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Upton v. Nolan

Supreme Court of North Dakota

November 6, 2018

Heather L. Upton, Plaintiff and Appellee
v.
James W. Nolan, Defendant and Appellant

          Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Richard L. Hagar, Judge.

          George M. Ackre (argued), Cando, ND, and Kyle R. Craig (on brief), Minot, ND, for plaintiff and appellee.

          Christene A. Reierson, Minot, ND, for defendant and appellant.

          OPINION

          Crothers, Justice.

         [¶ 1] James Nolan appeals from an order holding him in contempt and requiring that he reimburse Heather Upton for parenting time travel expenses and pay her attorney fees. We conclude the district court erred in amending the parties' divorce judgment and in ordering Nolan to reimburse Upton for his share of parenting time travel expenses. We conclude the court did not abuse its discretion in holding Nolan in contempt and in awarding Upton attorney fees. We affirm in part and reverse in part.

         I

         [¶ 2] Upton and Nolan, both members of the United States Air Force, were divorced in Maryland in 2010. Nolan was awarded "primary physical custody" of the couple's child and Upton was awarded shared custody of the child based on two schedules depending on whether the parties resided less than or more than 50 miles apart. Under the parties' court-approved parenting agreement, if the parties resided more than 50 miles apart Upton was allowed physical custody of the child during the summer, winter and spring school breaks, with the parties equally sharing all travel expenses. In 2016 the Maryland divorce court amended the original decree to include language regarding communications between the parties and the child:

"ORDERED BY CONSENT, that [Upton] shall be entitled to telephone access every Tuesday and Sunday, and Skype access every Friday, all access to occur at 7:00 p.m., in the time zone in which the minor child resides, not to exceed thirty (30) minutes; and it is further
"ORDERED BY CONSENT, that all communication, excluding emergencies and [Upton's] telephone and Skype access as specified herein, shall continue through Our Family Wizard."

         [¶ 3] In May 2017 Upton was stationed in Kyrgyzstan, and Nolan was stationed in North Dakota. Upton registered the Maryland divorce orders in North Dakota and moved to hold Nolan in contempt for violating the parties' parenting plan. In the notice and motion for an order to show cause, Upton requested the following relief: "1. That Defendant be found in contempt of court with sanctions issued. 2. That Defendant be required to immediately follow the Court's order. 3. That Defendant be ordered to pay all costs and attorney's fees incurred by Heather in bringing this Motion of not less than $1, 500. 4. That Defendant be incarcerated if he fails to follow the Court's order. 5. That Defendant be advised that continued failure to abide by Judgment may be grounds for modification. 6. That Law Enforcement be directed to ensure compliance with this contempt order. 7. Such other and further relief deemed just and reasonable by the Court."

         [¶ 4] Following a hearing, the district court found Nolan in contempt for frustrating parenting time and communication between Upton and the child, failing to reimburse Upton for travel expenses, and failing to properly communicate with Upton. The court declared that "communication between the parties is not restricted to the OFW [Our Family Wizard] site." The court ordered Nolan to reimburse Upton for his share of travel expenses and to pay $1, 000 for her attorney fees.

         II

         [¶ 5] Nolan argues the district court erred in amending the communication provisions of the Maryland court's 2016 order.

         [¶ 6] Most of the district court's decision is devoted to the parties' failure to effectively ...


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