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Rhodenbaugh v. Rhodenbaugh

Supreme Court of North Dakota

April 11, 2019

Jay Douglas Rhodenbaugh, Plaintiff and Appellee
v.
Ashley Lee Rhodenbaugh, Defendant and Appellant

          Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Bradley A. Cruff, Judge.

          Jerilynn B. Adams, Fargo, N.D., for plaintiff and appellee.

          Kristin A. Overboe, Fargo, N.D., for defendant and appellant.

          OPINION

          TUFTE, JUSTICE.

         [¶1] Ashley Rhodenbaugh appeals from certain district court orders and a divorce judgment. We affirm.

         I

         [¶2] Ashley and Jay Rhodenbaugh were married in 2010 and have two minor children together. During the marriage, Jay Rhodenbaugh farmed, and Ashley Rhodenbaugh stayed at home and cared for the children. In May 2016, Jay Rhodenbaugh commenced this divorce action and the parties separated.

         [¶3] In October 2016, the district court issued an interim order granting the parties joint decision-making responsibilities for the children, awarding Ashley Rhodenbaugh primary residential responsibility and Jay Rhodenbaugh unsupervised parenting time. At the time of the interim order, she was living in the marital home with the minor children, and he was living in a home he rented from his sister. Effective in December 2016, the court ordered Jay Rhodenbaugh to pay her interim child support of $1, 159 per month and spousal support of $500 per month. The court also ordered him to pay certain additional household expenses until his support obligations commenced in December 2016, and thereafter the parties were responsible for their own household expenses and Ashley Rhodenbaugh was to be responsible for their minor children's expenses. In October 2016, the court entered an order denying her request to waive filing fees.

         [¶4] In March 2017, Jay Rhodenbaugh moved the district court to compel discovery, to amend the interim order, and to hold Ashley Rhodenbaugh in contempt for violations of the interim order, including her failure to maintain the marital home. She responded and made a counter-motion. In April 2017, the court entered an order finding her in contempt, terminating her interim spousal support under the October 2016 order, compelling discovery, and requiring her to obtain court permission for further filings until she paid the filing fee for her answer.

         [¶5] Before trial, the parties stipulated on primary residential responsibility and parenting time. The district court held a trial in July 2017 on remaining issues, including child support, spousal support, and property and debt distribution. In September 2017, the court issued a memorandum opinion, and in October 2017, Ashley Rhodenbaugh moved the court to reopen the record and for various other relief. In November 2017, the court denied her motion and awarded Jay Rhodenbaugh $1, 000 in attorney's fees to be deducted from a cash payment he was to make to her. A final judgment was entered in November 2017, granting the parties joint decision-making responsibilities for the parties' children, awarding Ashley Rhodenbaugh primary residential responsibility for the children, granting Jay Rhodenbaugh parenting time, ordering him to pay her child support of $1, 245 per month beginning in December 2017, denying her request for spousal support, and dividing the parties' marital property and debts.

         II

         [¶6] Although a final divorce judgment has been entered, Ashley Rhodenbaugh raises several issues concerning the district court's interim or interlocutory orders. We have said that "[g]enerally, interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of that judgment." Tibbetts v. Dornheim, 2004 ND 129, ¶ 11, 681 N.W.2d 798. Under N.D.R.App.P. 35(a)(2), "[u]pon an appeal from a judgment, the court may review any intermediate order or ruling which involves the merits and affects the judgment appearing upon the record."

         A

         [¶7] Ashley Rhodenbaugh argues the district court's interim order for parenting time improperly applied the statutory presumption for evaluating domestic violence under N.D.C.C. §§ 14-09-29(2) and 14-09-06.2(1)(j), which, respectively, require supervised parenting time and create a rebuttable presumption.

         [¶8] As relevant to her argument, N.D.C.C. § 14-09-29(2) provides:

If the court finds that a parent has perpetrated domestic violence and that parent does not have residential responsibility, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, the court shall allow only supervised parenting time with that parent unless there is a showing by clear and convincing evidence that unsupervised parenting time would not endanger the child's physical or emotional health.

         (Emphasis added.) Further, N.D.C.C. § 14-09-06.2(1)(j) of the best-interest factors, states in part:

In determining parental rights and responsibilities, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded residential responsibility for the child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent have residential responsibility. The court shall ...

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