Law v. Whittet
2015 ND 16
| N.D. | 2015Background
- Nicholas Law and Danielle Whittet were unmarried parents; child born Nov. 2011. Law sought primary residential responsibility.
- After trial the district court initially ordered equal (alternating-week) residential responsibility; Law sought to supplement the record with post-trial evidence of Whittet’s arrest and substance use, which the court denied.
- This Court reversed the district court in Law v. Whittet, directing the trial court to enter judgment awarding Law primary residential responsibility, to set parenting time (considering limited time for Whittet because of domestic-violence effects), and to recalculate child support.
- On remand the district court entered an amended judgment purporting to give Law “primary residential responsibility” but retained alternating-week parenting time (50/50) for Whittet and issued child support figures producing offset payments.
- Law appealed, arguing the district court violated the appellate mandate and failed to award him true primary residential responsibility and to properly recalculate child support. The Supreme Court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court followed appellate mandate | Law: trial court failed to implement this Court’s mandate awarding him primary residential responsibility | Whittet: (no appearance/argued implicitly in district court by maintaining same schedule) | Court: District court violated the mandate rule by effectively retaining 50/50 custody despite the remand order granting Law primary responsibility |
| Whether Law was awarded primary residential responsibility | Law: remand required award of >50% time to Law | District court: labeled Law primary but kept alternating weeks (50%) | Court: The award was not primary because Whittet still had 50% time; therefore assignment remained joint and was clearly erroneous |
| Whether child support was recalculated consistent with change in custody | Law: child support must be recalculated based on primary-residential standard | District court: computed obligations as if split custody / equal-responsibility scheme | Court: Child support was calculated under the wrong rule (split/50-50 method) and did not follow mandate to recalculate for primary-residential responsibility |
| Whether a new judge is required on remand | Law: Judge Feland failed or refused to follow mandate; remand should assign new judge | District court: no certification documented to continue | Court: Ordered change of judge and required Rule 63 certification (or new trial) on remand due to inability/willingness to follow mandate and to avoid further turmoil |
Key Cases Cited
- Law v. Whittet, 844 N.W.2d 885 (N.D. 2014) (prior opinion directing award of primary residential responsibility to Law and remand instructions)
- McAllister v. McAllister, 779 N.W.2d 652 (N.D. 2010) (standard of review for residential-responsibility findings)
- Walstad v. Walstad, 837 N.W.2d 911 (N.D. 2013) (mandate rule requires trial courts to follow appellate pronouncements)
- Carlson v. Workforce Safety & Ins., 821 N.W.2d 760 (N.D. 2012) (definition and explanation of mandate rule)
- Investors Title Ins. Co. v. Herzig, 826 N.W.2d 310 (N.D. 2013) (appellate court retains authority to review whether mandate was carried out)
- Clark v. Clark, 704 N.W.2d 847 (N.D. 2005) (Rule 63 certification and procedure on reassignment/remand)