Sims v. Sims , 2020 ND 110 ( 2020 )

Filed 6/2/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 110
Erica Lynn Sims, Plaintiff and Appellant
v.
Larry David Sims, Defendant and Appellee
and
State of North Dakota, Statutory Real Party in Interest
No. 20190248
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Jay D. Knudson, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Jensen, Chief Justice, in which Justices VandeWalle,
Crothers, and Tufte joined. Justice McEvers filed an opinion concurring and
dissenting.
Kelsey L. Hankey, Grand Forks, ND, for plaintiff and appellant.
Ward K. Johnson, Grand Forks, ND, for defendant and appellee; submitted on
brief.
Sims v. Sims
No. 20190248
Jensen, Chief Justice.
[¶1] Erica Sims appeals from a judgment granting her a divorce from Larry
Sims. She argues the district court’s parenting time decision is clearly
erroneous, the court erred in determining the value of certain marital property,
the court erred by failing to award her spousal support, and the court erred by
ordering her to reimburse Larry Sims for half of the airfare he incurred related
to missed parenting time.
[¶2] We conclude the district court’s property valuations, parenting time, and
spousal support decisions are not clearly erroneous. However, we also conclude
the court erred by failing to include all of the parties’ stipulated terms related
to the property distribution in the judgment without providing an explanation
why the provisions were excluded, the court erred in determining the amounts
Larry Sims was required to reimburse Erica Sims pursuant to the interim
order, and the court abused its discretion by ordering a remedial contempt
sanction without finding Erica Sims in contempt. We affirm in part, reverse
in part, and remand.
I
[¶3] Erica and Larry Sims were married in 1999, and have two children
together, GCS and DLS. The children were 17 and 14 years old at the time of
the divorce trial. Erica Sims sued for divorce in December 2017.
[¶4] In January 2018, Erica Sims moved for an interim order awarding her
temporary primary residential responsibility for the children, ordering Larry
Sims to pay child support, awarding her temporary possession of the marital
home, ordering the marital expenses be divided, and requiring Larry Sims to
pay spousal support. Larry Sims responded to the motion and agreed to most
of Erica Sims’ requests, but he requested that neither party be awarded
spousal support. He also stated that he was moving to California and asked
for a downward departure in his child support obligation for parenting time
travel expenses.
1
[¶5] After a hearing, the district court found the parties stipulated to interim
primary residential responsibility for the children and joint decision making,
occupation of the marital residence, and that each party would pay one-half of
the mortgage payment. The court awarded Erica Sims temporary primary
residential responsibility of the children and awarded Larry Sims six weeks of
parenting time during the summer and parenting time during the school
winter break. The court ordered Larry Sims to pay child support and all
transportation costs for the children related to his parenting time. The court
denied Erica Sims’ request for spousal support. The court ordered Erica Sims
would have possession of the marital home and would be responsible for all
ordinary maintenance and occupancy costs, but ordered the parties to be
equally responsible for any extraordinary repairs and to pay half of the
mortgage payment.
[¶6] In June 2018, Larry Sims moved for an order to show cause, alleging
Erica Sims violated the interim order by interfering with his summer
parenting time. He requested the court order Erica Sims to reimburse him for
the cost of the plane tickets for the children to fly to California and to pay his
attorney’s fees related to the motion. The district court entered an order to
show cause. After a hearing, the district court found Erica Sims willfully and
intentionally disobeyed the order and denied Larry Sims’ right to parenting
time. The court found Erica Sims was in contempt, ordered her to reimburse
Larry Sims for the cost of the plane tickets, and amended the interim order to
require the children to visit Larry Sims in California within a certain period of
time and required Erica Sims to reimburse Larry Sims for half of the cost of
the new plane tickets.
[¶7] In August 2018, Erica Sims moved for an order to show cause, alleging
Larry Sims violated the interim order by failing to pay one-half of the
mortgage. Larry Sims responded to the motion and alleged he was financially
unable to pay his half of the mortgage payment. The court denied the motion
for an order to show cause, but found the interim order was clear and any
refusal or deviation from either party’s obligation would be considered and
resolved in the court’s final order.
2
[¶8] In December 2018, Larry Sims moved for an order to show cause. He
alleged Erica Sims did not comply with the amended interim order because she
failed to ensure the children were on the flight to California for his parenting
time during winter break. He requested the court order Erica Sims to
reimburse him for the cost of the plane tickets and that she pay his attorney’s
fees for the motion. Erica Sims opposed the motion, arguing she did not
disobey the order, she took the children to the airport and through security,
but the children left while she was speaking to someone, and the children
refused to get on the flight. The district court granted Larry Sims’ motion for
an order to show cause and stated the issue would be heard during the divorce
trial.
[¶9] The parties filed a partial marital settlement agreement and parenting
plan. The parties agreed Erica Sims would have primary residential
responsibility for the children, subject to Larry Sims’ parenting time, Larry
Sims would be solely responsible for all transportation costs for his parenting
time, and he would receive a child support deviation for the transportation
costs. They agreed to decision making responsibility for the children and the
amount of Larry Sims’ child support obligation. They agreed on some of the
property and debt distribution and agreed to the valuation date for their
property and debts.
[¶10] After a court trial on the remaining issues, the district court distributed
the martial estate. The court awarded Erica Sims a net property award of
$73,453.82, including the marital home. The court awarded Larry Sims a net
property award of $6,583.16. The court denied Erica Sims’ request for spousal
support. The court ordered Larry Sims to pay Erica Sims $4,015.10 for his
share of the mortgage and auto loan payments pursuant to the interim order.
The court awarded Erica Sims primary residential responsibility for the
children, set a parenting time schedule, and ordered Larry Sims pay child
support of $1,614 per month. The court found there was not sufficient evidence
to find Erica Sims in contempt for violating the interim order related to
parenting time, but ordered her to reimburse Larry Sims for half of the
expenses for the missed parenting time. Judgment was entered.
3
II
[¶11] Erica Sims argues the district court’s parenting time decision is clearly
erroneous. She claims the court ignored significant evidence that was
favorable to her and detrimental to Larry Sims, her testimony was
corroborated by testimony from the children and the children’s therapists, and
the record does not support the court’s findings.
[¶12] A district court’s parenting time decision is a finding of fact subject to
the clearly erroneous standard of review. Dick v. Erman, 2019 ND 54, ¶ 12,
923 N.W.2d 137. A finding of fact is clearly erroneous if it is induced by an
erroneous view of the law, there is no evidence to support it, or if on the entire
record we are left with a definite and firm conviction a mistake has been made.
Id. at ¶ 6. In awarding parenting time, the best interests of the child are
paramount. Id. at ¶ 12. Parenting time with the non-custodial parent is
presumed to be in the child’s best interest and is a right of the child. Id.
[¶13] Extended parenting time with a fit non-custodial parent is routinely
awarded if the child is old enough, absent a reason for denying it. Dick, 2019
ND 54, ¶ 13, 923 N.W.2d 137. But a non-custodial parent’s parenting time
may be limited or eliminated if it is likely to endanger the child’s physical or
emotional health. Rustad v. Baumgartner, 2018 ND 268, ¶ 8, 920 N.W.2d 465.
“[A] restriction on visitation must be based on a preponderance of the evidence
and be accompanied by a detailed demonstration of the physical or emotional
harm likely to result from visitation.” Id. (quoting Wolt v. Wolt, 2010 ND 26,
¶ 38, 778 N.W.2d 786).
[¶14] Erica Sims argued the children were emotionally harmed by parenting
time with Larry Sims and requested parenting time be suspended until the
children were ready to resume visiting their father. She claimed Larry Sims
was responsible for the deterioration of his relationship with the children, he
consistently placed the children in the middle of the divorce conflict, and both
children experienced physical and mental health problems from the stress and
anxiety triggered by their father. She alleged the children’s therapists
recommended Larry Sims’ parenting time be suspended until he could show
progress in understanding the children’s emotional and mental well-being and
4
the children feel comfortable seeing him, and the children were clear that they
cannot have any parenting time with their father at this time. Larry Sims
argued Erica Sims was alienating the children from him, and he requested
“standard parenting time” including extended parenting time during the
summer and winter break.
[¶15] The district court considered the testimony from the children’s
therapists, the children, Erica Sims, and Larry Sims. The court found Erica
Sims’ testimony about the children’s relationship with Larry Sims was not
“fully honest,” she had previously been found in contempt for failing to comply
with the interim parenting time order, and she did not take any responsibility
for the breakup of the marriage and the difficulty of the continuing relationship
between the children and their father. The children testified they do not want
to visit their father. DLS testified it was too hard to be away from her mother’s
home for the summer, but DLS was told she could go to France during the
summer for three months, the court stated it was hard to comprehend how DLS
had such anxiety she could not go to California for a few weeks to see her father
but could travel to a foreign country without parental supervision for three
months, and the court stated it indicated the testimony about the girls not
being emotionally able to spend time with their father was not entirely
truthful. The court found the therapists did not have an opportunity to
consider all of the circumstances of the case, Erica Sims did not fully support
a relationship between the children and their father, the children’s testimony
appeared to be contrived, and the divorce was having a profound effect on the
children. The court found law enforcement conducted a welfare check at Larry
Sims’ house during his parenting time and found nothing inappropriate was
happening, Larry Sims took the children to do different activities and to visit
places in California as the children requested, and he “truly seems to want to
be able to continue, or to rebuild, . . . the relationship between him and [the
children].” The court found parenting time with Larry Sims was not likely to
endanger the children’s physical or emotional health and parenting time was
appropriate.
5
[¶16] The district court found the testimony from Erica Sims, the children, and
the children’s therapists was not credible, explaining:
With all due respect to the opinion of [the children’s
therapists], the Court notes that their opinions are based primarily
on the information given to them by the children and their
experiences with the children. Earlier in this case, the therapists
wrote letters indicating that it would be appropriate for the girls
to have a two week visit with Larry instead of a four week visit.
Now they recommend no visit. They clearly want what is best for
the children, but it is apparent to the Court that they have not
been given the opportunity to consider all the circumstances in this
case. It appears to the Court that Erica, despite outward
appearances, is not fully supporting a relationship between Larry
and the girls. The Court has previously found her in contempt in
this case for not following through with parenting time clearly
directed in the Interim Order. The Court does not find the
testimony of the girls to be particularly forthcoming, and, in fact,
it appears that much of the testimony, including the crying, was
contrived. The Court is cognizant that the girls are going through
a very difficult time right now, given the breakup of the family.
There is no doubt, absolutely none, that what is happening
between their parents is having a profound effect on the children.
However, the Court simply does not come to the conclusion that
parenting time with their father is likely to endanger the children’s
physical or emotional health. Parenting time between Larry and
the children is appropriate. It is also appropriate at the same time
to craft a parenting time plan that takes into account the
emotional state and the emotional needs of the children.
[¶17] The district court ordered Larry Sims have parenting time one weekend
each month in North Dakota during the school year at his discretion and with
30-days’ notice. The court ordered Larry Sims have extended parenting time
at his home during the summer starting two weeks after school is finished and
ending three weeks before the start of school. The court also set a schedule for
holiday parenting time.
[¶18] “Findings of fact . . . whether based on oral or other evidence, must not
be set aside unless clearly erroneous, and the reviewing court must give due
6
regard to the trial court’s opportunity to judge the witnesses’ credibility.”
N.D.R.Civ.P. 52(a)(6). We do not reweigh the evidence or reassess the
witnesses’ credibility. Conzemius v. Conzemius, 2014 ND 5, ¶ 6, 841 N.W.2d
716. “A choice between two permissible views of the weight of the evidence is
not clearly erroneous, and our deferential review is especially applicable for a
difficult child custody decision involving two fit parents.” Thomas v. Thomas,
2020 ND 18, ¶ 4, 937 N.W.2d 554 (quoting Dickson v. Dickson, 2018 ND 130,
¶ 7, 912 N.W.2d 321).
[¶19] The district court found parenting time with Larry Sims is not likely to
endanger the children’s physical or emotional health. Evidence exists in the
record to support the court’s findings. Our case law is clear, we will not retry
the case or substitute our judgment for the district court’s decision merely
because we might have reached a different result. Carlson v. Carlson, 2020
ND 36, ¶ 6, 938 N.W.2d 413. We conclude the court’s parenting time decision
is not clearly erroneous.
III
[¶20] Erica Sims raises several issues with the district court’s property
distribution, including that the court’s valuation of the marital property is
clearly erroneous and that the court failed to include some of the terms of the
parties’ partial settlement agreement.
[¶21] The district court must include all marital assets and debts in the
marital estate and then equitably divide the property after applying the Ruff-
Fischer guidelines. Lizakowski v. Lizakowski, 2019 ND 177, ¶ 7, 930 N.W.2d
609. A court’s property valuation and distribution are findings of fact, which
will not be reversed unless they are clearly erroneous. Id. at ¶ 6; Lee v. Lee,
2019 ND 142, ¶ 6, 927 N.W.2d 104. “A choice between two permissible views
of the evidence is not clearly erroneous if the district court’s findings are based
either on physical or documentary evidence, or inferences from other facts, or
on credibility determinations.” Lee, at ¶ 6 (quoting Hoverson v. Hoverson, 2001
ND 124, ¶ 13, 629 N.W.2d 573). The court’s valuation depends on the evidence
the parties present, and this Court presumes the court’s valuations are correct.
7
Lee, at ¶ 6. A property valuation within the range of evidence is not clearly
erroneous. Id. at ¶ 9.
A
[¶22] Erica Sims argues the district court erred in determining the household
goods had a value of $2,000. She contends that property was already divided
in the parties’ stipulation and she testified the property was worn down and in
disrepair.
[¶23] The parties’ testimony about the value of the household goods was
conflicting. Erica Sims testified all of the furniture was falling apart or torn
and that she did not think it was in good enough condition that it could be sold
at a garage sale. Larry Sims testified the household goods were worth $15,000.
[¶24] The parties stipulated to the division of the household goods, but district
court’s valuation was necessary to decide an equitable distribution. The court
explained there was limited evidence about the value of the property and
$2,000 was the most reasonable value. We conclude the court’s valuation is
within the range of evidence and is not clearly erroneous.
B
[¶25] Erica Sims argues the court’s valuations of Larry Sims’ tools, guns, and
hunting and fishing gear; her horse tack; and her tools, guns, and bow are
clearly erroneous. She claims the evidence supported the valuations she
proposed for these assets.
[¶26] The parties presented conflicting testimony on the valuation of the
assets. The district court’s choice between two permissible views of the
evidence is not clearly erroneous. Lee, 2019 ND 142, ¶ 6, 927 N.W.2d 104. The
court’s valuations were within the range of evidence presented at trial.
[¶27] This Court is not left with a definite and firm conviction a mistake has
been made. We conclude the district court’s valuations of these assets were
not clearly erroneous.
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C
[¶28] Erica Sims argues the district court erred when it did not consider or
include various terms from the parties’ partial marital settlement agreement
in the judgment. She contends the parties stipulated to include an
indemnification clause necessary to protect her interest in Larry Sims’ military
retirement and that Larry Sims would continue coverage for her as a former
spouse under his Survivor Benefit Plan.
[¶29] The relevant portion of the stipulation states:
Erica shall be awarded a percentage of Larry’s disposable
military retired pay, to be computed by multiplying fifty (50)
percent times a fraction, the numerator of which is nineteen (19)
years of marriage during Larry’s creditable military service,
divided by Larry’s total number of years of creditable military
service. Larry served for a total of twenty-[one] (21) years,
therefore, Erica shall receive 1/2 x (19/21) = 45% of Larry’s
disposable retired pay. Larry will take no action that would reduce
Erica’s share of his military retired pay and indemnifying Erica of
any reduction. Larry will elect to continue coverage for Erica as a
former spouse under his Survivor Benefit Plan and she will be
named as the beneficiary of the Survivor Benefit Plan. Any cost of
the Survivor Benefit Plan will be deducted from Erica’s monthly
payment. This paragraph may be changed by the decision of the
Court regarding Erica’s federal retirement earned during the
marriage. (The language lined out above was lined out prior to
submission to the district court.)
[¶30] The district court included the first two sentences of this paragraph from
the settlement agreement in the judgment, but it did not include any of the
remaining terms. The court did not provide any explanation for not including
the rest of the parties’ stipulation.
[¶31] This Court has “encouraged parties to reach peaceful settlements of
disputes in divorce matters because there is ‘strong public policy favoring
prompt and peaceful resolution of divorce disputes.’” Vann v. Vann, 2009 ND
118, ¶ 12, 767 N.W.2d 855 (quoting Knutson v. Knutson, 2002 ND 29, ¶ 8, 639
N.W.2d 495). We have said “To the extent that competent parties have
9
voluntarily stipulated to a particular disposition of their marital property, a
court ordinarily should not decree a distribution of property that is inconsistent
with the parties’ contract.” Eberle v. Eberle, 2009 ND 107, ¶ 15, 766 N.W.2d
477 (quoting Kramer v. Kramer, 2006 ND 64, ¶ 6, 711 N.W.2d 164).
[¶32] The district court excluded some of the terms of the parties’ settlement
agreement without explanation. We reverse the court’s property distribution
and remand for the court to include the stipulated provisions in the judgment
or to provide an explanation why these terms were not included.
IV
[¶33] Erica Sims argues the district court erred in the amounts it ordered
Larry Sims to pay for the mortgage payment and household repairs pursuant
to the interim order.
[¶34] In the March 8, 2018 interim order, the district court ordered Erica Sims
would be responsible for all ordinary maintenance and occupancy costs of the
marital home, and “[t]he parties shall be equally responsible for any
extraordinary repairs, and any disputes as to this characterization can be
addressed at the trial and considered in asset or equity allocation.” The court
also ordered, “Each party shall pay one-half of the mortgage payment on or
before the due date, beginning with the next payment following entry of this
Interim Order.” The court ordered Larry Sims to pay an F-250 truck loan.
[¶35] At the time of the trial, the parties agreed they were equally responsible
for $6,246.13 in home maintenance and repairs pursuant to the interim order.
However, the parties did not agree on the amounts Larry Sims was required
to pay for his share of the mortgage under the interim order. Erica Sims
claimed Larry Sims owed $5,429.70, and Larry Sims claimed he owed $3,600.
Erica Sims testified Larry Sims was supposed to be paying half of the monthly
mortgage payment, but he did not make any payments after May 2018. Larry
Sims testified he initially paid half of the mortgage but he stopped paying his
half after May 2018 because he could not afford to pay both the mortgage
payment and tax debt. He testified it was necessary for him to pay off the tax
10
debt to maintain his security clearance and keep his job. He testified he paid
all but $3,600 for his half of the mortgage.
[¶36] The district court found each party was responsible for paying half of the
mortgage for nine months under the terms of the interim order, the mortgage
payment was $1,206.60 per month, Larry Sims did not make any mortgage
payments after May 2018, and Larry Sims is responsible for reimbursing Erica
Sims $3,600 for his half of the missed mortgage payments. The court said it
would not include the $3,600 for the missed payments in the property
distribution because Larry Sims was responsible to pay that amount while the
litigation was pending. The court ordered Larry Sims to reimburse Erica Sims
$3,600 for the missed mortgage payments within one hundred eighty days of
the notice of entry of judgment. The court also found Larry Sims was
responsible for paying a F-250 truck loan pursuant to the interim order, he did
not make all of the required payments on the loan, and Erica Sims incurred
$415.10 in costs for payments on the loan. The court ordered Larry Sims to
reimburse Erica Sims for the auto loan payments. The court did not separately
address the home repairs, but ordered:
Larry shall pay to Erica the amount to reimburse her for costs due
to her under the Interim Order. The amount due is $4,015.10.
This payment will relieve him of his obligations pursuant to the
Interim Order in this action, to include, his share of the mortgage
payment and the household repairs, and his obligation to pay for
the F-250 truck payment.
[¶37] Erica Sims argues the district court erred in determining the amount
Larry Sims was required to pay to reimburse her for his half of the mortgage.
She contends Larry Sims is responsible for half of the mortgage payment for
the months of June through December, for a total of $4,223.10. The district
court found Larry Sims was responsible for half of the $1,206.60 mortgage
payment pursuant to the interim order and he did not make any payments
after May 2018. The evidence supports the court’s finding. However, half of
the mortgage is $603.30, the trial was held in December 2018, and the court
found Larry Sims did not make any mortgage payments after May 2018.
Under the terms of the interim order, Larry Sims was required to pay
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$4,223.10 for his half of the mortgage for the months of June through December
2018.
[¶38] Erica Sims also argues the district court erred by failing to order Larry
Sims to pay half of the household repairs pursuant to the interim order. Both
parties agreed in their joint property and debt listing that they were equally
responsible for $6,246.13 in home maintenance and repairs pursuant to the
interim order. The court ordered Larry Sims to pay Erica Sims $4,015.10 to
reimburse her for the costs due under the interim order, including his share of
the mortgage payment and household repairs and his obligation to pay for the
F-250 truck payment. The total amount the court determined Larry Sims was
required to pay under the interim order did not include any amount for the
household repairs. The court did not provide an explanation for not ordering
Larry Sims to pay any portion of the household repairs.
[¶39] We conclude the district court erred in calculating the amount Larry
Sims was required to reimburse Erica Sims for the mortgage payments and by
failing to require any reimbursement of the costs of the household repairs,
absent an explanation of why the court ordered a lesser amount. We reverse
and remand for the court to order Larry Sims to pay half of the household
repairs as required under the terms of the interim order and to include the full
amount Larry Sims was required to pay for half of the mortgage payment, or
to provide an explanation of why it ordered a lesser amount.
V
[¶40] Erica Sims argues the district court erred by failing to award her spousal
support. She claims the court did not consider the standard of living
established during the marriage, the disparity in earning capacity, her
foregone opportunities and contributions to Larry Sims’ earning ability, and
the unequal burdens the divorce created upon the parties.
[¶41] The district court’s decision about spousal support is a finding of fact,
subject to the clearly erroneous standard of review. Tarver v. Tarver, 2019 ND
189, ¶ 15, 931 N.W.2d 187. The court may award spousal support under
N.D.C.C. § 14-05-24.1 after taking the parties’ circumstances into
12
consideration. “The court must consider the needs of the spouse seeking
support and the ability of the other spouse to pay.” Tarver, at ¶ 15. The court
must also consider the Ruff-Fischer factors, which include:
[T]he respective ages of the parties, their earning ability, the
duration of the marriage and conduct of the parties during the
marriage, their station in life, the circumstances and necessities of
each, their health and physical condition, their financial
circumstances as shown by the property owned at the time, its
value at the time, its income-producing capacity, if any, whether
accumulated before or after the marriage, and such other matters
as may be material.
Id.
[¶42] The district court made findings about the Ruff-Fischer factors, Erica
Sims’ need for spousal support, and Larry Sims’ ability to pay. The court found
Erica Sims is currently employed close to full-time, her annual pay from
employment is at least $37,123.94, she receives $1,278 per month in military
disability, she has four college degrees including a master’s degree, she will
receive $1,614 per month in child support, and $1,013 per month of Larry Sims’
military retirement. The court found Erica Sims has the ability to work full
time and increase her monthly income, she will immediately receive a portion
of Larry Sims’ retirement, she will have the retirement accounts in her name,
and she is receiving the majority of the value of the marital estate. The court
found Erica Sims sacrificed her military career and some of her earning ability,
but her sacrifice was mitigated by the fact that she earned multiple educational
degrees during the marriage. The court found Erica Sims alleged $6,100 in
monthly living expenses, she has a monthly income of $5,487.82 but it would
be higher if she worked full time, and that she would be able to fully cover her
monthly expenses if she worked full time. The court found Larry Sims’
monthly income after the divorce will be $7,618.46 and his expenses will be
approximately $4,775. The court concluded, “Based on the financial needs of
the parties and their ability to pay, and also based on the distribution of the
value of marital estate, the Court finds neither party needs spousal support
and no spousal support will be awarded.”
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[¶43] Evidence in the record supports the district court’s findings.
We conclude the court’s spousal support decision is not clearly erroneous.
VI
[¶44] Erica Sims argues the district court erred by ordering her to reimburse
Larry Sims for the transportation costs associated with his missed parenting
time.
[¶45] Larry Sims requested that the court hold Erica Sims in contempt for
failing to ensure the children were on a flight so he could exercise his parenting
time in California and that she reimburse him for the cost of the plane tickets.
The district court found there was not sufficient evidence to find Erica Sims in
contempt and the testimony indicated Erica Sims put the children on the plane
to travel to California and the children snuck off on their own accord. The
court further found, “However, as a result, it is also not appropriate for Larry
to bear the full cost of the visitation expenses for visits with the children that
never happened, regardless of whether or not the children were behind the
denial of parenting time.” The court ordered Erica Sims to reimburse Larry
Sims for half of the expense of the missed parenting time.
[¶46] “Contempt of court” includes the “[i]ntentional disobedience, resistance,
or obstruction of the authority, process, or order of a court[.]” N.D.C.C. § 27-
10-01.1(1)(c). Under N.D.C.C. § 27-10-01.4(1), a court may impose a remedial
sanction for contempt, including the payment of an amount sufficient to
compensate a party for a loss or injury suffered as a result of the contempt,
including an amount to reimburse the party for costs or expenses incurred as
a result of the contempt. “The determination whether a contempt has been
committed and remedial sanctions are warranted lies within the sound
discretion of the trial court, and its decision will not be overturned on appeal
unless there is a clear abuse of discretion.” Kautzman v. Kautzman, 2002 ND
118, ¶ 8, 647 N.W.2d 684 (quoting Harger v. Harger, 2002 ND 76, ¶ 14, 644
N.W.2d 182). The court abuses its discretion when it acts in an arbitrary,
unreasonable, or unconscionable manner, or it misinterprets or misapplies the
law. Cook v. Cook, 2020 ND 11, ¶ 5, 937 N.W.2d 286.
14
[¶47] The district court found there was not sufficient evidence to find Erica
Sims in contempt. The interim order states Larry Sims “is responsible for all
transportation costs for the children related to his parenting time.” The court
imposed a remedial sanction by ordering Erica Sims to pay half of the costs of
the plane tickets for the missed parenting time.
[¶48] We conclude the district court abused its discretion by imposing a
remedial contempt sanction after finding Larry Sims failed to prove Erica Sims
was in contempt. We reverse the district court’s order.
VII
[¶49] Erica Sims argues the district court abused its discretion by ordering her
to reimburse Larry Sims for transportation costs if the children do not comply
with the ordered parenting time in the future.
[¶50] The district court allocated parenting time costs, ordering:
Larry shall be solely responsible for all costs and providing
transportation for his parenting time. Larry is receiving a child
support deviation based upon him being solely responsible for
transportation costs. Should Erica or the children not comply with
the parenting time as ordered, Erica shall reimburse Larry for the
full cost any transportation related expenses associated with the
parenting time within seven (7) days. This section does not
preclude Larry from seeking an order to show cause with the Court
for violations of the Judgment.
[¶51] Erica Sims argues the district court’s order imposes a remedial contempt
sanction for future acts without notice and a hearing. However, the court did
not order a remedial sanction for future contempt. The court allocated future
transportation costs for parenting time dependent upon whether the ordered
parenting time occurs. It is not an abuse of discretion for a court to allocate
parenting time expenses dependent upon whether the children actually visit.
We conclude the court did not abuse its discretion.
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VIII
[¶52] We have considered the remaining issues and arguments and conclude
they are either unnecessary to our decision or are without merit. We affirm
the judgment in part, reverse in part, and remand.
[¶53] Jon J. Jensen, C.J.
Jerod E. Tufte
Gerald W. VandeWalle
Daniel J. Crothers
McEvers, Justice, concurring and dissenting.
[¶54] I agree with the majority in sections I through VI. For the reasons set
forth below, I respectfully dissent in regard to section VII.
[¶55] As noted by the majority in section III(C), the parties stipulated to
various terms in a marital settlement agreement. Majority, at ¶ 28. One of
the terms stipulated to was child support, which included “a deviation for
transportation costs to exercise [Larry Sims’] parenting time.” The stipulation
further provided under a transportation provision that “Larry shall be solely
responsible for all costs and providing transportation for his parenting time.
Larry is receiving a child support deviation based upon him being solely
responsible for transportation costs.” The district court incorporated the terms
of the stipulation into the judgment under its “child support” provision, but
effectively changed the terms of the stipulation by adding the following
transportation provision:
Should Erica or the children not comply with the parenting time
as ordered, Erica shall reimburse Larry for the full cost [of] any
transportation related expenses associated with the parenting
time within seven (7) days. This section does not preclude Larry
from seeking an order to show cause with the Court for violations
of the Judgment.
[¶56] Similar to the majority’s discussion in section III(C), the district court
included portions of the stipulation and then modified the transportation
provision without an explanation. Majority, at ¶ 30. Here, it appears the court
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is attempting to provide a sanction for a prospective contempt, based on the
previous experience where the children deliberately “snuck off” at the airport
to avoid visiting their father. As noted in section VI of the majority opinion,
Erica Sims was not found in contempt for this action. Majority, at ¶ 45.
Similar to the conclusion on the contempt issue, the court abused its discretion
in modifying the terms of the stipulation without an explanation, and
effectively imposed a prospective sanction without a finding of contempt.
Should the children decide to “sneak off” again, Erica Sims will be paying for
that indiscretion twice, first by having the agreed upon deviation reduce the
child support she receives and then by having to reimburse Larry Sims for
travel expenses he stipulated to pay.
[¶57] I would reverse and remand the district court’s allocation of
transportation for parenting time expenses.
[¶58] Lisa Fair McEvers
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