Heather L. Upton, Plaintiff and Appellee
James W. Nolan, Defendant and Appellant
from the District Court of Ward County, North Central
Judicial District, the Honorable Richard L. Hagar, Judge.
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
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.
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
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
5] Nolan argues the district court erred in amending the
communication provisions of the Maryland court's 2016
6] Most of the district court's decision is devoted to
the parties' failure to effectively ...