Upton v. Nolan

• Decision Date: 06 November 2018
• Docket Number: No. 20180119,20180119
• Citation: 919 N.W.2d 181
• Parties: Heather L. UPTON, Plaintiff and Appellee v. James W. NOLAN, Defendant and Appellant
• Court: North Dakota Supreme Court

919 N.W.2d 181

Heather L. UPTON, Plaintiff and Appellee

v.James W. NOLAN, Defendant and Appellant

No. 20180119

Supreme Court of North Dakota.

Filed November 6, 2018

George M. Ackre (argued), Cando, ND, and Kyle R. Craig (on brief), Minot, ND, for plaintiff and appellee.

Christene A. Reierson, Minot, ND, for defendant and appellant.

Crothers, Justice.

[¶ 1] James Nolan appeals from an order holding him in contempt and requiring that he reimburse Heather Upton for parenting time travel expenses and pay her attorney fees. We conclude the district court erred in amending the parties’ divorce judgment and in ordering Nolan to reimburse Upton for his share of parenting time travel expenses. We conclude the court did not abuse its discretion in holding Nolan in contempt and in awarding Upton attorney fees. We affirm in part and reverse in part.

I

[¶ 2] Upton and Nolan, both members of the United States Air Force, were divorced in Maryland in 2010. Nolan was awarded "primary physical custody" of the couple’s child and Upton was awarded shared custody of the child based on two schedules depending on whether the parties resided less than or more than 50 miles apart. Under the parties’ court-approved parenting agreement, if the parties resided more than 50 miles apart Upton was allowed physical custody of the child during the summer, winter and spring school breaks, with the parties equally sharing all travel expenses. In 2016 the Maryland divorce court amended the original decree to include language regarding communications between the parties and the child:

"ORDERED BY CONSENT, that [Upton] shall be entitled to telephone access every Tuesday and Sunday, and Skype access every Friday, all access to occur at 7:00 p.m., in the time zone in which the minor child resides, not to exceed thirty (30) minutes; and it is further

"ORDERED BY CONSENT, that all communication, excluding emergencies and [Upton’s] telephone and Skype access as specified herein, shall continue through Our Family Wizard."

[¶ 3] In May 2017 Upton was stationed in Kyrgyzstan, and Nolan was stationed in North Dakota. Upton registered the Maryland divorce orders in North Dakota and moved to hold Nolan in contempt for violating the parties’ parenting plan. In the notice and motion for an order to show cause, Upton requested the following relief:

"1. That Defendant be found in contempt of court with sanctions issued.

2. That Defendant be required to immediately follow the Court’s order.

3. That Defendant be ordered to pay all costs and attorney’s fees incurred by Heather in bringing this Motion of not less than $1,500.

4. That Defendant be incarcerated if he fails to follow the Court’s order.

5. That Defendant be advised that continued failure to abide by Judgment may be grounds for modification.

6. That Law Enforcement be directed to ensure compliance with this contempt order.

7. Such other and further relief deemed just and reasonable by the Court."

[¶ 4] Following a hearing, the district court found Nolan in contempt for frustrating parenting time and communication between Upton and the child, failing to reimburse Upton for travel expenses, and failing to properly communicate with Upton. The court declared that "communication between the parties is not restricted to the OFW [Our Family Wizard] site." The court ordered Nolan to reimburse Upton for his share of travel expenses and to pay $1,000 for her attorney fees.

II

[¶ 5] Nolan argues the district court erred in amending the communication provisions of the Maryland court’s 2016 order.

[¶ 6] Most of the district court’s decision is devoted to the parties’ failure to effectively communicate with each other. The court stated:

"Use of the OFW site should continue to be used to its best capacity to assist both parents in making their shared custody work. The OFW site should not, however, be the only means of electronic communication by the parents. Its use should be to assist and enhance the shared custody situation.

....

"Defendant Nolan believes that direct communication with Plaintiff Upton is wrong. Somehow, such communication will eventually devolve into argument, personal attacks, and further stress and discontent on the part of Defendant Nolan. The Court finds Defendant Nolan’s understanding to be flawed. The current set up for telephone calls and skype calls between Plaintiff Upton and [the child] will continue as ordered. These will, however, be considered only the minimum contact required. The original Judgment language will still be applicable as to communication and access between the parties and [the child]. No limitation except common sense.

"Additionally, communication between the parties is not restricted to the OFW site. The parties need to be accountable for acting as adults who are attempting to raise a minor child by way of shared custody. Civil communication between the parties about their minor child is required."

[¶ 7] " Section 14-05-22, N.D.C.C., grants a district court continuing jurisdiction to modify parenting time after entry of the initial divorce judgment." Votava v. Votava , 2015 ND 171, ¶ 13, 865 N.W.2d 821. Section 14-09-32(1)(c) provides for parental rights and responsibilities and states that a parent has the "[r]ight to reasonable access to the child by written, telephonic, and electronic means." See Rath v. Rath , 2014 ND 171, ¶ 13, 852 N.W.2d 377. " ‘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.’ " O’Hara v. Schneider , 2017 ND 53, ¶ 6, 890 N.W.2d 831 (quoting Prchal v. Prchal , 2011 ND 62, ¶ 11, 795 N.W.2d 693 ). " ‘A material change in circumstances is an important new fact that was unknown at the time of the prior custody decision.’ " Schaffner v. Schaffner , 2017 ND 170, ¶ 9, 898 N.W.2d 428 (quoting Thompson v. Thompson , 2012 ND 15, ¶ 6, 809 N.W.2d 331 ). Although a district court has continuing jurisdiction to modify parenting time, due process requires a parent receive adequate notice and a fair opportunity to be heard. See Hoverson v. Hoverson , 2017 ND 27, ¶ 6, 889 N.W.2d 858 ; Rath , at ¶ 14.

[¶ 8] This case is similar to Rath , 2014 ND 171, ¶ 11, 852 N.W.2d 377, which involved competing contempt motions seeking only contempt sanctions. Finding one of the parties in contempt, the district court attempted to avoid future contempt proceedings by amending the divorce judgment to modify telephone contact language and altering language governing when the children could be removed from the state. Id. at ¶ 12. In concluding the district court erred in going beyond the scope of the contempt motions and amending the divorce judgment, this Court explained:

"We understand the district court’s attempt here was to amend provisions in the divorce judgment to reduce the conflict between the parties; however, Mark Rath was entitled to reasonable notice in addition to an opportunity to respond before the court amended the divorce judgment. We have said a district court may clarify a divorce judgment when the judgment is ‘vague, uncertain, or ambiguous’ and clarification is often appropriate when the judgment ‘fails to specify some particulars[,] and uncertainties in the decree arise from subsequent events.’ Orvedal v. Orvedal , 2003 ND 145, ¶ 4, 669 N.W.2d 89 ; see also Greenwood v. Greenwood , 1999 ND 126, ¶ 8, 596 N.W.2d 317 (" ‘If the same trial judge clarifies an original judgment, we afford the judge’s clarification considerable deference.’ " (quoting Dakutak v. Dakutak , 1997 ND 76, ¶ 6, 562 N.W.2d 750 ) ). Nonetheless, in this case, although neither party moved to amend the divorce judgment, the court amended rather than clarified, the judgment, and the hearing notice and hearing itself involved the parties’ competing motions for contempt sanctions under N.D.C.C. ch. 27-10."

Id. at ¶ 15.

[¶ 9] Here, neither party sought modification of the 2016 Maryland court order requiring "all communication, excluding emergencies and [Upton’s] telephone and Skype access as specified herein, [to] continue through Our Family Wizard." The district court in this case recognized the purpose and importance of the OFW site to the parties parenting plan:

"The purpose of the web site is to facilitate a better parenting environment for parents who are attempting to raise a child in separate homes under a shared custody plan. The OFW site uses catch phrase terms such as, ‘Easy to use—shared custody tools,’ ‘Child focused solutions—to keep children out of the middle,’ ‘Protect your child—share information without involving the kids,’ and ‘Create clean records—end he said—she said.’ A noble purpose and clearly meant to assist parents who are struggling to put their minor child’s best interest ahead of their own personal and selfish interests."

[¶ 10] Upton requested Nolan to be "advised that continued failure to abide by Judgment may be grounds for modification." The district court nevertheless amended the Maryland court order by stating "communication between the parties is not restricted to the OFW site" and that there would be "[n]o limitation except common sense." This is not a clarification of the Maryland court order, but is a modification of that order without adequate notice to Nolan and a fair opportunity to be heard.

[¶ 11] The district court erred in venturing beyond the relief sought in Upton’s contempt motion and modifying the Maryland court order.

III

[¶ 12] Nolan argues his due process rights were violated by the district court ordering him to reimburse Upton for his share of unpaid travel expenses because a compensable remedial contempt sanction for those costs was not sought in her contempt motion.

[¶ 13] Although Upton sought "other and further relief deemed just and reasonable by the Court," she did not request an award of unpaid travel expenses. In her accompanying affidavit, Upton stated that Nolan refused to reimburse her for...