971 N.W.2d 861
N.D.2022Background
- Katie and Joseph Schrodt married in 2018; one child (b. 2016). Joseph is a self-employed welder (Wolf Creek Welding); Katie is an equipment operator.
- Katie filed for divorce in October 2019; trial occurred January 26–27, 2021 after multiple attorney withdrawals by Joseph.
- Joseph’s third counsel moved to withdraw; the motion was granted 11 days before trial and Joseph requested a continuance the morning of trial, which the court denied.
- At trial the court awarded Katie primary residential responsibility, limited parenting time to Joseph (every other weekend, three weeks in summer, rotating holidays, geographic restrictions), and imputed income for child support calculation.
- The court adopted valuations submitted by Katie for several assets after finding Joseph failed to produce evidence and had credibility issues.
- The court awarded Katie $36,538 in attorney’s fees as a sanction for Joseph’s litigation misconduct (failure to follow orders, discovery noncompliance, removing the child in violation of a court order). Judgment affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Continuance after counsel withdrew | Katie argued trial should proceed; prejudice from delay and prior notice to Joseph supported denial | Joseph argued denial was abuse of discretion because he lacked counsel and had no opportunity to respond to counsel’s withdrawal under N.D.R.Ct. 3.2 | Denial affirmed: request was untimely, Joseph knew of withdrawal, court reasonably doubted a continuance would secure counsel; issue that he lacked opportunity under Rule 3.2 was not preserved on appeal |
| Valuation of tools, racecar, parts, vehicle | Katie presented values in her property list and testimony | Joseph argued court improperly accepted Katie’s values and said he would be best positioned to value them | Affirmed: court may accept one party’s valuations where other party presents no contrary evidence and court found Joseph noncompliant and not credible |
| Parenting time restrictions and geographic limits | Katie argued restrictions necessary for child’s best interests given Joseph’s conduct | Joseph claimed he posed no threat and restrictions unreasonably limited parent-child relationship | Affirmed: court considered best-interest factors, found moral fitness and willingness-to-facilitate factors favored Katie given past removal of child and negative behavior; restrictions supported by record |
| Child support: underemployment and income imputation | Katie (via Child Support calculations) argued imputation appropriate based on documented earnings and statewide averages | Joseph argued he was not underemployed, court should average 2019 and his projected 2020 income and use BLS figures | Affirmed: court found insufficient documentation of 2020 income, used 2019 tax return and state welder averages to presume underemployment and imputed income under guideline subsection yielding $970/month support |
| Attorney’s fees award | Katie sought fees caused by Joseph’s misconduct and compliance failures | Joseph argued court failed to consider Katie’s needs and his inability to pay | Affirmed: court awarded fees as a sanction under its inherent authority for litigation misconduct (not requiring need/ability findings); award was proportionate and supported by findings |
Key Cases Cited
- Cody v. Cody, 921 N.W.2d 679 (N.D. 2019) (issue preservation requirement on appeal)
- Lund v. Lund, 795 N.W.2d 318 (N.D. 2011) (trial court discretion over continuances)
- Lee v. Lee, 927 N.W.2d 104 (N.D. 2019) (standard for reversing valuation findings)
- Hitz v. Hitz, 746 N.W.2d 732 (N.D. 2008) (trial court credibility findings regarding property value)
- Eubanks v. Fisketjon, 962 N.W.2d 427 (N.D. 2021) (mixed standards of review for child support)
- Thompson v. Johnson, 926 N.W.2d 120 (N.D. 2019) (self-employment income and guideline averaging rules)
- McClure v. McClure, 667 N.W.2d 575 (N.D. 2003) (rule that greatest imputed income subdivision must be used)
- Brew v. Brew, 903 N.W.2d 72 (N.D. 2017) (attorney fees as sanction; need/ability not required if inherent-authority sanction)
- Heinle v. Heinle, 777 N.W.2d 590 (N.D. 2010) (factors for fee awards under N.D.C.C. § 14-05-23)