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Rath v. Rath

Supreme Court of North Dakota

August 28, 2014

Kayla Rath, Plaintiff
v.
Mark Rath, Defendant and Appellant

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

Kayla Rath, plaintiff; no appearance.

Mark Rath, Bismarck, N.D., defendant and appellant; self-represented.

Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner. Opinion of the Court by VandeWalle, Chief Justice.

OPINION

Page 378

VandeWalle, Chief Justice.

[¶1] Mark Rath appealed from a district court order finding him in contempt of court for violating provisions of a divorce judgment, refusing to find Kayla Rath in contempt of court, and modifying the divorce judgment. We conclude the district court did not abuse its discretion in refusing to find Kayla Rath in contempt of court and in finding Mark Rath in contempt, but we conclude the court erred in amending the judgment without a motion or notice. We, therefore, affirm in part and reverse in part.

I

[¶2] Mark Rath and Kayla Rath were divorced in January 2013. The divorce judgment awarded Kayla Rath primary residential responsibility for the parties' two children, and Mark Rath received supervised parenting time at the Family Safety Center. The judgment also allowed Mark Rath to make one telephone call to the children each Monday, and every other Friday and Saturday when he does not have the children, between the hours of 7:00 p.m. and 8:00 p.m. In March 2013, Mark Rath moved the district court for an order to hold Kayla Rath in contempt for violating divorce judgment provisions, which was denied. In Rath v. Rath, 2013 ND 243, ¶ ¶ 1, 16, 840 N.W.2d 656, we affirmed the district court's order denying his contempt motion.

[¶3] In October 2013, Mark Rath again moved the district court for an order finding Kayla Rath in contempt of court, alleging she had denied him telephone calls with the children. Kayla Rath filed a cross-motion for an order finding Mark Rath in contempt, alleging he had called

Page 379

and texted Kayla Rath's phone at all hours of the day despite the judgment's limitations and had been calling Kayla Rath and her attorney derogatory names.

[¶4] After a December 2013 hearing, the district court denied Mark Rath's motion, granted Kayla Rath's motion, and found Mark Rath in contempt for calling the children at times not allowed through the judgment and for not paying his previously ordered attorney fees to Kayla Rath's attorney. The court's order permitted Kayla Rath to dispose of certain personal property that Mark Rath had failed to retrieve under the divorce judgment and ...


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