In the Interest of Spicer

2006 ND 79, 712 N.W.2d 640, 2006 N.D. LEXIS 79, 2006 WL 1009220
CourtNorth Dakota Supreme Court
DecidedApril 19, 2006
Docket20050366
StatusPublished
Cited by7 cases

This text of 2006 ND 79 (In the Interest of Spicer) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of Spicer, 2006 ND 79, 712 N.W.2d 640, 2006 N.D. LEXIS 79, 2006 WL 1009220 (N.D. 2006).

Opinion

MARING, Justice.

[¶ 1] Nathan Spicer appealed from an amended judgment denying his request to hold Amanda Collette in contempt for failing to comply with the visitation provisions of an existing judgment, finding Spicer consented to Collette’s move to Michigan with the parties’ child, and modifying the visitation schedule. We conclude the district court addressed the contempt issue and did not abuse its discretion in finding Collette was not in contempt; the court *642 did not clearly err in finding Spicer consented to the child’s move to Michigan; and the court did not clearly err in modifying the parties’ visitation schedule. We affirm the amended judgment.

I

[¶ 2] The parties have one child together, who was born in 2001. In 2002, the parties agreed Collette would be the child’s custodial parent and Spicer would have reasonable visitation. The district court subsequently incorporated the parties’ agreement into a judgment. An amended judgment was entered in 2003, setting child support. In 2004, a second amended judgment was entered, establishing a visitation schedule.

[¶ 3] Shortly after the second amended judgment was entered, Collette was accepted into a physician’s assistant program in Michigan. Collette notified Spicer of her intention to move to Michigan with the child. Spicer admits he agreed to the move, subject to Collette agreeing to a visitation schedule. The parties reached an agreement regarding visitation; however, they did not reduce their agreement to writing and they dispute the terms of that agreement.

[¶ 4] In April 2005, a dispute arose between the parties regarding Spicer’s visitation under the oral agreement. During an April visitation with Spicer in North Dakota, Collette took the child back to Michigan without giving Spicer notice. Spicer obtained an ex parte order requiring Collette return the child to North Dakota to finish the April visitation. Collette received notice of the order, but failed to return the child.

[¶ 5] In May 2005, Spicer requested and received an order to show cause why Collette should not be found in contempt for failure to comply with the visitation schedule set out in the second amended judgment. Spicer also moved to modify the visitation schedule. After a hearing, the district court found Collette was not in contempt and Spicer consented to the move to Michigan. The court also modified the parties’ visitation schedule.

II

[¶ 6] Spicer argues the district court erred in failing to address the order to show cause. He argues the evidence is clear that Collette refused to comply with the court’s April ex parte order, and therefore, the court should have found her in contempt. Spicer also argues the court failed to address his request for attorney’s fees. He seeks a remand with instructions for the court to find Collette in contempt and to issue an order for appropriate sanctions.

A

[¶ 7] Spicer’s motion sought to find Collette in contempt for failing to comply with the second amended judgment, which set out the terms of visitation before she moved to Michigan. His motion did not seek to find Collette in contempt for failure to comply with the April ex parte order, and we therefore reject Spicer’s claim regarding the April ex parte order.

B

[¶ 8] We have consistently held that the district court must provide an adequate explanation for us to understand the basis for its decision. See, e.g., State v. Bergstrom, 2006 ND 45, ¶ 15, 710 N.W.2d 407; VND, LLC v. Leevers Foods, Inc., 2003 ND 198, ¶ 27, 672 N.W.2d 445. However, we will not reverse a district court’s decision when “valid reasons are fairly dis-cernable, either by deduction or inference.” Huntress v. Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351.

*643 [¶ 9] In this case, the district court did not make specific findings on the issue of contempt. Although we encourage the court to make specific findings, we can ascertain the basis for its decision. The court acknowledged that Spicer had brought a motion for contempt, and in the context of discussing visitation, the court concluded confusion and turmoil resulted after the parties failed to reduce their post-relocation visitation agreement to writing. The court discussed the resulting disagreements that surrounded visitation. The court found Collette’s move to Michigan was a material change that necessitated a modification of visitation.

[¶ 10] We can infer from the court’s discussion that the court determined the parties’ confusion about the oral visitation agreement was the reason Collette failed to comply with the second amended judgment. We conclude the court’s explanation is sufficient for us to understand that the court concluded Collette was not in contempt. Moreover, the district court also specifically addressed Spicer’s request for attorney’s fees and concluded each party was responsible for his or her own attorney’s fees.

[¶ 11] “Civil contempt requires a willful and inexcusable intent to violate a court order.” BeauLac v. BeauLac, 2002 ND 126, ¶10, 649 N.W.2d 210 (quoting Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, ¶5, 598 N.W.2d 499). Whether or not contempt has been committed is within the district court’s discretion. Montgomery v. Montgomery, 2003 ND 135, ¶ 18, 667 N.W.2d 611. The district court’s finding of contempt “will not be overturned unless there is a clear abuse of discretion.” Id. (quoting BeauLac, at ¶ 10). A court abuses its discretion if the court acts arbitrarily, unreasonably, or unconscionably, or if it misinterprets or misapplies the law. Montgomery, at ¶ 18.

[¶ 12] The district court’s explanation and findings about the parties’ confusion resulting from their visitation agreement are supported by the record, and support a determination that Collette did not willfully and inexcusably violate the second amended judgment. We conclude the court did not act arbitrarily, unreasonably, or unconscionably, or misinterpret or misapply the law in deciding Collette was not in contempt for failure to comply with the second amended judgment. We therefore conclude the court did not abuse its discretion in finding Collette was not in contempt.

Ill

[¶ 13] Spicer argues the district court erred in finding he consented to Collette’s move to Michigan with the parties’ child.

[¶ 14] Section 14-09-07, N.D.C.C., states, “[a] parent entitled to the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the non-custodial parent, if the noncustodial parent has been given visitation rights by the decree.” Whether the non-custodial parent consented to the relocation of the child is a factual question, and this Court will not substitute its judgment for that of the district court unless the court’s decision is clearly erroneous under N.D.R.Civ.P. 52(a). A district court’s finding is clearly erroneous “only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, we are left with a definite and firm conviction that a mistake has been made.” Stout v. Stout,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Arnold v. Trident Resources
2020 ND 104 (North Dakota Supreme Court, 2020)
Estate of Harris
2017 ND 35 (North Dakota Supreme Court, 2017)
Lorenz v. Lorenz
2007 ND 49 (North Dakota Supreme Court, 2007)
Marquette v. Marquette
2006 ND 154 (North Dakota Supreme Court, 2006)
Johnson v. GEHRINGER
2006 ND 157 (North Dakota Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
2006 ND 79, 712 N.W.2d 640, 2006 N.D. LEXIS 79, 2006 WL 1009220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-spicer-nd-2006.