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Russell E. Blomdahl v. Mary Ellen Blomdahl

April 13, 2011

RUSSELL E. BLOMDAHL,
PLAINTIFF AND APPELLEE
v.
MARY ELLEN BLOMDAHL, DEFENDANT AND APPELLANT



Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge. AFFIRMED.

The opinion of the court was delivered by: Crothers, Justice.

N.D. Supreme CourtBlomdahl v. Blomdahl,

2011 ND 78

This opinion is subject to petition for rehearing. [Go to Documents]FiledApr. 13, 2011 [Download as WordPerfect]

Opinion of the Court by Crothers, Justice.

Blomdahl v. Blomdahl

No. 20100053

[¶1] Mary Blomdahl appeals from a district court order denying her motion to find Russell Blomdahl in contempt for failing to comply with a 1993 divorce judgment awarding her personal property. We affirm the district court's order, concluding the district court did not err in denying her motion because a contempt of court motion cannot be maintained based on a divorce judgment that expired after ten years without being renewed.

I [¶2] Russell Blomdahl and Mary Blomdahl entered a stipulation that was incorporated into a February 1993 divorce judgment, which provided:

"9. Retirement Accounts. [Mary Blomdahl] shall have sole and exclusive use, control and possession of the retirement, savings, and checking accounts currently held solely in her name. [Russell Blomdahl] shall have sole and exclusive use, possession and control of the retirement, savings, checking, and insurance accounts solely in his name with the exception that [Mary Blomdahl] will have a 90 percent interest in [Russell Blomdahl's] retirement accounts with Piper, Jaffray, and Aid Association Lutherans. . . ." (Emphasis added.)

[¶3] Between the entry of the divorce judgment and 2009, Mary Blomdahl did not execute on the judgment, commence a separate action on the judgment, or obtain a qualified domestic relations order. In January 2009, Mary Blomdahl demanded the 90 percent interest in the retirement accounts, and Russell Blomdahl refused. In April 2009, Mary Blomdahl moved the district court for an order to show cause under N.D.C.C. § 14-05-25.1 to find Russell Blomdahl in contempt and to enforce the distribution of the interest in the retirement account awarded in their 1993 divorce judgment. Russell Blomdahl resisted her motion based on arguments that in February 1993, he and Mary Blomdahl entered into a separate out-of-court agreement; he contended that the funds had been transferred, commingled into other accounts, or used up over time; and he asserted he was no longer required to do so due to the passage of time. The district court found that Mary Blomdahl had not agreed to return to Russell Blomdahl any retirement accounts including those in Piper, Jaffray and Aid Association Lutherans. The court did not address Russell Blomdahl's contention regarding the current status of the retirement accounts, and instead ruled the divorce judgment was no longer enforceable.

[¶4] The district court denied Mary Blomdahl's contempt motion. The court held the February 1993 divorce judgment ceased to be enforceable for distribution of the retirement accounts after ten years, absent renewal of the judgment. Relying on N.D.C.C. §§ 28-20-13, 28-20-23, and 28-20-35, the court held the provision awarding Mary Blomdahl an interest in Russell Blomdahl's retirement accounts was no longer enforceable due to the passage of time. The court concluded that since the divorce judgment granting her the property was entered in February 1993, in the absence of a renewal, she no longer could enforce that portion of the judgment since her motion was "well beyond the ten year time period."

II [¶5] Mary Blomdahl argues her contempt motion under N.D.C.C. § 14-05-25.1 is not an "action" under N.D.C.C. § 28-01-15, which provides a ten-year statute of limitations for "[a]n action upon a judgment or decree." Alternatively, she argues that if her motion is an "action" under N.D.C.C. § 28-01-15, the ten-year limitations was tolled until the obligation and award accrued, matured or otherwise ripened. She asserts the award did not mature until she either reached retirement age or discovered Russell Blomdahl had taken full distribution of the specified retirement accounts, depriving her of her 90 percent interest.

[¶6] Mary Blomdahl brought her motion for contempt under N.D.C.C. § 14-05-25.1, which provides that "[f]ailure to comply with the provisions of a separation or divorce decree relating to distribution of the property of the parties constitutes contempt of court." We have held that provision provides continuing jurisdiction for contempt proceedings to enforce divorce judgments. See Giese v. Giese, 2004 ND 58, ¶¶ 6-7, 676 N.W.2d 794. "Civil contempt requires a willful and inexcusable intent to violate a court order." Id. at ¶ 8. Mary Blomdahl essentially argues that under N.D.C.C. § 14-05-25.1, her contempt motion is not "[a]n action upon a judgment," under the ten-year statute of limitations in N.D.C.C. § 28-01-15(1).

[ΒΆ7] North Dakota law distinguishes between "actions" and "special proceedings." Section 32-01-01, N.D.C.C., states that "[r]emedies in the courts of justice are divided into: 1. Actions. 2. Special proceedings." Section 32-01-02, N.D.C.C., defines an action as "an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." (Emphasis added.) Section 32-01-04, N.D.C.C., provides that "[a] special proceeding is any remedy other than an action." (Emphasis added.) See N.D.R.Civ.P. 81 and "Table A" (designating contempt proceedings under N.D.C.C. ...


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