921 N.W.2d 679
N.D.2019Background
- Beverly Cody filed for divorce in May 2016; Lee Cody (incarcerated in Arkansas by trial) answered and was represented by counsel.
- Trial originally set for June 2017, continued and rescheduled to December 20, 2017; Lee moved less than two weeks before trial to appear telephonically.
- District court denied the telephonic-appearance request on December 8, 2017; Lee did not appear in person at trial but his attorney participated; testimony and exhibits were received.
- District court issued a memorandum opinion dividing property on January 11, 2018; Beverly requested clarification about division of Lee’s pension and the court clarified before entering final judgment in February 2018.
- Lee appealed, arguing (1) denial of telephonic appearance was error, (2) the court improperly clarified its opinion before final judgment, and (3) his trial counsel was ineffective.
Issues
| Issue | Plaintiff's Argument (Beverly) | Defendant's Argument (Lee) | Held |
|---|---|---|---|
| Whether district court erred denying Lee's last-minute request to testify/participate telephonically | Court should be allowed to deny telephonic testimony when not shown good cause; record lacks necessity | Denial prevented Lee from presenting testimony/defense while incarcerated | Affirmed: denial not reversible error under facts (late request, represented by counsel, no transcript showing prejudice) |
| Whether court improperly changed its memorandum opinion by granting clarification before final judgment | Clarification was proper; interlocutory opinions may be revised before final judgment | Clarification imposed harsher/different terms than original opinion | Affirmed: court may clarify interlocutory opinion before final judgment; Lee waived objection by not responding and record does not show error |
| Whether ineffective-assistance-of-counsel claim applies in divorce action | N/A — argues proceedings were proper | Counsel was ineffective at trial | Rejected: ineffective-assistance-of-counsel doctrine not extended to civil divorce actions where there is no statutory/constitutional right to counsel |
Key Cases Cited
- Regan v. Lervold, 844 N.W.2d 576 (N.D. 2014) (district court has broad discretion on evidentiary matters; abuse of discretion standard)
- IRET Props. v. Lee, 910 N.W.2d 868 (N.D. 2018) (appellant bears consequences of failing to provide trial transcript)
- State v. Murphy, 855 N.W.2d 647 (N.D. 2014) (mechanical policies may constitute abdication of judicial discretion)
- Martinson v. Martinson, 783 N.W.2d 633 (N.D. 2010) (interlocutory orders may be revised before final judgment)
- Hoff v. Gututala-Hoff, 910 N.W.2d 896 (N.D. 2018) (issues not presented to trial court generally cannot be raised for first time on appeal)
- Riddle v. Riddle, 907 N.W.2d 769 (N.D. 2018) (declining to extend ineffective-assistance-of-counsel claims to divorce proceedings)