(a) Ex Parte Interim Order.
(1) No interim order may be issued except on 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 interim 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 moving party 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 moving party also appears personally and good cause is shown for issuance of the order.
(3) An ex parte interim order may include provisions relating to 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 opposing party, or if the attorney for the moving party has knowledge that the opposing party is represented by an attorney, the attorney for the moving party must notify the court. After receiving notice of the appearance or representation, the court must 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 ex parte interim order must specifically provide:(A) that 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 interim order contains provisions delineated in N.D.C.C. ch. 14-07.1, the hearing must be scheduled in a timely manner under the chapter;
(B) that the party obtaining the ex parte interim order must secure a hearing date and personally serve the ex parte interim order and a notice of hearing on the opposing party; and
(C) that the hearing on the ex parte interim order may be waived if the opposing party files a written waiver with the court no later than two days before the hearing date. The written waiver must be served on the moving party.
(6) The ex parte interim order remains in effect until it is amended following a court hearing.
(7) An ex parte interim order modifying parenting time may be issued postjudgment.
(8) No ex parte interim order modifying primary residential responsibility may be issued postjudgment.
(b) Interim Orders on 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) 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 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) 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 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 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 affidavit. Evidence presented by affidavit may not be considered unless the party offering the affidavit makes the affiant available for cross-examination. A party wishing to exercise his or her right to cross-examine any non-party affiant must notify the party proffering the affidavit testimony at least 24 hours before the start of the hearing or may be considered to have waived the right to cross examination.
(3) Time for Service and Filing.(A) Moving Party. The affidavits and itemized financial statement of the moving party must be served and filed no later than 21 days prior to the hearing.(B) Responding to Initial Motion. If the respondent does not raise any new issues, the respondent's affidavits and itemized financial statement must be served and filed no later than seven days prior to the hearing.(C) Respondent Raising New Issues. If the respondent raises new issues other than those raised in the initial motion, the respondent's affidavits and itemized financial statement must be served and filed no later than 14 days prior to the hearing. If the moving party responds to new issues raised by the respondent, any affidavits must be served and filed no later than seven days prior to the hearing. A new issue means any issue listed in subdivision (b) not raised by the moving party.
(4) Order of Proceeding. The party initially seeking interim relief must proceed first at the hearing.
A motion for a change of venue must be promptly ruled on 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 (a) was amended, effective March 1, 2011, to add new paragraphs (8) and (9), clarifying types of ex parte interim orders that may be requested post judgment. Under N.D.C.C. § 14-09-06.6, notice is required prior to postjudgment modification of primary residential responsibility. If exceptional circumstances exist, a postjudgment modification of parenting time may be made ex parte.
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.
Paragraph (e)(2) was amended, effective March 1, 2011, to require a party wishing to cross-examine an affiant to provide pre-hearing notice to the party offering the affidavit.
Paragraph (e)(2) was amended, effective March 1, 2014, to clarify that a party wishing to cross-examine an opposing party does not need to provide pre-hearing notice.
Paragraph (e)(3) was amended, effective March 1, 2011, to change the time for service and filing of affidavits.
SOURCES: Joint Procedure Committee Minutes of January 31-February 1, 2013, pages 10-11; September 23-24, 2010, pages 3-7; April 29-30, 2010, pages 7-9, 27; January 28-29, 2010, pages 7-8; September 24-25, 2009, pages 10-11; May 21-22, 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.
Considered: N.D.C.C. § 14-09-06.6