RULE 8.2. INTERIM ORDERS IN DOMESTIC RELATIONS CASES
(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:
(A) Threat of imminent danger to any party or minor child of the party; or
(B) Circumstances indicating that an ex parte order is necessary to protect the parties, any minor children of the parties, or the marital estate.
(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. The affidavit must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant is competent to testify on the matters stated. A restraining and eviction order may not
be issued ex parte unless the movant
also appears personally and good cause is
issuance of the order.
(3) The provisions which may be included in an ex parte interim order are temporary custody, 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 must notify the court. After
receiving notice of the
appearance or representation, the court shall must attempt to hold an
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
(5) An interim order issued ex parte must provide specifically:
(A) That 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; and
(B) That 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.
(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.
(6) The ex parte interim order remains in effect until it is amended following a court hearing.
(b) Interim orders upon motion and hearing.
(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) CustodyVisitation. An interim order providing for temporary custody of minor children may be granted, in which case the order must provide for reasonable visitation rights, unless the evidence establishes that visitation should be restricted to certain times and places or prohibited.
(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) Amendment. An interim order may not be amended except upon stipulation of the parties or in the event of a material change of circumstances.
(c) Payment. 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 must 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 must 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 an affidavit that complies with Rule 8.2(a)(2). 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
must proceed first
at the hearing.
(f) Affidavit Submitted in Bad Faith. If satisfied that an affidavit under this rule is submitted in bad faith or solely for delay, the court must order the submitting party to pay the other party the reasonable expenses, including attorney's fees, incurred as a result. An offending party or attorney may also be held in contempt.
Rule 8.2 was amended, effective September 1, 1983; January 1, 1995; March 1, 1996; March 1, 1999; March 1, 2001; October 9, 2002; ________________.
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.
Rule 8.2 was amended, effective ______________, to require affidavits submitted under this rule to contain admissible and competent evidence. A new subdivision (f) sets out specific penalties that apply when affidavits are submitted in bad faith.
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 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.