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Smith v. Erickson

Supreme Court of North Dakota

February 21, 2019

Eric N. Smith, Plaintiff and Appellant
v.
Emily R. Erickson, Defendant and State of North Dakota, Statutory Real Party in Interest

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

          Eric N. Smith, plaintiff and appellant.

          OPINION

          CROTHERS, JUSTICE

         [¶ 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.

         I

         [¶ 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.

         II

         [¶ 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 ...


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