Rath v. Rath
2013 ND 243
| N.D. | 2013Background
- Kayla and Mark Rath divorced Jan 2013; Kayla awarded primary residential responsibility for two children; Mark awarded supervised parenting time pending treatment and evaluation and subject to a no-contact order during divorce proceedings.
- Divorce judgment set telephone contact rules, joint decision-making for education with mediation requirement for disputes, and prohibited temporary removal of children from the state without agreement or court authorization.
- Mark filed a March 2013 motion to show cause alleging Kayla violated multiple provisions of the judgment (phone interference, unilateral school enrollment, viewing his public Facebook page, and taking the children out of state without consent).
- The district court held a hearing, received affidavits from both parties, and denied the contempt motion, finding no intentional disobedience under N.D.C.C. § 27-10-01.1.
- During the hearing Mark requested the judge recuse himself; the court denied recusal, concluding no specific factual basis for alleged bias; Mark appealed both denials.
Issues
| Issue | Plaintiff's Argument (Kayla) | Defendant's Argument (Mark) | Held |
|---|---|---|---|
| Whether Kayla committed contempt by terminating children’s phone calls | Calls were ended to protect children from inappropriate subjects and emotional harm | Kayla interfered with his entitled telephone contact and improperly adjudicated violations by ending calls | Court: no contempt; termination supported by evidence of children’s discomfort and not intentional disobedience |
| Whether Kayla committed contempt by enrolling children in same school without Mark’s consent | Enrollment proceeded after Mark refused to engage in dispute-resolution steps required by judgment | Enrollment violated joint decision-making provision and mediation requirement | Court: no contempt; Mark failed to first attempt required dispute-resolution and court acted within discretion |
| Whether Kayla committed contempt by viewing Mark’s public Facebook page | Viewing a public page for safety and threat assessment; no posting or harassment alleged | Viewing violated privacy or constituted improper contact | Court: no contempt; judgment contained no prohibition on viewing public social media |
| Whether Kayla committed contempt by taking children to Minnesota without consent | Kayla asserted she had Mark’s permission to travel | Mark denied permission; trip violated prohibition on temporary removal from state | Court: no contempt; even if permission lacking, technical violations don’t automatically require contempt; court interpreted provision (though appellate court disagreed as to ambiguity) |
| Whether the judge should have recused | Kayla/none (court acted impartially) | Mark contended judge’s adverse rulings showed lack of impartiality | Court: no recusal; adverse rulings alone do not establish bias and no specific factual basis shown |
Key Cases Cited
- Bachmeier v. Bachmeier, 2013 ND 76, 830 N.W.2d 546 (contempt review and abuse-of-discretion standard)
- Sall v. Sall, 2011 ND 202, 804 N.W.2d 378 (burden to clearly and satisfactorily prove contempt; willful intent required)
- Harger v. Harger, 2002 ND 76, 644 N.W.2d 182 (definition of contempt as intentional disobedience)
- Millang v. Hahn, 1998 ND 152, 582 N.W.2d 665 (abuse-of-discretion standard for contempt findings)
- Vande Hoven v. Vande Hoven, 399 N.W.2d 855 (private-party delegation of adjudicatory contempt powers disallowed)
- Gould v. Miller, 488 N.W.2d 42 (move to another state is a technical violation that does not, by itself, compel custody change)