Rudnick v. Rode, No. 20120076.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtMARING
Citation2012 ND 167,820 N.W.2d 371
PartiesMelissa RUDNICK f/k/a Melissa Nelson, Plaintiff and Appellant v. Kirk D. RODE, Defendant and Appellee.
Decision Date16 August 2012
Docket NumberNo. 20120076.

820 N.W.2d 371
2012 ND 167

Melissa RUDNICK f/k/a Melissa Nelson, Plaintiff and Appellant
v.
Kirk D. RODE, Defendant and Appellee.

No. 20120076.

Supreme Court of North Dakota.

Aug. 16, 2012.


[820 N.W.2d 373]


Susan L. Ellison, West Fargo, N.D., for plaintiff and appellant.

Paul C. Murphy, Carrington, N.D., for defendant and appellee.


MARING, Justice.

[¶ 1] Melissa Rudnick, formerly known as Melissa Nelson, appeals from an amended judgment, modifying residential responsibility of the minor child she has with Kirk Rode. Rudnick argues the district court erred in entering an ex parte order, the court erred in finding Rode established a prima facie case justifying modification of primary residential responsibility, and the court's decision to modify residential responsibility was clearly erroneous. We reverse, holding Rode failed to meet his burden of proof under N.D.C.C. § 14–09–06.6(6) for a modification of residential responsibility.

I

[¶ 2] Rudnick and Rode have one child together, M.R., who was born in 2004. In 2005, the district court entered a judgment ordering the parties have joint legal custody and awarding Rudnick primary physical custody.

[¶ 3] On September 27, 2010, Rode moved for modification of primary residential responsibility under N.D.R.Ct. 3.2 and moved for an ex parte interim order under N.D.R.Ct. 8.2(a), requesting the court grant him emergency temporary residential responsibility of the child. Rode filed an affidavit in support of his motions, alleging M.R.'s behavior had changed over time and M.R. was subjected to physical and emotional abuse in Rudnick's home. Rode also filed a copy of a letter, which he requested Jenn Grabar, a social worker, prepare about Social Services' investigation into allegations the child was abused. The letter states M.R. alleged Rudnick's husband, Travis Rudnick, spanked M.R., threw the child on his bed, locked M.R. in his room, called M.R. names, and yelled at him. On September 27, 2010, the district court granted Rode's motion for an ex parte interim order and ordered Rode have temporary residential responsibility of M.R. and Rudnick have supervised visitation.

[¶ 4] On October 8, 2010, Rudnick responded to Rode's motions and requested oral argument on both motions. Rudnick secured a hearing date on Rode's motion under N.D.R.Ct. 3.2 to modify primary residential responsibility. In responding to Rode's ex parte motion and the court's

[820 N.W.2d 374]

order, Rudnick argued the court failed to comply with N.D.R.Ct. 8.2 and Rode's affidavit was not sufficient to justify the ex parte interim order. In responding to Rode's motion to modify residential responsibility, Rudnick argued Rode failed to establish a prima facie case for modification, there was not a material change of circumstances, and it was not in the child's best interests to modify residential responsibility.

[¶ 5] On December 2, 2010, Rudnick moved for interim relief, seeking a hearing on the ex parte order and arguing the court failed to hold a hearing as N.D.R.Ct. 8.2 requires. On December 15, 2010, a hearing on the ex parte order was held and the court subsequently entered an order giving Rudnick unsupervised parenting time with the child, appointing a parenting investigator, and ordering the ex parte order would remain in full force and effect.

[¶ 6] An evidentiary hearing was held on the motion to modify primary residential responsibility. The court received multiple exhibits during the evidentiary hearing, but those exhibits were not included in the record certified to this Court and the district court has been unable to locate them. On August 12, 2011, the district court entered an order modifying primary residential responsibility, finding there was a substantial change in circumstances and the best interest factors slightly favored Rode. The court ordered the parties have equal residential responsibility and the court established a parenting time schedule. An amended judgment was subsequently entered.

II

[¶ 7] Although we are deciding this case on its merits, we conclude it is necessary to clarify the proper procedure for an ex parte interim order and to address the errors that occurred throughout the proceedings in this case. Rudnick argues the district court erred when it failed to follow the mandatory procedural requirements of N.D.R.Ct. 8.2 for ex parte interim orders, the court improperly relied on inadmissible hearsay, and the court erred in finding exceptional circumstances existed justifying the issuance of the ex parte order temporarily modifying residential responsibility.

[¶ 8] Rule 8.2, N.D.R.Ct., provides the requirements for ex parte interim orders in domestic relations cases. At the time the court entered the ex parte order in this case, Rule 8.2 provided:

(a) Ex Parte Interim Order.

(1) No interim order may issue except upon notice and hearing unless the court specifically finds exceptional circumstances. Exceptional circumstances include:

(A) Threat of imminent danger to any party or minor child of the party; or

(B) Circumstances indicating that an ex parte order is necessary to protect the parties, any minor children of the parties, or the marital estate.

(2) No ex parte interim order may be issued unless the movant executes an affidavit setting forth specific facts justifying the issuance of the order.

....

(4) If there has been an appearance in the action by the adverse party, or if the attorney for the moving party has knowledge that the adverse party is represented by an attorney, the attorney for the moving party shall notify the court. After receiving notice of the appearance or representation, the court shall attempt to hold an emergency hearing, either in person or by telephonic

[820 N.W.2d 375]

conference, at which both parties may be heard, before issuing any order....

(5) An interim order issued ex parte must provide specifically:

(A) That a hearing upon the necessity for the issuance of the order or the amounts to be paid be held within 30 days of the issuance of the ex parte interim order, unless an earlier hearing is required under N.D.C.C. ch. 14–07.1, or an application for change of venue is pending. If the ex parte order contains provisions delineated in N.D.C.C. ch. 14–07.1, the hearing must be scheduled in a timely manner to conform with the chapter.

(B) That the party obtaining the interim order must secure a hearing date and personally serve the interim order and a notice of hearing on the opposing party.

That the hearing on the ex parte interim order may be waived if the party not obtaining the interim order files a written waiver with the court no later than two days before the hearing date. The written waiver must be served on the party obtaining the ex parte interim order.

(6) The ex parte interim order remains in effect until it is amended following a court hearing.

....

(e) Submission of Evidence.

....

(2) Affidavit. Unless the court otherwise orders, evidence either in support of or in opposition to the interim order must be presented by affidavit. Evidence presented by affidavit may not be considered unless, at the time of the evidentiary hearing, the party offering the affidavit makes the affiant available for cross examination.

N.D.R.Ct. 8.2 (amended effective March 1, 2011).1


[820 N.W.2d 376]

[¶ 9] In this case, Rode moved for an ex parte interim order under N.D.R.Ct. 8.2(a) temporarily modifying residential responsibility for the parties' child on September 27, 2010. The district court granted the motion and entered the ex parte interim order on September 27, 2010. At the time, Rudnick was represented by an attorney in an unrelated domestic relations case. Rudnick subpoenaed Rode to testify in that case and Rode knew Rudnick was represented by an attorney. Because Rode knew Rudnick was represented by an attorney at the time he moved for the ex parte order, Rode was required to notify the court and the court was required to attempt to hold an emergency hearing before issuing the ex parte order under N.D.R.Ct. 8.2(a)(4). We conclude Rode failed to comply with N.D.R.Ct. 8.2(a)(4) and Rudnick was entitled to notice and an emergency hearing, either in person or by telephonic conference, before the ex parte order was issued.

[¶ 10] Rode and the court also failed to comply with other requirements of N.D.R.Ct. 8.2. The court's ex parte interim order must specifically provide that a hearing on the necessity of an ex parte order must be held within 30 days of the issuance of the order. N.D.R.Ct. 8.2(a)(5). The moving party is required to schedule the hearing date. N.D.R.Ct. 8.2(a)(5)(B). The history for the rule indicates the requirement for a mandatory hearing within 30 days was adopted to address concerns that some parties were using the rule to get a change in residential responsibility based on false allegations without having a hearing. Minutes of the Joint Procedure Comm. 10–11 (September 24–25, 2009). Here, the ex parte order was issued on September 27, 2010, and did not provide notice that a hearing must be held within 30 days. In early December 2010, Rudnick requested the ex parte order be quashed because of the failure to hold the required hearing, and the court denied her request. On December 15, 2010, a hearing on the issuance of the ex parte order was held. Rudnick was entitled to a hearing on the ex parte order within 30 days of its issuance, and the court erred by failing to provide notice of the hearing requirement and failing to consider Rode's failure to secure a hearing date within 30 days of the issuance of the ex parte order.

[¶ 11] Moreover, N.D.R.Ct. 8.2(a)(1) requires the court find there are exceptional circumstances to justify issuing an ex parte order. Exceptional circumstances include a threat of imminent danger to the parties' minor child or when the order is necessary to protect the parties' child. N.D.R.Ct. 8.2(a)(1). In other cases, we have said “imminent” means “ ‘near at hand; mediate rather than immediate; close...

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7 practice notes
  • T.C. v. Y.R., 2130326
    • United States
    • Alabama Court of Civil Appeals
    • August 1, 2014
    ...refers to stability in the psychological and emotional relationship a child has with his or her custodial parent. See Rudnick v. Rode, 820 N.W.2d 371, 381 (N.D. 2012). In the absence of evidence of a detriment to the child, the fact that a parent frequently changes residences does not, in a......
  • T.C. v. Y.R., 2130326
    • United States
    • Alabama Court of Civil Appeals
    • August 1, 2014
    ...refers to stability in the psychological and emotional relationship a child has with his or her custodial parent. See Rudnick v. Rode, 820 N.W.2d 371, 381 (N.D.2012). In the absence of evidence of a detriment to the child, the fact that a parent frequently changes residences does not, in an......
  • Johnson v. Buskohl Constr. Inc., No. 20150006.
    • United States
    • United States State Supreme Court of North Dakota
    • December 1, 2015
    ...rule out the possibility the jury relied on inadmissible hearsay in calculating a substantial portion of its award. See Rudnick v. Rode, 2012 ND 167, ¶ 11, 820 N.W.2d 371 ("Evidence based on inadmissible hearsay is not competent evidence."). Because it is not possible to connect the jury's ......
  • Miller v. Miller, No. 20120424.
    • United States
    • United States State Supreme Court of North Dakota
    • June 19, 2013
    ...responsible for a child's care and supervision may discipline the child and may use reasonable force to do so. See, e.g., Rudnick v. Rode, 2012 ND 167, ¶ 23, 820 N.W.2d 371. Sailer's attempts to discipline B.P.M. through legal means do not raise a prima facie case that she is a detriment to......
  • Request a trial to view additional results
7 cases
  • T.C. v. Y.R., 2130326
    • United States
    • Alabama Court of Civil Appeals
    • August 1, 2014
    ...refers to stability in the psychological and emotional relationship a child has with his or her custodial parent. See Rudnick v. Rode, 820 N.W.2d 371, 381 (N.D. 2012). In the absence of evidence of a detriment to the child, the fact that a parent frequently changes residences does not, in a......
  • T.C. v. Y.R., 2130326
    • United States
    • Alabama Court of Civil Appeals
    • August 1, 2014
    ...refers to stability in the psychological and emotional relationship a child has with his or her custodial parent. See Rudnick v. Rode, 820 N.W.2d 371, 381 (N.D.2012). In the absence of evidence of a detriment to the child, the fact that a parent frequently changes residences does not, in an......
  • Johnson v. Buskohl Constr. Inc., No. 20150006.
    • United States
    • United States State Supreme Court of North Dakota
    • December 1, 2015
    ...rule out the possibility the jury relied on inadmissible hearsay in calculating a substantial portion of its award. See Rudnick v. Rode, 2012 ND 167, ¶ 11, 820 N.W.2d 371 ("Evidence based on inadmissible hearsay is not competent evidence."). Because it is not possible to connect the jury's ......
  • Miller v. Miller, No. 20120424.
    • United States
    • United States State Supreme Court of North Dakota
    • June 19, 2013
    ...responsible for a child's care and supervision may discipline the child and may use reasonable force to do so. See, e.g., Rudnick v. Rode, 2012 ND 167, ¶ 23, 820 N.W.2d 371. Sailer's attempts to discipline B.P.M. through legal means do not raise a prima facie case that she is a detriment to......
  • Request a trial to view additional results

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