Wong v. State, 2010 ND 219

Kendel and Amanda Flemming married in June 2001 and have two minor children, A.D.F. and B.A.F.
The couple separated July 24, 2008, around Kendel Flemming’s incarceration.
Amanda filed for divorce on August 28, 2009.
Kendel received process on October 26, 2009 but did not respond to the complaint.
A notice of the divorce hearing was mailed December 22, 2009; Kendel acknowledged receipt on December 23, 2009 but took no further action.
Amanda moved for a default divorce judgment on December 30, 2009; a hearing was held the next day and the court entered a default judgment; Kendel did not seek relief under Rule 60(b) in district court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appeal is proper after a default judgment without Rule 60(b) relief	Flemming contends timely relief via 60(b) was unavailable?	Flemming argues appeal permissible despite lack of 60(b) motion?	Appeal dismissed for failed Rule 60(b) relief

S.H.B. v. T.A.H., 2010 ND 149 (N.D. 2010) (issue not raised below cannot be raised on appeal)
Bentley v. Bentley, 533 N.W.2d 682 (N.D. 1995) (record development on appeal relies on district court record)
State ex rel. Dep’t of Labor v. Riemers, 2008 ND 191 (N.D. 2008) (Rule 60(b) exclusive means to open a default judgment)
Shull v. Walcker, 2009 ND 142 (N.D. 2009) (Rule 60(b) relief procedure cited)
Filler v. Bragg, 1997 ND 24 (N.D. 1997) (purpose and scope of Rule 60(b) relief)
Overboe v. Brodshaug, 2008 ND 112 (N.D. 2008) (district court may grant relief to decide merits)
Beaudoin v. South Texas Blood & Tissue Ctr., 2005 ND 120 (N.D. 2005) (relevance of 60(b) in default judgments)