Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
N.D. Supreme CourtJordet v. Jordet,
This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect] Dissent filed.
AFFIRMED IN PART AND REVERSED IN PART.
Opinion of the Court by VandeWalle, Chief Justice.
[¶1] Bradley Dean Jordet and his attorney, Jonathan T. Garaas, appealed from orders denying Bradley Jordet's motion to allow him to setoff his spousal support arrearages against Tracy Lyndal Jordet's child support arrearages, and holding Garaas in contempt and fining him $1,000 for intentional disobedience of the district court's earlier order. We conclude the court did not abuse its discretion in denying the motion for a setoff, but did abuse its discretion in holding Garaas in contempt. We affirm in part and reverse in part.
[¶2] Bradley and Tracy Jordet were divorced in 2010. Bradley Jordet was awarded primary residential responsibility for the couple's two children and Tracy Jordet was ordered to pay child support of $864 per month, which was later reduced to $590 per month upon the oldest child's emancipation. Bradley Jordet was ordered to pay Tracy Jordet rehabilitative spousal support of $2,000 per month for 36 months, then reduced to $1,500 per month until she reaches age 65, dies, or remarries. Both parties fell into arrears on their respective financial obligations to each other.
[¶3] In December 2011, Bradley Jordet moved for entry of a money judgment under N.D.C.C. § 14-08.1-05 against Tracy Jordet for $9,071.78 in past due child support. He simultaneously moved for a setoff of $7,715.49 he owed Tracy Jordet for past due spousal support against her child support arrearages. Tracy Jordet responded in January 2012 by obtaining a money judgment against Bradley Jordet for $7,715.49 for spousal support arrearages and opposed his motion for a setoff. The district court adopted the order of the judicial referee denying Bradley Jordet's motion, reasoning:
The Court concludes that the relief Bradley requests would be contrary to the provisions of N.D. Cent. Code 14-09-09.33. Also persuasive is Corbett v. Corbett, 2002 ND 103, 646 N.W.2d 677, wherein the Court stated that it was inappropriate to offset the child support obligation with a spousal support obligation.
[¶4] On February 16, 2012, Bradley Jordet obtained an execution of judgment from the district court against Tracy Jordet directing the Cass County Sheriff to satisfy the $9,071.78 judgment for unpaid child support "out of the personal property of the judgment debtor within your County." On February 17 and 21, 2012, the sheriff levied on two of Tracy Jordet's bank accounts and obtained $450.99 and $339.70, respectively. On March 26, 2012, Bradley Jordet, accompanied by Garaas and a Cass County deputy sheriff, went to the office of Tracy Jordet's attorney. Bradley Jordet handed a personal check, made payable to Tracy Jordet's attorney for $7,825.89 and marked "Back Spousal Support," to an office assistant. According to Tracy Jordet's attorney, the sheriff, at Garaas's direction, then delivered a notice of levy to the office assistant and took possession of the check. The notice of levy stated that claims for exemptions from process must be made within 10 days. Tracy Jordet did not claim any exemptions.
[¶5] On March 26, 2012, Tracy Jordet filed an objection to the notice of levy and sought an emergency hearing. Tracy Jordet requested that Garaas be held in contempt "for attempting to circumvent" the district court's earlier order denying Bradley Jordet's motion to allow a setoff and sought an award of attorney fees for having to respond to the notice of levy. Garaas denied attempting to circumvent the court's order. Following a March 30, 2012, hearing, the court ruled:
1. Attorney Jonathan T. Garaas is hereby held in Contempt of Court pursuant to NDCC § . . . 27-10-01.1(1)(c) for intentional disobedience of a Court Order. Jonathan T. Garaas is ordered to pay a $1,000 fine to the District Court for being held in Contempt of Court. 2. Attorney Jonathan T. Garaas may purge the contempt by turning over the $7,825.89 check made payable to [Tracy Jordet's attorney] dated March 26, 2012 which was levied upon on March 26, 2012.
[¶6] The Cass County deputy sheriff subsequently submitted an execution return showing, after payment of fees, he had collected $8,290.30, and a partial satisfaction of Bradley Jordet's child support judgment against ...