888 N.W.2d 197
N.D.2016Background
- Hildebrand (plaintiff) sued Stolz (defendant) in March 2012 for partition of jointly held real property, determination of parental rights for two minor children, and child support. Stolz answered and participated in the case for several years.
- A trial was set for April 29, 2015. Stolz’s counsel, TaLisa Nemec, moved to withdraw and filed Stolz’s affidavit consenting to withdrawal and waiving further notice; the court granted withdrawal on April 28, 2015.
- Stolz did not appear at the April 29 trial. The court proceeded, received Hildebrand’s testimony and exhibits, and later issued a memorandum and order finding Stolz “in default,” awarding Hildebrand primary residential responsibility, ordering partition of property, and $761/month child support.
- Before entry of judgment Stolz retained new counsel and moved under N.D.R.Civ.P. 60(b)(1) and (6) to vacate, claiming he lacked actual notice of the trial and that withdrawal of his prior attorney the day before trial prejudiced him. He did not request an evidentiary hearing and submitted affidavits; Hildebrand submitted affidavits (including their 17‑year‑old daughter) asserting Stolz knew of the trial.
- The district court found it more likely than not Stolz had notice (relying on the daughter’s affidavit), concluded Stolz had an obligation as a self‑represented litigant to check case status, and denied the Rule 60(b) motion. The court then entered judgment consistent with the memorandum and order.
- On appeal the Supreme Court of North Dakota affirmed denial of the Rule 60(b) motion and the judgment, but remanded for correction of a clerical error in the judgment which mistakenly described the case as a "stipulated divorce action."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused its discretion denying relief under Rule 60(b) for mistake/excusable neglect (failure to appear) | Hildebrand: no relief; trial proceeded properly given notice evidence | Stolz: he lacked actual notice of trial; failure to appear was caused by counsel/third‑party neglect and warrants vacatur | Affirmed: court did not abuse discretion; finding Stolz had notice was not clearly erroneous, so Rule 60(b)(1) relief denied |
| Whether the withdrawal of Stolz’s attorney the day before trial was improper and required relief | Hildebrand: withdrawal complied with rules and Stolz had consented | Stolz: withdrawal so close to trial prejudiced him and denied counsel‑related protections | Affirmed: withdrawal complied with rule timing and Stolz had signed affidavit consenting to withdrawal; no abuse of discretion |
| Whether the judgment was a default judgment requiring a more lenient standard | Hildebrand: judgment followed trial on merits based on evidence submitted | Stolz: court effectively entered default and should have applied default‑vacatur leniency | Held: not a default judgment under Rule 55; court conducted a litigated trial (evidence taken), so default‑judgment remedial standards were inapplicable |
| Whether the judgment contains clerical errors needing correction | Hildebrand: judgment should reflect actual claims adjudicated | Stolz: (not disputed) judgment misstates nature of action | Remanded: correct judgment under Rule 60(a) to reflect partition and parental‑rights action rather than "stipulated divorce" |
Key Cases Cited
- Jury v. Barns Co. Municipal Airport Authority, 2016 ND 106, 881 N.W.2d 10 (treating Rule 60(b) arguments when consistent judgment subsequently entered)
- Kopp v. Kopp, 2001 ND 41, 622 N.W.2d 726 (standard for abuse of discretion on motions to vacate)
- Throndset v. L.L.S., 485 N.W.2d 775 (N.D. 1992) (failure to appear at hearing where party knew of hearing; denial of vacatur affirmed)
- City of Wahpeton v. Drake-Henne, Inc., 228 N.W.2d 324 (N.D. 1975) (limitations on use of Rule 60(b)(6) as extraordinary relief)
- Meier v. Meier, 2014 ND 127, 848 N.W.2d 253 (Rule 60(b)(6) requires extraordinary circumstances)