Flattum-Riemers v. Flattum-Riemers

1999 ND 146, 598 N.W.2d 499, 1999 N.D. LEXIS 174, 1999 WL 549378
North Dakota Supreme Court·Decided July 29, 1999·No. No. 990054·Published·Cited by 38 cases

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] Roland C. Flattum-Riemers appealed from an order of the district court finding him in contempt for failing to pay guardian ad litem fees. We affirm.

I

[¶ 2] Jan M. Flattum-Riemers filed for divorce from Roland Flattum-Riemers in May 1997. Roland requested the appointment of a guardian ad litem to represent the interests of the parties’ children. The district court appointed Patricia E. Garrity to serve as guardian ad litem. Garrity filed a report recommending the court award custody of the children to Jan. Following objection to her continued service, in July 1998, Garrity filed a motion regarding continued guardian ad litem services seeking the court’s advice as to her continued service. The district court issued an order discharging Garrity, and appointing Melvin L. Webster to serve in her place. Webster prepared a report evaluating the best interests of the children and recommended custody to be awarded to Jan.

[¶ 3] The parties entered into a property settlement and child custody agreement and a judgment incorporating the settlement and agreement was entered August 26, 1998. The divorce judgment ordered “costs of the Guardian ad Litem, both those attributable to Attorney Melvin Webster and Attorney Patricia Garrity, shall be divided equally between the parties. Pursuant to the Order of the Court, the same shall be paid on or before September 1, 1998.” No appeal was taken from the judgment.

[¶ 4] In late September and early October 1998, Garrity and Webster initiated contempt proceedings against Roland. The district court issued orders to show cause why Roland should not be held in contempt for failing to pay the guardian ad litem fees. Roland did not appear at the scheduled hearing at the Burleigh County Courthouse on October 29, 1998, and the district court ordered a bench warrant be issued for his arrest. The district court further ordered Roland could secure his release by posting a $2,027 cash bond. A second hearing was held December 14, 1998 at the McLean County Courthouse. Following the hearing, the district court found Roland in contempt for failing to obey the court’s August 26, 1998 order to pay one-half the guardian ad litem fees. In reaching this conclusion, the district court made the following findings of fact:

1. The Court finds that Defendant did have and does have the financial ability to pay the fees of the guardians ad litem.
[501]*5012. Defendant Roland C. Flattum-Riemers is in contempt of court for his failure to obey the Court’s prior order to pay the fees of the guardians ad litem.
3. The guardians ad litem are entitled to the fees which they have submitted to Defendant. - Melvin L. Webster is entitled to be paid his regular hourly rate , of $85 per hour for his services as guardian ad litem, including his travel time.

The district court ordered Roland post an additional $500 cash bond to be divided equally between Garrity and Webster “for their time in regard to the order to show cause” and ordered the $2,027 bond previously posted by him be used to pay the guardian ad litem fees.

[¶ 5] Section 27-10-01.3(3), N.D.C.C., allows an appeal to be taken from any order or judgment finding a per7 son guilty of contempt. Millang v. Hahn, 1998 ND 152, ¶ 7, 582 N.W.2d 665. In a civil contempt proceeding, a complainant must clearly and satisfactorily show that the alleged contempt has been committed. Spilovoy v. Spilovoy, 488 N.W.2d 873, 875 (N.D.1992). Civil contempt requires a willful and inexcusable intent to violate a court order. Id. (citing Anchor Estates, Inc. v. State, 466 N.W.2d 111 (N.D.1991), cert. denied, 500 U.S. 943, 111 S.Ct. 2239, 114 L.Ed.2d 481 (1991)). When reviewing a contempt sentence, the ultimate determination of whether or not a contempt has been committed is within the trial court’s sound discretion. Millang, at ¶ 7. A trial court’s finding of contempt will not be overturned unless there is a clear abuse of discretion. Id. An abuse of discretion occurs when the trial court acts in an arbitrary, unreasonable, or unconscionable manner or when it misinterprets or misapplies the law. Id.

II

[¶ 6] Roland argues the district court abused its discretion by finding him in contempt of court because it was financially impossible for him to pay the guardian ad litem fees. He further asserts the trial court’s decision was improperly based on his gross business income, rather than his taxable yearly income.

[¶ 7] This Court has held “[t]he inability to comply with an order is a defense to contempt proceedings based on a violation of that order.” See, e.g., DeVore v. DeVore, 393 N.W.2d 739, 741 (N.D.1986); Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 559 (N.D.1949). However, the burden rests with Roland to establish his defense and show his inability to comply with the August 26 divorce judgment. See Hodous, 36 N.W.2d at 559-60.

[¶ 8] The facts in evidence fail .to support Roland’s contentions. The record reveals Roland testified he could, in fact, pay the guardian ad litem fees. Furthermore, Roland failed to present any evidence it was financially impossible for him to pay the fees or that the trial court’s decision was improperly based upon his gross business income.

Q. Have you paid the 691 dollars and 99 cents that Ms. Garrity alleges is owing her?
A. No, Your Honor.
Q. Are you able to pay it?
A. Right now, the money is posted as bond with the Court, Your Honor.
Q. I guess my question wasn’t clear. Do you have the financial ability to pay the 691 dollars and 99 cents?
A. Are you talking at the present time?
Q. Yes.
A. Yes, I do.
[[Image here]]
Q. Are you currently financially able to pay the 1,336 dollars to Mr. Webster?
A. Yes, Your Honor. Both bonds, again, are being held by the Court as part of my bond.

[502]*502III

[¶ 9] Roland argues the district court abused its discretion when it ordered him to pay the guardian ad litem fees because the trial court failed to review the bills of both guardians ad litem before ordering him to pay. In addition, he asserts the district court improperly ordered him to pay Webster his regular hourly rate of $85 per hour for travel. He further asserts Garrity was not entitled to payment for her services because among other things, Garrity promised she would give Jan custody of the children.

[¶ 10] These arguments challenge the validity of the divorce judgment entered August 26, 1998. We refuse to consider the merits of those challenges on an appeal from the contempt of court citation when no appeal was taken from the divorce judgment.

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Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, 598 N.W.2d 499, 1999 N.D. LEXIS 174, 1999 WL 549378 (N.D. 1999).

1999 ND 146 (Flattum-Riemers v. Flattum-Riemers) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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