Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rath v. Rath

Supreme Court of North Dakota

April 10, 2018

Kayla Rath, n/k/a Kayla Jones, Plaintiff
v.
Mark Rath, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

          Kayla Rath, plaintiff; no appearance.

          Mark A. Rath, self-represented, Bismarck, ND, defendant and appellant; submitted on brief.

          OPINION

          Jensen, Justice

         [¶ 1] Mark Rath appeals from an order denying his motion to amend the parties' parenting time schedule to allow an overnight, out-of-state family vacation during the summer of 2018 and awarding attorney fees to Kayla Rath. He argues the district court improperly denied his motion to amend the parties' parenting time schedule and abused its discretion in awarding attorney fees. Mark Rath further asserts the trial judge acted prejudicially and with bias, warranting immediate recusal and relief through this Court's issuance of a supervisory writ. We affirm the district court's denial of his motion to amend the parties' parenting time schedule, reverse the court's award of attorney fees, and deny his request for a supervisory writ.

         I

         [¶ 2] In January 2013, Mark Rath and Kayla Rath, now known as Kayla Jones, 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 has since filed numerous post-judgment motions, some of which this Court has addressed. See Rath v. Rath, 2017 ND 138, 895 N.W.2d 315; Rath v. Rath, 2017 ND 128, 895 N.W.2d 306; 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] In October 2016, Mark Rath moved the district court to amend the divorce judgment, seeking either a shared parenting plan or unsupervised parenting time. After an April 2017 hearing, the court entered a second amended judgment, granting Kayla Rath sole decision-making responsibility for the children and allowing Mark Rath, among other things, unsupervised parenting time. He also appealed the second amended judgment and other various orders. Rath v. Rath, No. 20170239.

         [¶ 4] In August 2017, while a prior appeal in Rath v. Rath, No. 20170239 was pending and after receiving permission from this Court, Mark Rath moved the district court to amend the parenting plan to allow overnight parenting time for a ten-day, out-of-state family vacation in the summer of 2018. Kayla Rath opposed the motion asserting safety concerns. In October 2017, the district court held a hearing and subsequently entered an order on October 27, 2017, denying Mark Rath's request. The court also concluded his motion was frivolous and awarded Kayla Rath attorney fees.

         [¶ 5] This Court granted Mark Rath permission to file a motion for reconsideration of the October 27, 2017 district court order; permission was required because this Court still had jurisdiction over the case pursuant to the pending appeal in Rath v. Rath, No. 20170239. On October 29, 2017, Mark Rath filed a motion seeking recusal of the trial judge and reconsideration of the October 27, 2017 district court order. In an order dated November 27, 2017, the district court refused to address Mark Rath's recusal motion, since this Court had not granted permission for him to file it, and denied his reconsideration motion. On November 29, 2017, Mark Rath filed a notice of appeal, limited to an appeal of the October 27, 2017 order.

         II

         [¶ 6] Mark Rath appeals the district court's denial of his motion seeking to modify the parties' parenting time schedule to allow him to take his children on a family vacation during the summer of 2018. Under N.D.C.C. § 14-05-22, the district court has continuing jurisdiction to modify parenting time after entry of the divorce judgment. Votava v. Votava, 2015 ND 171, ¶ 13, 865 N.W.2d 821. Section 14-05-22(2), N.D.C.C., provides "the court, upon request of the other parent, shall grant such rights of parenting time as will enable the child to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that such rights of parenting time are likely to endanger the child's physical or emotional health." To modify parenting time, the moving party must show that a material change in circumstances has occurred since entry of the previous parenting time order and that the modification is in the child's best interests. Votava, at ¶ 13; see also Rath, 2016 ND 46, ¶ 12, 876 N.W.2d 474; Prchal v. Prchal, 2011 ND 62, ¶ 11, 795 N.W.2d 693. "A material change in circumstances is an important new fact that was not known at the time of the prior [order]." Siewert v. Siewert, 2008 ND 221, ¶ 17, 758 N.W.2d 691. Whether a material change in circumstances has occurred is a finding of fact, reviewed under the clearly erroneous standard. Prchal, at ¶ 11.

         [¶ 7] A district court's decision resolving a motion to modify parenting time is a finding of fact, subject to the clearly erroneous standard of review. Harvey v. Harvey, 2016 ND 251, ¶ 4, 888 N.W.2d 543; Schurmann v. Schurmann, 2016 ND 69, ¶ 8, 877 N.W.2d 20. "[A] district court must adequately explain the evidentiary and legal basis for its decision, allowing the parties and this Court to understand the decision." Curtiss v. Curtiss, 2016 ND 197, ¶ 13, 886 N.W.2d 565 (quoting Estate of Nelson, 2015 ND 122, ¶ 13, 863 N.W.2d 521). "The court's findings are sufficient if they afford a clear understanding of the court's decision and assist this Court in conducting its review." Harvey, at ¶ 4 (citing Topolski v. Topolski, 2014 ND 68, ¶ 7, 844 N.W.2d 875).

         [¶ 8] The district court found that Mark Rath has engaged in only a few months of unsupervised parenting time after five years of supervised parenting time. The court specifically found that the limited amount of unsupervised parenting time exercised by Mark Rath was insufficient to support a finding that the best interests of the children would be met if the requested parenting time modification was granted. The court found that there were insufficient reasons for granting ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.