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Rath v. Rath

Supreme Court of North Dakota

April 18, 2016

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

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

         Mark Rath (on brief), self-represented, Bismarck, ND, defendant and appellant.

         Kayla Rath, plaintiff; no appearance.

         Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Steven L. Marquart, D.J., Gerald W. VandeWalle, C.J., Opinion of the Court by Kapsner, Justice.

          OPINION

Page 86

         Carol Ronning Kapsner, Justice.

          [¶1] Mark Rath appeals from a district court order denying his motion for an order to show cause. Mark Rath asserted Kayla Rath, his former wife, should be held in contempt for violating the terms of their divorce judgment. The district court denied his motion. We affirm.

         I

          [¶2] Mark Rath and Kayla Rath were divorced in January 2013. Kayla Rath was awarded primary residential responsibility of the couple's children, and Mark Rath was awarded supervised parenting time. This Court decided a number of appeals stemming from their divorce. See Rath v. Rath, 2016 ND 46, 876 N.W.2d 474 (affirming orders denying motion for order to show cause, motion to modify judgment, and motion for recusal); Rath v. Rath, 2015 ND 22, 861 N.W.2d 172 (summarily affirming district court's denial of Mark Rath's motion to vacate the judgment and grant relief); Rath v. Rath, 2014 ND 171, 852 N.W.2d 377 (affirming order denying motion to hold Kayla Rath in contempt; reversing district court's amendment to judgment on due process and notice grounds); Rath v. Rath, 2013 ND 243, 840 N.W.2d 656 (affirming order denying motion to hold Kayla Rath in contempt and denial of request for district court judge to recuse himself).

          [¶3] The divorce judgment allows Mark Rath to call the children each Monday and every other Friday and Sunday between 7:00 p.m. and 8:00 p.m. Mark Rath asserts Kayla Rath has failed to abide by these terms, and he filed a motion for the district court to order Kayla Rath to show cause why she should not be held in contempt. Mark Rath supplemented his motion with an affidavit detailing Kayla Rath's allegedly contemptuous acts. In the affidavit, Mark Rath described two specific occasions--one in November 2015 and one in December 2015--on which he asserts Kayla Rath attempted to reschedule his phone conversations with the children. The affidavit of Mark Rath states that two weeks before the scheduled visit in December, Kayla Rath attempted to reschedule the time for the visit. The district court denied Mark Rath's motion before Kayla Rath filed a reply. The court found that Mark Rath's allegations, accepted as true for purposes of the motion, did not warrant a contempt finding. Mark Rath appealed.

         II

          [¶4] On appeal, Mark Rath argues the district court abused its discretion when it found contempt proceedings were unwarranted, and the court erred when it denied his motion before Kayla Rath filed a reply. The district court has broad discretion in making contempt determinations. Sall v. Sall, 2011 ND 202, ¶ 7, 804 N.W.2d 378. This Court will only disturb a district court's contempt determination if the court abused its discretion. Bjorgen v. Kinsey, 491 N.W.2d 389, 395 (N.D. 1992).

         A

          [¶5] The district court did not abuse its discretion when it determined Kayla Rath was not in contempt. The district court may impose a sanction for contempt of court under N.D.C.C. § 27-10-01.2. " [W]hen an act punishable as contempt is not committed in the immediate view and presence of the court, the court, upon being satisfied of the commission of the offense, may . . . [o]rder the accused to show ...


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