Flemming v. Flemming
790 N.W.2d 762
| N.D. | 2010Background
- Kendel and Amanda Flemming monied married 2001, two children; separation began July 24, 2008 after Kendel’s incarceration.
- Amanda filed for divorce August 28, 2009; Kendel received summons October 26, 2009 but did not respond.
- Notice of hearing mailed December 22, 2009; Kendel acknowledged receipt December 23, 2009 but did not otherwise respond.
- Default for divorce requested by Amanda on December 30, 2009; hearing held the next day, record shows default proceeding.
- The district court entered a default divorce judgment granting Amanda sole ownership of disclosed marital property and sole discretion over Kendel’s parenting time; Kendel did not seek relief under Rule 60(b).
- Court later dismissed Kendel’s appeal for failure to obtain relief from default judgment under N.D.R.Civ.P. 60(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 60(b) relief required for default-judgment appeal | Kendel seeks review on appeal rather than 60(b) relief | Rule 60(b) is the exclusive means to vacate a default judgment | Appeal dismissed for lack of 60(b) relief |
| Duty to include parenting plan/rights in judgment | Judgment lacked a parenting plan and addressed parental rights | Court can modify parenting time; may continue jurisdiction | District court failed to include parenting plan/rights; issue not reached on merits due to dismissal |
Key Cases Cited
- S.H.B. v. T.A.H., 2010 ND 149 (2010) (issues must be raised in district court; Rule 60(b) exclusive for default judgments)
- Bentley v. Bentley, 533 N.W.2d 682 (ND 1995) (record development in appellate review)
- State ex rel. Dep’t of Labor v. Riemers, 2008 ND 191 (ND 2008) (Rule 60(b) relief appropriate to open default judgment)
- Shull v. Walcker, 770 N.W.2d 274 (ND 2009) (Rule 60(b) exclusive means to open default judgment)
- Overboe v. Brodshaug, 751 N.W.2d 177 (ND 2008) (dist. court may grant relief to decide merits)
- Beaudoin v. South Texas Blood & Tissue Ctr., 699 N.W.2d 421 (ND 2005) (Rule 60(b) standards guiding relief)
- First Nat’l Bank v. Bjorgen, 389 N.W.2d 789 (ND 1986) (guidance on default-judgment proceedings)