Burgard v. Burgard
827 N.W.2d 1
| N.D. | 2013Background
- Kira Burgard filed for divorce and primary residential responsibility of two children on February 15, 2012.
- The trial court granted Dammon Burgard a 30-day extension to file an answer, up to April 6, 2012.
- Dammon Burgard did not timely answer; on April 9, 2012, Kira served an affidavit of no answer and moved for default judgment, which was supported by a proof of service and related filings.
- Dammon Burgard filed an answer, counterclaim, and responses on April 23, 2012, after the default motion was served.
- The trial court granted default judgment on May 17, 2012, awarding Kira primary residential responsibility and Dammon parenting time.
- Dammon Burgard appeals, challenging the entry of default judgment and the sufficiency of evidence under N.D.C.C. § 14-09-06.2(1); the court’s review centers on whether irregularities appear on the face of the judgment roll.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether irregularities appear on the face of the judgment roll | Burgard argues irregularities justify reversal. | Burgard contends the record is proper for a default judgment. | No irregularities on face of judgment roll; default affirmed. |
| Whether the default judgment properly evaluated best-interests factors under § 14-09-06.2(1) | Burgard asserts the court failed to consider best-interest factors. | Burgard maintains merits could be reviewed on appeal; trial court erred in not conducting a hearing. | Merits cannot be reviewed on direct appeal from a default judgment; findings were not set aside. |
| Whether prior decisions limit direct-review of merits in default judgments | Burgard argues prior rulings allow merits review on direct appeal. | Burgard emphasizes consistency with Flemming and related precedents to allow review. | This Court overrules inconsistent prior decisions to the extent they conflict with the holding on direct-appeal review. |
Key Cases Cited
- Flemming v. Flemming, 2010 ND 212 (ND) (Rule 60(b) exclusive means for relief from default judgment; merits not reviewable on direct appeal)
- Overboe v. Odegaard, 496 N.W.2d 574 (ND) (requirement to move to vacate before appealing default judgment)
- Riemers, 2008 ND 191 (ND) (irregularities on face of judgment roll standard for direct appeal from default judgment)
- Vogel v. Roberts, 204 N.W.2d 393 (ND) (definition of judgment roll and scope of direct-appeal review from default judgments)
- Brossart, 2012 ND 89 (ND) (identifies when errors on the judgment are meaningful to the validity of a default judgment)
- Reimers Seed Co. v. Stedman, 465 N.W.2d 175 (ND App. 1991) (review of default judgments on direct appeal; irregularities must appear on the face of the judgment)
- Dethloff v. Dethloff, 1998 ND 45 (ND) (default judgments issued as sanctions require abuse-of-discretion review and sufficient findings)