Justia Family Law Opinion SummariesArticles Posted in North Dakota Supreme Court
Lee v. Lee
Bruce Wayne Lee appealed a final judgment and decree of divorce from his marriage to Kimberly Lee. On appeal, Bruce argued the district court erred in its valuation of marital assets and the allocation of the marital estate. He also contended he was prejudiced by the district court’s six-month delay in issuing a final judgment. Finding no abuse of discretion or other reversible error, the North Dakota Supreme Court affirmed. View "Lee v. Lee" on Justia Law
Tschider v. Tschider, et al.
Stacy Tschider appealed and Melanie Tschider, also known as Su Lin Tschider, cross-appealed a judgment that granted joint parenting responsibility of their minor child and awarded child support, distributed the parties’ property and debts, and awarded spousal support to Melanie. Shortly before their marriage, both parties signed a prenuptial agreement in December 2002. The parties began dating in 1995 and began living together in 1996. At the time of their marriage, Melanie had a net worth of less than $50,000 and annual income of $55,548. Stacy had a net worth of $1,783,500 and an annual income of about $245,000. He had ownership interests in six businesses with a book value of about $2.9 million and five parcels of investment real estate, resulting in substantial annual income. In August 2015, Melanie filed for divorce. The North Dakota Supreme Court concluded the district court erred in holding a provision of the parties’ prenuptial agreement was unconscionable and unenforceable and erred in awarding spousal support. However, the Court concluded the court’s property distribution was not clearly erroneous and the court did not abuse its discretion in denying Melanie's request for attorney fees. The matter was remanded for further proceedings. View "Tschider v. Tschider, et al." on Justia Law
Thompson, et al. v. Johnson
Heather Thompson appeals from a district court judgment modifying Christopher Johnson’s child support obligation and ordering her to repay overpayments of child support. In November 2015, Thompson was awarded primary residential responsibility of the minor child and Johnson was ordered to pay $314 a month in child support. Thompson successfully moved the district court to vacate the judgment, and a new trial was held in May 2017. Following the new trial, the court noted that “Johnson had $4,003,495 in assets, overall equity of $1,224,533, and crops in storage of $691,895.” Because Johnson’s significant assets were not consistent with the average losses reflected in his tax returns, the court determined Johnson’s tax returns did not accurately reflect his income for child support purposes. Using Johnson’s personal expenses and monthly budget to determine Johnson’s in-kind income, the court found Johnson had a gross annual income of $171,560.66 and a net annual income of $113,916. In September 2017, the court entered an amended judgment requiring Johnson to pay child support in the amount of $1,280 per month and $38,989 in back child support. Johnson appealed. On appeal, the North Dakota Supreme Court found the district court “failed to impute Johnson’s income or adequately explain how using his personal expenses and monthly budget satisfied the child support guidelines . . . [and] erred as a matter of law by failing to calculate Johnson’s child support obligation according to the child support guidelines.” The matter was then remanded for a recalculation of child support. Based upon its determination that Johnson was underemployed, the court imputed Johnson’s income pursuant to N.D. Admin. Code 75-02-04.1-07. The district court denied Thompson’s motion to vacate the judgment and declined to reconsider its decision. Thompson filed an appeal before the court ruled on the potential overpayment of child support. Rather than explain its findings on remand, the Supreme Court found the district court jumped directly to the conclusion Johnson was underemployed. The district court's judgment was again reversed and the matter remanded for recalculation of the child support obligation. View "Thompson, et al. v. Johnson" on Justia Law
Interest of K.S.D.
H.L.K. (now known as H.G.), appealed an order denying her motion to withdraw her consent to terminate her parental rights to her children K.S.D. and J.S.D. The juvenile court found the mother executed consent to the termination of her parental rights, she was questioned about the consent by the court, the court acknowledged her consent, and she did not participate in subsequent proceedings. The court also found proof beyond a reasonable doubt established the father’s parental rights should be terminated, the children were deprived, the deprivation was likely to continue, the children were suffering or would probably suffer harm, the children had been in foster care for at least 450 of the previous 660 nights, and active efforts were made to prevent the breakup of the family. The mother argued withdrawing her consent was in the children’s best interests, the children had not been adopted, and they should be returned to her custody. The State opposed the motion. The court found the mother consented to termination of her parental rights and she failed to establish her consent was statutorily deficient. The court concluded the mother’s motion was untimely under N.D.C.C. 27-20-45(6) because she did not move to withdraw her consent within thirty days after the order terminating her parental rights was issued. The court also concluded the mother failed to establish her consent was obtained by fraud or coercion. The North Dakota Supreme Court concurred with the juvenile court's conclusion H.G.’s motion to withdraw her consent was untimely under N.D.C.C. 27-20-45(6). View "Interest of K.S.D." on Justia Law
Rhodenbaugh v. Rhodenbaugh
Ashley and Jay Rhodenbaugh were married in 2010 and had two minor children together. During the marriage, Jay farmed, and Ashley stayed at home and cared for the children. In May 2016, Jay filed for divorce, and the parties separated. In October 2016, the district court issued an interim order granting the parties joint decision-making responsibilities for the children, awarding Ashley primary residential responsibility and Jay unsupervised parenting time. At the time of the interim order, she was living in the marital home with the minor children, and he was living in a home he rented from his sister. Effective in December 2016, the court ordered Jay to pay Ashley interim child support of $1,159 per month and spousal support of $500 per month. The court also ordered him to pay certain additional household expenses until his support obligations commenced in December 2016, and thereafter the parties were responsible for their own household expenses and Ashley was to be responsible for their minor children’s expenses. A final judgment was entered in November 2017. Ashley appealed certain district court orders and the divorce judgment. On this record, the North Dakota Supreme Court concluded the district court did not abuse its discretion in denying Ashley's motion to reopen the record and for other relief, and did not abuse its discretion in awarding Jay $1,000 in attorney’s fees. View "Rhodenbaugh v. Rhodenbaugh" on Justia Law
Orwig v. Orwig
Mary Orwig appealed three district court orders finding her in contempt of court and an order denying her motion to vacate the contempt orders. The charges stemmed from divorce and business proceedings. In September 2016, Steven Orwig sued Mary for divorce. The Orwigs co-owned Orwig’s Livestock Supplements, Inc.; Orwigs Tubs International, Inc.; and MVP Transport, Inc. (“Corporations”). Before the divorce lawsuit, the Corporations sued Mary, alleging she made unauthorized transactions on the Corporations’ behalf, including opening credit card accounts in the Corporations’ names and using them for personal use. The Corporations also alleged Mary wrongfully detained and controlled their property. The Corporations requested the district court to enjoin Mary from transacting business on behalf of the Corporations and to remove her as an officer and director of the Corporations. In December 2016, the court ordered her to return corporate property in her possession. In February 2017, the Corporations moved for contempt against Mary, alleging she violated the preliminary injunction and order to return corporate property and continued taking actions adverse to the Corporations. In May 2017, Steven moved for an order to sell the parties’ Arizona real property, claiming its sale would resolve the parties’ financial problems. Mary opposed the sale, claiming that since 2014 she spent a majority of her time residing on the property. After a June 2017 hearing on the parties’ motions, the district court issued a July 31, 2017, order finding Mary in contempt of the December 2016 order to return corporate property. The court ordered her to return certain corporate property, including credit card and tax information. The court also ordered the sale of the Arizona property. At a September 28, 2017, hearing, the district court found Mary in contempt for impeding the sale of the Arizona property. The October 9, 2017, order required Mary to allow the parties’ realtor on the property within two weeks. The order also stated another hearing would be scheduled within three weeks to address Mary's compliance with the court’s earlier orders. The district court found Mary in contempt of the October 9, 2017, order at a October 19, 2017, hearing. Steven's attorney informed the court Mary continued to deny access to the Arizona realtor. The court issued its contempt order on November 13, 2017, ordering Mary to pay the other parties’ attorney’s fees and stated Mary “shall be imprisoned for a period of six (6) months, or until compliance with the aforementioned Order is achieved, whichever is shorter.” After review, the North Dakota Supreme Court concluded Mary failed to timely appeal two of the contempt orders, and dismissed her appeal of those orders. The Court reversed and remanded the remaining contempt order. The Court affirmed the order denying the motion to vacate. View "Orwig v. Orwig" on Justia Law
Purdy v. Purdy, et al.
Daren Purdy appealed an amended judgment after the district court denied his motion to modify primary residential responsibility for his two minor children and granted his motion to modify parenting time. He argued the district court erred in awarding Jessica Purdy primary residential responsibility of the children. The North Dakota Supreme Court affirmed the amended judgment, concluding the district court did not clearly err in denying his motion to modify primary residential responsibility. View "Purdy v. Purdy, et al." on Justia Law
Bindas v. Bindas
Mari Bindas appealed an order terminating Michael Bindas’ spousal support obligation. The parties filed a marital termination agreement, agreeing to spousal support and distribution of the marital estate. The parties agreed Michael Bindas would pay spousal support to Mari Bindas in the amount of $3,200 per month until she was 62 years old. The parties further agreed the spousal support would continue until the death of either party, Mari Bindas remarried, or the payment on February 1, 2023, had been made. The district court approved and adopted the parties’ termination agreement in its order. In November 2009, a judgment was entered incorporating the parties’ entire agreement. In January 2018, Michael moved to modify his spousal support obligation, arguing the spousal support should be terminated under N.D.C.C. 14-05- 24.1(3) because Mari had been habitually cohabiting with her boyfriend for more than one year. The North Dakota Supreme Court determined the parties’ written agreement satisfied the “[u]nless otherwise agreed to by the parties in writing” exception to N.D.C.C. 14-05-24.1(3); the statute did not require termination of Mari’s spousal support upon a finding of cohabitation. Therefore, the Supreme Court concluded the district court erred in granting Michael Bindas’ motion to modify spousal support, and misapplied the law by concluding it was required to terminate the spousal support under N.D.C.C. 14-05-24.1(3). View "Bindas v. Bindas" on Justia Law
Smith v. Erickson
Eric Smith appealed district court orders and judgment related to child custody, dismissal of motions for contempt and the court finding him a vexatious litigant. In November 2015, Smith commenced an action to determine primary residential responsibility, decision-making authority and child support. The first judgment was entered on January 8, 2016. Smith has represented himself since the district court entered the initial order. From January 2016 to date, over four-hundred docket entries appeared, including seven motions for contempt by Smith against Emily Erickson or her attorney, two requests for review by the district court, and several letters and communications from Smith to the referees or judges assigned to the matter. On January 5, 2018, a referee issued findings of fact, conclusions of law and an order for amended judgment granting Erickson primary residential responsibility and decisionmaking authority over the child. Smith requested review by a district court judge. On February 28, 2018, the district court found Smith in contempt for nonpayment of child support and issued an order with amended findings. On March 29, 2018, Smith filed a notice of appeal from the “final judgment issued on March 16, 2018.” No orders or judgments exist for that date. On April 23, 2018, the district court issued an order finding Smith a vexatious litigant and prohibiting him from filing new documents in the case without leave of court. Smith filed three additional notices of appeal, in total citing to seven separate orders and judgments. Smith submitted a one-page brief in support of the multiple notices of appeal. Smith did not file transcripts. The North Dakota Supreme Court held oral argument on November 21, 2018, and Smith did not appear. The Supreme Court affirmed the district court’s orders and judgment regarding parenting responsibility, contempt and finding Smith a vexatious litigant. View "Smith v. Erickson" on Justia Law
Varty v. Varty
Kathleen Varty appeals from an amended divorce judgment, arguing the district court erred in reducing Thomas Varty's spousal support obligation. "The evidence supports the facts recited by the district court. The court did not misapply the law. Therefore, the court's findings are not clearly erroneous," and the North Dakota Supreme Court affirmed the amended judgment reducing Thomas Varty's spousal support obligation. View "Varty v. Varty" on Justia Law