Votava v. Votava, 2015 ND 171

Andrew and Kelly Votava divorced in 2009; Kelly was awarded primary residential responsibility and Andrew reasonable/liberal parenting time, later clarified to include every-other-weekend, one weeknight, and extended summer time.
Andrew filed an order to show cause in October 2014 alleging Kelly denied scheduled parenting time on multiple September and October dates.
A contempt hearing was held December 11, 2014; the children (ages 12 and 14) and both parents testified; Kelly was unrepresented and requested the children be allowed to testify.
The district court denied Andrew's contempt request on December 16, 2014, finding no willful, inexcusable violation by Kelly and concluding the children’s refusal made "forced" visits impractical.
The court also, without a motion or prior notice, modified the parenting plan: discontinued extended holiday/summer parenting time and ordered there be no "forced" weekday or weekend parenting time; Andrew was permitted to request visitation but the children could accept or refuse.
Andrew appealed, arguing (1) the denial of contempt was an abuse of discretion, and (2) the court improperly modified parenting time without notice or a motion and without opportunity to present evidence.

Issue	Plaintiff's Argument (Andrew)	Defendant's Argument (Kelly)	Held
Whether district court abused its discretion by denying contempt	Kelly willfully and inexcusably denied ordered parenting time and should be held in contempt	Kelly did not willfully prevent visits; children refused and mother encouraged visits	Affirmed: no abuse of discretion; record supports finding no willful violation
Whether court could modify parenting time sua sponte at contempt hearing	Modification eliminated his ordered parenting time without a motion, notice, or chance to present evidence	Court may exercise continuing jurisdiction and consider children's wishes and welfare	Reversed in part: court exceeded scope of contempt proceeding by modifying plan without notice/motion; reversal of modification
Whether children’s refusal can control visitation outcomes	Andrew: children’s refusals do not relieve Kelly of obligation; he should have parenting time enforced	Kelly: older children cannot be forced and she encouraged visitation; older children may refuse	Court: children’s wishes are relevant but cannot be sole basis; but here refusal supported contempt denial; modification without due process improper
Due process requirement for modifying parenting time	Andrew: lacked notice and fair opportunity to litigate modification	Kelly: asserted best interests/children's maturity justify change	Held: due process requires notice and opportunity to be heard; court failed to provide that before modifying plan

Rath v. Rath, 2014 ND 171, 852 N.W.2d 377 (discussing contempt standard and parenting-time modification jurisdiction)
Lind v. Lind, 2014 ND 70, 844 N.W.2d 907 (party seeking contempt bears burden; child wishes are a factor but not sole basis)
Prchal v. Prchal, 2011 ND 62, 795 N.W.2d 693 (requirement of material change in circumstances to modify parenting time)
Hoverson v. Hoverson, 2015 ND 38, 859 N.W.2d 390 (continuing jurisdiction to modify parenting time)
Loll v. Loll, 1997 ND 51, 561 N.W.2d 625 (children's wishes and parental alienation as factors in best-interest analysis)
Milligan v. Milligan, 149 So. 3d 623 (juvenile refusal cannot alone determine visitation entitlement)