Peterson v. Schulz
2017 ND 155
| N.D. | 2017Background
- Peterson (primary residential parent) and Schulz (parenting time) have one child; prior judgment required compliance with N.D.C.C. § 14-09-07 before moving a child out of state.
- Peterson sought to relocate the child to New Mexico in August 2016 for school; she had earlier sought Schulz’s consent via email and a proposed stipulation.
- Schulz served a letter refusing consent and moved for an order to show cause, asking the court to order the child’s immediate return and for attorneys fees.
- The district court issued an order to show cause and ordered Peterson to return the child by August 15, 2016 without first conducting an emergency hearing.
- After a hearing, the court found Peterson in civil contempt for moving the child out of state without Schulz’s consent and awarded Schulz $1,610 in attorneys fees.
- Peterson appealed, arguing (1) the order to show cause was not appealable and procedurally improper because no hearing preceded the return order, (2) contempt was not willfully proven, and (3) the attorneys-fee sanction was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability of order to show cause | Peterson appealed both the order to show cause and contempt order | Schulz argued the order to show cause is not appealable and should be dismissed | Court held contempt order is final and appealable; order to show cause reviewable on appeal from final order |
| Procedural propriety of ex parte return order | Court erred by ordering immediate return without allowing response/hearing; violated rule/statute | Court issued interim relief but failed to hold emergency hearing as required | Court found the interim return order did not comply with Rule 8.2(a) and statutory notice/hearing requirements, but no remedy warranted given circumstances |
| Sufficiency of contempt finding (willfulness) | Peterson claimed she reasonably believed Schulz had consented; no willful disobedience proved | Schulz showed he notified Peterson he did not consent before she moved | Court held evidence showed Peterson knew she lacked consent before moving and did not abuse discretion in finding contempt |
| Award of attorneys fees as remedial sanction | Peterson argued fees improper absent willful/inexcusable contempt | Schulz sought fees as compensation for expenses caused by contempt | Court affirmed fee award under remedial sanction authority; not an abuse of discretion |
Key Cases Cited
- Jordet v. Jordet, 861 N.W.2d 154 (appealability principles for orders)
- Tibbetts v. Dornheim, 681 N.W.2d 798 (intermediate nonfinal orders reviewable on appeal from final judgment)
- Nuveen v. Nuveen, 820 N.W.2d 726 (contempt standard and abuse-of-discretion review)
- Dieterle v. Dieterle, 875 N.W.2d 479 (order to show cause as notice; clear-and-satisfactory proof requirement in contempt)
- Peterson v. Peterson, 883 N.W.2d 449 (attorneys fees as part of remedial contempt sanctions)