962 N.W.2d 588
N.D.2021Background
- Nicholas Froehlich and Lucile Froehlich (now Lucile Boutilie) married in 2009 and have two minor children; divorce proceedings began in 2015.
- In March 2016, a stipulated divorce decree awarded Boutilie primary residential responsibility for both children.
- On September 7, 2018, the district court entered an amended judgment permitting Boutilie to relocate out-of-state with the children and modified parenting time.
- Boutilie filed a motion to modify the parenting plan on January 10, 2020 and later sought an interim (ex parte) order; after a hearing on August 6, 2020 the court entered an interim order on August 25, 2020 restricting Froehlich’s parenting time until further order.
- No final judgment has been entered on Boutilie’s underlying motion to modify the parenting plan.
- Froehlich appealed the September 7, 2018 amended judgment and the August 25, 2020 interim order; the Supreme Court dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal from the Sept. 7, 2018 amended divorce judgment is timely | Boutilie: appeal period elapsed; judgment final | Froehlich: court erred permitting relocation (appeals that judgment) | Appeal untimely under N.D.R.App.P. 4(a)(1); dismissed |
| Whether the Aug. 25, 2020 interim order restricting parenting time is appealable | Boutilie: order is interlocutory and not appealable | Froehlich: restrictions improper and should be reviewed now | Interim order is interlocutory (temporary), not a final appealable order; appeal lacks jurisdiction |
Key Cases Cited
- Sather v. Sather, 952 N.W.2d 98 (2020) (only final judgments and certain statutory orders are appealable)
- Presswood v. Runyan, 937 N.W.2d 279 (2020) (right to appeal is jurisdictional; court dismisses when lacking jurisdiction)
- Martinson v. Martinson, 783 N.W.2d 633 (2010) (interlocutory/interim orders are generally not appealable and may be revised before final judgment)
- Martodam v. Martodam, 940 N.W.2d 664 (2020) (interim parenting provisions are temporary and superseded by a final judgment)