Jordet v. Jordet

MARING, Justice,

dissenting.

[¶ 24] I, respectfully, dissent. I would reverse the trial court’s order denying Bradley Jordet’s motion to allow for an offset, and I would affirm the trial court’s order holding Attorney Jonathan T. Ga-raas in contempt of court.

I

[¶ 25] The majority opinion, at ¶¶ 10-11, concludes that the trial court incorrectly applied N.D.C.C. § 14-09-09.33 and Corbett v. Corbett, 2002 ND 103, 646 N.W.2d 677. I agree. Nevertheless, the majority, at ¶ 12, affirms the trial court’s order denying Bradley Jordet’s motion to allow an equitable offset on the grounds that, although the trial court’s reason for denying the offset is incorrect under N.D.C.C. § 14-09-09.33 and Corbett, the result was not an abuse of discretion.

[¶26] A trial court abuses its discretion when it acts arbitrarily, capriciously, unconscionably, or it misapplies or misinterprets the law. Marchus v. Marchus, 2006 ND 81, ¶ 6, 712 N.W.2d 636. I agree with the majority, at ¶¶ 10-11, that the trial court misapplied N.D.C.C. § 14-09-09.33 and Corbett; however, unlike the majority, I am of the opinion that this misapplication of the law establishes that the trial court abused its discretion. I also am of the opinion that the trial court’s failure to allow an offset of mutual money judgments is an abuse of discretion in light of N.D.C.C. § 28-20-33.

[¶ 27] Under N.D.C.C. § 14-08.1-05(l)(a), any child support payment that is due and unpaid becomes a judgment by operation of law and has the “full force, effect, and attributes of a judgment of the district court.” Furthermore, mutual, final money judgments may be offset to the extent the lesser amount is extinguished. N.D.C.C. § 28-20-33.

[¶ 28] Here, both parties fell into arrears on their respective financial obligations to each other and subsequent money judgments were entered. On November 9, 2011, a money judgment for past-due spousal support was entered against Bradley Jordet, and, under N.D.C.C. § 14-08.1-05(l)(a), Tracey Jordet’s past-due child support payments became a money judgment by operation of law. I believe N.D.C.C. § 28-20-33, which permits mutual final judgments to be set off pro tanto, is applicable and becomes controlling under these facts. Both parties have full and concurrent rights against each other, which satisfies the mutuality requirement. Therefore, a mutual offset of money judgments should be allowed in this case.

[¶ 29] As the majority, at ¶ 12, points out, it is well-established that this Court will not set aside a correct result founded on incorrect reasoning if the result is the same under the correct law and reasoning. See Investors Title Ins. Co. v. Herzig, 2010 ND 169, ¶ 40, 788 N.W.2d 312. The majority recognizes that case law is divergent on the issue of offsetting child support awards and there is not a “case on all fours.” Majority, at ¶ 13.

[¶ 30] I am of the opinion, there is no legal or factual basis for denying Bradley Jordet’s request for an equitable offset based on the mutual judgments held by the parties at the time the court heard the matter and N.D.C.C. § 28-20-33. “The purpose of set off is to speedily and effec*521tively satisfy judgments, to avoid the unnecessary expense of issuing and levying executions in favor of the respective parties, and to avoid a multiplicity of suits or a circuity of actions.” 47 Am. Jur. 2d Judgments § 829 (2012). In this case, to force the use of a levy and execution thwarts the very purpose of our statute. Further, these judgments were both for past-due support — one for spousal support and the other for child support. The obligor for the child support would need the spousal support to pay the child support. Because of this relationship, it is only reasonable to allow the offset. The trial court abused its discretion by misapplying N.D.C.C. § 14-09-09.38 and Johnson, 2002 ND 151, 652 N.W.2d 315 and denying Bradley Jordet’s request for an equitable offset under the facts of this case. I would reverse the trial court’s order denying Bradley Jordet’s motion to allow an equitable offset.

II

[¶ 31] Any “intentional disobedience, resistance, or obstruction of the authority, process, or order of a court” is contemptuous. N.D.C.C. § 27-10-01.1(c). We have said a court order remains in force until it is reversed, modified, or set aside on appeal, and a party’s failure to obey such an order is punishable as contempt of court, even if erroneous. Holkesvig v. Welte, 2012 ND 14, ¶ 6, 809 N.W.2d 323 (citing Flattum-Riemers v. Flattum-Riemers, 1999 ND 146, ¶ 11, 598 N.W.2d 499). Therefore, any willful, intentional, and inexcusable disobedience of a court order is contempt, absent a showing the order is “transparently invalid or frivolous.” Holkesvig, 2012 ND 14, ¶¶ 6, 9, 809 N.W.2d 323; see also State v. Sevigny, 2006 ND 211, ¶ 37, 722 N.W.2d 515 (holding the order “must be obeyed until stayed or reversed by orderly review”); State v. Zahn, 1997 ND 65, ¶ 14, 562 N.W.2d 737 (holding the same).

[¶ 32] “The essence of contempt requires conduct that obstructs or tends to obstruct the administration of justice.” 17 Am. Jur. 2d Contempt § 22 (Supp.2012). When a person acts with “a deliberate purpose or calculation to corrupt the administration of justice” a contemptuous act has been completed. Id. However,

an attorney acting in the proper exercise of a legal right is not guilty of contempt. Indeed, the use of contempt to punish lawyers for advocacy that is only overly zealous contradicts the principle of an independent and assertive bar.... However, good-faith, vigorous advocacy cannot immunize all conduct undertaken by an attorney in [sic] behalf of a client, and the latitude given attorneys as vigorous advocates does not extend to deceiving or manipulating the court.

17 C.J.S. Contempt § 17.

[¶ 33] Here, the trial court’s order explicitly stated Bradley Jordet could not offset his unpaid spousal support with Tracey Jordet’s unpaid child support. Bradley Jordet and Garaas’s conduct undermined the purpose and spirit of the trial court’s order, which held it was contrary to statute and inapplicable under case law. Their actions were a direct attempt to circumvent the trial court’s order and went beyond good-faith, advocacy. Proper advocacy of that point would have been to appeal the trial court’s order denying the equitable offset.

[¶ 34] The trial court’s decision should be given great deference and should not be reversed absent a showing of an abuse of discretion. If the trial court’s decision “is the product of a rational mental process in which the facts and law are stated and are considered together for the purpose of achieving a reasoned and reasonable determination[,]” we will not reverse. Gissel v. Kenmare Township, 512 N.W.2d 470, 473 *522(N.D.1994). The trial court found an intentional disobedience of the court’s order. I am of the opinion that the order for contempt is a product of a reasoned conclusion that Garaas acted with a deliberate purpose to circumvent the trial court’s order. Therefore, I would affirm the trial court’s order holding Garaas in contempt of court.

[¶ 35] I would reverse in part, and affirm in part.

[¶ 36] MARY MUEHLEN MARING