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Nygaard v. Taylor

Supreme Court of North Dakota

August 29, 2017

Aarin John Nygaard, Plaintiff and Appellee
v.
Tricia Bernice Taylor, Defendant and Appellant Terrance L. Stanley, Plaintiff and Appellee
v.
Tricia Bernice Taylor, Defendant and Appellant

         Appeals from the District Court of Cass County, East Central Judicial District, the Honorable Susan J. Solheim, Judicial Referee.

          Tracy J. Lyson (argued), Fargo, N.D., for plaintiffs and appellees.

          Stormy R. Vickers (argued), Fargo, N.D., for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 1] Tricia Taylor appeals from orders denying her motions to quash contempt and for immediate release from incarceration. We exercise our supervisory jurisdiction and conclude the judicial referee erred in denying Taylor's motions for immediate release from incarceration. We reverse.

         I

         [¶ 2] These consolidated cases involve custody disputes between the mother, Tricia Taylor, and Aarin Nygaard and Terrance Stanley, the two fathers of her minor children. Stanley and Taylor were married in 2009 and divorced in 2011. They are the parents of a child born in 2007. Nygaard and Taylor were never married but had a child together who was born in 2013. All of the parties resided in Fargo. Nygaard and Stanley were eventually awarded primary residential responsibility for their respective children, and Taylor was granted supervised visitation. In September 2014, Taylor fled with both of the minor children to the Cheyenne River Indian Reservation in South Dakota, and Nygaard and Stanley have not had any contact with the children since then.

         [¶ 3] Taylor was found in contempt for violating multiple district court orders for refusing to return the minor children to their fathers. In addition, Taylor was arrested and pled guilty to class C felony parental kidnapping and has been incarcerated in North Dakota since November 2014. In January 2015, the Cheyenne River Sioux Tribal Court entered a temporary order awarding custody of the children to Taylor's sister on the reservation. Shortly before Taylor was scheduled to be released on parole in November 2015 on the parental kidnapping conviction, the district court issued interlocutory orders in both custody cases finding her in contempt for refusing to return the children to their fathers and issued warrants for her arrest. Immediately upon her release from incarceration on the parental kidnapping conviction, Taylor was served with the arrest warrants and remained in custody for contempt.

         [¶ 4] At a December 2015 hearing on the interlocutory orders, Taylor argued she did not have the ability to return the minor children to their fathers. A judicial referee rejected the argument in January 2016 and found Taylor was "voluntarily electing to continue to withhold" the minor children from their fathers. Taylor requested the judicial referee to review the contempt findings, and in March 2016 the referee confirmed her prior rulings and ordered that Taylor "shall remain in custody until such time as she returns the minor child[ren] to" their fathers. Taylor requested the district court to review the referee's orders, and in April 2016 the court adopted and affirmed the referee's orders. Taylor did not appeal. Taylor has not returned the children to their fathers and has remained incarcerated.

         [¶ 5] In October 2016, Taylor filed motions to quash the contempt orders and for immediate release from imprisonment, claiming she had been incarcerated for contempt longer than the six months authorized under N.D.C.C. § 27-10-01.4(1)(b). On December 7, 2016, the judicial referee issued identical orders in the two cases stating:

The Court, having considered the pleadings filed by the parties, having considered the statements and arguments of counsel, and being otherwise familiar with the entirety of this matter does find that the evidence suggests that Ms. Taylor continues to remain in contempt of court as it is undisputed that the minor child has not yet been returned to the Plaintiff. However, this matter shall be scheduled for an Order to Show Cause hearing on December 8, 2016 at 1:00 p.m. to allow the parties to present further evidence as to that issue.
Defendant's request for immediate release from incarceration is DENIED. The Court further finds that Defendant shall remain incarcerated pending the hearing on December 8, 2016 as she poses a significant flight risk and a risk to the child's wellbeing.

         [¶ 6] On December 8, 2016, the date for the hearing was rescheduled to December 14, 2016, but on that day the parties stipulated to continue the hearing because Taylor's attorney was ill. The hearing was rescheduled for January 13, 2017, but on ...


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