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.
Ashley Rhodenbaugh appeals from certain district court orders
and a divorce judgment. We affirm.
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.
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.
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.
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.
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
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
As relevant to her argument, N.D.C.C. § 14-09-29(2)
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.
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 ...