(a) Ex Parte Interim Order.
(1) No interim order may issue except upon notice and hearing unless the court
specifically finds exceptional circumstances. Exceptional circumstances include: (b) Interim Orders Upon Motion and Hearing.
(A) Threat of imminent danger to any party or minor child of the party; or (2) No ex parte interim order may be issued unless the movant executes an affidavit
setting forth specific facts justifying the issuance of the order. A restraining and eviction
order may not be issued ex parte unless the movant also appears personally and good cause
is shown for issuance of the order.
(B) Circumstances indicating that an ex parte order is necessary to protect the parties,
any minor children of the parties, or the marital estate.
(3) The provisions which may be included in an ex parte interim order are temporary
parental rights and responsibilities, support and other appropriate expenses, use of real or
personal property, restraining and eviction.
(4) If there has been an appearance in the action by the adverse party, or if the attorney
for the moving party has knowledge that the adverse party is represented by an attorney, the
attorney for the moving party shall notify the court. After receiving notice of the appearance
or representation, the court shall attempt to hold an emergency hearing, either in person or
by telephonic conference, at which both parties may be heard, before issuing any order. The
issuance of an order following an emergency hearing will in no manner affect a party's right
to a further hearing on the merits of the order as provided in Rule 8.2(a)(5).
(5) An interim order issued ex parte must provide specifically:
the party to whom the order is directed, upon written motion may have a
hearing upon the necessity for the issuance of the order or the amounts to be paid be held within 30 days of the issuance of the ex parte interim order, unless an earlier hearing is required under N.D.C.C. ch. 14-07.1, or an application for change of venue is pending. If the ex parte order contains provisions delineated in N.D.C.C. ch. 14-07.1, the hearing must be scheduled in a timely manner to conform with the chapter. ; and
unless the motion is served and filed in the office of the clerk of district court within 10 days after service of the interim order, the order becomes final and is nonappealable, pending a final determination of the issues raised by the pleadings or until further order of the court in the event of a material change of circumstances. the party obtaining the interim order must secure a hearing date and personally serve the interim order and a notice of hearing on the opposing party.
(C) That any hearing on the order must be held within 30 days from the date the
motion is filed, unless an earlier hearing is required under N.D.C.C. ch. 14-07.1, or an
application for change of venue is pending. If the ex parte order contains provisions
delineated in N.D.C.C. ch. 14-07.1, the hearing must be scheduled in a timely manner to
conform with the chapter.That the hearing on the ex parte interim order may be waived if the party not obtaining the interim order files a written waiver with the court no later than two days before the hearing date. The written waiver must be served on the party obtaining the ex parte interim order.
(6) The ex parte interim order remains in effect until it is amended following a court
(1) Support. An interim order may provide for payment of support and other
appropriate expenses. In the event support is ordered, a current mailing address must be listed
for both parties.
(2) Parental Rights and Responsibilities. An interim order providing for temporary
parental rights and responsibilities and a parenting schedule of minor children may be
granted, in which case the order must provide for reasonable parenting time, unless the
evidence establishes that parenting time should be restricted to certain times and places or
(3) Attorney's Fees and Costs. An interim order may provide for payment of attorney's
fees and costs if evidence establishes that a party has insufficient personal income or funds
with which to pay attorney's fees and costs.
(4) Use of Property. An interim order may provide for the use of real or personal
property, and for restraining and eviction.
(5) An interim order may not be amended except upon stipulation of the parties or in
the event of a material change of circumstances.
The interim order must provide for any spousal support payment, child
support payment, or combined payment of child support and spousal support, to be paid to
and through the State Disbursement Unit. Payment must be in a manner acceptable to the
State Disbursement Unit unless otherwise ordered by the court.
(d) Time for Hearing Upon Notice.
If a notice of motion and motion are served to
obtain an interim order, the court shall hold a hearing no later than 30 days from the date of
filing the motion. If venue is changed before the hearing for an interim order is held, the
hearing for an interim order must be held no later than 30 days after venue is changed. (e) Submission of Evidence.
(1) Financial Statement. In any proceedings under this rule, each party shall file an
itemized financial statement prepared as illustrated in appendix B.
(2) Affidavit. Unless the court otherwise orders, evidence either in support of or in
opposition to the interim order must be presented by affidavit. Evidence presented by
affidavit may not be considered unless, at the time of the evidentiary hearing, the party
offering the affidavit makes the affiant available for cross examination.
(3) Time for Service and Filing. The affidavits and itemized financial statement of the
moving party must be served and filed no later than ten days prior to the commencement of
the hearing. Respondent's affidavits and itemized financial statement must be served and
filed no later than three days prior to the commencement of the hearing.
(4) Order of Proceeding. The party initially seeking interim relief shall proceed first
at the hearing.
Rule 8.2 was amended, effective September 1, 1983; January 1, 1995; March 1, 1996;
March 1, 1999; March 1, 2001; October 9, 2002; August 1, 2009; March 1, 2010
A motion for a change of venue must be promptly ruled upon in order to accomplish
the Committee's intent for interim orders to be expeditiously heard. Subdivision (a)(5) was amended, effective March 1, 2010, to provide, unless waived, a mandatory hearing upon the necessity for the issuance of the order or the amounts to be paid be held within 30 days of the issuance of an ex parte interim order.
Subdivision (b)(5) was added, effective March 1, 2001.
Subdivision (c) was amended, effective March 1, 2001; October 9, 2002. When an
order for child support or spousal support is entered, the order must provide for payment to
and through the State Disbursement Unit.
Sources: Joint Procedure Committee Minutes of September 24-25, 2009, pages 10-11;
2009, pages 44-45; September 26-27, 2002; September 28-29, 2000, pages 9-10; January
27-28, 2000, pages 19-21; April 30-May 1, 1998, pages 8-9; April 27-28, 1995, pages 9-15;
September 23-24, 1993, pages 16-17; April 20, 1989, page 17; April 26, 1984, page 17;
September 30-October 1, 1982, pages 18-21; December 11-12, 1980, pages 3-4 and 7.