Rhodenbaugh v. Rhodenbaugh

• Decision Date: 11 April 2019
• Docket Number: No. 20180040,20180040
• Parties: Jay Douglas RHODENBAUGH, Plaintiff and Appellee v. Ashley Lee RHODENBAUGH, Defendant and Appellant
• Court: North Dakota Supreme Court

925 N.W.2d 742

Jay Douglas RHODENBAUGH, Plaintiff and Appellee

v.Ashley Lee RHODENBAUGH, Defendant and Appellant

No. 20180040

Supreme Court of North Dakota.

Filed April 11, 2019

Jerilynn B. Adams, Fargo, N.D., for plaintiff and appellee.

Kristin A. Overboe, Fargo, N.D., for defendant and appellant.

Tufte, Justice.

[¶1] Ashley Rhodenbaugh appeals from certain district court orders and a divorce judgment. We affirm.

I

[¶2] Ashley and Jay Rhodenbaugh were married in 2010 and have two minor children together. During the marriage, Jay Rhodenbaugh farmed, and Ashley Rhodenbaugh stayed at home and cared for the children. In May 2016, Jay Rhodenbaugh commenced this divorce action and the parties separated.

[¶3] In October 2016, the district court issued an interim order granting the parties joint decision-making responsibilities for the children, awarding Ashley Rhodenbaugh primary residential responsibility and Jay Rhodenbaugh unsupervised parenting time. At the time of the interim order, she was living in the marital home with the minor children, and he was living in a home he rented from his sister. Effective in December 2016, the court ordered Jay Rhodenbaugh to pay her interim child support of $1,159 per month and spousal support of $500 per month. The court also ordered him to pay certain additional household expenses until his support obligations commenced in December 2016, and thereafter the parties were responsible for their own household expenses and Ashley Rhodenbaugh was to be responsible for their minor children’s expenses. In October 2016, the court entered an order denying her request to waive filing fees.

[¶4] In March 2017, Jay Rhodenbaugh moved the district court to compel discovery, to amend the interim order, and to hold Ashley Rhodenbaugh in contempt for violations of the interim order, including her failure to maintain the marital home. She responded and made a counter-motion. In April 2017, the court entered an order finding her in contempt, terminating her interim spousal support under the October 2016 order, compelling discovery, and requiring her to obtain court permission for further filings until she paid the filing fee for her answer.

[¶5] Before trial, the parties stipulated on primary residential responsibility and parenting time. The district court held a trial in July 2017 on remaining issues, including child support, spousal support, and property and debt distribution. In September 2017, the court issued a memorandum opinion, and in October 2017, Ashley Rhodenbaugh moved the court to reopen the record and for various other relief. In November 2017, the court denied her motion and awarded Jay Rhodenbaugh $1,000 in attorney’s fees to be deducted from a cash payment he was to make to her. A final judgment was entered in November 2017, granting the parties joint decision-making responsibilities for the parties’ children, awarding Ashley Rhodenbaugh primary residential responsibility for the children, granting Jay Rhodenbaugh parenting time, ordering him to pay her child support of $1,245 per month beginning in December 2017, denying her request for spousal support, and dividing the parties’ marital property and debts.

II

[¶6] Although a final divorce judgment has been entered, Ashley Rhodenbaugh raises several issues concerning the district court’s interim or interlocutory orders. We have said that "[g]enerally, interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of that judgment." Tibbetts v. Dornheim , 2004 ND 129, ¶ 11, 681 N.W.2d 798. Under N.D.R.App.P. 35(a)(2), "[u]pon an appeal from a judgment, the court may review any intermediate order or ruling which involves the merits and affects the judgment appearing upon the record."

A

[¶7] Ashley Rhodenbaugh argues the district court’s interim order for parenting time improperly applied the statutory presumption for evaluating domestic violence under N.D.C.C. §§ 14-09-29(2) and 14-09-06.2(1)(j), which, respectively, require supervised parenting time and create a rebuttable presumption.

[¶8] As relevant to her argument, N.D.C.C. § 14-09-29(2) provides:

If the court finds that a parent has perpetrated domestic violence and that parent does not have residential responsibility, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, the court shall allow only supervised parenting time with that parent unless there is a showing by clear and convincing evidence that unsupervised parenting time would not endanger the child’s physical or emotional health.

(Emphasis added.) Further, N.D.C.C. § 14-09-06.2(1)(j) of the best-interest factors states in part:

In determining parental rights and responsibilities, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent have residential responsibility. The court shall cite specific findings of fact to show that the residential responsibility best protects the child and the parent or other family or household member who is the victim of domestic violence.

(Emphasis added.)

[¶9] Before entry of the October 2016 interim order, Ashley Rhodenbaugh requested Jay Rhodenbaugh’s parenting time with the minor children be supervised because of domestic violence resulting in serious bodily injury. After the interim hearing, the court found it was in the children’s best interests for Ashley Rhodenbaugh to have interim primary residential responsibility subject to Jay Rhodenbaugh’s reasonable unsupervised parenting time. The court determined that a parenting time restriction "must be based on a preponderance of the evidence" with "a detailed demonstration of the physical or emotional harm to the children likely to result from said parenting time" and that Ashley Rhodenbaugh had not met "this burden." The court further found clear and convincing evidence showed Jay Rhodenbaugh’s unsupervised parenting time would not result in emotional or physical harm to the children.

[¶10] Ashley Rhodenbaugh argues on appeal that the district court erred in its interim order by placing the burden of proof on her after the statutory presumption was raised. She contends Jay Rhodenbaugh should have had the burden and asserts the court abused its discretion when it found clear and convincing evidence that parenting time would not result in harm to the children. She further asserts "multiple issues" have arisen since the interim order.

[¶11] It is undisputed the parties stipulated before trial to granting Ashley Rhodenbaugh primary residential responsibility for the children with Jay Rhodenbaugh receiving unsupervised parenting time. The final judgment therefore supersedes the interim order’s parenting provisions, which are by nature temporary. To the extent Ashley Rhodenbaugh now argues the court erred in applying the domestic violence presumption in the interim order, she waived her argument when she stipulated to the residential responsibility and parenting time arrangement contained in the judgment. See In re J.S. , 2008 ND 9, ¶ 13, 743 N.W.2d 808 (stating our review on appeal is "limited to issues litigated below and the arguments presented upon appeal"). Moreover, she has not provided any basis on appeal to set aside the stipulation to the parenting time provisions.

[¶12] Because the parties stipulated to the primary residential responsibility and parenting time provisions in the divorce judgment, we conclude any claimed error in applying the domestic violence presumption in the interim order was waived.

B

[¶13] Ashley Rhodenbaugh argues the district court abused its discretion in allocating expenses and granting spousal support under the interim order.

[¶14] Generally, after considering the parties’ circumstances, a district court "may require one party to pay spousal support to the other party." N.D.C.C. § 14-05-24.1. The court’s spousal support award is a finding of fact and will not be disturbed on appeal unless clearly erroneous. Friesner v. Friesner , 2019 ND 30, ¶ 13, 921 N.W.2d 898. "In deciding whether to award spousal support, a court must consider the Ruff-Fischer guidelines, the needs of the spouse seeking support, and the supporting spouse’s needs and ability to pay." Id. Under the Ruff-Fischer guidelines, the court considers:

[T]he respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Friesner , at ¶ 13 (quoting Innis-Smith v. Smith , 2018 ND 34, ¶ 8, 905 N.W.2d 914 ). "Rehabilitative spousal support is awarded to equalize the burdens of divorce" or to restore a spouse to independent status by providing the spouse "an opportunity to acquire an education, training, work skills, or experience to become self-supporting." Williams v. Williams , 2015 ND 129, ¶ 10, 863 N.W.2d 508 (citation omitted).

[¶15] In the interim order, the district court ordered child support of $1,159 per month and rehabilitative spousal support of $500 per...