                Filed 4/11/19 by Clerk of Supreme Court
                        IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 109


Jay Douglas Rhodenbaugh,                                      Plaintiff and Appellee

       v.

Ashley Lee Rhodenbaugh,                                    Defendant and Appellant


                                   No. 20180040


      Appeal from the District Court of Richland County, Southeast Judicial District,
the Honorable Bradley A. Cruff, Judge.

       AFFIRMED.

       Opinion of the Court by Tufte, Justice.

       Jerilynn B. Adams, Fargo, N.D., for plaintiff and appellee.

       Kristin A. Overboe, Fargo, N.D., for defendant and appellant.
                          Rhodenbaugh v. Rhodenbaugh
                                    No. 20180040


       Tufte, Justice.
[¶1]   Ashley Rhodenbaugh appeals from certain district court orders and a divorce
judgment. We affirm.
                                           I
[¶2]   Ashley and Jay Rhodenbaugh were married in 2010 and have two minor
children together. During the marriage, Jay Rhodenbaugh farmed, and Ashley
Rhodenbaugh stayed at home and cared for the children. In May 2016, Jay
Rhodenbaugh commenced this divorce action and the parties separated.
[¶3]   In October 2016, the district court issued an interim order granting the parties
joint decision-making responsibilities for the children, awarding Ashley Rhodenbaugh
primary residential responsibility and Jay Rhodenbaugh unsupervised parenting time.
At the time of the interim order, she was living in the marital home with the minor
children, and he was living in a home he rented from his sister. Effective in December
2016, the court ordered Jay Rhodenbaugh to pay her interim child support of $1,159
per month and spousal support of $500 per month. The court also ordered him to pay
certain additional household expenses until his support obligations commenced in
December 2016, and thereafter the parties were responsible for their own household
expenses and Ashley Rhodenbaugh was to be responsible for their minor children’s
expenses. In October 2016, the court entered an order denying her request to waive
filing fees.
[¶4]   In March 2017, Jay Rhodenbaugh moved the district court to compel
discovery, to amend the interim order, and to hold Ashley Rhodenbaugh in contempt
for violations of the interim order, including her failure to maintain the marital home.
She responded and made a counter-motion. In April 2017, the court entered an order
finding her in contempt, terminating her interim spousal support under the October



                                           1
2016 order, compelling discovery, and requiring her to obtain court permission for
further filings until she paid the filing fee for her answer.
[¶5]   Before trial, the parties stipulated on primary residential responsibility and
parenting time. The district court held a trial in July 2017 on remaining issues,
including child support, spousal support, and property and debt distribution. In
September 2017, the court issued a memorandum opinion, and in October 2017,
Ashley Rhodenbaugh moved the court to reopen the record and for various other
relief. In November 2017, the court denied her motion and awarded Jay Rhodenbaugh
$1,000 in attorney’s fees to be deducted from a cash payment he was to make to her.
A final judgment was entered in November 2017, granting the parties joint decision-
making responsibilities for the parties’ children, awarding Ashley Rhodenbaugh
primary residential responsibility for the children, granting Jay Rhodenbaugh
parenting time, ordering him to pay her child support of $1,245 per month beginning
in December 2017, denying her request for spousal support, and dividing the parties’
marital property and debts.
                                           II
[¶6]   Although a final divorce judgment has been entered, Ashley Rhodenbaugh
raises several issues concerning the district court’s interim or interlocutory orders. We
have said that “[g]enerally, interlocutory orders in an action are merged into the final
judgment and may be reviewed on appeal of that judgment.” Tibbetts v. Dornheim,
2004 ND 129, ¶ 11, 681 N.W.2d 798. Under N.D.R.App.P. 35(a)(2), “[u]pon an
appeal from a judgment, the court may review any intermediate order or ruling which
involves the merits and affects the judgment appearing upon the record.”
                                           A
[¶7]   Ashley Rhodenbaugh argues the district court’s interim order for parenting
time improperly applied the statutory presumption for evaluating domestic violence
under N.D.C.C. §§ 14-09-29(2) and 14-09-06.2(1)(j), which, respectively, require
supervised parenting time and create a rebuttable presumption.
[¶8]   As relevant to her argument, N.D.C.C. § 14-09-29(2) provides:

                                           2
       If the court finds that a parent has perpetrated domestic violence and
       that parent does not have residential responsibility, and there exists one
       incident of domestic violence which resulted in serious bodily injury or
       involved the use of a dangerous weapon or there exists a pattern of
       domestic violence within a reasonable time proximate to the
       proceeding, the court shall allow only supervised parenting time with
       that parent unless there is a showing by clear and convincing evidence
       that unsupervised parenting time would not endanger the child’s
       physical or emotional health.
(Emphasis added.) Further, N.D.C.C. § 14-09-06.2(1)(j) of the best-interest factors,
states in part:
       In determining parental rights and responsibilities, the court shall
       consider evidence of domestic violence. If the court finds credible
       evidence that domestic violence has occurred, and there exists one
       incident of domestic violence which resulted in serious bodily injury or
       involved the use of a dangerous weapon or there exists a pattern of
       domestic violence within a reasonable time proximate to the
       proceeding, this combination creates a rebuttable presumption that a
       parent who has perpetrated domestic violence may not be awarded
       residential responsibility for the child. This presumption may be
       overcome only by clear and convincing evidence that the best interests
       of the child require that parent have residential responsibility. The court
       shall cite specific findings of fact to show that the residential
       responsibility best protects the child and the parent or other family or
       household member who is the victim of domestic violence.
(Emphasis added.)
[¶9]   Before entry of the October 2016 interim order, Ashley Rhodenbaugh
requested Jay Rhodenbaugh’s parenting time with the minor children be supervised
because of domestic violence resulting in serious bodily injury. After the interim
hearing, the court found it was in the children’s best interests for Ashley
Rhodenbaugh to have interim primary residential responsibility subject to Jay
Rhodenbaugh’s reasonable unsupervised parenting time. The court determined that
a parenting time restriction “must be based on a preponderance of the evidence” with
“a detailed demonstration of the physical or emotional harm to the children likely to
result from said parenting time” and that Ashley Rhodenbaugh had not met “this
burden.” The court further found clear and convincing evidence showed Jay

                                           3
Rhodenbaugh’s unsupervised parenting time would not result in emotional or physical
harm to the children.
[¶10] Ashley Rhodenbaugh argues on appeal that the district court erred in its interim
order by placing the burden of proof on her after the statutory presumption was raised.
She contends Jay Rhodenbaugh should have had the burden and asserts the court
abused its discretion when it found clear and convincing evidence that parenting time
would not result in harm to the children. She further asserts “multiple issues” have
arisen since the interim order.
[¶11] It is undisputed the parties stipulated before trial to granting Ashley
Rhodenbaugh primary residential responsibility for the children with Jay
Rhodenbaugh receiving unsupervised parenting time. The final judgment therefore
supersedes the interim order’s parenting provisions, which are by nature temporary.
To the extent Ashley Rhodenbaugh now argues the court erred in applying the
domestic violence presumption in the interim order, she waived her argument when
she stipulated to the residential responsibility and parenting time arrangement
contained in the judgment. See In re J.S., 2008 ND 9, ¶ 13, 743 N.W.2d 808 (stating
our review on appeal is “limited to issues litigated below and the arguments presented
upon appeal”). Moreover, she has not provided any basis on appeal to set aside the
stipulation to the parenting time provisions.
[¶12] Because the parties stipulated to the primary residential responsibility and
parenting time provisions in the divorce judgment, we conclude any claimed error in
applying the domestic violence presumption in the interim order was waived.
                                          B
[¶13] Ashley Rhodenbaugh argues the district court abused its discretion in
allocating expenses and granting spousal support under the interim order.
[¶14] Generally, after considering the parties’ circumstances, a district court “may
require one party to pay spousal support to the other party.” N.D.C.C. § 14-05-24.1.
The court’s spousal support award is a finding of fact and will not be disturbed on
appeal unless clearly erroneous. Friesner v. Friesner, 2019 ND 30, ¶ 13, 921 N.W.2d

                                          4
898. “In deciding whether to award spousal support, a court must consider the
Ruff-Fischer guidelines, the needs of the spouse seeking support, and the supporting
spouse’s needs and ability to pay.” Id. Under the Ruff-Fischer guidelines, the court
considers:
       [T]he respective ages of the parties, their earning ability, the duration
       of the marriage and conduct of the parties during the marriage, their
       station in life, the circumstances and necessities of each, their health
       and physical condition, their financial circumstances as shown by the
       property owned at the time, its value at the time, its income-producing
       capacity, if any, whether accumulated before or after the marriage, and
       such other matters as may be material.
Friesner, at ¶ 13 (quoting Innis-Smith v. Smith, 2018 ND 34, ¶ 8, 905 N.W.2d 914).
“Rehabilitative spousal support is awarded to equalize the burdens of divorce” or to
restore a spouse to independent status by providing the spouse “an opportunity to
acquire an education, training, work skills, or experience to become self-supporting.”
Williams v. Williams, 2015 ND 129, ¶ 10, 863 N.W.2d 508 (citation omitted).
[¶15] In the interim order, the district court ordered child support of $1,159 per
month and rehabilitative spousal support of $500 per month, beginning in December
2016. While Ashley Rhodenbaugh and the children were allowed to remain in the
marital home, she asserts they were financially dependent on Jay Rhodenbaugh and
contends the court erroneously allocated the bulk of the parties’ expenses to her in the
interim order, including all expenses associated with the marital home and child care.
She contends the court erred in its consideration of the Ruff-Fischer guidelines and
her earning ability. She argues the court’s award of $500 per month for rehabilitative
spousal support did not equalize the burdens. She further argues she is entitled to
spousal support because it is essential she continues to maintain a stable home for the
children and ensures their needs are met. She contends the court did not make
sufficient findings to explain its decision to award spousal support of $500 per month
and did not consider Jay Rhodenbaugh’s conduct in placing the family in this
position.



                                           5
[¶16] Ashley Rhodenbaugh additionally argues the district court erred by failing to
award back child support during the interim period and in delaying child support for
two months. “A district court’s decision whether to award past child support is
discretionary and will not be overturned unless the court abuses its discretion.” Rebel
v. Rebel, 2013 ND 116, ¶ 20, 833 N.W.2d 442. While she requested child support
back to the date of their separation, the October 2016 interim order did not require
child support to begin until December 2016. She argues the court erred in its award,
setting her up for failure.
[¶17] Jay Rhodenbaugh responds that the district court did not err in allocating
expenses, in granting spousal support, or in failing to award back child support or
delaying child support in its interim order. He reiterates that an interim order is not
a final judgment and was subject to revision anytime before entry of judgment. He
asserts the judgment addressed any deficiencies in the interim order and the court did
not err in its interim order on the financial issues. He argues she has not established
that the court’s order was clearly erroneous and sufficient evidence in the record
supports the court’s determination of the financial issues during the interim period.
[¶18] While Ashley Rhodenbaugh challenges the district court’s interim order, the
court’s findings and conclusions and final divorce judgment sufficiently addressed
spousal support and the parties’ financial issues. On this record, we conclude the court
did not abuse its discretion in setting the child support commencement date and did
not clearly err in its findings.
                                          III
[¶19] Ashley Rhodenbaugh argues the district court abused its discretion in denying
attorney’s fees under N.D.C.C. § 14-09-29(4), which states attorney’s fees must be
paid by the perpetrator of domestic violence and provides:
       In any proceeding dealing with parental rights and responsibilities in
       which a parent is found to have perpetrated domestic violence, and
       there exists one incident of domestic violence which resulted in serious
       bodily injury or involved the use of a dangerous weapon or there exists
       a pattern of domestic violence within a reasonable time proximate to
       the proceeding, all court costs, attorney’s fees, evaluation fees, and

                                           6
       expert witness fees must be paid by the perpetrator of the domestic
       violence unless those costs would place an undue financial hardship on
       that parent.
[¶20] She contends the district court erred by declining to require Jay Rhodenbaugh
to reimburse her attorney’s fees and costs because the statute mandates an award of
attorney’s fees. Jay Rhodenbaugh argues, however, the statute is not mandatory or
absolute and relies on Berg v. Berg, 2000 ND 36, 606 N.W.2d 895, recognized as
superseded on other grounds, Schurmann v. Schurmann, 2016 ND 69, ¶ 11, 877
N.W.2d 20. In Berg, at ¶¶ 25-26, this Court held that while similar language from a
prior statute “indicates” the perpetrator of domestic violence should ordinarily be
responsible for costs and fees, the legislature had not intended the statute to authorize
a “blank check” to the opposing party and that the trial court was authorized to assess
costs in a different manner if assessing all costs against the perpetrator would result
in “undue financial hardship.” Jay Rhodenbaugh asserts the record shows no
attorney’s fees were awarded because of undue financial hardship and Ashley
Rhodenbaugh’s conduct in unreasonably increasing litigation expenses.
[¶21] On this record, we conclude Ashley Rhodenbaugh failed to establish the
district court erred in not awarding attorney’s fees under N.D.C.C. § 14-09-29(4).
                                           IV
[¶22] Ashley Rhodenbaugh argues the district court erred in denying her petition for
waiver of filing fees. While she acknowledges the court’s decision is discretionary,
she contends the decision was without any reason and she had no significant amount
of money or assets available to her. Jay Rhodenbaugh responds that under N.D.C.C.
§ 27-01-07, she did not show the court abused its discretion. See Wilson v. Koppy,
2002 ND 179, ¶¶ 9-10, 653 N.W.2d 68 (reviewing denial of waiver of filing fee under
abuse of discretion).
[¶23] Here, the district court had sufficient information on Ashley Rhodenbaugh’s
financial circumstances based on the affidavits and testimony at the interim hearing,
and in denying her petition the court acted in a reasonable manner, rather than



                                           7
arbitrarily. We conclude the court did not abuse its discretion in refusing to waive her
filing fees.
                                             V
[¶24] Ashley Rhodenbaugh argues the district court erred in holding her in contempt
and entering sanctions against her without a hearing or consideration of her pleadings.
She asserts that in its April 2017 contempt order, the court held her in contempt and
terminated her rehabilitative spousal support without a hearing, without an order to
show cause, and without consideration of her pleadings and exhibits. She asserts she
did not have the ability to comply with the court’s interim order and was statutorily
entitled to notice and a hearing under N.D.C.C. § 27-10-01.3(1)(a). She asserts that
without a hearing the court was without jurisdiction to find her in contempt and to
execute any remedial or punitive sanction imposed in the order. She also challenges
the court’s specific findings in the contempt order and the court’s limit on her further
filings until she paid her filing fee for her answer.
[¶25] While the district court’s initial interim order was interlocutory, we have
explained that “[a]n order holding a person in contempt is a final order for purposes
of appeal.” Kettle Butte Trucking LLC v. Kelly, 2018 ND 110, ¶ 8, 910 N.W.2d 882;
see also N.D.C.C. § 27-10-01.3(3) (“An order or judgment finding a person guilty of
contempt is a final order or judgment for purposes of appeal.”). “Before we consider
the merits of an appeal, we must have jurisdiction.” Desert Partners IV, L.P. v.
Benson, 2014 ND 192, ¶ 6, 855 N.W.2d 608. “The time limit for filing a notice of
appeal is jurisdictional, and we dismiss an appeal if we conclude we do not have
jurisdiction.” Id.
[¶26] Under N.D.R.App.P. 4(c), a party appealing a contempt order must file a notice
of appeal with the clerk of the supreme court within 60 days after entry of the
judgment or order being appealed. See also N.D.R.App.P. 4(f) (“If a notice of appeal
in either a civil or a criminal case is mistakenly filed in the district court, the clerk of
district court must note on the notice the date when it was received and send it to the



                                             8
clerk of the supreme court. The notice is then considered filed in the supreme court
on the date so noted.”).
[¶27] In this case, the district court entered its order finding Ashley Rhodenbaugh
in contempt on April 23, 2017. The notice of entry of this order was served and filed
on April 26, 2017. Ashley Rhodenbaugh misfiled her notice of appeal in the district
court on January 28, 2018, and it was forwarded to this Court. Her appeal of the
district court’s April 2017 contempt order was not filed within 60 days of entry of the
order. We conclude we do not have jurisdiction to review the contempt order and
dismiss her appeal from that order.
                                           VI
[¶28] Ashley Rhodenbaugh argues the district court erred in refusing to allow more
than one day for trial of the remaining issues in this case.
[¶29] The district court has broad discretion in controlling the time for a hearing or
trial. Mairs v. Mairs, 2014 ND 132, ¶ 10, 847 N.W.2d 785; see also Wahl v. N.
Improvement Co., 2011 ND 146, ¶ 6, 800 N.W.2d 700 (“A district court has broad
discretion over the presentation of evidence and the conduct of trial, but it must
exercise its discretion in a manner that best comports with substantial justice,” and
“[i]n exercising that discretion, the court may impose reasonable restrictions upon the
length of the trial or hearing and upon the number of witnesses allowed.” (citations
omitted)).
[¶30] Ashley Rhodenbaugh contends she did not have enough time to present her
witnesses and the court abused its discretion in allowing only one day for trial. She
concedes, however, that she agreed to primary residential responsibility and the
parenting plan with enforcement of Jay Rhodenbaugh’s recommended counseling for
domestic violence. Jay Rhodenbaugh responds the court set trial in the divorce action
for one day in its order for trial, neither party objected, both parties were aware of the
court’s limit, and the parties divided the trial time equally.
[¶31] On this record, we conclude Ashley Rhodenbaugh has not clearly established
on appeal what evidence she was unable to present at trial or what alleged prejudice

                                            9
she suffered. We conclude the district court did not abuse its discretion in scheduling
a one-day trial on the parties’ remaining issues.
                                          VII
[¶32] Ashley Rhodenbaugh argues the district court erred in the findings of fact,
conclusions of law and order for judgment with regard to the duration of the parties’
relationship and by failing to consider the time she and Jay Rhodenbaugh were
together prior to the marriage. She relies on Northrop v. Northrop, 2001 ND 31, ¶ 12,
622 N.W.2d 219 (“When parties live together and then marry it is appropriate for the
court to consider all of [] their time together in dividing the marital property.”).
[¶33] As discussed, in determining spousal support, “a court must consider the
Ruff-Fischer guidelines, the needs of the spouse seeking support, and the supporting
spouse’s needs and ability to pay.” Friesner, 2019 ND 30, ¶ 13, 921 N.W.2d 898.
“Rehabilitative spousal support is awarded to equalize the burdens of divorce” or to
restore a spouse to independent status by providing the spouse “an opportunity to
acquire an education, training, work skills, or experience to become self-supporting.”
Williams, 2015 ND 129, ¶ 10, 863 N.W.2d 508 (citation omitted). “Property division
and spousal support are interrelated and intertwined and often must be considered
together.” Kostelecky v. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845.
[¶34] Ashley Rhodenbaugh asserts the district court erred in finding the parties had
started living together in September or October 2009, after she became pregnant,
since undisputed testimony showed they began dating in early 2008 and moved in
together in September 2008. She therefore contends the court erred by finding “[t]his
is a short to mid-term marriage of six to seven years,” because, while the parties were
married in July 2010, they had been living together since 2008 and were divorced in
September 2017, making it a nine-year relationship. She argues the court erred by
failing to consider their time together before the marriage and erred in relying on Jay
Rhodenbaugh’s testimony at trial regarding her need for support.
[¶35] Here, in refusing to award spousal support and dividing the property, the
district court made findings under the Ruff-Fischer guidelines and specifically

                                          10
found that Ashley Rhodenbaugh is capable of earning as much or more than Jay
Rhodenbaugh. The court stated:
       Both of the parties received their educations prior to the marriage.
       Ashley worked on and off during the marriage in various positions, but
       did not give up per se any career advancement in any one of those
       positions in furtherance of Jay’s employment. Jay encouraged Ashley
       to work outside the home which she resisted because Ashley wanted to
       be a stay-at-home mom. During the interim hearing, Ashley indicated
       she was going to move to Fargo to continue to work for the United
       States Postal Service. For reasons unknown, she did not do so and
       instead has since taken a couple of different entry-level service
       positions in Wahpeton. By her own testimony, Ashley excelled in the
       insurance industry but chooses not to pursue that avenue of
       employment because she does not like it. Ashley is capable of earning
       as much or more than Jay.
The court further specifically found both parties are young and have more than thirty
years of employment ahead of them, that both are in good physical and behavioral
health, that Jay Rhodenbaugh does not have the ability to pay temporary spousal
support, that Ashley Rhodenbaugh is underemployed by choice, and that she has not
been disadvantaged by the marriage and is not entitled to temporary rehabilitative or
permanent spousal support.
[¶36] Our review reflects that evidence in the record supports the district court’s
findings. We conclude the court’s findings of fact are not clearly erroneous.
                                          VIII
[¶37] Ashley Rhodenbaugh argues the district court erred in denying her motion to
reopen the record and for other relief.
[¶38] A district court has broad discretion to rule on a motion to reopen the record
to introduce additional evidence. Innis-Smith, 2018 ND 34, ¶ 13, 905 N.W.2d 914. A
court’s decision on a motion to reopen will not be disturbed on appeal absent an abuse
of discretion. Id. A court abuses its discretion when it acts in an arbitrary,
unconscionable, or unreasonable manner, when it misinterprets or misapplies the law,
or when its decision is not the product of a rational mental process leading to a
reasoned decision. Id.

                                          11
[¶39] Here, the district court considered Ashley Rhodenbaugh’s motion on the briefs
because she had failed to secure and notice a hearing on the motion. The court denied
her motion to reopen the record and for other relief, making findings regarding the
procedural history, the parties’ earlier stipulation, the issues addressed at trial, and
how the case was tried. The court found her motion was merely an inappropriate
attempt to continue the trial. The court explained its decision and awarded Jay $1,000
in attorney’s fees, which the court deducted from her property distribution, because
her motion was “inappropriate, unfounded and without merit.”
[¶40] Ashley Rhodenbaugh broadly contends that she had unsuccessfully tried to
secure a hearing on her motion and, further, the court’s attorney fee award does not
comply with N.D.C.C. § 28-26-01(2), because her filings were not frivolous. Jay
Rhodenbaugh responds that the court did not abuse its discretion in refusing to reopen
the record or grant other relief, correctly pointing out Ashley cites no case law to
support her argument and asserting it is difficult to ferret out her argument on this
issue. He argues he requested his attorney’s fees under N.D.C.C. § 14-05-23, and the
court did not abuse its discretion in awarding them.
[¶41] On this record, we conclude the district court did not abuse its discretion in
denying Ashley Rhodenbaugh’s motion to reopen the record and for other relief and
did not abuse its discretion in awarding Jay Rhodenbaugh $1,000 in attorney’s fees.
                                          IX
[¶42] We have considered Ashley Rhodenbaugh’s remaining arguments and
conclude they are either unnecessary to our decision or are without merit. The divorce
judgment and orders are affirmed.
[¶43] Jerod E. Tufte
      Daniel J. Crothers
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.
[¶44] The Honorable Lisa Fair McEvers disqualified herself subsequent to oral
argument and did not participate in this decision.




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