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Sall v. Sall

Supreme Court of North Dakota

June 19, 2013

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 Lisa K. Fair McEvers, Judge.

Robert J. Schultz, 406 Main Avenue, for plaintiff and appellee; submitted on brief.

Caryn J. Weber, self-represented, defendant and appellant.

OPINION

Sandstrom, Justice.

[¶ 1] Caryn Weber appeals from a district court order denying her motion for relief from a fourth amended divorce judgment and a district court order on remand from her 2011 appeal to this Court. Concluding our judgment on remand has been complied with and the district court correctly denied attempts to redetermine previously resolved issues, we affirm.

I

[¶ 2] Weber and Duane Sall, who divorced in 2003, have two children. In September 2010, Weber moved to hold Sall in contempt for failure to pay their children's extracurricular and medical expenses. The district court denied Weber's motion, refusing to find Sall in contempt, and entered a fourth amended judgment in January 2011 modifying Sall's support obligations. Weber appealed that order and amended judgment to this Court. In Sall v. Sall, 2011 ND 202, ¶ 6, 804 N.W.2d 378, Weber argued the district court erred in refusing to hold Sall in contempt. She argued the district court erred in entering the fourth amended judgment and finding her claim for unpaid extracurricular and medical expenses was stale. Weber also raised many other arguments. We affirmed the district court order refusing to hold Duane Sall in contempt. We reversed that portion of the order denying "Weber's claims for reimbursement for the children's extracurricular and medical expenses incurred more than two years before [her] September 2010 motion, and we remand[ed] for reconsideration of those claims by the district court." Id. at ¶ 16. "In all other respects the orders and judgment appealed from [were] affirmed." Id. at ¶ 17.

[¶ 3] On October 31, 2011, Weber filed a petition for rehearing with this Court, which we denied on November 15, 2011. On February 9, 2012, Weber petitioned the United States Supreme Court for a writ of certiorari to reverse our decision. On April 16, 2012, the United States Supreme Court denied her petition. On May 10, 2012, Weber filed a petition for rehearing with the United States Supreme Court. On June 11, 2012, the United States Supreme Court denied her petition for rehearing.

[¶ 4] In March 2012, the district court had held a status conference looking to resolve the issue on remand but was advised of Weber's petition to the United States Supreme Court and the need to wait for its determination.

[¶ 5] In September 2012, before any party had advised the district court of the United States Supreme Court action, Weber moved for relief from the fourth amended judgment under Rule 60, N.D.R.Civ.P., seeking modification of Sall's support obligations. She argued our opinion in Sall supported her request and the court should find Sall in contempt for failure to pay. At the hearing on the September 2012 motion, Weber argued it was completely separate from the remand from this Court. The district court denied her September 2012 motion, concluding the issues she raised were previously considered by this Court in Sall and her claim was barred by res judicata. The court also concluded her motion was frivolous and untimely. Sall was awarded $500 in attorney's fees.

[¶ 6] In November 2012, a hearing was held to resolve the issue on remand from this Court--Weber's claims for reimbursement for the children's extracurricular and medical expenses incurred more than two years before September 2010. The district court asked Weber to identify all amounts she claimed she was due. After Weber had done so, Sall agreed to pay the full amount identified by Weber. Weber refused to agree because she insisted Sall must agree to be held in contempt of court, objecting, "He is not stipulating to a contempt charge." The court explained the contempt issue had been resolved and was not before the court. The court said, "He is offering to pay more than what you are asking for. Do you realize that?" The court explained that Sall agreed to pay items already excluded by the prior judge for reasons other than the issue on remand. Weber continued to insist that Sall must be held in contempt. The district court held the narrow issue on remand resolved when Sall paid Weber the $2, 341.22 in open court. The court denied Weber's request for further hearing on whether Sall was in contempt.

[¶ 7] Weber argues the district court erred in barring her entire September 2012 motion by res judicata, ruling her motion untimely and frivolous and imposing a sanction, and upholding the entrance of the fourth amended judgment. She also argues the district court, in its order denying her request for further hearing on holding Sall in contempt, erred in exempting Sall from application of N.D.C.C. § 14-08.1-05, denying her interest due on unpaid child support, and not finding Sall in contempt.

[¶ 8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Weber's appeal is timely under N.D.R.App.P. 4(a). We have jurisdiction under N.D. ...


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