Eric N. Smith, Plaintiff and Appellant
Emily R. Erickson, Defendant and State of North Dakota, Statutory Real Party in Interest
from the District Court of Cass County, East Central Judicial
District, the Honorable Wade L. Webb, Judge.
N. Smith, plaintiff and appellant.
1] Eric Smith appeals from district court orders and judgment
related to child custody, dismissal of motions for contempt
and the court finding him a vexatious litigant. We affirm,
concluding the district court did not err in its orders and
judgment regarding parenting responsibility, contempt and
finding Smith a vexatious litigant.
2] Smith and Erickson are the biological parents of a child
born in 2014. On November 18, 2015, Smith commenced an action
to determine primary residential responsibility,
decision-making authority and child support. The first
judgment was entered on January 8, 2016. Smith has
represented himself since the district court entered the
initial order. From January 2016 to date, over four-hundred
docket entries appear, including seven motions for contempt
by Smith against Erickson or her attorney, two requests for
review by the district court, and several letters and
communications from Smith to the referees or judges assigned
to the matter. On January 5, 2018, a referee issued findings
of fact, conclusions of law and an order for amended judgment
granting Erickson primary residential responsibility and
decision-making authority over the child. Smith requested
review by a district court judge. On January 26, 2018, the
district court adopted the referee's findings and order.
3] On February 28, 2018, the district court found Smith in
contempt for non-payment of child support and issued an order
with amended findings. On March 29, 2018, Smith filed a
notice of appeal from the "final judgment issued on
March 16, 2018." No orders or judgments exist for that
date. On April 23, 2018, the district court issued an order
finding Smith a vexatious litigant and prohibiting him from
filing new documents in the case without leave of court.
Smith filed three additional notices of appeal, in total
citing to seven separate orders and judgments.
4] Smith submitted a one-page brief in support of the
multiple notices of appeal. Smith did not file transcripts.
This Court held oral argument on November 21, 2018, and Smith
did not appear.
5] Smith argues the district court erred finding him in
contempt for failing to pay child support.
6] In a contempt proceeding a complainant must clearly and
satisfactorily show the contemnor willfully and inexcusably
violated a court order. Montgomery v. Montgomery,
2003 ND 135, ¶ 18, 667 N.W.2d 611. The district court
has broad discretion whether to hold a person in contempt,
and our review is limited to whether the court abused its
discretion. Peterson v. Peterson, 2016 ND 157,
¶ 6, 883 N.W.2d 449. An abuse of discretion occurs when
the district court acts in an arbitrary, unreasonable, or
unconscionable manner or when it misinterprets or misapplies
the law. Montgomery, at ¶ 18. An inability to
comply with an order is a defense to contempt proceedings,
but the alleged contemnor has the burden of proof.
Peterson, at ¶ 6.
7] Smith claims he was unable to pay monthly child support of
$238.00 and only missed one payment. Smith argues that
evidence at the hearing revealed he was unable, rather than
unwilling, to pay support due to a lack of employment. Smith
introduced evidence of enrollment in Job Service programs,
but failed to show he is not capable of full-time employment
and paying child support. Submissions from the regional child
support unit show Smith was in arrears for twenty months and
owed more than four thousand dollars.
8] The record supports the district court's finding Smith
was capable of full-time employment and paying child support
but failed to do so. Without a transcript this Court is
unable to review more than the hearing exhibits and the
district court's findings and order. Those documents
sufficiently indicate the district court did not act in an
arbitrary, unreasonable or unconscionable manner, and did not
misinterpret or ...