IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| Natasha Bachmeier, n/k/a | ||||||||||
| Natasha Stevens | ||||||||||
| Plaintiff, Appellee | Sup. Ct # 20120358 | |||||||||
| v. | Civil No. 51-10-C-286 | |||||||||
| Jason Bachmeier | ||||||||||
| Defendants, | ||||||||||
.
Appeal from the District Court, Northwest Judicial District-
The Hon Gary Lee District Judge Presiding
BRIEF OF APPELLANT - DEFENDANT - JASON BACHMEIER
| Robert S. Rau | ||||||
| Attorney for Plaintiff / Appellant | ||||||
| Southeastern Shelter | ||||||
| P.O. Box 939 | ||||||
| Minot, ND 58702-0939 | ||||||
| Telephone No. (701) 852-3578 | ||||||
| TABLE OF CONTENTS | ||||||
| Table of Contents....i | ||||||
| Table of Authoritiesiii | ||||||
| Issues....v | ||||||
| Statement of Case...1 | ||||||
| Statement of Facts..1 | ||||||
| Issues....7 | ||||||
| Standard of Review..7 | ||||||
| Analysis..8 | ||||||
| 1 Can a parenting plan be applied by the Trial Court to the | ||||||
| parties that was never adopted and made part of the | ||||||
| Judgment.8 | ||||||
| 2) | Can a Parenting Plans Benefits be accepted when it (a) was not adopted by the Court, (b) was not part of the Judgment and (c) when Jason continually challenged the actions of Natasha..14 | |||||
| 3) | If the Parenting Plan is to be followed should (a) only selective portions of it be followed and or(b) should vague provisions be construed against the drafting party....17 | |||||
| 4) | Should Natasha be held in Contempt of Court for frustrating | |||||
| i. | ||||||
| and hindering Jason's parenting time and responsibilities | ||||||
| .24 | ||||||
| Conclusion28 | ||||||
ii.
| AUTHORITIES | |||||
| Cases; | |||||
| Bank of Beulah v Chase 231 NW2d 738 (ND 1975)...15 | |||||
| Bertsch v Bertsch 2006 ND 31, 710 NW2d 113...8 | |||||
| C.L. v D.H. 916 S2d 622 ( Ala 2005)....14 | |||||
| City of Mandan v Mi Jon News 381 NW2d 540 (ND 1986)...16 | |||||
| Foster V Nelson 206 NW2d 649 (ND 1973)....9,12 | |||||
| Holkesvig v Welte 2012 Nd 14, 809 NBW2d 323..7 | |||||
| Kerzman v ND Workers Comp Bureau 1999 ND 44, 590 NW2d 888..17 | |||||
| Kortum v Johnson 2008 ND 154 755 NW2d 432...18 | |||||
| Malaterre v Malaterre 293 NW2d 139 ( ND 1980)9 | |||||
| Mathisen v Matisen 276NW2d 123, (ND 1979)....11 | |||||
| Miller v Miller 76 ND 558, 38 NW2d 35 ( ND 1949)....14,15 | |||||
| Northwest G.F. Mutual Insur Co. V. Norgard | |||||
| 518 NW2d 179 (ND 1994)...20 | |||||
| Overboe v Overboe 496 MW2d 574 (ND 1993).8 | |||||
| Pfeifle v Tanabe 2000 ND 219, 620 NW2d 167...22 | |||||
| Tibbetts v Dornheim 2004 ND 129, 681 NW2d 79814 | |||||
| Tiokasin v Haas 370 NW2d 559 ( ND 1985).11 | |||||
| Voskuil Voskuil 256 NW2d 526 (ND 1977)..12 | |||||
| Wall v Stintson 983 P2d 736 ( Alaska 1999)...12 | |||||
| Wenco V EOG Resources 2012 ND 219 ___ NW2d ___....23 | |||||
| Wigginton v Wigginton 2005 ND 31, 692 NW2d 1087 | |||||
| iii. | |||||
| Zeller v Zeller 2002 ND 35, 640 NW2d 53...9,10 | |||||
| Other Sources; | |||||
| NDCC 09-07-19 ..20,21 | |||||
| NDCC 14-05-22.15 | |||||
| NDCC 14-09-24.27 | |||||
| NDCC 14-09-29.15 | |||||
| NDCC 14-09-30(1) ...8 | |||||
| NDCC 27-10-01.1....24 | |||||
| NDCC 31-11-05.22 | |||||
| Blacks Law Dictionary.... 27-28 | |||||
iv
ISSUES
1 Can a parenting plan be applied by the Trial Court to the
parties that was never adopted and made part of the
Judgment.
2) Can a Parenting Plans Benefits be accepted when it (a) was not adopted by the Court, (b) was not part of the Judgment and (c) when Jason continually challenged the actions of Natasha.
3) If the Parenting Plan is to be followed should (a) only selective portions of it be followed and or(b) should vague provisions be construed against the drafting party.
4) Should Natasha be held in Contempt of Court for frustrating and hindering Jason's parenting time and responsibilities.
v.
STATEMENT OF CASE
Jason Bachmeier appeals from the whole of the Order dated July 19-2012, the Hon Gary Lee , District Judge Presiding, to the North Dakota Supreme Court. This is a final Order denying Jason Bachmeier relief. The Order of the District Court upholds the validity of a Parenting Plan that was not adopted by the Court and was varied materially by the parties over years.
STATEMENT OF FACTS
Natasha Bachmeier brought a divorce action against Jason Bachmeier in 2010. A Judgement of divorce was entered on March 5-2010 by reason of a settlement. Jason was not represented at the time. Natasha's then attorney met with the parties and a structured agreement was arrived at including a parenting plan. The paperwork was signed and submitted to the Court and the Court approved of the divorce. However the concluding judgment never discussed and or referenced in any way the parenting plan. ( tr pg 98)
It should be noted that the judgment itself provided that the parties would have shared residential responsibility of the parties' 3 children. ( app pg 6-7)The issue that comes before the Court pertains to that unapproved parenting plan.(Tr pg 14), That plan provides in part that:
1) - the parties' residence would be in Granville (tr pg 15,68; App PG 20 )
2)- That the parents desired frequent and meaningful contact by both parents with and to the children.(App pg 20)
3)- That transportation and exchange arrangements for the children will be agreed upon between the parents' ( app pg 21)
In this regard any change in pick up or drop off location will be determined between the parties among other things
4)- That a parent requesting modification of the plan shall act in good faith and provide as much notice as the circumstances require. If the parties cannot agree, the parties shall look to the dispute resolution provisions of the plan. ( App pg 25) Further the plan by agreement may be changed but all changes must be in writing. ( app pg 22)
5)- That legal residence of the children for school attendance shall be with the mother. ( app pg 23) That is separate and apart from the locale of the children's physical residence or where they would put their head down at night. ( tr pg 101) That same provision also provided that the primary residential responsibility as and to the children shall be on a 4 days on and 4 days off basis. That would be in Granville.
Preceding the judgment and thereinafter Natasha was working in the Glenburn School system. ( tr pg 15-16) That meant she would travel from Granville to Glenburn daily. This pattern had continued for quite some time prior to the divorce as Natasha did her student teaching in Glenburn.
Thereinafter Natasha moved from Granville. ( tr pg 22-23) During the remainder of the school year Natasha left the children in Granville and their schooling continued in that district. (Tr pg 25)
Where the problem started was when Natasha unilaterally changed the school district of the children in August 2010. (tr pg 25) As can be imagined, Jason was unhappy with that turn of events as it was not within the scope of the plan and was done without consultation and or agreement. (Tr pg 25-26,43) Further, he never approved of the move, ( tr pg 26) and wanted the children to be returned to their historic community of residence and the Granville school.( tr pg 37) That is where the children received their formative education, had friends, animals, livestock and historically recreational activities. It is where the parties have extended family members.(tr pg 39 et seq,89 et seq) What makes the unilateral change hard to deal with is that Natasha was not a material player in the transportation after the move as the plan notes. ( tr pg 51,63 et seq) She even allowed activities to be scheduled for the children that conflicted with Jason's time. ( tr pg 104) This has resulted in Jason's parenting and visitation time being frustrated ( tr pg 43) and in winter made travel difficult. ( tr pg 51,77) Further she did not afford him make up time.( tr pg 44)
This recognizes that Natasha feels she did not mislead Jason. ( tr pg 73) She does recognize that she has no records dealing with the amount of time she transported the children (tr pg 110-111, 113,115) which was sought in discovery. Notwithstanding she feels she did assist in the transportation ( tr pg 75-76), although Jason was handling the majority of it. ( tr pg 109) She also acknowledges that the parties agreed to divide up the children while this matter was percolating along. ( tr pg 76 et seq,80. She also notes that she could handle the future transportation on a more equitable basis.( tr pg 118) She acknowledges moving to Glenburn on account of employment ( tr pg 82)even though she had been traveling to that city for years before that time. She also acknowledges that the parties divided the children's time equally from the start.( tr pg 83) That ended after the move and with Natasha changing schools.
At the time Jason petitioned the Court the Hon Richard Hagar for relief. That was denied without explanation. (tr pg 26,49-50) app pg 33) That necessitated that Jason became the parent that handled the driving predominantly and resulted in the children being unilaterally relocated. ( tr pg 27,30-31,51 63 65)
Natasha in April 2011 brought a Motion with the Court. There she sought to change the parenting responsibilities of the parties and that she be designated primary residential responsible parent. She asserted that the present arrangement was a disaster and that Jason wasn't following through with his parenting duties and responsibilities. She went on to state that the children had been separated and that she didn't think that was in their best interest. ( app pg 39 et seq)
Jason responded that before she proceed to court there needed to be mediation and that the 2 year statute had not run ( 14-09-06.6 NDCC). He also asked for cross relief. Further he urged that Natasha was the cause of the dilemma by reason of her unilateral change and action and that any fault was by reason of her and the weather that he had no control over, among other things. ( app Pg 68 et seq)
Judge Lee was assigned to the case. He ordered mediation under the pilot project.( App pg 100 et seq) That mediation failed to result in any agreed settlement. ( app pg 103)
Jason then renewed his Motion. That led to the instant proceedings. During the pendency and discovery phase of the proceedings Attorney Slorby and Attorney Rau met and discussed methods to short cut the trial and handling of the proceeding. At the hearing before the Court Judge Lee wanted to hear none of that and forced a delay in the trial so support calculations could be made even though the parties were ready and did stipulate to elimination of issues including a change in support.( Tr pg4-et seq). It should be noted that the parties had withdrawn support issues from the Court on account of the Court's earlier ruling ( tr pg 13) Begrudgingly Judge Lee acknowledges the same in his final ruling. Further he wanted to hear and resolve a fee request in a defined way, even though a post hearing ruling from the Supreme Court in another case arose --that would normally justify putting that issue on hold. ( tr pg 8-9). See 27-10-01.3 9 (1) a-
Holkesvig v Welte 2012 ND 14,Par 11, 809 NW2d 323.
This matter now comes to this Court on appeal.
ISSUES
1) Can a parenting plan be applied by the Trial Court to the parties that was never adopted and made part of the Judgment.
2) Can a Parenting Plans Benefits be accepted when it (a) was not adopted by the Court, (b) was not part of the Judgment and (c) when Jason continually challenged the actions of Natasha.
3) If the Parenting Plan is to be followed should (a) only selective portions of it be followed and or(b) should vague provisions be construed against the drafting party.
4) Should Natasha be held in Contempt of Court for frustrating and hindering Jason's parenting time and responsibilities.
STANDARD OF REVIEW
Questions of Law are subject to a de novo standard of review and findings of fact are subject to a clearly erroneous standard of review. Wigginton v Wigginton 2005 ND 31, Par 13, 692 NW2d 108. Clearly erroneous findings may be overturned. Further arbitrary , unconscionable or unreasonable acts of the lower court may be set aside. Overboe v Overboe 496 NW2d 574,579 (ND 1993). A district Court abuses its discretion if it misinterprets or misapplies the law. Bertsch v Bertsch 2006 ND 31, Par #8 710 NW2d 113,117
ANALYSIS
1) Can a parenting plan be applied by the Trial Court to the parties that was never adopted and made part of the Judgment.
The parties made what is purported to be a parenting plan. It was never adopted by the Court as is required by law. NDCC 14-09-30(1).This act provides in part that
... the parents shall develop and file with the court a parenting plan to be included in the court's decree. If the parents are unable to agree on a parenting plan, the court shall issue a parenting plan considering the best interest of the child.
This would implicate the requirement of the Court approving and adopting a plan covering the requirements as set forth by law. In the case at bar the judgment of the court never adopted nor considered the plan. ( app pg 6 et seq) In this matter the purported parenting plan is set forth at ROC #9. As such there is no parenting plan that was part and parcel of the Court's ruling and when the lower Court never adopted one. It is urged that the Plan is a nullity and of no effect as to either party.
It is recognized in Foster v Nelson 206 NW2d 649, (ND 1973), that: The court retains control of the decree of divorce insofar as the rights of the children are concerned, regardless of any contract of the parties to the contrary. Eisenbarth v. Eisenbarth,91 N.W.2d 186 (N.D. 1958).
Accord : Mataterre v Malaterre 293 NW2d 139 (ND 1980)
As such the plan is without legal authority or basis and is not controlling without the Court's due consideration of the same and its approval.
Zeller v. Zeller, 2002 ND 35, 640 N.W.2d 53 supports this assertion by noting;
[¶15] The foregoing decisions are consonant with existing North Dakota law. Section 14-05-22(1), N.D.C.C., provides, in part: "In an action for divorce, the court . . . may give such direction for the custody . . . of the children of the marriage as may seem necessary or proper, and may vacate or modify the same at any time." Section 14-09-06.1, N.D.C.C., provides: "An order for custody of an unmarried child . . . must award the custody of the child to a person . . . as will, in the opinion of the judge, promote the best interests and welfare of the child." (Emphasis added.) The trial court has continuing jurisdiction over child custody, Voskuil v. Voskuil, 256 N.W.2d 526, 529 (N.D. 1977),....
[¶16] In Malaterre v. Malaterre, 293 N.W.2d 139, 141 (N.D. 1980), Doris and Frederick Malaterre stipulated Doris would have custody of their child. The 1976 divorce judgment adopted the parties' stipulation. Id. at 141. In 1979, Frederick moved the district court to modify the 1976 judgment and award him custody. Id. Doris opposed the motion, asserting, in part, that the stipulation was "a full and complete compromise and settlement of all the parties' property rights and of all claims and demands of every kind, nature, and description." Id. The district court held, in part: "Now, I expressly reject the concept that parties, by agreement, may oust a district court of this state of jurisdiction; it has continuing jurisdiction over child custody." Id. This Court agreed with the district court:
The general rule in North Dakota is that a court having jurisdiction to hear a divorce action continues to have jurisdiction regarding the custody, care, and education of the children of the marriage as may be deemed necessary or proper and to vacate or modify any decree as is deemed appropriate in the best interests of the children. This is true regardless of any contract of the parties to the contrary. Therefore, we agree with the district court that it was not ousted of its jurisdiction by the "stipulation property settlement agreement" entered into by Doris and Frederick.
Id. at 142 (citation omitted). See also Tiokasin v. Haas, 370 N.W.2d 559, 562 (N.D. 1985) ("This court has often stated that a trial court is not bound to accept stipulations which purport to determine questions regarding the custody and care of the children of a marriage if it finds that it is not in the best interests of the children to do so."); Mathisen v. Mathisen, 276 N.W.2d 123, 129 (N.D. 1979) ("In custody matters, the district court is not bound by private arrangements to which the parties have agreed."); Voskuil v. Voskuil, 256 N.W.2d 526, 529 (N.D. 1977) (a trial court "is not bound to accept stipulations and side agreements which purport to determine custody questions if it finds that it is not in the best interests of the children that it do so"); Foster v. Nelson, 206 N.W.2d 649, 650 (N.D. 1973) ("The court retains control of the decree of divorce insofar as the rights of the children are concerned, regardless of any contract of the parties to the contrary.").
Here the trial court on considering the parties' divorce stipulation and setting forth a judgement did not address the parties' side agreement - which they called a 'parenting plan'. The enacted law of this state along with case authority mandates that the trial court consider and implement a plan. In this case it failed to do so and the parties are not bound by the same. The lower Court's ruling is erroneous as a matter of law.
In coming to his ruling Judge Lee felt some form of bar is applicable. The lower Court considered Wall v Stintson 983 P2d 736 ( Alaska 1999) as being applicable. Wall is inapplicable. It dealt with the issue of collateral estoppel and full faith and credit, of a companion state's ruling.
It went on to state: In Oregon,
[e]very court confronted with a law suit of any kind is under both the necessity and the duty of determining whether or not it has jurisdiction to entertain the suit, and it necessarily has jurisdiction to make this determination. If it determines erroneously that it has jurisdiction, its own erroneous determination does not give it any true jurisdiction of the case as a whole, and its judgment is in general void and therefore subject to collateral attack, but in accordance with principles which also form the basis for the familiar doctrine of res judicata the judgment may, after it becomes final, be binding upon the parties to the suit although not upon others, and the rights of parties may therefore be limited to ... direct attack. The theory of the law on this subject is fully set forth in the Restatement: Judgments, §§ 4, 7, 8, 9, 10, 11, 12, 33, 74, 93, including the comments on each section.
The instant case does not challenge the judgment. The judgement stands on its own strength and weight as far as it goes. What is challenged is a plan that was not part of the judgment and never considered by the court. As such it is not within the scope of the bar cited by the lower court.
2) Can a Parenting Plans Benefits be accepted when it (a) was not adopted by the Court,(b) was not part of the Judgment and (c) when Jason continually challenged the actions of Natasha.
The lower court seems to indicate that there was some form of acceptance of the benefits by Jason. In coming to this conclusion it misconstrues the facts and the time table. For example while the lower court noted the earlier ruling dismissing the motion for interim relief ( Tr pg 49- 50, app pg 33) it was an interlocutory ruling and likely non appealable. NDCC 28-27-02- Tibbetts v Dornheim 2004 ND 129, Par 10-11 681 NW2d 798,802-in fact most intermediate orders are non appealable and may be reviewed as an incident to or a part of the final action of the Court. See also C.L v D.H 916 So2d 622 ( Ala 2005)
The lower court urges based upon the dissent in Miller v Miller 76 ND 558, 38 NW2d 35,45 (ND 1949) that there was a form of acceptance of the benefit. In doing so the minority said that one who as a general rule voluntarily accepted the benefit of the judgment waives his right to have it reviewed on appeal. To the contrary that view was rejected for matters such as the case at bar in Bank of Beulah v Chase 231 NW2d 738, 745-746 (ND 1975) when the Supreme Court said that the rule applies to the benefits received by the judgment. As Beulah would recognize there were no benefits that were ordered by the earlier court dealing with the parenting plan as it was not part of the judgment. Further the Miller Court held that the rights and welfare of the children are paramount to those of the litigants. Here the issue pertains to the rights of the children. They are at stake. Again this Court has noted that it is bound to advance the children's interests. Thus acceptance of the benefits is not applicable in the instant case. What the lower court did was to sweep them away by its ruling. It has been noted that parenting time is to promote the best interest and welfare of the children. ( NDCC 14-05-22, 14-09-29)
Here Jason did not get what he bargained for as the parties agreed and the Court Ordered. Nor did the children. By the Judgment, Jason was to be a parent that had shared and equal rights with and to the children. The children were to have significant time with their father as well as their mother. The children had spend their entire lives in Granville, until the mother swept them away from that community. She did so by considering only her separate interests. They had before--the benefit of farm life with a close affiliation and connection to neighbors and extended family on both sides. They had community activities and livestock that they controlled and used in FHA functions. These are not trifles, but affect the development of the children. This State prides itself on its agrarian foundations and closeness to the soil. Yet Jason and the children's time was frustrated by the unilateral action of Natasha in moving the children and changing schools and or not participating adequately in the transportation. ( tr pg 61 et seq) This materially harmed the children as it is presumed visitation and parenting time are in the children's best interest.
The lower court also was concerned that Jason failed to earlier move the court for a correction of an error or irregularity. In making this statement Judge Lee over looked the fact that Jason did seek relief from the Court and was rebuffed on the same. Further the concern is not with the judgment but with an ineffectual parenting plan that was never adopted and approved. City of Mandan v Mi Jon News 381 NW2d 540 (ND 1986) does not stand for the proposition that failure to move for relief from a judgment by seeking relief under Rule 52(b) or 59(j) operates as a waiver. Even if it does, it is inapplicable as the problem is not with the judgment but a side agreement not approved by the court.
Here there was no waiver of any right by Jason, and when he took legal steps including the right of self help to change the dynamics of the matter. He attempted to enroll the children in Granville. (tr pg 58,60.) Further he embarked upon mediation as the trial court directed only to be rebuffed again by having the matter delayed. How can that be a waiver when he followed with the prescribed alternative. Here he suffered on account of the act of another. As authorities show Jason did not concede the point and continually advanced his claim in the ways that were available.
3) If the Parenting Plan is to be followed should (a) only selective portions of it be followed and or(b) should vague provisions be construed against the drafting party.
Even assuming the parenting plan is of import and valid Jason has been denied the benefit of the bargain reached. In this matter Jason was not represented at the trial level and Natasha's attorney prepared the purported plan. Under principles of construction of a contract Kerzman v. N.D. Workers Comp. Bureau, 1999 ND 44, 590 N.W.2d 888 holds that:
[¶9] Stipulations are governed by contract law.
See Rueckert v. Rueckert, 499 N.W.2d 863, 867 (N.D. 1993). The construction of a written contract to determine its legal effect is a question of law. Pamida, Inc. v. Meide, 526 N.W.2d 487, 490 (N.D. 1995). We construe contracts to give effect to the parties' mutual intention. N.D.C.C. § 9-07-03; Pamida at 490. The parties' intention must be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04; Pamida at 490. We construe contracts as a whole to give effect to each provision, if reasonably practicable. N.D.C.C. § 9-07-06.
[¶10] If a written contract is ambiguous, extrinsic evidence may be considered to show the parties' intention. Pamida at 490. If a contract is clear and unambiguous, we construe it from the four corners of the document. Id. Whether a contract is ambiguous is a question of law. Id. If the parties' intention can be ascertained from the writing alone, the interpretation of the contract is a question of law, and we will independently examine and construe the contract to determine its legal effect. Id.
Kortum v. Johnson, 2008 ND 154, 755 N.W.2d 432 holds that
Par 43....Whether a contract is ambiguous is also a question of lawId. "A contract is ambiguous when rational arguments can be made for different interpretations." Spagnolia v. Monasky, 2003 ND 65, ¶ 10, 660 N.W.2d 223. If the terms of a contract are ambiguous, extrinsic evidence regarding the parties' intent may be considered, and the terms of the contract and the parties' intent become questions of fact. Id. "In actions tried without a jury, a district court's findings of fact are governed by the clearly erroneous standard of review." In re Estate of Egeland, 2007 ND 184, ¶ 6, 741 N.W.2d 724.
[¶44] Contracts are construed to give effect to the parties' mutual intention at the time of contracting. N.D.C.C. § 9-07-03. Parties' intentions are to be ascertained from a written contract alone if possible. N.D.C.C. § 9-07-04. A contract is interpreted as a whole so as to give effect to every part; "[e]ach clause is to help interpret the others." N.D.C.C. § 9-07-06. Words in a contract are to be interpreted in their ordinary sense. N.D.C.C. § 9-07-09. "A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates." N.D.C.C. § 9-07-12. "[I]f a conflict exists between a specific provision and a general provision in a contract, the specific provision qualifies the general provision." Oakes Farming Assoc. v. Martinson Bros., 318 N.W.2d 897, 908 (N.D. 1982).
This recognizes that Northwest G. F. Mutual Ins. Co. v. Norgard, 518 N.W.2d 179 (N.D. 1994), holds that--
if the rules for interpreting a written contract do not remove uncertainty, the language of the contract is to be construed most strongly against the party who drafted the contract. NDCC 9-07-19; Walle Mut. Ins. Co. v. Sweeney, 419 N.W.2d 176 (N.D. 1988).
In the case at bar the lower court recognized that Natasha had the power to make educational decisions. What was not considered and or adjudicated adequately is what that means and or meant to the parties. For example Jason felt it was limited in scope to selecting teachers, courses, and programs. ( tr pg 65 et seq) He related that was based upon what Natasha told him it meant. She denied the same and thought education initially meant everything (tr pg 85) even though she later conceded that the phrase wasn't defined by the agreement. (tr pg 100-101) It should be noted that the children are doing well in school and had been. (tr pg 95)Natasha even conceded that point.
While the lower Court applied some of the rules of contract interpretation, it never adequately considered what educational decisions meant as viewed by Jason. All that is said was that the plan provided for what it plainly indicated. Natasha had the authority to make educational decisions. Yet what the court did was to substitute its view for that of the parties. Here Jason felt it covered limited matters. That was based upon the history of the parties dealing with schooling and where the children went to school. Consistent with this nothing in the plan gave her the per se right to select schools when she represented initially Granville was the school of choice- even when she was commuting. Notwithstanding, it is by its nature a vague phrase. Nothing in the law of this state supplies any meaning to the phrase. Nor does the parties contract. In the section that the provision was placed - the balance of the language therein adds little to clarify what was intended. It is a vague statement and says nothing about the school that the children are to attend. In NDCC 9-07-19, Uncertainty interpreted against party causing it- it provides in part that an uncertainty not removed by the preceding rules should be interpreted most strongly against the party that caused the uncertainty. That is Natasha.
As noted before, at the time that the stipulation was made, the children were attending Granville and did for a period of time thereinafter. As such, shouldn't Natasha knowing she was teaching in Glenburn at the time of the settlement- have added more clarity to her concept of educational decisions rather than switching cards after the fact. Under Maxims of Jurisprudence a person may not change that person's purpose to the injury of another. Further anyone may waive the advantage of a law intended for that person's purpose and one must not use that person's right to infringe upon the rights of another. (NDCC 31-11-05)
Here there was a waiver of a right- assuming she had the right to change schools, by her conduct and act of leaving the children for years in Granville.
In Pfeifle v. Tanabe, 2000 ND 219, 620 N.W.2d 167 the Supreme Court noted that:
[¶18] A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege. Hanson v. Cincinnati Life Ins. Co., 1997 ND 230, ¶ 13, 571 N.W.2d 363. Waiver may be established either by an express agreement or by inference from acts or conduct. Id. The existence of waiver generally is a question of fact, but if circumstances of an alleged waiver are admitted or clearly established and reasonable persons can draw only one conclusion from those circumstances, the existence of waiver is a question of law. Id. Waiver may be found from an unexplained delay in enforcing contractual rights or accepting performance different than called for by the contract. Dangerfield v. Markel, 252 N.W.2d 184, 191 (N.D. 1977).
Accord Wenco v EOG Resources 2012 ND 219 Par 19 ___NW2d ___ which recognizes rights may be waived. However it must be voluntarily and an intentional relinquishment of an advantage and right. While it may be a question of fact, waiver becomes a question of law if reasonable persons could draw only one conclusion
In this regard Jason never waived anything. (tr pg 26,27. He never agreed to a change of their school let alone where they would live. Natasha waived her right to change schools -assuming she had that right - by having one of the children go to school for a year in Granville.
This recognizes that Natasha represented in the plan that her residence was in Granville. While she may of course, change that residence, she failed to set forth that she was going to do other than be in Granville. With her mutual statement with Jason that they were to co parent and both be in the lives of the children- was her intent otherwise and nothing more than a material deception of the other party? (app Pg 6-7) As the trial court recognized her act in relocating would raise Jason's ire. It did more than that. It caused a problem with his parenting time. That is what the judgment afforded him and the plan was to implement. The joint effort of both in parenting of their 3 children was what was to be accomplished. That was for the best interest and welfare of all 3 children. That was adversely impacted by Natasha. Further, Natasha waived her educational rights and prerogatives by letting the one child live for the 2011-2012 school year in Granville.
Note also her objection to continue with the past practice of keeping the kids in Granville really had nothing to do with any harm that the children would suffer educationally or otherwise. ( tr pg 125) She believed the move was in their best interest, as kids should be with their moms rather than others providing care. ( tr pg 120-121) This was in spite of the bargain that the parties made to divide care and time equally, and state law. NDCC 14-09-29(1)
4) Should Natasha be held in Contempt of Court for frustrating and hindering Jason's parenting time and responsibilities.
Jason urged the action in moving the children and frustrating his parenting time of sharing the children was contemptous. The lower court recognizes that her act has created difficulty for Jason. ( app pg 113)
Contempt is defined at NDCC 27-10-01.1 as the:
a. Intentional misconduct in the presence of the court which interferes with the court proceeding or with the administration of justice, or which impairs the respect due the court;
b. Intentional nonpayment of a sum of money ordered by the court to be paid in a case when by law execution cannot be awarded for the collection of the sum;
c. Intentional disobedience, resistance, or obstruction of the authority, process, or order of a court or other officer, including a referee or magistrate;
d. Intentional refusal of a witness to appear for examination, to be sworn or to affirm,
or to testify after being ordered to do so by the court;
e. Intentional refusal to produce a record, document, or other object after being ordered to do so by the court;
f. Intentional behavior in derogation of any provision of a summons issued pursuant to rule 8.4 of the North Dakota Rules of Court; or
g. Any other act or omission specified in the court rules or by law as a ground for contempt of court
In this matter there is the intentional interference with an order of the Court. Here there is a serious interference with Jason's visitation. He was denied time and association. Natasha moved the children to suit her interests and ignored that Jason and the children had rights. Her own words support that she interfered with his time.
Assuming that Natasha had the right and power to move the children to Glenburn and disrupt the children's education, she did not have the right to interfere with Jason's parenting rights and privileges. Those were to be shared parenting time. If the plan is to be applied-- then there is the right for Jason to have time with the children and for the children to have time with their father. ( app pg 17 et seq) Jason has the right to have them in his home, provide day to day decision making authority ( app pg 6-7 ) and the incidental rights that go with being a parent. This was for the children's benefit and any act on the part of a parent doesn't waive the entitlement that the children should enjoy. For example the plan requires both parents to promote the development of the children-( app pg 17 et seq) participate jointly in transportation of the children ( app pg 21) and have meaningful communication with the children. ( app pg 21) Again these are rights for the children's benefit. Yet under the Court's ruling they are meaningless and of no import when Natasha controls and dominates on all. Isn't the entire plan to applied to the children or if its of effect just want Natasha wants? We know she hasn't participated fully in transportation and demanded that Jason bear the burden. Isn't this a contemptuous act on her part? It is an obstruction of authority. Under the law frustration of visitation parenting time is a contemptuous act. For example NDCC 14-09-24. Interference with visitation - Attorney's fees - Enforcement remedies and tools.- provides that
In any proceeding in which child visitation is properly in dispute between the parents of a
child, the court shall award the noncustodial parent reasonable attorney's fees and costs if the
court determines there has been willful and persistent denial of visitation rights by the custodial parent with respect to the child. The court may use any remedy that is available to enforce a child support order and which is appropriate to enforce visitation.
Willful is defined by Blacks Law dictionary as being from a conscious motion of the will - voluntary. It is also noted that the meaning can be varied yet has been described as being done intentionally , knowingly and purposefully.
Natasha's actions in cutting Jason out of the loop met that definition. While the trial court's inferred position was to leave the parties in the bed that they made doing so tilted the playing field in Natasha's favor. It allowed her to bear the fruits of her own misconduct and places pain on Jason and separates the children from him.
As such Natasha has violated the judgment assuming the plan is part of the same. Further the lower courts ruling that the parties follow the plan itself ( app pg 113 ) seems to infer that Natasha was wrong in taking matters in to her own hands. Sanctions need to be applied.
CONCLUSION
It is respectfully requested that the decision of the lower court be reversed and the case remanded for further proceedings including the entry of Orders holding Natasha in contempt of Court, directing that the children be returned to Granville for schooling and other care, directing an order be entered that Jason be afforded his time with the children and such other and further relief as is just and equitable.
| Respectively submitted. | |||||||
| Dated this __ day of ___, 2012. | |||||||
| Robert S. Rau (#3133) | |||||||
| Attorney at Law | |||||||
| P.O. Box 939 | |||||||
| Minot, North Dakota 58702-0939 | |||||||
| Telephone No. (701) 852-3578 | |||||||