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Rath v. Rath

Supreme Court of North Dakota

May 19, 2017

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. AFFIRMED.

          Mark A. Rath, self-represented, Bismarck, ND, defendant and appellant.

          OPINION

          KAPSNER, JUSTICE.

         [¶ 1] Mark Rath appeals from orders denying his motions for recusal, for an order to show cause, and for reconsideration, and from orders denying his demands for change of judge in child support modification proceedings. We conclude Mark Rath waived his issues on appeal regarding recusal and the orders denying his demands for change of judge are interlocutory and not appealable. We further conclude the district court did not abuse its discretion in denying his motion seeking to hold Kayla Rath in contempt and motion to reconsider. We affirm.

         I

         [¶ 2] Mark Rath and Kayla Rath were divorced in January 2013. The divorce judgment awarded Kayla Rath primary residential responsibility of the couple's two minor children, with Mark Rath receiving supervised parenting time. We have since decided numerous appeals in this case. See Rath v. Rath, 2016 ND 105, 879 N.W.2d 735; Rath v. Rath, 2016 ND 83, 878 N.W.2d 85; Rath v. Rath, 2016 ND 46, 876 N.W.2d 474; Rath v. Rath, 2015 ND 22, 861 N.W.2d 172; Rath v. Rath, 2014 ND 171, 852 N.W.2d 377; Rath v. Rath, 2013 ND 243, 840 N.W.2d 656.

         [¶ 3] Mark Rath has continued to make motions in the district court seeking to disqualify the judge, to hold Kayla Rath in contempt of the divorce judgment, and to reconsider the court's prior orders denying recusal and contempt. The court denied his various motions. In this case, Rath has appealed six district court orders: a May 12, 2016, order denying his April 4, 2016, motion for recusal; a May 16, 2016, order denying his May 4, 2016, motion for an order to show cause; a June 6, 2016, order denying his May 23, 2016, motion for reconsideration; and three orders filed May 18, 20, and 23, 2016, denying his demands for change of judge.

         II

         [¶ 4] In his brief on appeal, Mark Rath argues the district court abused its discretion in denying his motions for recusal and to reconsider his recusal motion. He contends the court misapplied the law in deciding whether disqualification was required, asserting grounds of prejudice, personal bias, and lack of impartiality towards him. At oral argument to this Court, however, he waived the issues on appeal regarding his recusal motions, initially claiming the issues were "moot" and stating the district court judge had recused himself subsequent to the filing of his appellate brief. The district court entered an order of recusal on September 19, 2016. Because he explicitly waived the recusal issues on appeal, we do not address them.

         [¶ 5] Mark Rath has also attempted to appeal in this case from three orders the district court entered on May 18, 20, and 23, 2016, and captioned "Assignment of Judge." In each, respectively, the court denied three separate demands Mark Rath filed on May 17, 18, and 23, 2016, seeking a change of judge in then-pending child support modification proceedings. He argues in this appeal that the court misapplied N.D.C.C. § 29-15-21 in denying these demands. We have explained, however, that while intermediate orders are reviewable on appeal from a final judgment, orders denying demands for change of judge are interlocutory and not appealable. Falcon v. State, 1997 ND 200, ¶ 5, 570 N.W.2d 719; Traynor v. Leclerc, 1997 ND 47, ¶ 6, 561 N.W.2d 644; In re Estate of Ketterling, 515 N.W.2d 158, 161 (N.D. 1994).

         [¶ 6] At the time Mark Rath filed his demands for change of judge, the child support proceedings were still pending in the district court. The other orders appealed in this case denied recusal, contempt, and reconsideration and do not specifically pertain to child support. The orders denying his demands for change of judge are interlocutory, not appealable, and therefore not properly before this Court in this appeal. Moreover, the district court has since entered a final judgment addressing child support modification, and Mark Rath has appealed that judgment and raised issues regarding the court's denial of his demand for change of judge. See Rath v. Rath, No. 20160338. For these reasons, we decline to address his arguments regarding denial of the change of judge demands in this appeal.

         III

         [¶ 7] Mark Rath argues the district court misapplied the law in deciding what qualifies as a technical violation of the divorce judgment in denying his motions for an order to show cause and for reconsideration, seeking to hold Kayla Rath in contempt. He contends the court has repeatedly and unreasonably denied holding Kayla Rath in contempt for her alleged pattern and persistent frustration of his and his children's visitations and rights under the divorce judgment.

         [¶ 8] "[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 cause at a specified time and place why ...


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