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Votava v. Votava

Supreme Court of North Dakota

July 1, 2015

Kelly Marie Votava, Plaintiff
v.
Andrew Charles Votava, Defendant and Appellant

Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable Lee A. Christofferson, Judge.

Kelly M. Votava, plaintiff; no appearance.

Patti J. Jensen, East Grand Forks, Minn., for defendant and appellant.

Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.

OPINION

Page 822

McEvers, Justice.

[¶1] Andrew Votava appeals from a district court order denying his request to hold Kelly Votava in contempt and modifying his parenting time. We conclude the district court did not abuse its discretion by refusing to find Kelly Votava in contempt, but we conclude the court erred in modifying Andrew Votava's parenting time without a motion or notice. We affirm in part and reverse in part.

I

[¶2] Andrew and Kelly Votava were divorced in 2009. Kelly Votava was awarded primary residential responsibility for the parties' two minor children, and Andrew Votava received reasonable and liberal parenting time. In 2010, Andrew Votava moved to establish summer parenting time. The district court entered an ordered clarifying parenting time and setting a parenting time schedule giving Andrew Votava parenting time every other weekend, one weeknight on the weeks he does not have weekend parenting time, and extended parenting time during the summer.

[¶3] On October 10, 2014, Andrew Votava moved for an order to show cause, alleging Kelly Votava denied his scheduled parenting time on September 18, 2014; September 21, 2014; September 26-28, 2014; and October 2, 2014. The district court entered an order to show cause and notified the parties about the time and place for the contempt hearing. On December 9, 2014, Kelly Votava sent the court a letter, explaining she was not represented by an attorney and requesting the court allow the children to testify at the hearing. The court sent a copy of the letter to Andrew Votava. A contempt hearing was held on December 11, 2014, and Kelly Votava and the parties' children testified.

[¶4] On December 16, 2014, the district court denied Andrew Votava's request

Page 823

to hold Kelly Votava in contempt, finding " [there is no basis that Kelly acted willfully and with inexcusable intent to violate the court order." The court also found the children are 12 and 14 years old and it is nearly impossible for Kelly Votava to force them to see their father. The court ordered there would be no " forced" weekday or weekend parenting time, the extended summer parenting time was " discontinued," and Andrew Votava " may request parenting time with his children, ...


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