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Rath v. Rath

Supreme Court of North Dakota

June 7, 2017

Kayla Rath, n/k/a Kayla Jones, Plaintiff
v.
Mark Rath, Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest and Appellee

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

          Sheila K. Keller, Bismarck, N.D., for statutory real party in interest and appellee.

          Mark A. Rath, Bismarck, N.D., defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 1] Mark Rath appeals from orders denying his demands for a change of judge, an order denying his motion for an order to show cause, and an order modifying his child support obligation. We affirm, concluding Mark Rath did not meet the statutory requirements for a change of judge, the district court did not abuse its discretion by denying the motion for an order to show cause, and the court did not err in modifying the child support obligation.

         I

         [¶ 2] In January 2013, Mark Rath and Kayla Rath were divorced. The divorce judgment awarded Kayla Rath primary residential responsibility for the parties' two children, and Mark Rath received supervised parenting time. Mark Rath was ordered to pay $243 per month in child support. Since entry of the divorce judgment, Mark Rath has filed numerous post-judgment motions in the district court, some of which have been addressed by this Court in prior cases. See Rath v. Rath, 2017 ND 128; 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] On April 25, 2016, the Child Support Enforcement Unit moved to modify Mark Rath's child support obligation, requesting the amount be increased to $475 per month. The Enforcement Unit explained it calculated the requested child support amount after obtaining Mark Rath's 2015 tax return and wage information from his employer and considering Mark Rath's duty to support other children. Mark Rath responded to the motion to modify, arguing his health insurance expenses should be deducted from his income because he is required to have health insurance or pay a tax penalty under federal law.

         [¶ 4] On May 1, 2016, Mark Rath moved for joinder of claims, requesting the district court join the child support modification proceedings in this case with child support proceedings in another case. On May 13, 2016, Judge Hill denied the motion for joinder, finding joinder was not appropriate because the two cases were different situations involving different parties and were assigned to different judges.

         [¶ 5] On May 17, 2016, Mark Rath filed a demand for change of judge under N.D.C.C. § 29-15-21(3) against Judge Hill for purposes of the child support modification. The demand was denied on May 18, 2016. The district court explained the demand was untimely because the parties had ten days from the time the judge was assigned to the case to demand a change of judge and Judge Hill was assigned to the matter in October 2014.

         [¶ 6] On May 18, 2016, Mark Rath filed a second demand for change of judge, arguing the first demand was incorrectly denied because the motion to modify child support is considered a separate proceeding from the original action. On May 20, 2016, the district court denied the demand, concluding it was untimely.

         [¶ 7] On May 23, 2016, Mark Rath filed a third demand for change of judge for the child support proceedings. On May 23, 2016, the district court denied the third demand for change of judge, finding it was filed in an untimely manner.

         [¶ 8] On August 3, 2016, Mark Rath moved for an order to show cause, arguing Kayla Rath should be held in contempt for failing to comply with the judgment. He claimed Kayla Rath violated the terms of the judgment by failing to inform him of the children's medical expenses and failing to give him copies of unpaid medical bills so he could pay half of the children's medical expenses.

         [¶ 9] On August 30, 2016, the district court denied the motion for an order to show cause. The court found Kayla Rath's failure to provide copies of the unpaid medical bills was not a violation of the judgment because she did not request reimbursement. The court concluded the motion was meritless. The court noted this was the thirteenth motion of this type and stated it was another pleading that harasses Kayla Rath and appeared to be offered for an improper ...


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