*1 BUZICK, Plaintiff Duane E. BUZICK, Defendant J. 940336, 950032.
Civ. Nos. of North Dakota.
Supreme Court 21, 1995. (argued), Vogel,
Pamela J. Hermes Brant- ner, Knutson, Ltd., Kelly, Bye, Far- Weir & go, plaintiff appellee. for Craig (argued), M. Richie Richie & Associ- ates, Fargo, for defendant and by appellant Marilyn Appearance J. Buzick. NEUMANN, Justice. appealed Buzick from a divorce distributing marital assets. She separate appeal filed a from the trial denying seeking
court’s order
her motion
of costs for a
denying transcript
revеrse the order
entry
appropriate
costs and remand
of an
Marilyn and Duane Buzick were married
brought
in 1989. Duane
this divorce action
in April
1993. The case was tried
June, 1994,
and the divorce
September
entered on
personal property
received various items of
$13,432.
and a cash
settlement of
$10,000
pay Marilyn
Duane was ordered to
judgment,
within 30
and the
remaining
by February
timely appeal
filed a
judgment. Asserting she was unable to af-
ford the estimated
cost of a
asking
in the trial court
she filed motion
required
the cost of the
Duane be
*2
677
Marilyn
though
alleges she had no available
court denied the mo-
transcript.1 The trial
pay
transcript,
the divorce
10, 1995,
funds to
for the
January
dated
tion
an order
judgment
proper-
included a substantial cash
appeal from that
separate
a
filed
attorney
ty
to her. Because her
award
accеptance
concerned whether
of these funds
provi-
complied
judgment
the
Duane
with
jeopardize
appeal,
did not cash
would
she
sions, tendering
check for
a cashier’s
$10,000 check and use those
the tendered
7,
1994. After the
to
on October
pay
funds to
for the
Under thesе
filed,
appeal was
Duane’s
circumstances,
ap-
unique
we conclude it is
Concerned that
that the check be returned.
court,
propriate for a trial
faced with a mo-
accep-
cashing
might be considered
the check
pay-
to order
tion for costs
judgmеnt
the
which
tance of benefits under
judgment
ment of an advance on the
to allow
Marilyn’s
jeopardize
appeal,
attor-
the
aрpellant
provide
to
In so
the
ney
the check uncashed.
returned
holding, we are mindful of the fact the trial
the trial court’s re
asserts
effectively preclude meaningful ap-
court can
pay
transcript
fusal to order Duane to
by preventing purchase of the
effeсtively precluded meaningful appeal
key
has
transcript, and
essence holds the
to
judgment. Marilyn’s appeal from
door for the
the
court’s
entirely
premised
judg-
is
almost
the
If there is a cash award in the divorce
findings
challenges
trial court’s
to
of a tran-
to the
ment sufficient
сover the costs
appel
placed upon
script,
an
the trial court should consider order-
of fact. The burden
appellant the
challenging findings
ing
of fact without a
an advance to afford the
lant
meaningful appeal.
virtually
opportunity for a
transcript
is
insurmountable:
appeal
on
“This Court has held that
we reach does not con
The result
party challenging
findings of fact of a
general
that onе
ac
flict with the
rule
who
burden of demonstrat-
trial court has the
cepts
benefits under a divorce
substantial
clearly
ing
findings
that those
are
errоne-
right
appeal
from
waives
appellant
ous ....
an
raises issues
When
judgment.
years
We have
recent
fact,
findings
appeal regаrding
on
sharply
application of the rule
an
limited
difficult,
impossible, for us to
is
if not
strong public policy in
promote
effort to
appеal without a
discuss the merits of the
deciding appeals upon the merits.
favor of
appeal
on
transcript....
If the record
487,
Spoоner
Spooner,
v.
471 N.W.2d
489
meaningful and intelli-
does not allow for a
(N.D.1991). Only
appellant accepts
if the
error,
alleged
de-
gent review of
wе will
decree,
under the
un
“substantial benefits”
cline review of the issue.”
clearly indicating an intent
der circumstances
230,
decree,
accep
Rosendahl v.
470 N.W.2d
will the
to be bound
(N.D.1991) (citations omitted); see
231
constitute a waiver of the
tance of benefits
(N.D.
Davis,
619,
supra,
right
Spooner,
Davis v.
448 N.W.2d
620
471
See
1989).
489-490;
Sanford,
295
N.W.2d at
Sanford
(N.D.1980). Furthermore,
139, 142
N.W.2d
attorney’s
Ordinarily, a motion for
timely
cross-appeal
the absence
costs,
costs,
including
fees
dispute Mari
indicates Duane does not
case
prosecute
appeal
are within the discretion
benefits,
case
lyn’s right to the
and tаkes the
will not be disturbed on
of the trial court and
supra,
general
Spooner,
out of the
rule. See
of that discretion.
appeal аbsent an abuse
not to the facts on See Rule
52(a), majori- I NDRCivP. do not view the
ty’s remedy as a statement on the merits of rеmedy But Buzick’s only the amount avail-
will serve reduce
able to Buzick under the option of the should she avail herself Dakota, STATE of North Plaintiff should we affirm on secure the receipt after of the I merits unwilling encourage
am such a result. respectfully I dissent. Reginald TRIEB, Defendant CHRISTOFFERSON, LEE A. District No. Crim. Judge. Supreme Court of North Dakota.
I affirm the trial court so must dissent. First, the defendant never asked the trial granted by
court for an advance which is now judge
this court. How can a trial court be
expected to order an intrusive measure such money judgment an advance on a
as suggested when it was never
by party. Appellant’s counsel conceded he
never asked for it and still wasn’t sure dur-