Neubauer v. Neubauer

S.T., 241 e.g., McGurren

1976) testimony [remanding expert con remaining to infant from

cerning future harm refusing give “special

with mother guard to recommendation

consideration” litem]; [permitting

ian NDCC 14-17-15 ad fees to order one both “counsel, guardian experts, and the child’s added)]. Compare In (emphasis

ad litem” R.W.B., 546,

Interest of weight [applying governing law guardian’s

expert testimony to ad litem testi accepting

mony, stopping short of “the but guardian ad

proposition [is] litem [a]

expert witness.”]. approach favors main- the better believe

taining legal guardians status of separate of the children

ad litem advocates fact-finding investigators.

represent and as guardian

Only if an ad litem were individual skills, possess special qualifications, ex-

perience the trial court were ac- status,

knowledge conferring expert guardian ad as an litem treated

expert. NEUBAUER, Plaintiff J. Appellant, NEUBAUER,

Mary Defendant M. Appellee. No.

Civ. 940127. of North Dakota.

Dec. $1,000.00 per month, commencing

sum of 1, 1993, April spousal and for support as property payments.” and settlement Following entry judgment, LeRoy of the requested thirty-day and received a exten- In appeal. sion to file an October of expiration several the the months after extension, thirty-day LeRoy filed a motion requesting trial that the court “correct” the judgment. LeRoy argued that it was unclear $1,000 monthly Mary whether the award to was or division. LeRoy that legally imper- contended it was lump spousal support proper- missible to and ty together, and the not that did “comport alimony.” with the laws of

The trial court treated the motion one brought judg- for clarification and relief from 60(a) 60(b), pursuant ment to Rule and Rule NDRCivP, and denied the motion on the ground LeRoy’s sole motivation questing the clarification was to ascertain the consequences monthly payment. of the LeRoy’s The trial court also concluded that motion was a collateral attack on the sub- stance of that should have been raised on direct Kautzmann, Bair, Dwight C.H. Kautzmann Bair, Mandan, appeal, LeRoy argues On and plaintiff appellant. and refusing judg- court erred in to Brothers, Johnson, P.C., James R. Wold $1,000 ment monthly because the award of to Fargo, appellee. for defendant and Mary and ambiguous comport and does with North WALLE, VANDE Chief Justice. LeRoy change Dakota law. does not seek to appealed J. Neubauer from the or- award, only amount of the to have clari- denying requesting der his motion correction fied the support prop- allocation between and divorce We reverse. erty division. Mary Neubauer and Neubauer Mary procedure relies on our rules of May were divorced in of 1993. This argue against entertaining LeRoy’s require continues effort the trial clarify. She that both Eberhart, (N.D.1981). v. 301 N.W.2d 137 hart which a motion is made in cases in spousal subject support is modifi Because to prompt year judgment. a mthin Thfcse upon a material of circum granted injustice are re- motions for relief modification, justifying it is stances such quires it. at the rule Id. Although ten-day purpose The behind the limi final. to-remedy ordinarily be used a is to 52(b) 59(j), in tation Rule NDRCivP appeal, this not an failure to take an 'is Flower, finality. E.g., Conerly is v. 410 F.2d party in cases a inflexible rule and unusual Cir.1969) (8th [purpose 941 of Rule 59 time appeal may an obtain who has not taken provide finality limit to award to 60(b) Id. relief on a motion. appeal]. A purpose for motion recognized a for clar We have finality does not affect Id. any particular ification without reference monetary Only property if award is a ámbiguous procedure, if there is rule Eberhart, supra. is award it final. provision in the that creates an Additionally, previously this Court has not- parties. controversy between the actual problem ed the of whether or not an award is Anderson, 476 Anderson v. 522 N.W.2d or property division (N.D.1994); Quist, v. Sullivan 506 N.W.2d payments deferred-property "... are dis- Conitz, (N.D.1993); v. 467 N.W.2d 394 Conitz chargeable bankruptcy, spousal- in unlike Gross, (N.D.1991); 93 v. 466 N.W.2d Gross Redlin, payments.” v. support Redlin 436 Wastvedt, (N.D.1991); 154 v. 371 Wastvedt 5, (N.D.1989). See also v. N.W.2d 8 Martian (N.D.1985). 142 N.W.2d (N.D.1987). Martian, 849 399 N.W.2d Par- jurisdictions a similar have reached Other struggled Court have with the ties this See, Quade, e.g., Nelson v. 413 result. bankruptcy potential or bank- issue where (Minn.App.1987) [Trial 824 court N.W.2d See, e.g., ruptcy is involved. Seablom v. may declaratory judgment clarify issue a (N.D.1984). Seablom, 920 348 N.W.2d ambiguous ambiguous be- order. Order need not await figure gave only prop- dollar for cause it one party’s in circumstances to either erty and it was not division and maintenance spousal court to whether the award is from face order how to allocate clear modification, subject property support, or Anderson, supra, them]. also between distribution, not. which is [citing cases]. at Minnesota 478 other Furthermore, notwithstanding some reser ambiguity in this The obvious issues, “commingling of tax vation about we remand for clarification on would benefits, breaks, they be entitled whether Urlaub, v. 325 direct Urlaub exclusions, taxability, equitable with or (N.D.1982) [before 234 N.W.2d action,” in property a divorce division can determine whether not distribu- Fraase, v. 315 N.W.2d 278 Fraase alimony property and award of were tion of 1982) J., [Sand, concurring specially], Briese erroneous, clearly must understand Briese, (N.D.1982), this v. 325 N.W.2d 245 decision]; court’s rationale for its Williams recognize that matters of court come (N.D.1981) Williams, pragmatic part of the effects of taxation are support distinguished property from [spousal property award the division division]. spousal support and are to be considered Fraase, su making Although those determinations. is not direct this pra, of whether provision meaning determination [remanded neither the contested filed]; joint Kaiser v. importance tax still be material oth return ambiguity of no less Kaiser, [trial 474 N.W.2d 63 con er than the basis for if it con- its division amend If the amount awarded is tentious consequence operation eludes tax from that adverse would relief LeRoy’s result which To extent mo- could avoided different equitable property]; Gronneberg requests clarification allocation as whether awarded, thereof, Gronneberg, portion amount or a division, [remand determine whether we denying husband would suffer adverse federal verse the order relief and remand consequences resulting from assignment of for clarification. Bagan Bagan, wife]. See also (N.D.1986). MESCHKE, JJ., SANDSTROM and concur. Stoelting Stoelting,

Significantly, (N.D.1987), 861, 865 observed we LEVINE, Justice, dissenting. “[p]arties necessarily to a divorce must certainly I majority with that the consequences consider tax of divorce transac part of of pragmat- “matters taxation are the also, court, tions. So a trial prop when.it is ic effects of the the division informed, erly must take tax effects into award con- and are to be account when it determines divorce transac in making sidered those determinations.” Dick, tions.” See also Dick v. 414 N.W.2d disagree What I with is those tax mat- how (N.D.1987); Gorsuch, 288 Gorsuch v. 392 by ters appellate, are be reviewed this ( D.1986). generally, Tra Apparently, majority court. the provid- has Bateman, Annotation, cy A. Sep Divorce and litigants ed appeal a choice of an avenues: Consequences aration: Consideration Tax a I clarify. wrong motion to that believe is Property, in Distribution Marital 9 and I therefore dissent. (1993). A.L.R.5th 568 Actually, my there are several'reasons for Although Stoelting held that a trial disagreement. The first rather is obvious. may modify court not an obvious Rule is not to be as a used substitute settlement into because of a appeal. E.g., for Production Credit Ass’n payments tax consultant’s concerns the (N.D.1987); Dobrovolny, 415 N.W.2d 489 deductible, be LeRoy that not is what is Crosby First Bjorgen, National Bank asking Kaiser, here. As the in Court noted (N.D.1986); City Wahpe supra, 474 N.W.2d at “[w]hen Drake-Henne, Inc., ton v. 228 324 N.W.2d divorce, in divided a it often insufficient to (N.D.1975). By condoning procedure a that maintain each of the at the same appealing allows to choose between living enjoyed during standard of the 60(b), “seeking clarification” under Rule the marriage.” instance, In such the trial court majority corruption institutionalizes the attempt reducing to avoid available our rules. through consequences tax assets that so the dramatically It also the on parties may preserve, possible, reduces burden as much as 60(b). moving party the under previous Tradi- living. their standard of tionally, required we have party the 60(b)(vi), permits the requesting judgment relief a from final under judgment “any review a for final rea other 60(b)(vi) specific, demonstrate extraor- operation son relief from the of the dinary grounds justify disturbing the judgment.” The motion under must finality of the E.g., Bjorgen, su- be made a within reasonable time. Here the pra. provided by This is relief beyond motion was made the time to (vi) extraordinary. subdivision is deemed year well specified but within the one time Drake-Henne, Inc., supra. motions to While 60(b)(i)(ii)(iii) from Rule We motions. be modify support judgments an exception are lieve the motion was made within a reason rule, finality requires to our modification time. able circumstances, just material in consequences significant any change. are old So even modification of and the judgments creates actual contro must be viewed in the context of versy parties. homage paid finality judg- This is reason the usual to

597 Wastvedt, supra [clarification why not know did not do ments. complain this provision requiring from indefinite mort- enforce uncertainty conse of its tax by about payments spouse]. gage These cases all, quences. After whatever uncertainties point that motion illustrate in have inhered there inhere only appropriate when clarification is neces- produced beginning and were not from sary to aid in enforcement of the Compare subsequent with events. Here, there is no obstacle enforcement Anderson, 522 N.W.2d 476 Anderson v. no for clarification to enforce the need (N.D.1994) [request father $1,000 LeRoy is paying decree. month and ques produced year of law school child’s first years between the there no meaning phrase as to “four Quist, Mary’s college”]; dispute may upon 506 N.W.2d arise Sullivan While reim [party’s marriage par- or a material either college expenses of child’s raised circumstances, bursement ty’s is not manifest this judgment permit question expenses of which Crawford, Snortland v. case. See Wastvedt, reimbursed]; Wastvedt ted (N.D.1981). effect, In the ma- of marital [sale advisory opinion. jority given verboten produced question continua home litigants have Now that been bestowed the duty ex-spouse’s mortgage make tion of opportunity alleged error in a to correct de- appeal. But payments]. didn’t As clarify, by a motion rather than cree out, majority he didn’t have to. The turns ready I direct assume will take I trespass, blithely, all think. forgives his too certainly advantage loophole. It ex- of that LeRoy, merits favor our While the pands jurisdiction beyond this court’s pro reaching muddy ought up our them sixty-day confines of a dead- straightfor rather narrow been cedure which till now has error, majori- appeal from a The unremarkable: to correct line ward and Hansen, ty signifi- appeal. Matter Estate welcome mat has extended the (N.D.1990) [error of law is not litigants. N.W.2d 264 cant new class of 60(b)]; grounds relief under NDRCivP judge I would affirm the trial because his Dobrovolny, supra that trial court made [fact using the motion to decision that was this court poor judgment or one which rational, clarify aas substitute for was justify not have made does would appli- noncapricious represented and sound 60(b) relief]. facts, of our case law the be- cation sidesteps the majority The also lesson de- is no real between the cause there prior involving rived from our cases clarifica- things parties as now stand. eases, it In each of those was neces- tion. ambiguous provision in sary to NEUMANN, Justice, dissenting. actually

judgment that hindered enforcement ambiguity decree because created is a case I not believe this do controversy a real between the extraordinary reme requiring that section’s Anderson, necessary supra, [clarification dy, the facts this case nor do I believe liability for educational ex- resolve father’s present requiring clarification at a live issue Sullivan, penses daughter]; supra [clarifi- I with the trial court’s this time. necessary parties’ dispute resolve cation motion is sim plaintiffs determination permissible from mari- over reimbursement timely for a ply a belated substitute property for children’s educational ex- tal appellate review denial Our standard Conitz, 467 penses]; Conitz motion is abuse discretion. necessary to enforce [clarification Clooten, Clooten by determining temporary restraining order 1994). same of review standard property]; application particular Gross its for clarification. apply to of a motion denial Gross, [clarifi- acted arbi say that the cannot to enforce distribution deny home]; capriciously unreasonably in trarily, of marital proceeds of the sale ing plaintiffs this case. I would

affirm. WAHPETON,

CITY OF Plaintiff Appellant, ROLES,

Robert A. Defendant Appellee.

Cr. No. 940142. North Dakota.

Dec. (argued),

Linda L. Hickman City Asst. Atty., Wahpeton, for plaintiff appellant. (argued),

Don Wahpeton, R. Krassin appellee. defendant and MESCHKE, Justice. City Wahpeton appeals from an suppressing prosecu-

order evidence driving Robert Roles for under the (DUI). influence of alcohol We reverse. night in Wahpeton One November Police Jeff Officers Schwartz and Sheldon Griess, working together, investigated a re- notes Rule and explain paragraph original 59, NDRCivP, which allow effort to judgment, says: divorce amend, respectively, findings the factual legal conclusions and have a ten- “XII. day entry time limit from We In equalize order division of the LeRoy’s that insofar as motion to clari assets and liabilities fy days entry was not filed ten within recognizing the disadvantaged Defendant’s judgment, qualify it did for relief condition, and the Plaintiffs under these rules. education, ability better to earn living, ability However, manage property, and be- the trial court treated cause of the LeRoy’s health conditions of the Defen- motion as a for relief under dant, 60(a) 60(b), the Plaintiff ordered to the Rule or Rule There NDRCivP. 59(e) division, subject it is not to modifi overlap considerable upon If of circumstances. Wright A. & Arthur Rule 60. Charles subject Procedure, spousal support, the amount is Miller, R. Practice and Federal upon (1973). modification of circumstances There not been much E.g., a modification. Eber such construing difficulty applying

Case Details

Case Name: Neubauer v. Neubauer

Court Name: North Dakota Supreme Court

Date Published: Dec 2, 1994

Citation: 524 N.W.2d 593

Docket Number: Civ. 940127

Court Abbreviation: N.D.