Orwig v. Orwig , 2022 ND 29 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 29Steven Mark Orwig, Plaintiff, Appellee, and Cross-Appellant
v.
Mary Caroline Orwig, Defendant, Appellant, and Cross-Appellee
No. 20210140
Orwig’s Livestock Supplements, Inc.,
Orwig’s Tubs International Inc., and
MVP Transport, Inc., Plaintiffs
v.
Mary C. “Marcy” Orwig, Defendant, Third-Party Plaintiff,
Appellant, and Cross-Appellee
v.
Steven Orwig, Third-Party Defendant, Appellee,
and Cross-Appellant
No. 20210141
Appeal from the District Court of Dickey County, Southeast Judicial District,
the Honorable Cherie L. Clark, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Gregory W. Liebl (argued) and Andrew V. Younker (on brief), Fargo, ND, for
plaintiff, appellee, and cross-appellant, and third-party defendant, appellee,
and cross-appellant.
Jonathan T. Garaas, Fargo, ND, for defendant, appellant, and cross-appellee,
and defendant, third-party plaintiff, appellant, and cross-appellee.
Orwig v. Orwig
Nos. 20210140 & 20210141
Jensen, Chief Justice.
[¶1] Mary Orwig appeals from a district court order, finding her in contempt
and imposing remedial sanctions. She challenges whether the parties’ divorce
judgment is an order from which non-compliance can result in a finding of
contempt, the evidence supporting a finding of contempt, and the sanction as
an improper punitive sanction. Steven Orwig has cross-appealed from the
court’s Order Following Remand awarding Mary Orwig her attorney’s fees in
the divorce. We affirm.
I
[¶2] This Court has issued two previous opinions in these consolidated cases.
In Orwig v. Orwig, 2019 ND 78, ¶ 1, 924 N.W.2d 421 (“Orwig I”), we reversed
and remanded a contempt order and affirmed an order denying a motion to
vacate. In Orwig v. Orwig, 2021 ND 33, ¶¶ 1, 45, 50, 955 N.W.2d 34 (“Orwig
II”), we affirmed the divorce judgment distributing the parties’ property and
awarding spousal support but reversed and remanded an attorney’s fees award
to Mary Orwig.
[¶3] In Orwig II, 2021 ND 33, ¶ 45, we concluded the district court had abused
its discretion by awarding attorney’s fees without proper documentation
supporting the fees. We reversed and remanded, stating the court could allow
Mary Orwig to submit supporting documentation from which the court could
decide “the reasonableness or legitimacy of the requested fees.” Id. On remand,
the district court awarded Mary Orwig attorney’s fees of $105,000.
[¶4] Before our decision in Orwig II, Steven Orwig had also moved the district
court for a contempt order seeking to effectuate the exchange of the parties’
property that the court had awarded under the divorce judgment. He asserted
Mary Orwig had not complied with the February 2020 divorce judgment’s
property distribution provisions and provided evidence that she would not do
so without court intervention. Before responding to this motion, Mary Orwig
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appealed from the divorce judgment. She thereafter filed a special appearance
and response to the motion for contempt.
[¶5] After our decision in Orwig II, the district court held a hearing on Steven
Orwig’s pending motion for contempt. The court subsequently found Mary
Orwig in contempt and ordered a remedial sanction requiring the return of the
specified property.
II
[¶6] Mary Orwig identifies twelve separate issues on appeal. Her arguments
have two main areas of contention: that contempt of court is “impossible” as
there is no order, nor evidence of contempt; and that the district court
improperly imposed a punitive sanction and violated her constitutional right
to remain silent.
A
[¶7] Mary Orwig contends none of the statutory definitions of contempt of
court apply and Steven Orwig’s motion failed to state a claim upon which relief
could be granted. She asserts the February 2020 divorce judgment did not
include any language or “orders compelling any future act by [Mary] with
respect to distribution of the personal property,” and there was no post-
judgment “order” of the court, requiring her to do anything, which could be
violated. Mary Orwig also asserts the lower court was without jurisdiction to
amend the judgment. She argues the contempt proceeding was not properly
initiated because it must be initiated as a separate action, she was required to
be personally served under N.D.R.Civ.P. 4, and she had no personal knowledge
of an underlying order requiring her compliance.
[¶8] Section 14-05-25.1, N.D.C.C., states that “[f]ailure to comply with the
provisions of a separation or divorce decree relating to distribution of the
property of the parties constitutes contempt of court.” This section “provides
continuing jurisdiction for contempt proceedings to enforce divorce judgments.”
Blomdahl v. Blomdahl, 2011 ND 78, ¶ 6, 796 N.W.2d 649; see also Giese v.
Giese, 2004 ND 58, ¶¶ 6-7, 676 N.W.2d 794. In Blomdahl, at ¶¶ 7-8, this Court
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explained that contempt proceedings constitute special statutory proceedings
rather than actions:
North Dakota law distinguishes between “actions” and
“special proceedings.” Section 32-01-01, N.D.C.C., states that
“[r]emedies in the courts of justice are divided into: 1. Actions. 2.
Special proceedings.” Section 32-01-02, N.D.C.C., defines an action
as “an ordinary proceeding in a court of justice, by which a party
prosecutes another party for the enforcement or protection of a
right, the redress or prevention of a wrong, or the punishment of a
public offense.” (Emphasis added.) Section 32-01-04, N.D.C.C.,
provides that “[a] special proceeding is any remedy other than an
action.” (Emphasis added.) See N.D.R.Civ.P. 81 and “Table A”
(designating contempt proceedings under N.D.C.C. ch. 27-10, as
“special statutory proceedings,” excepted from the rules “insofar as
they are inconsistent or in conflict with the procedure and practice
provided by these rules”).
Section 27-10-01.1(1)(g), N.D.C.C., says contempt is any
other act specified by law as a ground for contempt. When N.D.C.C.
§§ 14-05-25.1 and 27-10-01.1(1) and N.D.C.C. ch. 32-01 are
construed together, a contempt proceeding brought under N.D.C.C.
§ 14-05-25.1 is a special statutory proceeding rather than a
separate “action” upon a judgment for purposes of N.D.C.C. § 28-
01-15(1). Cf. City of Fargo v. Annexation Review Comm’n, 148
N.W.2d 338, 346 (N.D. 1966) (writs of certiorari and mandamus
proceedings are “special proceedings,” not included in the term
“actions” for review purposes).
“[F]or a contempt finding under N.D.C.C. § 14-05-25.1, as further contemplated
in N.D.C.C. ch. 27-10, a violation of a valid and existing court order, judgment
or decree must exist.” Blomdahl, at ¶ 9.
[¶9] Mary Orwig’s argument that she should have been served under
N.D.R.Civ.P. 4 to commence an “action” is unavailing. Under N.D.R.Civ.P. 81
and Table A, contempt proceedings are properly categorized as special
statutory proceedings. See Blomdahl, 2011 ND 78, ¶ 6. Section 27-10-
01.3(1)(a), N.D.C.C., states that “a person aggrieved by contempt of court may
seek imposition of a remedial sanction for the contempt by filing a motion for
that purpose in the proceeding to which the contempt is related.” (Emphasis
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added.) As such, N.D.R.Ct. 3.2 and N.D.R.Civ.P. 5 provide the appropriate
motion practice procedure, in addition to sufficient notice and opportunity to
be heard on the contempt motion. Under N.D.C.C. § 14-05-25.1, a party’s
“[f]ailure to comply with the provisions of a separation or divorce decree
relating to distribution of the property of the parties constitutes contempt of
court.” Moreover, Mary Orwig’s arguments that further district court orders
were necessary to compel her to act after entry of the divorce judgment or that
Steven Orwig should have pursued an agister’s lien are without merit.
[¶10] The district court had continuing jurisdiction to enforce its judgment,
and Mary Orwig was properly served under N.D.R.Ct. 3.2 and N.D.R.Civ.P. 5.
We conclude no further order was required.
B
[¶11] Mary Orwig argues that the pleadings failed to clearly and satisfactorily
show the alleged contempt had been committed. She contends Steven Orwig
alleged the wrong level of mens rea—i.e., willful instead of intentional and
failed to present any evidence of Mary’s disobedience, resistance, or obstruction
while she remained silent.
[¶12] “A party seeking a contempt sanction under N.D.C.C. ch. 27-10 must
clearly and satisfactorily prove the alleged contempt was committed.” Prchal
v. Prchal, 2011 ND 62, ¶ 5, 795 N.W.2d 693.
Under N.D.C.C. § 27-10-01.1(1)(c), “[c]ontempt of court” includes
“[i]ntentional disobedience, resistance, or obstruction of the
authority, process, or order of a court or other officer.” To warrant
a remedial sanction for contempt, there must be a willful and
inexcusable intent to violate a court order. An inability to comply
with an order is a defense to contempt proceedings, but the alleged
contemnor has the burden to prove the defense.
Prchal, at ¶ 5 (cleaned up); see also N.D.C.C. § 27-10-01.1(4) (“‘Remedial
sanction’ includes a sanction that is conditioned upon performance or
nonperformance of an act required by court order.”). Whether a contempt has
been committed lies within the district court’s sound discretion, which will not
4
be overturned on appeal absent an abuse of discretion. Millang v. Hahn, 1998
ND 152, ¶ 7, 582 N.W.2d 665. A court abuses its discretion when it acts in an
arbitrary, unreasonable, or unconscionable manner or when it misinterprets or
misapplies the law. Id.[¶13] The district court held the hearing on the contempt motion, received
exhibits and testimony from Steven Orwig, and made findings at the hearing.
In its contempt order, the court found that Mary Orwig had notice of the
contempt motion and that her failure to even engage in discussions on how to
transfer the property awarded to each party in the judgment showed her clear
intention to disobey the court’s disposition regarding the ownership and
possession of the property. The court found that she failed to appear at the
hearing to testify and no defense was given as to why she had not exchanged
the property. The court found that without a defense her failure to exchange
the property established a clear intention to disobey the court’s division of
property.
[¶14] We conclude the district court did not abuse its discretion after finding
Mary Orwig willfully and intentionally disobeyed the judgment when she
refused to even discuss an exchange of the property items awarded under the
divorce judgment. Mary Orwig’s challenges to the district court finding of
contempt were potentially defenses she had the burden establish. Grengs v.
Grengs, 2020 ND 242, ¶ 24, 951 N.W.2d 260 (“An inability to comply with an
order is a defense to contempt proceedings based on a violation of that order,
but the alleged contemnor has the burden to establish the defense and show
an inability to comply.”). Whether the judgment lacked specific directions on
how to exchange the property is a defense. Whether the property awarded in
the judgment still existed is a defense; the divorce judgment allocates the
property, which is sufficient to support a finding the property exists.
[¶15] Once Steven Orwig met his burden to prove the alleged contempt was
committed, the burden shifted to Mary Orwig to prove a defense. Despite
receiving proper notice, she chose not to be personally present or to provide
testimony to rebut the evidence at the April 2021 contempt hearing. Steven
Orwig provided sufficient evidence to support a finding of contempt. The
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district court did not abuse its discretion in determining Mary Orwig
committed a contempt of court.
C
[¶16] Mary Orwig argues the district court improperly imposed a punitive
sanction. Under N.D.C.C. § 27-10-01.4(1), the district court may impose one or
more of the following remedial sanctions for contempt:
b. Imprisonment if the contempt of court is of a type included in
subdivision b, c, d, e, or f of subsection 1 of section 27-10-01.1. The
imprisonment may extend for as long as the contemnor continues
the contempt or six months, whichever is shorter;
....
e. A sanction other than the sanctions specified in subdivisions a
through d if the court expressly finds that those sanctions would
be ineffectual to terminate a continuing contempt.
See also Nygaard v. Taylor, 2017 ND 206, ¶ 17, 900 N.W.2d 833 (“Courts have
the inherent power to confine a contemnor indefinitely until he complies with
an affirmative command that he has the ability to perform, because the
contemnor is able to purge the contempt and obtain his release by committing
an affirmative act, and thus carries the keys of his prison in his own pocket.”
(cleaned up)).
[¶17] The district court’s order finding Mary Orwig in contempt ordered a
remedial sanction, stating in relevant part:
1. [Mary] shall return the following items to Steve within 60 days:
2014 Dodge Ram 2500 ($24,000), a 2009 Dodge Challenger SRT-8
($35,000), a[n] Arena Tiller Rake Drag ($200), and Water Wagon
Trailer ($200).
2. [Mary] shall pick up her horses from Steve within 60 days.
3. If [Mary] fails to do either 1 or 2 above, she shall serve 60 days
in jail. [Mary] can purge her contempt, and thereby be released
from jail, by abiding by 1 and 2 above. . . .
[¶18] Mary Orwig contends that the district court’s sanction is “punitive,”
rather than “remedial,” as defined under N.D.C.C. § 27-10-01.1(3) (providing
6
“‘[p]unitive sanction’ includes a sanction of imprisonment if the sentence is for
a definite period of time”), and that the court did not follow procedures for the
imposition of a punitive sanction. See N.D.C.C. § 27-10-01.3(1)(b) and (2). In
addressing the contempt order’s “purge” provision 3, she asserts there are
“illusory jail keys.” She argues that because both provisions 1 and 2 must be
done “within 60 days,” once the 60-day period has passed, she would never be
able to “abid[e] 1 and 2 above,” so as to be released from jail. If there is no
ability to “purge” her contempt, the 60-day jail sentence would be a punitive
sanction under N.D.C.C. § 27-10-01.1(3).
[¶19] The district court’s sanction is a “remedial sanction,” and provision 3
contemplates that the 60-day period had passed without Mary Orwig taking
the required steps in provisions 1 and 2. The phrase “abiding by 1 and 2 above”
refers only to returning the specific personal property listed and picking up the
horses. On its face, the contempt order is not impossible. It was her burden to
establish a defense, and she elected not to offer evidence that compliance was
impossible.
[¶20] On our review, the order is properly construed to be a “remedial sanction”
within the range of sanctions allowed by statute. The district court’s order
permits Mary Orwig to “purge” the 60-day jail sentence by complying with the
property distribution of the divorce judgment, as ordered in provisions 1 and 2
of the contempt order. Mary Orwig further contends her constitutional right to
remain silent was violated. However, she failed to provide this Court with any
persuasive authority suggesting a litigant’s constitutional right to remain
silent is violated by requiring a litigant to carry the burden of establishing a
defense once the moving party has met their burden of establishing a basis for
the finding of contempt and the court imposes a remedial sanction.
III
[¶21] In his cross-appeal, Steven Orwig argues the district court should have
awarded him his attorney’s fees as a sanction for Mary Orwig’s contempt.
[¶22] Under N.D.C.C. § 27-10-01.4(1)(a), the district court may impose
“[p]ayment of a sum of money sufficient to compensate a party or complainant,
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other than the court, for a loss or injury suffered as a result of the contempt,
including an amount to reimburse the party for costs and expenses incurred as
a result of the contempt.” “The court, in its discretion, may award attorney fees
as part of the compensation to the complainant in contempt proceedings as
reimbursement for costs and expenses incurred as a result of the contempt.”
Giese, 2004 ND 58, ¶ 12.
[¶23] Steven Orwig has not appealed from the district court’s Order for
Contempt, but has only appealed the court’s Order Following Remand. As such,
he has not preserved this issue for appeal. Even if we were to liberally construe
his notice of cross-appeal to include the contempt order, the issue of attorney’s
fees is committed to the court’s sound discretion, and we conclude the district
court did not abuse its discretion. We therefore deny his request for attorney’s
fees as an additional sanction.
IV
[¶24] Steven Orwig argues he should receive his attorney’s fees on appeal,
citing N.D.C.C. § 28-26-01 and N.D.R.App.P. 38. He asserts Mary Orwig’s
claims for relief are frivolous and no reasonable person could believe her
arguments would be successful. We agree.
[¶25] Several of Mary Orwig’s arguments are flagrantly groundless, devoid of
merit and demonstrate persistence in the course of litigation evidencing bad
faith. Mary Orwig has asserted on appeal that there was no requirement to
return or pick up the property specified under the divorce judgment, that
service on her attorney of record was insufficient, that she should not have
been held in contempt of court because she did not speak, and that her First
and Fifth Amendment rights were violated within the context of a motion for
remedial sanctions. We order Mary Orwig pay attorney’s fees on appeal in the
amount of $1,000 under N.D.R.App.P. 38. See Estate of Pedro v. Scheeler, 2014
ND 237, ¶ 18, 856 N.W.2d 775 (holding appeal asserted numerous frivolous
arguments and ordering attorney’s fees and costs); In re Hirsch, 2014 ND 135,
¶ 15, 848 N.W.2d 719 (same).
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V
[¶26] We have considered the parties’ remaining issues and arguments and
have determined they are either unnecessary to our decision or are without
merit. The district court orders are affirmed.
[¶27] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
Carol Ronning Kapsner, S.J.
[¶28] The Honorable Carol Ronning Kapsner, S.J., sitting in place of Crothers,
J., disqualified.
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