*1 April In an letter the Office of General, Inspector Depart- United States BOEDDEKER, Mark Petitioner Education,
ment of admits Westerso he knew Appellee, fraud, alleged in 1986: money “The involved from the mutual funds mentioned above were to be used for REEL, Respondent Appellee, Patricia college funds with the divorce from Mrs. Harstad, 1973, however, being after A.B., children, N.B. and minor defaulting signing talked into a ‘con- Respondents and tract’ that was altered and concealed from Appellants. years, me those funds were trans- away my ownership ferred from and ended Civ. No. 930345. up prosecution with the false arrest and me as I get refused to let these criminals Supreme Court of North Dakota. away legal with this (Emphasis fraud.” June added.) In Westerso’s motion for new trial and judgment,
relief from he claims the trial
judge entering summary erred in judgment
against him: hearing judge’s
“10. Last but not least in
abuse of discretion was his invention of the
years, ‘late as a 70’s[’] basis allow the years
statute of limitations of 10 on a completely
breach of contract. He ig-
nores, again, complaint of not discover-
ing the ‘Agreement’ fraud involved in the
until late after Plaintiffs false ar-
rest. ...”
Westerso resisted Harstad’s motion for
summary judgment, but offered no affidavits
in support position. light his
multiple pieces of showing evidence Wester- knowledge agreement prior
so’s and the lack of evidence
contrary fact, creating issues of material
summary judgment appropriate. Ell-
ingson,
VANDE LEVINE and
MESCHKE, JJ„ PEDERSON, VERNON R.
Surrogate Judge, concur. PEDERSON, R. Surrogate
VERNON
Judge, NEUMANN, J., sitting place
disqualified. *2 appel-
melpfennig, Fargo, petitioner for lee Mark Boeddeker. Johnson, Johnson, Rodenburg &
Bruce D. Trader, appellee Fargo, respondent Patricia Reel.
NEUMANN, Justice. guardian appeals from confir- The ad litem mation of the district court referee’s stipulation signed incorporating the orders by parents. We affirm. both found The Traill Juvenile Court and Patricia Reel’s two that Mark Boeddeker drug deprived due to minor children were par- part on the of both and alcohol abuse (Uniform NDCC ch. 27-20 Juve- ents. See Act). Legal custody chil- of the nile Court granted Traill Social dren was Physical of the children Services. Boeddeker, among changed back and forth Reel, care. At grandparents, and foster juvenile April a court Boeddeker, stipulated that county, and Reel original finding depri- the reasons for the Deprivation longer existed. would vation no upon custody determination cease a court, juvenile court retain- with the custody proceedings ing legal custody until completed in court. were the district hearing on Boeddeker’s Before a held, allegation petition could be an of sexual brought against By him. order of abuse was placed both children were Upon finding probable no in foster care. a cause, pe- dismissed the referee in foster care tition. The children remained custody. pending a decision 10, 1993, ap- March the district On Gary guardian ad litem pointed Euren as (GAL) during the for the two minor children custody proceeding. August Bo- signed stipulation and Reel re- eddeker custody of the children. The garding the provided agreement terms joint legal custody, have would custody. have physical Reel would share (ar- Euren, Gary E. Ad Litem Guardian children from June physical ap- Forks, respondents and gued), Grand through August year, and Boeddeker each pellants. for the balance would have custody hearing was sched- Wold, year. A (argued), R. John- James Brothers August son, Feder, Brothers, uled for & Beauchene Schim- hearing, parents. At the the district court referee to their natural The GAL opportunity had the to review the GAL’s the referee and district court erred in not stipulation. report1 parties’ and the Both awarding custody of the children to Traill testified that the County Social Services. GAL’s inter- was in the best interests of the children. *3 pretation § of NDCC 14-09-06.12 is that a custody The recommended that GAL remain custody trial court can award of a minor child because, opinion, in with Traill his any “person, agency, organization, or insti- parent neither was fit to for chil- care long “exceptional tution” as as there are did not dren. The GAL introduce additional in circumstances” the child’s best interests. support opposition evidence his to the Although there have been cases where trial custody stipulation. “exceptional courts have found circum- stances,” this is not such a case. accepted stip-
The referee the terms of the ulation, incorporated and them into the find- underlying The issue here is how to
ings of fact and conclusions of law. The possible parental deal with in unfitness dis timely request GAL filed a review custody trict court determinations. stat stay Our of the referee’s order. The district in scheme North Dakota addresses findings utory court affirmed the referee’s of fact custody child in and conclusions of law. In its order confirm- more than one title of the ing conclusions, findings Century the referee’s Code. See NDCC Title “Domes Chapter Persons,” the district court noted that “under tic Relations and Chapter 27- parental rights 14-14 termination of is not an “Uniform Juvenile Court Act.” readWe disposition.” alternative they complement these statutes so each oth § Underlying custody er. NDCC 1-02-07. children, GAL, through ap their The parents generally is the statutes belief that peal from the order of confirmation entered paramount right have a and constitutional by the district court. The issue raised on companionship chil of their “[wjhether appeal is the best interests of the superior person. dren to that of other child standard is met when the issue of child Hust, E.g., Hust v. 295 N.W.2d 318 by stipulation par is decided of the (N.D.1980) (divorce proceeding chap under testimony ents without sworn or evidence 14-09). Although ters 14-05 and not an ab being presented when the issue fitness of “[tjhere right, presumption solute is a that Specifically, is raised.” the GAL disproving are fit and the burden acceptance that the referee’s presumption this fitness is on the evidentiary hearing without an K.R.A.G., person challenging it.” In re 420 clearly was erroneous. (N.D.1988). N.W.2d 327 agree We with A the district court. custo- dy hearing brought under the Uniform Child The issue of child is ad Custody Jurisdiction Act is not the correct dressed in both district courts and deprivation proceedings forum for or termi- Custody proceedings chapter courts. under parental rights proceedings. nation of This exclusively 14-14 can involve matters “exceptional is not a situation where circum- jurisdiction (i.e., divorce), of the district court stances” warrant of the two exclusively jurisdiction in the party. minor children be awarded to a third (i.e., deprivation), or matters within the D.R.J., jurisdiction
We are not convinced the referee erred in
of both.
In re
(N.D.1982).
awarding custody of the two minor children N.W.2d
inadvertently
report
person, agency, organization,
1. The GAL
filed the
with the
as
institution
wrong
copy
accepted
will,
but a
into evi-
opinion
judge, promote
in the
hearing.
dence at the
interests and welfare of the child. Between the
father,
adoptive,
mother and
whether natural or
Awarding custody—Best
2. "14-09-06.1.
presumption
there is no
as to who will better
child. An order for
of an
welfare of
promote the best interests and welfare of the
pursuant
unmarried minor child entered
to this
child.”
chapter
must award the
of the child to a
court;
designate the
juris
nile
to do so would be to
juvenile court has exclusive
custody proceed-
hearings. NDCC
court a backdoor to
deprivation
diction
D.R.J.,
27-20-03(1); e.g., In re
317 N.W.2d ings.3
§
exceptional circum
Only under
at 394.
distinguish this case from those
We
jurisdiction
with the
this
shared
stances is
“exceptional cir
which we have considered
D.R.J.,
e.g.,
re
district court. See
“excep
Because there are no
cumstances.”
psy
(custody dispute pitted
at 394
N.W.2d
warranting consider
tional circumstances”
parent).
against natural
chological parent
ation,
appropriate
this is not an
situation
exceptional circumstance does not
an
Such
juvenile court to share
the district court and
our cases which
exist in this case. Unlike
jurisdiction.
trial court’s un
We affirm the
“exceptional circum
we have discussed
depriva
willingness to address
issue
*4
stances,”
party
third
seeks
no identifiable
parent’s fitness to
tion.
a natural
“Where
custody
children. See Worden
of these two
adequate
minimal
of
care
provide a
standard
(N.D.1989) (hus
Worden,
341
v.
434 N.W.2d
issue,
under
proceedings
child
at
the
is
child);
sought custody of mother’s
Pat
band
Act,
27-20,
Chapter
Uniform Juvenile Court
(N.D.1986)
Glaser,
740
zer v.
396 N.W.2d
N.D.C.C.,
protect
are available to
and safe
sought custody
grandchild);
(grandparents
of
guard
parent
interests of both
and child.”
the
(N.D.
Gunville,
441
Daley
348 N.W.2d
v.
Worden, 434
at 343.
If
Worden v.
N.W.2d
1984)
sought custody
grand
of
(grandmother
with their
placement of the children
D.R.J.,
child);
317
at 391
In re
N.W.2d
dangerous
places the children in a
environ
custody
grandchild);
(grandmother sought
of
ment,
proceedings can
com
appropriate
be
(N.D.1980)
Hust,
version of the Uniform Juvenile
custody proceedings, because
these
juvenile
a child from
court cannot remove
appropriate
at
fitness is not the
test.
Id.
custody
parents’
in the best interests of
grave
is a
reason to do
the child unless there
so,
argues
found to be a
The GAL
the trial court erred
as when the child has been
319;
accepting
parents’ stipulation. Specifi
deprived
at
but see In re
in
child.
Id.
T.M.M.,
(N.D.1978), cally,
should have
813
he
that the referee
267 N.W.2d
(under
27-20-30,
evidentiary hearing to determine the
deprived
§
had an
reh’g denied
agree
necessarily
children.
have to be re
best
interests of the
We
“child does not
custody
parent”).
that
trial courts have the
moved
of his
with the GAL
from
reject
stipula
statutory
requires
authority
accept
divorce
Harmony in
construction
Aanderud,
custody proceedings
tions. Aanderud v.
469 N.W.2d
showing
the same
in
(N.D.1991).
has often
§
It would
155
“This court
under Title 14. See
14-09-06.1.
that a trial court
is not bound to
contrary
legislative
be
intent
to allow a
stated
juve-
accept stipulations
purport
which
to deter-
showing in
court than
lesser
a trial
juvenile
and dis-
amine the evidence in a manner similar to
3. Differences between the
court
novo,
review,
weight
give appreciable
scope
appellate
de
we
to the
but
trict court include: the
C.K.H.,
evidence,
findings
proof.
juvenile
In re
458
court.”
rules of
and burden
(N.D.1990).
scope
N.W.2d
305
Unlike
of review of district court
cases .is
52(a)
adjudicatory
proceedings
Dakota Rules
in district
set forth in Rule
of the North
52(a)
provides
phase
deprivation proceedings
that
of Civil Procedure. Rule
requires
deprivation
findings
that
be shown
clear
are
of fact
child
determinations
27-20-29(3).
convincing
§
clearly
only
erroneous.
evidence. NDCC
and will
be reversed if
Weber,
(N.D.1994)
apply
Additionally,
do not
E.g.
the rules of evidence
v.
to the custodial WALLE, C.J., LEVINE, done, although attorney for the VANDE was not MESCHKE, JJ., represent “[n]o- concur. father did to the referee that SANDSTROM hearing given to Traill Coun- tice of this appear.”
ty, they have chosen not to record, the exact status of the
On this is unclear. at the time of
children
However, joinder question of notice presented agency was not
of the custodial Yet, case, appeal. in another a court
this should, separation
facing jurisdictional at this
least, joinder of notice to and make certain any child whose physical custodian affecting.
future the court is Schoppert Schoppert Thomas K. Law Anthony BOSCH, Appellant, Firm, Minot, appellant. Miller, Gen., Atty. Carmen G. Asst. Bis- marck, appellee. MOORE, Commissioner, Marshall Department North Dakota State LEVINE, Justice. Transportation, Appellee. *6 Anthony appeals Bosch from a district Civ. No. 940021. judgment affirming the administrative
Supreme Court of North Dakota. suspension driving privileges. of his Because the officer failed to forward the results of all June Bosch, the blood-alcohol tests conducted on
we reverse.
Officer Kendall Zeeb arrested Bosch on University campus of North Dakota 16, 1993, May for actual control. Intoxilyzer Zeeb conducted an test breath sample and collected a urine from Bosch. only Toxicologist’s Zeeb forwarded the State analytical report sample of the urine to the (DOT), Department Transportation having Intoxilyzer discarded the test results because there was a deviation between the two breath samples explained of more than 0.02%. Zeeb that such a deviation invalidated the test results. requested
Bosch an administrative hear- suspended ing. officer Bosch’s driving privileges days. ap- for 364 Bosch pealed to the district court for Grand Forks County, appeals which affirmed. Bosch now judgment.1 from the district court’s reply days appellee’s 1. Bosch submitted a more than teen after brief was served and brief four-