974 N.W.2d 652
N.D.2022Background
- Kayla Jones and Mark Rath divorced in 2013; Rath has pursued numerous post-judgment filings and appeals over many years.
- In Sept. 2020 Rath sought to amend the judgment to expand parenting time and permit out-of-state travel; he moved in limine to exclude his child H.R. from testifying (motion denied).
- On Feb. 22, 2021 an evidentiary hearing was held (testimony from parties, H.R., and a social worker); the court denied oral closing arguments at the hearing but later allowed written closings; Rath filed motions for a new trial and for recusal.
- On Mar. 23, 2021 the district court entered a third amended judgment increasing Rath’s parenting time and denied his new-trial and recusal motions. A sequence of recusals and reassignments followed; the presiding judge (previously disqualified in 2018) later entered a May 7, 2021 order finding Rath a vexatious litigant and imposing pre-filing restrictions.
- The North Dakota Supreme Court affirmed the in limine/hearing/parenting-time rulings, vacated the May 2021 vexatious-litigant order because the presiding judge was disqualified and the court erred in denying Rath a timely change of judge, rejected Rath’s constitutional challenge to Admin. R. 58, and exercised Rule 58(7) authority to designate Rath a vexatious litigant and issue a proposed pre-filing order.
Issues
| Issue | Plaintiff's Argument (Jones) | Defendant's Argument (Rath) | Held |
|---|---|---|---|
| Admission of child H.R.'s testimony; motion in limine; denial of oral closing argument | Child’s testimony was admissible; court has discretion to manage hearing and may permit written closings | Child was improperly influenced; court abused discretion by denying oral closing and micromanaging the hearing | Court did not abuse its discretion on admission of testimony or on denying oral closing; allowing written closings cured any error (harmless) |
| Modification of parenting time and third amended judgment | Material change occurred and best interests supported increased/unsupervised and extended parenting time | Court failed to address all requested changes and did not explain denials | Court found material change and best interests supported the amendments; findings not clearly erroneous; denials of new trial and recusal affirmed |
| Demand for change of judge and referral of vexatious motion to presiding judge | Presiding judge authorized by Admin. R. 58 to consider vexatious motion | Demand for change of judge (filed April 11, 2021) was timely as to the new child-support proceeding; presiding judge had been previously disqualified and lacked authority here | District court erred in denying Rath’s timely demand for change of judge; referral to and order by the previously disqualified presiding judge was improper; May 2021 order vacated |
| Vexatious-litigant finding under N.D. Sup. Ct. Admin. R. 58 and constitutionality of the rule | Jones: Rath’s extensive, repetitive, and frivolous filings meet Rule 58 criteria; rule is constitutional | Rath: He is not vexatious; Rule 58 violates access-to-court, First Amendment, equal protection, overbreadth, and treats pro se litigants unfairly | Court concluded Rule 58 is constitutional, found Rath’s filings supported a vexatious-litigant determination, vacated the district court’s May 2021 order on procedural grounds, and exercised Rule 58(7) to issue its own proposed pre-filing order finding Rath vexatious |
Key Cases Cited
- Fuhrman v. Fuhrman, 254 N.W.2d 97 (N.D. 1977) (recognizing right to closing argument in civil nonjury cases)
- Isaacson v. Isaacson, 777 N.W.2d 886 (N.D. 2010) (discussing limits and waiver of closing-argument rights)
- Williams v. Williams, 962 N.W.2d 601 (N.D. 2021) (standard for modifying parenting time: material change and best interests)
- Smith v. Erickson, 923 N.W.2d 503 (N.D. 2019) (vexatious-litigant determinations and access-to-courts principles)
- Wald v. Hovey, 969 N.W.2d 163 (N.D. 2022) (construction and timing of statutory demand for change of judge)
- Wolfe v. George, 486 F.3d 1120 (9th Cir. 2007) (upholding a vexatious-litigant statute against vagueness, overbreadth, and due-process challenges)