla Jones sole decisionmaking responsibility for the children and amending parenting time to provide Mark Rath with unsupervised parenting time. The court subsequently entered various other orders denying his request for an order to show cause, requests for a new hearing, objections to the proposed judgment, requests for recusal, and motions to reconsider and to clarify.

[¶ 4] Mark Rath appealed from the district court’s memorandum for second amended judgment filed May 22, 2017; an order within the May 22 memorandum denying an order to show cause; an order denying his request for a new hearing and his objection to judgment language filed June 8, 2017; an order denying his request for a new hearing and recusal filed June 8, 2017; and the second amended judgment filed June 13, 2017. Because post-judgment motions were pending at the time Rath filed his notice of appeal, we granted a limited remand for the district court to decide his remaining motions. After the court entered its order on August 16, 2017, denying his request to recuse, motion to reconsider, and motion to clarify, Rath filed an amended notice of appeal to include that order.

[¶ 5] While his appeal in this case was pending, we also granted Mark Rath permission to file another motion in the district court, seeking to amend the parenting plan for overnight parenting time to accommodate a ten-day, out-of-state family vacation. See Rath v. Rath , 2018 ND 98, ¶¶ 4–5, 909 N.W.2d 666. After a hearing, the district court denied his motion and awarded attorney fees. We affirmed the denial of his motion, reversed the attorney fees award, and denied his request for a supervisory writ. Id. at ¶¶ 1, 16. We now address Mark Rath’s present appeal concerning proceedings related to entry of the second amended judgment.

II

[¶ 6] A district court may modify primary residential responsibility after two years from an order establishing primary residential responsibility, if the court finds: (1) a material change has occurred in the child’s or parties’ circumstances, and (2) modification is necessary for the child’s best interests. See N.D.C.C. § 14–09–06.6(6). A "material change in circumstances" means "an important new fact that was not known at the time of the prior custody decree." Hankey v. Hankey , 2015 ND 70, ¶ 6, 861 N.W.2d 479 (quoting Lechler v. Lechler , 2010 ND 158, ¶ 9, 786 N.W.2d 733 (citation omitted) ). The party seeking to modify primary residential responsibility

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bears the burden of proof. N.D.C.C. § 14–09–06.6(8). The court’s decision whether to modify custody is a finding of fact that will only be reversed on appeal if clearly erroneous. Siewert v. Siewert , 2008 ND 221, ¶ 16, 758 N.W.2d 691.

[¶ 7] In deciding parenting time, we have explained that "the best interests of the child, rather than the wishes or desires of the parents, are paramount." Bertsch v. Bertsch , 2006 ND 31, ¶ 5, 710 N.W.2d 113.

[T]o modify parenting time, "the moving party must demonstrate that 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." ... The standard set forth in our case law governs modification of a parenting time decision.

Seibold v. Leverington , 2013 ND 173, ¶ 19, 837 N.W.2d 342 (quoting Wolt v. Wolt , 2011 ND 170, ¶ 19, 803 N.W.2d 534 (citations omitted) ).

[¶ 8] The district court’s decision on parenting time is a finding of fact, subject to the clearly erroneous standard of review. Id . A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Id. at ¶ 12. A court’s ruling on decisionmaking responsibility is also a finding of fact, reviewed under the clearly erroneous standard. See Horsted v. Horsted , 2012 ND 24, ¶¶ 4–5, 812 N.W.2d 448. "A parenting plan must include a provision relating to decisionmaking responsibility, N.D.C.C. § 14–09–30(2)(a), and that responsibility must be allocated in the best interests of the child, N.D.C.C. § 14–09–31(2)." Horsted , at ¶ 5. A court need not make separate findings for each best interests factor under N.D.C.C. § 14–09–06.2, but its findings must contain sufficient specificity to show the factual basis for the decision. Wolt v. Wolt , 2010 ND 26, ¶ 9, 778 N.W.2d 786.

[¶ 9] In this case, Mark Rath also made motions for a new trial and for reconsideration, both of which were denied on limited remand. While our law does not formally recognize motions to reconsider, "[t]his Court generally treats a motion for reconsideration as either a motion to alter or amend the judgment under N.D.R.Civ.P. 59(j), or a motion for relief from a judgment or order under N.D.R.Civ.P. 60(b)." Tuhy v. Tuhy , 2018 ND 53, ¶ 20, 907 N.W.2d 351. A district court’s denial of a motion to reconsider will not be reversed on appeal absent a manifest abuse of discretion. Kautzman v. Doll , 2018 ND 23, ¶ 13, 905 N.W.2d 744.

[¶ 10] We also review the district court’s denial of a N.D.R.Civ.P. 59(b) motion for new trial for an abuse of discretion. Sollin v. Wangler , 2001 ND 96, ¶ 8, 627 N.W.2d 159. A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner; its decision is not the product of a rational mental process leading to a reasoned determination; or it misinterprets or misapplies the law. Id. "The party seeking relief has the burden to affirmatively establish an abuse of discretion." Id. While a party is not required to move for a new trial before appealing a judgment, when a party does move for a new trial, that party is limited on appeal to the issues raised in the new trial motion. Tuhy , 2018 ND 53, ¶ 21, 907 N.W.2d 351.

III

¶ 11] Mark Rath identifies three issues on appeal: manifest injustice requires reversal

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and a new trial of this matter, the district court judge’s recusal is mandated by law, and the court’s findings are not the product of a permissible view of the evidence.

A

¶ 12] Mark Rath argues manifest injustice requires reversal and a new trial. Generally, N.D.R.Civ.P. 59(b) provides grounds for a new trial, stating in part:

The court may, on motion of an aggrieved party, vacate the former verdict or decision and grant a new trial on any of the following grounds materially affecting the substantial rights of the party:

(1) irregularity in the proceedings of the court, jury, or adverse party, or any court order or abuse of discretion that prevented a party from having a fair trial;

....

(3) accident or surprise that ordinary prudence could not have guarded against;

(4) newly discovered evidence material to the moving party, which could not, with reasonable diligence, have been discovered and produced at the trial;

....

(7) errors in law occurring at trial and, when required, objected to by the moving party; ...

(Emphasis added). See, e.g. , Sollin , 2001 ND 96, ¶¶ 7–9, 627 N.W.2d 159...