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Peterson v. Schulz

Supreme Court of North Dakota

June 29, 2017

Aeryn Peterson, Plaintiff and Appellant
v.
Cory Schulz, Defendant and Appellee

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

          Rodney E. Pagel, Bismarck, ND, for plaintiff and appellant.

          Stacy M. Moldenhauer, Bismarck, ND, for defendant and appellee.

          OPINION

          Crothers, Justice.

         [¶ 1] Aeryn Peterson appeals from an order to show cause and an order finding her in contempt. She argues the district court abused its discretion by finding her in contempt and ordering her to pay Cody Schulz's attorneys fees. We affirm.

         I

         [¶ 2] Peterson and Schulz have one child together, who was born in 2004. In 2011, a judgment awarded Peterson primary residential responsibility of the child and Schulz was awarded parenting time. In 2013, the judgment was amended to modify Schulz's parenting time. Schulz was awarded parenting time every Wednesday evening and every other weekend during the school year and every other week during the summer.

         [¶ 3] On August 5, 2016 Peterson moved to relocate with the child out of state. Peterson requested the court allow her to move with the child to New Mexico so she could pursue a degree in theater.

         [¶ 4] On August 8, 2016 Schulz moved for an order to show cause, arguing Peterson violated the judgment by moving the child out of state without his consent or a court order. Schulz also requested the court order Peterson to return the child to North Dakota "immediately and no later than August 15, 2016, " and award him full costs and attorneys fees for having to bring the motion. Schulz filed a supporting affidavit claiming he served Peterson with a letter on August 4, 2016, informing her he did not consent to the move, he learned Peterson and the child were in New Mexico on August 8, 2016, and Peterson refused to return the child to North Dakota.

         [¶ 5] On August 11, 2016 the district court granted Schulz's motion and entered an order to show cause. The court further ordered Peterson to return the child to North Dakota by August 15, 2016.

         [¶ 6] On August 15, 2016 Peterson responded to the motion for an order to show cause, arguing she was entitled to respond to the motion before the court could find she was in contempt or order her to act in any specific capacity. She claimed the court's order that she return the child to the state was improper because she did not have an opportunity to respond to the motion and a hearing had not been held.

         [¶ 7] After a hearing the district court entered an order finding Peterson in contempt. The court found Peterson violated the judgment and was in contempt for moving the child to New Mexico without receiving Schulz's consent. The court awarded Schulz $1, 610 in attorneys fees.

         II

         A

         [¶ 8] Schulz argues Peterson cannot appeal from an order to show cause because it is not an appealable order. He requests the appeal regarding that order be dismissed.

         [¶ 9] "Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and the orders enumerated by statute are appealable." Jordet v. Jordet, 2015 ND 73, ¶ 14, 861 N.W.2d 154. Section 28-27-02, N.D.C.C., governs which ...


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