977 N.W.2d 726
N.D.2022Background
- Allery and Whitebull had joint residential responsibility for two children under a 2019 judgment.
- In March 2021 Whitebull moved to modify primary residential responsibility, personally served Allery in Parshall, and requested a hearing; the court found a prima facie case and set an evidentiary hearing.
- The court mailed notice of the hearing to a Bismarck address where Allery said he had not lived for years; Allery did not appear at the hearing and learned it had occurred via social media the same day.
- The court held the hearing in Allery’s absence, granted default judgment awarding Whitebull primary residential responsibility, and entered an amended parenting plan.
- Allery filed a Rule 60(b) motion seeking relief (excusable neglect and public‑policy to decide merits), asserting he lacked notice; the district court denied the motion and Allery appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused discretion in denying relief under N.D.R.Civ.P. 60(b)(1) (excusable neglect) | Allery: he did not receive notice of the evidentiary hearing because notice was mailed to an old Bismarck address; he was personally served with the motion in Parshall and immediately sought relief once he learned of the hearing | Whitebull: she personally served the motion at Allery’s Parshall address; Allery failed to respond or update his address and thus created the service problem; failure to respond was a deliberate choice, not excusable neglect | Court affirmed: Allery’s failure to respond and to provide updated address was not excusable neglect; no abuse of discretion |
| Whether extraordinary circumstances exist to grant relief under N.D.R.Civ.P. 60(b)(6) | Allery: lack of notice and the children’s interests favor deciding modification on the merits; timely sought relief | Whitebull: no extraordinary circumstances; she met burden at the default hearing; Allery offered no proposed answer or meritorious defense | Court affirmed: no extraordinary circumstances shown; Allery did not present a meritorious defense or proposed answer |
| Whether Allery could raise a 60(b)(3) fraud/misrepresentation claim on appeal | Allery: appellate brief raises 60(b)(3) argument | Whitebull: issue not raised below, not preserved | Court: not preserved; decline to address 60(b)(3) argument |
| Whether a meritorious defense / procedural prerequisites (informational statement, mediation) barred denial of relief | Allery: court and filer knew addresses changed; procedural rules (informational statement, mediation) were not followed; merits should control in custody matters | Whitebull: she proved prima facie case at hearing; procedural obligations rest with parties; Allery didn’t supply an answer or facts showing a meritorious defense | Court: vacatur requires timely motion plus an asserted meritorious defense with credible facts; Allery failed to supply this, so denial not an abuse of discretion |
Key Cases Cited
- Hall v. Estate of Hall, 950 N.W.2d 168 (N.D. 2020) (greater liberality in vacating default judgments involving custody)
- Gepner v. Fujicolor Processing, Inc., 637 N.W.2d 681 (N.D. 2001) (rule 60(b) remedial, merits preferable to defaults)
- Hildebrand v. Stoltz, 888 N.W.2d 197 (N.D. 2016) (limitations on 60(b)(6); not a substitute for appeal)
- State v. One 2002 Dodge Intrepid Automobile, 841 N.W.2d 239 (N.D. 2013) (due process concerns where notice mailed to an address the court knew was no longer effective)
- State v. White, 907 N.W.2d 765 (N.D. 2018) (litigant must take steps to protect legal interests; failure to update address may bar relief)
- Kinsella v. Kinsella, 181 N.W.2d 764 (N.D. 1970) (timely application with an answer showing meritorious defense favors setting aside default)
- State v. $33,000.00 U.S. Currency, 748 N.W.2d 420 (N.D. 2008) (requirement that allegation of meritorious defense be specific and supported by credible facts)