Sims v. Sims

• Decision Date: 02 June 2020
• Docket Number: No. 20190248,20190248
• Citation: 943 N.W.2d 804
• Parties: Erica Lynn SIMS, Plaintiff and Appellant v. Larry David SIMS, Defendant and Appellee and State of North Dakota, Statutory Real Party in Interest
• Court: North Dakota Supreme Court

943 N.W.2d 804

Erica Lynn SIMS, Plaintiff and Appellant

v. Larry David SIMS, Defendant and AppelleeandState of North Dakota, Statutory Real Party in Interest

No. 20190248

Supreme Court of North Dakota.

Filed June 2, 2020

Kelsey L. Hankey, Grand Forks, ND, for plaintiff and appellant.

Ward K. Johnson, Grand Forks, ND, for defendant and appellee; submitted on brief.

Jensen, Chief Justice.

[¶1] Erica Sims appeals from a judgment granting her a divorce from Larry Sims. She argues the district court's parenting time decision is clearly erroneous, the court erred in determining the value of certain marital property, the court erred by failing to award her spousal support, and the court erred by ordering her to reimburse Larry Sims for half of the airfare he incurred related to missed parenting time.

[¶2] We conclude the district court's property valuations, parenting time, and spousal support decisions are not clearly erroneous. However, we also conclude the court erred by failing to include all of the parties’ stipulated terms related to the property distribution in the judgment without providing an explanation why the provisions were excluded, the court erred in determining the amounts Larry Sims was required to reimburse Erica Sims pursuant to the interim order, and the court abused its discretion by ordering a remedial contempt sanction without finding Erica Sims in contempt. We affirm in part, reverse in part, and remand.

I

[¶3] Erica and Larry Sims were married in 1999, and have two children together, GCS and DLS. The children were 17 and 14 years old at the time of the divorce trial. Erica Sims sued for divorce in December 2017.

[¶4] In January 2018, Erica Sims moved for an interim order awarding her temporary primary residential responsibility for the children, ordering Larry Sims to pay child support, awarding her temporary possession of the marital home, ordering the marital expenses be divided, and requiring Larry Sims to pay spousal support. Larry Sims responded to the motion and agreed to most of Erica Sims’ requests, but he requested that neither party be awarded spousal support. He also stated that he was moving to California and asked for a downward departure in his child support obligation for parenting time travel expenses.

[¶5] After a hearing, the district court found the parties stipulated to interim primary residential responsibility for the children and joint decision making, occupation of the marital residence, and that each party would pay one-half of the mortgage payment. The court awarded Erica Sims temporary primary residential responsibility of the children and awarded Larry Sims six weeks of parenting time during the summer and parenting time during the school winter break. The court ordered Larry Sims to pay child support and all transportation costs for the children related to his parenting time. The court denied Erica Sims’ request for spousal support. The court ordered Erica Sims would have possession of the marital home and would be responsible for all ordinary maintenance and occupancy costs, but ordered the parties to be equally responsible for any extraordinary repairs and to pay half of the mortgage payment.

[¶6] In June 2018, Larry Sims moved for an order to show cause, alleging Erica Sims violated the interim order by interfering with his summer parenting time. He requested the court order Erica Sims to reimburse him for the cost of the plane tickets for the children to fly to California and to pay his attorney's fees related to the motion. The district court entered an order to show cause. After a hearing, the district court found Erica Sims willfully and intentionally disobeyed the order and denied Larry Sims’ right to parenting time. The court found Erica Sims was in contempt, ordered her to reimburse Larry Sims for the cost of the plane tickets, and amended the interim order to require the children to visit Larry Sims in California within a certain period of time and required Erica Sims to reimburse Larry Sims for half of the cost of the new plane tickets.

[¶7] In August 2018, Erica Sims moved for an order to show cause, alleging Larry Sims violated the interim order by failing to pay one-half of the mortgage. Larry Sims responded to the motion and alleged he was financially unable to pay his half of the mortgage payment. The court denied the motion for an order to show cause, but found the interim order was clear and any refusal or deviation from either party's obligation would be considered and resolved in the court's final order.

[¶8] In December 2018, Larry Sims moved for an order to show cause. He alleged Erica Sims did not comply with the amended interim order because she failed to ensure the children were on the flight to California for his parenting time during winter break. He requested the court order Erica Sims to reimburse him for the cost of the plane tickets and that she pay his attorney's fees for the motion. Erica Sims opposed the motion, arguing she did not disobey the order, she took the children to the airport and through security, but the children left while she was speaking to someone, and the children refused to get on the flight. The district court granted Larry Sims’ motion for an order to show cause and stated the issue would be heard during the divorce trial.

[¶9] The parties filed a partial marital settlement agreement and parenting plan. The parties agreed Erica Sims would have primary residential responsibility for the children, subject to Larry Sims’ parenting time, Larry Sims would be solely responsible for all transportation costs for his parenting time, and he would receive a child support deviation for the transportation costs. They agreed to decision making responsibility for the children and the amount of Larry Sims’ child support obligation. They agreed on some of the property and debt distribution and agreed to the valuation date for their property and debts.

[¶10] After a court trial on the remaining issues, the district court distributed the marital estate. The court awarded Erica Sims a net property award of $73,453.82, including the marital home. The court awarded Larry Sims a net property award of $6,583.16. The court denied Erica Sims’ request for spousal support. The court ordered Larry Sims to pay Erica Sims $4,015.10 for his share of the mortgage and auto loan payments pursuant to the interim order. The court awarded Erica Sims primary residential responsibility for the children, set a parenting time schedule, and ordered Larry Sims pay child support of $1,614 per month. The court found there was not sufficient evidence to find Erica Sims in contempt for violating the interim order related to parenting time, but ordered her to reimburse Larry Sims for half of the expenses for the missed parenting time. Judgment was entered.

II

[¶11] Erica Sims argues the district court's parenting time decision is clearly erroneous. She claims the court ignored significant evidence that was favorable to her and detrimental to Larry Sims, her testimony was corroborated by testimony from the children and the children's therapists, and the record does not support the court's findings.

[¶12] A district court's parenting time decision is a finding of fact subject to the clearly erroneous standard of review. Dick v. Erman , 2019 ND 54, ¶ 12, 923 N.W.2d 137. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if on the entire record we are left with a definite and firm conviction a mistake has been made. Id. at ¶ 6. In awarding parenting time, the best interests of the child are paramount. Id. at ¶ 12. Parenting time with the non-custodial parent is presumed to be in the child's best interest and is a right of the child. Id.

[¶13] Extended parenting time with a fit non-custodial parent is routinely awarded if the child is old enough, absent a reason for denying it. Dick , 2019 ND 54, ¶ 13, 923 N.W.2d 137. But a non-custodial parent's parenting time may be limited or eliminated if it is likely to endanger the child's physical or emotional health. Rustad v. Baumgartner , 2018 ND 268, ¶ 8, 920 N.W.2d 465. "[A] restriction on visitation must be based on a preponderance of the evidence and be accompanied by a detailed demonstration of the physical or emotional harm likely to result from visitation." Id. (quoting Wolt v. Wolt , 2010 ND 26, ¶ 38, 778 N.W.2d 786 ).

[¶14] Erica Sims argued the children were emotionally harmed by parenting time with Larry Sims and requested parenting time be suspended until the children were ready to resume visiting their father. She claimed Larry Sims was responsible for the deterioration of his relationship with the children, he consistently placed the children in the middle of the divorce conflict, and both children experienced physical and mental health problems from the stress and anxiety triggered by their father. She alleged the children's therapists recommended Larry Sims’ parenting time be suspended until he could show progress in understanding the children's emotional and mental well-being and the children feel comfortable seeing him, and the children were clear that they cannot have any parenting time with their father at this time. Larry Sims argued Erica Sims was alienating the children from him, and he requested "standard parenting time" including extended parenting time during the summer and winter break.

[¶15] The district court considered the testimony from the children's therapists, the children, Erica Sims, and Larry Sims. The court found Erica Sims’ testimony about the children's relationship with Larry Sims was not "fully honest," she had previously been found in contempt for failing to comply with the interim parenting time order, and she did not take any responsibility for the breakup of the marriage and the difficulty of the continuing relationship between the children and their father. The children testified they do not want to visit...