Martodam v. Martodam, 940 N.W.2d 664

Background

Jason and Crystal Martodam divorced in 2015 by stipulation providing equal (50/50) residential responsibility for four minor children.
In April 2018 Crystal moved to modify residential responsibility to award her primary custody, obtain an interim order, and change venue; venue was changed and Crystal received an interim order awarding her primary residential responsibility and setting child support.
Jason filed an ex parte motion seeking temporary primary residential responsibility, which the court denied; he later moved for default and other relief which were denied.
After an August 2018 evidentiary hearing the district court amended the judgment to give Crystal primary residential responsibility and reasonable parenting time to Jason; the judgment also included language allowing the children (and eventually the younger two at age 14) to decide whether to attend Jason’s parenting time.
Jason appealed and, while that appeal was pending, filed motions for contempt and to amend the amended judgment; the district court denied those motions in March 2019 and this denial was appealed.
The North Dakota Supreme Court affirmed the amended judgment as modified (striking the provisions that made parenting time contingent on the children’s decision) and affirmed the denial of contempt and motion to amend.

Issues

Issue	Plaintiff's Argument (Crystal)	Defendant's Argument (Jason)	Held
Whether the interim order granting Crystal temporary primary residential responsibility was erroneous	Interim order was temporary and did not control final outcome; no prejudice	Interim order should not have been entered; his ex parte motion should have been heard instead	Court found no exceptional circumstances for ex parte relief; any interim-order issues did not prejudice Jason and were subsumed into final judgment
Whether the court erred in awarding Crystal primary residential responsibility at trial	50/50 was impractical; evidence showed children closer to Crystal and best-interest factors favored her	Court improperly weighed evidence, excluded exhibits, and relied on conflicting child testimony	Findings supported by record; court did not clearly err or abuse discretion; primary residential responsibility to Crystal affirmed
Whether the court may make parenting time contingent on the children’s choice	N/A (Crystal argued court properly considered children’s wishes as a factor)	Court improperly allowed children to control whether parenting time occurs	Court held it was error to vest children with control over Jason’s parenting time and struck that language from the amended judgment
Whether the court abused discretion by not appointing a parenting investigator or ordering counseling	Investigator/counseling not required; appointment is discretionary	Court should have ordered an investigation/counseling to evaluate children’s preferences/needs	Court did not abuse discretion; appointment and counseling are discretionary and not required here
Whether child support was miscalculated using Jason’s 2016 income	Prior calculation remained valid; Jason’s testimony did not credibly prove lower current income	Income used ($28,800) overstated his present earnings; support should be lowered	Court’s income finding was a permissible view of the evidence and not clearly erroneous; affirmed (obligor may move for modification with proof)
Whether denial of contempt and motion to amend was an abuse of discretion	Crystal not in contempt; no material change since amended judgment	Court ignored evidence of repeated denial of his parenting time and exhibits	Court did not abuse its broad discretion; technical or nonmaterial violations do not require contempt findings

Key Cases Cited

Rhodenbaugh v. Rhodenbaugh, 925 N.W.2d 742 (interlocutory parenting orders merge into final judgment)
Dickson v. Dickson, 912 N.W.2d 321 (statute governs modification when prior award was by stipulation)
Zuo v. Wang, 932 N.W.2d 360 (limited appellate review of residential-responsibility decisions)
Vandal v. Leno, 843 N.W.2d 313 (abuse-of-discretion standard for evidentiary rulings)
Sisk v. Sisk, 711 N.W.2d 203 (court may not delegate visitation scheduling to children)
Prchal v. Prchal, 795 N.W.2d 693 (appointment of parenting coordinator/counseling committed to court's discretion)
Lind v. Lind, 844 N.W.2d 907 (appellate deference when court chooses between permissible views of evidence)
Rath v. Rath, 895 N.W.2d 306 (district court’s broad discretion in contempt matters)
Bertsch v. Bertsch, 710 N.W.2d 113 (definition of clearly erroneous finding)