Matter of C.S.
2012 ND 94
N.D.2012Background
- Parizek challenges a district-court upheld lien placed by the State through the High Intensity Enforcement Unit on Parizek's personal property held by the Department of Corrections and Rehabilitation to secure past-due child support.
- The lien, dated September 28, 2011, was argued by Parizek to be an account lien under N.D.C.C. § 35-34-05, which requires a financial institution, but the Department is not a financial institution.
- The State contends the lien is a personal-property lien under N.D.C.C. § 35-34-06, not an account lien, and thus enforceable.
- Parizek moved for judicial review and later appealed after the district court denied his motions, with the district court affirming the administrative action.
- Parizek argued for a hearing on review, and he asserted the district court erred in denying his motion to dismiss the lien; the State maintained no hearing was required and the lien was properly enforceable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the lien on Parizek's property valid as a personal-property lien under § 35-34-06 rather than an account lien? | Parizek; Department not a financial institution so not an account lien. | State; lien attaches to personal property under § 35-34-06, not an account lien. | Yes; lien on personal property upheld under § 35-34-06. |
| Did Parizek's motion for review require a hearing under § 50-09-14(2)? | Parizek entitled to a hearing on motion for review. | Hearing not required; review can be decided on briefs. | No hearing required; district court properly decided without one. |
| Did the district court err by denying Parizek's motion to dismiss without a hearing and by timing of any notice? | District court erred; should have heard and allowed 14 days after notice. | Court lack of jurisdiction after notice of appeal; issues not properly before the court. | District court had no effective jurisdiction post-appeal; order on motion-to-dismiss not properly before appeal. |
| Was Parizek's claim of an illegal agreement under the Administrative Agencies Practice Act preserved for review? | Department-State agreement circumvented proper processes. | Argument not raised in district court; not reviewable on appeal. | Not reviewable because not raised below. |
Key Cases Cited
- Paulson v. Paulson, 2011 ND 159 (2011) (issues not raised in district court cannot be raised on appeal)
- Spratt v. MDU Res. Grp., Inc., 2011 ND 94 (2011) (appeal review limits on new theories)
- Investors Title Ins. Co. v. Herzig, 2011 ND 7 (2011) (jurisdiction and timing of appeals)
- Holden v. Holden, 2007 ND 29 (2007) (briefs required; issues properly briefed)
- State v. Haibeck, 2006 ND 100 (2006) (adequacy of briefive analysis)