Sall v. Sall

2013 ND 108, 833 N.W.2d 417, 2013 WL 3043191, 2013 N.D. LEXIS 99
CourtNorth Dakota Supreme Court
DecidedJune 19, 2013
Docket20120448
StatusPublished
Cited by2 cases

This text of 2013 ND 108 (Sall v. Sall) 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
Sall v. Sall, 2013 ND 108, 833 N.W.2d 417, 2013 WL 3043191, 2013 N.D. LEXIS 99 (N.D. 2013).

Opinion

SANDSTROM, Justice.

[¶ 1] Caryn Weber appeals from a district court order denying her motion for relief from a fourth amended divorce judgment and a district court order on remand from her 2011 appeal to this Court. Concluding our judgment on remand has been complied with and the district court correctly denied attempts to redetermine previously resolved issues, we affirm.

I

[¶ 2] Weber and Duane Sail, who divorced in 2003, have two children. In September 2010, Weber moved to hold Sail in contempt for failure to pay their children’s extracurricular and medical expenses. The district court denied Weber’s motion, refusing to find Sail in contempt, and entered a fourth amended judgment in January 2011 modifying Sail’s support obligations. Weber appealed that order and amended judgment to this Court. In Sall v. Sall, 2011 ND 202, ¶ 6, 804 N.W.2d 378, Weber argued the district court erred in refusing to hold Sail in contempt. She argued the district court erred in entering the fourth amended judgment and finding her claim for unpaid extracurricular and medical expenses was stale. Weber also raised many other arguments. We affirmed the district court order refusing to hold Duane Sail in contempt. We reversed that portion of the order denying “Weber’s claims for reimbursement for the children’s extracurricular and medical expenses incurred more than two years before [her] September 2010 motion, and we remand[ed] for reconsideration of those claims by the district court.” Id. at ¶ 16. “In all other respects the orders and judgment appealed from [were] affirmed.” Id. at ¶ 17.

[¶ 3] On October 31, 2011, Weber filed a petition for rehearing with this Court, which we denied on November 15, 2011. On February 9, 2012, Weber petitioned the United States Supreme Court for a writ of certiorari to reverse our decision. On April 16, 2012, the United States Supreme Court denied her petition. On May 10, 2012, Weber filed a petition for rehearing with the United States Supreme Court. On June 11, 2012, the United States Supreme Court denied her petition for rehearing.

[¶ 4] In March 2012, the district court had held a status conference looking to resolve the issue on remand but was advised of Weber’s petition to the United States Supreme Court and the need to wait for its determination.

[¶ 5] In September 2012, before any party had advised the district court of the United States Supreme Court action, Weber moved for relief from the fourth amended judgment under Rule 60, N.D.R.Civ.P., seeking modification of Sail’s support obligations. She argued our opinion in Sail *419 supported her request and the court should find Sail in contempt for failure to pay. At the hearing on the September 2012 motion, Weber argued it was completely separate from the remand from this Court. The district court denied her September 2012 motion, concluding the issues she raised were previously considered by this Court in Sail and her claim was barred by res judicata. The court also concluded her motion was frivolous and untimely. Sail was awarded $500 in attorney’s fees.

[¶ 6] In November 2012, a hearing was held to resolve the issue on remand from this Court — Weber’s claims for reimbursement for the children’s extracurricular and medical expenses incurred more than two years before September 2010. The district court asked Weber to identify all amounts she claimed she was due. After Weber had done so, Sail agreed to pay the full amount identified by Weber. Weber refused to agree because she insisted Sail must agree to be held in contempt of court, objecting, “He is not stipulating to a contempt charge.” The court explained the contempt issue had been resolved and was not before the court. The court said, “He is offering to pay more than what you are asking for. Do you realize that?” The court explained that Sail agreed to pay items already excluded by the prior judge for reasons other than the issue on remand. Weber continued to insist that Sail must be held in contempt. The district court held the narrow issue on remand resolved when Sail paid Weber the $2,341.22 in open court. The court denied Weber’s request for further hearing on whether Sail was in contempt.

[¶ 7] Weber argues the district court erred in barring her entire September 2012 motion by res judicata, ruling her motion untimely and frivolous and imposing a sanction, and upholding the entrance of the fourth amended judgment. She also argues the district court, in its order denying her request for further hearing on holding Sail in contempt, erred in exempting Sail from application of N.D.C.C. § 14-08.1-05, denying her interest due on unpaid child support, and not finding Sail in contempt.

[¶ 8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Weber’s appeal is timely under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 9] Weber argues the district court erred in denying her September 2012 motion for relief from a fourth amended divorce judgment by not amending Sail’s support obligation and by not finding Sail in contempt for unpaid child support obligations. Our review of appeals from decisions denying a motion for relief from judgment is well-established:

A trial court’s decision to deny relief under N.D.R.Civ.P.60(b) will not be overturned on appeal absent an abuse of discretion. We do not determine whether the court was substantively correct in entering the judgment from which relief is sought, but determine only whether the court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not established. An abuse of discretion occurs only when the trial court acts in an arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.

Manning v. Manning, 2006 ND 67, ¶ 15, 711 N.W.2d 149 (quoting Gonzalez v. Tounjian, 2004 ND 156, ¶ 9, 684 N.W.2d 653).

*420 A

[¶ 10] Weber first argues the district court erred in concluding her September 2012 motion was barred by res judicata. We have said,

Res judicata, or claim preclusion, prohibits the relitigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies, and which were resolved by final judgment in a court of competent jurisdiction. Under res judicata principles, it is inappropriate to rehash issues which were tried or could have been tried by the court in prior proceedings.

Matter of J.G., 2013 ND 26, ¶ 10, 827 N.W.2d 341 (quoting Laib v. Laib, 2010 ND 62, ¶ 10, 780 N.W.2d 660).

[¶ 11] In her motion for relief from judgment, Weber argued the district court should vacate the fourth amended judgment and reinstate the third amended judgment, apply this Court’s findings to unpaid child support, and hold Sail in contempt for nonpayment and order him to pay her for medical expenses. She argued our “finding” in Sall v. Sall,

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Related

Schroeder v. Schroeder
2014 ND 106 (North Dakota Supreme Court, 2014)
Weber v. Sall
134 S. Ct. 910 (Supreme Court, 2014)

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Bluebook (online)
2013 ND 108, 833 N.W.2d 417, 2013 WL 3043191, 2013 N.D. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sall-v-sall-nd-2013.