Vande Hoven v. Vande Hoven, 11197

• Decision Date: 20 January 1987
• Docket Number: No. 11197,11197
• Citation: 399 N.W.2d 855
• Parties: Sharon VANDE HOVEN, now known as Sharon Randall, Plaintiff and Appellant, v. Michael VANDE HOVEN, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 855

399 N.W.2d 855

55 USLW 2455

Sharon VANDE HOVEN, now known as Sharon Randall, Plaintiff and Appellant, v. Michael VANDE HOVEN, Defendant and Appellee.

Civ. No. 11197.

Supreme Court of North Dakota.

Jan. 20, 1987.

Richard J. Linnerooth, Fargo, for plaintiff and appellant.

Ella Van Berkom, Minot, for defendant and appellee.

LEVINE, Justice.

Sharon Randall (formerly Vande Hoven) appeals from a supplemental judgment which amended the visitation provisions of a decree granting her a divorce from Michael Vande Hoven. The supplemental judgment also sets forth self-executing contempt penalties if Sharon fails to comply in the future with the new visitation provisions. We affirm in part and reverse in part.

Sharon and Michael were divorced on January 18, 1984. Sharon was awarded custody of the couple's five minor children and received a property settlement of $125,000, payable by Michael over a ten-year period. During the divorce trial, Sharon alleged that Michael had sexually abused two of the children. The court found, however, that Sharon had "failed to sustain the burden of proof concerning those allegations," and granted Michael unsupervised visitation. Sharon did not appeal from the divorce judgment. In May 1984, Michael was tried for the criminal charge of gross sexual imposition involving the two children and was acquitted by a jury. Both parties subsequently remarried and Sharon has moved to California with the children.

During the summer of 1984 Michael brought a motion requesting that Sharon be found in contempt for failure to comply with the visitation provisions and that his visitation rights be structured. Sharon did not appear at the hearing, and in a supplemental judgment dated September 13, 1984, the court denied the contempt motion but structured Michael's visitation rights. The court ordered that Michael have six weeks of visitation with the children every summer in North Dakota; that he have one week of visitation during alternate Christmas holidays in either North Dakota or California; that he be allowed to visit the children in California upon 24 hours notice to Sharon; and that the costs for transporting the children for visitation purposes were to be paid by Michael. No appeal was taken from this judgment.

Michael continued to encounter problems exercising his visitation rights, and he brought a motion seeking custody of the children. Following a hearing on January 9, 1986, during which Sharon did not appear in person or through counsel, the court denied Michael's motion. ¹ The court, however, ordered that Michael have visitation with the children during the month of July and the first two weeks of August every year, and one week during every Christmas holiday. The court also ordered that Sharon pay all transportation costs for the children to travel from California to North Dakota and return. The court did not find Sharon in contempt for previous failures to comply with the visitation provisions of the original divorce decree or the September 1984 supplemental judgment, but ordered that:

"3) In the event the Plaintiff [Sharon] fails to abide by the visitation set forth herein, the Plaintiff shall be held in contempt of court and shall be fined the amount of Five Thousand Dollars ($5,000) for each time that she fails to deliver the children to visit the Defendant [Michael] for the visitations set forth above. In the event Plaintiff fails to pay said sum of money, then the Defendant may subtract said sum of money from the amount that he owes the Plaintiff as a property settlement which was granted to her in the original divorce Judgment;

"4) In the event Plaintiff fails to abide by this Court's present visitation Order for a period of two (2) years, that is, for the years of 1986 and 1987, then the Plaintiff shall forfeit in toto the property settlement previously awarded to her. In the event the Plaintiff elects to ignore this visitation Order for a period of two (2) years, the Order shall be filed or recorded, whichever it takes, and shall totally exonerate the property settlement; that is to say, the debt and/or mortgage owed by the Defendant to the Plaintiff as a result of the property settlement shall be wiped out and the Defendant shall owe absolutely nothing;

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"The Order entered herein shall be a final Order to exonerate the debt against the Defendant's property in the event the Plaintiff elects the next two (2) years to withhold the above-stated visitation rights to the Defendant."

On appeal from this supplemental judgment, Sharon asserts that the district court did not have the authority under state law to assess self-executing prospective contempt penalties for future violations of the court's January 1986 judgment. We agree.

Although criminal and civil contempts committed in the presence of the trial court may be punished summarily, where the alleged contemptuous conduct occurs out of the court's presence, the one charged must be afforded a full opportunity to appear, explain, and defend, and is entitled to a presumption of innocence. LePera v. Snider, 240 N.W.2d 862, 867 (N.D.1976). These guarantees of notice and an opportunity to be heard are implemented in this state through comprehensive procedural schemes governing the adjudication and punishment of both civil contempts [see Chapter 27-10, N.D.C.C.] and criminal contempts [see Sec. 12.1-10-01, N.D.C.C., and Rule 42(b), N.D.R.Crim.P.].

The district court's January 1986 judgment disregards these provisions regulating the procedure for adjudicating and punishing a contempt of court. Indeed, it appears from the wording of the court's order that a formal contempt action would not be necessary and that Michael would himself have the power to "adjudicate" whether Sharon's possible future violations of the visitation provisions constitute punishable acts of contempt. A court in this state may not use a self-executing order to delegate to a private party its adjudicatory contempt powers for future violations of that order. See Gaschk v. Kohler, 70 N.D. 358, 294 N.W. 441 (1940); Sec. 27-10-14, N.D.C.C.

Moreover, the court assessed against Sharon a $5,000 "fine" for each future violation of the visitation provisions which, if not paid, Michael would be allowed to deduct from his debt on the property settlement. The court further ordered that if Sharon refuses to allow visitation for a two-year period, Michael's remaining debt on the property settlement would be totally exonerated. Pursuant to Sec. 27-10-04(1), N.D.C.C., a person found guilty of civil contempt may be fined $250 over and above the costs and expenses of the proceedings; imprisoned for six months; or if "[a]n actual loss or injury has been produced to any party by the misconduct of such person, the court or judge, instead of imposing a fine upon him, shall order him to pay a sufficient sum to indemnify such party, and to satisfy the costs and expenses of such party." In Noble Tp. v. Aasen, 10 N.D. 264, 86 N.W. 742, 746 (1901), this court stated that "the law of this state does not, in contempt proceedings, permit sums of money in amounts arbitrarily fixed by the court to be paid over by one suitor to another under the compulsion of an order of the court. The amount to be paid over must in some way be ascertained judicially, and this means that the same must be ascertained by a consideration of testimony bearing upon the matter." Other courts have found prospective contempt fines unauthorized under their state statutory schemes, noting as their principal defect the rigid and arbitrary character of the amount selected, which is fixed in advance of hearing any evidence on the character or severity of the alleged violation. See Wilson v. Fenton, 312 N.W.2d 524 (Iowa 1981); Vincent v. Preiser, 338 S.E.2d 398 (W.Va.1985); State v. Pownal Tanning Co., 142 Vt. 601, 459 A.2d 989 (1983).

The court's order in this case amounts to an adjudication in advance of future acts of contempt by Sharon, without any provision for formal due process, and an assessment of arbitrary "fines" payable to Michael without hearing any evidence on whether that amount is at all proportional to Michael's actual damages. The court had no statutory authority to fashion such an order. ² We conclude that the district court erred in assessing self-executing prospective contempt penalties for future violations of the court's January 1986 judgment, and we therefore reverse that portion of the supplemental judgment. ³

Sharon also asserts that the district court had no authority under Rule 7(b) N.D.R.Civ.P., ⁴ to amend Michael's visitation rights and assess all transportation costs against her because the only relief sought by Michael's motion was a change of custody. We disagree.

In Mathisen v. Mathisen, 276 N.W.2d 123 (N.D.1979), the wife argued that, because the husband's divorce complaint and prayer for relief requested only that he be awarded custody of the couple's children, the district court was without jurisdiction in a subsequent default divorce hearing to order her to make child support payments to her husband. Noting that the purpose of Rule 54(c), N.D.R.Civ.P., ⁵ is to apprise a defendant of the relief which the court might grant upon default, this court concluded that the husband's prayer for custody, when considered with Sec. 14-05-24, N.D.C.C., which authorizes the court to compel either party to provide for the maintenance of the children of the marriage, was sufficient notice to the wife that the district court might order her to provide support for her children. Mathisen, supra, 276 N.W.2d at 128. We believe that the same rationale controls in this case.

The issue of visitation rights of the noncustodial parent is a part of the broader issue of child custody. Mathisen, supra, 276 N.W.2d at 129. See also Sec. 14-14-02(2), N.D.C.C. [" 'Custody determination' means a court decision and court orders and instructions providing for the custody of a child,...