919 N.W.2d 181
N.D.2018Background
- Upton and Nolan, both USAF members, divorced in Maryland (2010); Nolan had primary physical custody and the parenting plan required equal sharing of travel expenses when living >50 miles apart.
- A 2016 Maryland order prescribed scheduled phone/Skype contact and required "all communication... continue through Our Family Wizard (OFW)" except emergencies and the scheduled calls.
- In 2017 Upton (stationed in Kyrgyzstan) registered the Maryland orders in North Dakota and moved to hold Nolan in contempt for frustrating parenting time and communication and for failing to reimburse travel costs.
- The North Dakota district court found Nolan in contempt, declared communication was not restricted to OFW (effectively amending the Maryland order), ordered Nolan to reimburse half the child’s travel costs for 2015–2017, and awarded Upton $1,000 in attorney fees.
- On appeal, the North Dakota Supreme Court reviewed whether the district court improperly modified the Maryland order, whether ordering reimbursement without adequate notice violated due process, whether the contempt finding and attorney-fee award were erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court could modify the 2016 Maryland communication order during a contempt proceeding | Upton sought contempt relief and asked that continued noncompliance could be grounds for modification; court should clarify to reduce conflict | Nolan argued the district court lacked authority to amend the Maryland order in a contempt hearing without notice | Court: Error — district court improperly modified the Maryland order; amendment was a substantive modification, not a permissible clarification, without adequate notice. |
| Whether ordering Nolan to reimburse unpaid parenting-travel expenses was proper remedial contempt relief | Upton argued Nolan willfully failed to pay his share and the court could order compensation as a remedial sanction | Nolan argued he lacked adequate notice that reimbursement was sought as a sanction; State Department payment belief was relevant | Court: Error — ordering reimbursement was improper because Upton did not fairly apprise Nolan that payment of past travel expenses was being sought as a contempt sanction (no implied consent). |
| Whether the district court abused discretion in finding Nolan in contempt for obstructing communication and parenting time | Upton argued Nolan failed to timely check OFW, frustrated passport updates and parenting time, and impeded communication | Nolan disputed willful violation; raised due process and notice defenses | Court: Affirmed — district court did not abuse its discretion; sufficient evidence Nolan violated provisions and frustrated parenting time and communication. |
| Whether attorney fees should be awarded to Upton for contempt proceedings | Upton sought $1,500 in fees as compensation for costs caused by contempt | Nolan argued fee award was unwarranted or excessive | Court: Affirmed — district court acted within its discretion in awarding $1,000 in attorney fees. |
Key Cases Cited
- Rath v. Rath, 852 N.W.2d 377 (N.D. 2014) (district court erred amending divorce judgment in contempt proceeding without notice)
- Orvedal v. Orvedal, 669 N.W.2d 89 (N.D. 2003) (clarification of a judgment is permissible when decree is vague or ambiguous)
- Estate of Cashmore, 836 N.W.2d 427 (N.D. 2013) (notice and hearing required for remedial contempt sanctions)
- Mertz v. Mertz, 858 N.W.2d 292 (N.D. 2015) (issues not pleaded may be tried by implied consent under Rule 15(b) but consent cannot be implied from evidence relevant to pleaded issues)
- Booen v. Appel, 899 N.W.2d 648 (N.D. 2017) (district court has broad discretion on contempt; abuse-of-discretion standard of review)
- Sall v. Sall, 804 N.W.2d 378 (N.D. 2011) (clear-and-satisfactory proof required for contempt)