Votava v. Votava
865 N.W.2d 821
| N.D. | 2015Background
- Andrew and Kelly Votava divorced in 2009; Kelly awarded primary residential responsibility and Andrew liberal parenting time; a 2010 order set alternating weekends, one weeknight, and extended summer time for Andrew.
- In October 2014 Andrew moved for an order to show cause, alleging Kelly denied his scheduled parenting time on multiple September and October dates; a contempt hearing was set for December 11, 2014.
- At the contempt hearing the parties and their two children (ages 12 and 14) testified; the children stated they did not want to visit their father and described communications and pickups that sometimes did not occur.
- The district court denied Andrew’s contempt request, finding no willful, inexcusable violation by Kelly and determining it is nearly impossible to force older children to visit a parent.
- The district court also (without a motion to modify and without specific notice) ordered no "forced" weekday or weekend parenting time, discontinued extended holiday and summer parenting time, and allowed the children to agree or disagree to spend time with Andrew.
Issues
| Issue | Plaintiff's Argument (Votava) | Defendant's Argument (Votava) | Held |
|---|---|---|---|
| Whether district court abused discretion by denying contempt | Andrew: Kelly willfully denied court-ordered parenting time and should be held in contempt | Kelly: She did not willfully or intentionally prevent visits; older children refused to go | Court: No abuse of discretion; contempt denial affirmed (no willful, inexcusable violation) |
| Whether district court could modify parenting time sua sponte at contempt hearing | Andrew: Court improperly eliminated his ordered parenting time without a motion or notice; deprived him of opportunity to present evidence | Kelly: (implicit) modification was within court’s discretion to protect children; children’s wishes relevant | Court: Modification exceeded scope of contempt proceeding and lacked notice; reversed as to modification |
| Proper role of children’s wishes in modification/enforcement | Andrew: Children’s wishes cannot solely determine visitation outcomes | Kelly/children: Their expressed wishes demonstrate impossibility of forcing visitation | Court: Children’s wishes are a factor but cannot alone justify modification; court erred to rely solely on them without procedure |
| Burden to prove remedial contempt under N.D.C.C. ch. 27-10 | Andrew: He met burden to show contempt | Kelly: Burden not met; no clear and satisfactory evidence of willful disobedience | Court: Moving party must show willful, inexcusable intent; record did not satisfy burden; contempt denial upheld |
Key Cases Cited
- Rath v. Rath, 852 N.W.2d 377 (N.D. 2014) (standard for contempt review and parenting-time modification jurisdiction)
- Lind v. Lind, 844 N.W.2d 907 (N.D. 2014) (burden and standards for contempt; children’s wishes and parental-alienation considerations)
- Prchal v. Prchal, 795 N.W.2d 693 (N.D. 2011) (material change in circumstances and best-interests standard for modifying parenting time)
- Hoverson v. Hoverson, 859 N.W.2d 390 (N.D. 2015) (continuing jurisdiction to modify parenting time)
- Loll v. Loll, 561 N.W.2d 625 (N.D. 1997) (children’s wishes are a factor but cannot be sole basis for visitation modification)
- Milligan v. Milligan, 149 So. 3d 623 (Ala. Civ. App. 2014) (caution against allowing teenage children alone to determine visitation)