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Duane C. Sall v. Caryn J. Sall

October 18, 2011

DUANE C. SALL,
PLAINTIFF AND APPELLEE
v.
CARYN J. SALL, N/K/A CARYN J. WEBER,
DEFENDANT AND APPELLANT



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.

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

N.D. Supreme

CourtSall v. Sall,

2011 ND 202

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Kapsner, Justice.

[¶1] Caryn Weber appeals from two district court orders and a fourth amended divorce judgment. We affirm in part, reverse in part, and remand for further proceedings, concluding the district court did not abuse its discretion in refusing to hold Duane Sall in contempt of court for failing to pay Weber's dental and vision insurance premiums, but the district court erred in holding that Weber's claims for reimbursement of the children's extracurricular and medical expenses more than two years old were stale as a matter of law.

I

[¶2] When Weber and Sall divorced in 2003, Weber received custody of the parties' two minor children. The divorce judgment ordered Sall to pay all costs related to the children's extracurricular activities, including sports equipment, musical instruments, summer camps, or any other extraordinary expenses. Sall was also ordered to maintain medical and hospitalization insurance for the children, and Weber and Sall were to each pay one-half of the children's medical, dental, and optical expenses which were not paid by insurance. Sall was also ordered to maintain and pay for medical insurance for Weber for a period of 36 months. Because Weber had no income, Sall was allowed to claim the income tax exemptions for the children. After the divorce judgment was entered, Sall paid for medical insurance but not for dental and vision insurance for Weber. Disputes also arose over Sall's payment of extracurricular and medical expenses for the children.

[¶3] In July 2010, Weber moved to hold Sall in contempt of court for his failure to pay her dental and vision insurance premiums from 2003 through 2006. The matter was referred to a judicial referee for a hearing. The referee issued an order denying the motion, and Weber requested review by the district court. The district court found the original divorce judgment was silent regarding dental and vision insurance and it was not unreasonable for Sall to believe he was under no obligation to provide dental and vision insurance for Weber. The court found Sall was not in contempt of court, concluding Weber had not shown Sall had willfully intended to disobey the divorce judgment.

[¶4] In September 2010,Weber filed a motion seeking to hold Sall in contempt of court for failing to pay various extracurricular and medical expenses of the children dating back to 2004. In October 2010, Weber filed another motion, seeking to compel Sall to provide copies of documents regarding the children's Uniform Transfers to Minors Act accounts and requesting that she be granted the income tax exemptions for the children on a temporary basis because she had incurred tax liability by converting retirement accounts. Sall filed a response to the two pending motions and also moved to amend the provisions of the divorce judgment ordering him to pay for extracurricular and medical expenses of the children.

[ΒΆ5] While these motions were pending, Weber appealed from the district court's order denying her July 2010 motion to hold Sall in contempt. We temporarily remanded the case to the district court to resolve the pending motions. The district court held two hearings on the pending motions, culminating in a January 11, 2011, order. The district court denied Weber's motion to compel delivery of documents and to receive the tax exemptions. On Weber's motion to hold Sall in contempt for failure to pay extracurricular and medical expenses of the children, the court first determined that all of Weber's claims for expenses more than two years old were stale as a matter of law and would be denied. The court refused to hold Sall in contempt, but found that Weber was entitled to reimbursement for $1,020.86 in expenses incurred within the two-year period preceding her motion. Finally, the district court granted Sall's motion to amend the divorce judgment. The provision requiring Sall to pay all extracurricular expenses of the children was amended to require Sall to pay $60 each month toward the children's extracurricular activities, with Weber required to pay any additional ...


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