*1 Furthеrmore, facts of this under the jurisdic do not have
the courts of Custody the Uniform Child Juris
tion under (UCCJA). §§ 14-14- See NDCC
diction Act (7)
02(4), (5), 14-14-03. continue to and Enforcement
believe that Uniform Act, 28-20.1, Chapter
Foreign Judgments
NDCC, apply to enforcement or does foreign custody un decree
modification 14-14, NDCC, the Chapter UCCJA. der Smith, v.
Beck
1980) [VandeWalle, J., concurring and part],
dissenting LEVINE, Surrogate Judge,
BERYL J.
concurs. Dakota, Plaintiff
STATE of North Appellant,
and
v. HOLECEK, L.
Bernard Defendant Appellee.
and Dakota,
STATE of North Plaintiff Appellant,
and
v. BRENNAN, B. Defendant
John Appellee.
and Dakota, Plaintiff
STATE North Appellant,
and SHAW, D. Defendant
Ronald Appellee. Dakota, Plaintiff of North
STATE Appellant,
Timothy LINDGREN, K. Defendant Appellee. to 950178.
Criminal Nos. 950175
Supreme of North Dakota. Court
April 1996.
Rehearing May Denied *2 25,1991,
On
restrain
October
issued,
placing restrictions
order was
against protestors demonstrating outside the
*3
Inc.,
Fargо
Organization,
Women’s Health
provides
medical clinic which
abortion ser
order was
vices.
injunction
preliminary
as
on No
continued
prelimi
We modified the
vember
nary injunction
findings on
and remanded for
injunctive
Fargo
of the
zone in
Wom
size
Christ,
en’s Health v. Lambs
(N.D.1992).
resulting
upheld
Injunсtion,”
Temporary
issued on
“Amended
September
Fargo
in
Women’s
Christ,
cial under N.D.C.C. 12.1-10-05. LEVINE, they legedly, Sep- of the Surrogate Judge. BERYL violated the terms J. tember 1992 amended appeals from an order dismiss- by protesting against the clinic within the for ing charges criminal disobedience protest-free was the zone. That Holecek, judicial against Bernard John one the trial court ordered to remain Brennan, Timothy Ronald D. K. Shaw effect. judicial Lindgren. Because attorneys was still valid On December for action, appellees in the civil who also at the time the were accused defendants it, attorneys appellees,1 fur- violating we are the for the filed revеrse and remand motion to ther “motion dismiss dissolve and/or Lindgren, attorney four for the court. One of the 1. The who party appellees represent in the trial also a named defendant the civil action. them that, assert They argued under The statute relieves injunctiоn.” 32-06-03, liability 32- injunc- them of criminal is N.D.C.C. law, 06-03, says: by operation at the elapsed tion had latest, very July months after six “Injunction granted —When —Limita- judge assigned had follow- been new injunction may granted tion.—The date, the mistrial. On the same action, commencing the time of attorneys aрpellees’ moved for a continuance judgment, any time afterwards before presiding civil ac- “until over” the satisfactorily appearing to the its or not the tion “has determined whether judge, by court or the affidavit of the injunction, upon [ap- which the person, suffi- plaintiff, or of was, arrested, expired and pellees] had *4 were grounds copy exist A cient therefor. of therefore, longer a lawful at the no in- must with the the affidavit be served [appellees] were for violat- time the arrested junction. longer period In no case shall a ” object, The State did not the same.... hearing months the elapse than six before granted. and continuance the the be had the merits case shall of for of question purpose deciding the as to the of 15,1995, February in the On the trial court making tem- justice necessity or the the to civil the motion action denied defendants’ restraining porary permanent.” temporary and the amended dismiss dissolve added). (Emphasis injunction. appealed to The civil defendants unpublished May In orders dated court. II 10, 1995, appeal civil 3 and dismissed the asserts the six-month time State the appealability,” “for and dismissed lack applies only limit man- the civil to vacate defendants’ orders, appellees are because respectively. appeal, date reinstate the pre or charged violating temporary with a Meanwhile, appellees had moved liminary injunction, inapplica the statute charges, asserting “an es- that dismiss the this issue not ble. assert existence of sential element of case—the properly prеserved because the absent,” judicial when a order —was lawful present argument to State similarly they The appellees arrested. trial court. preliminary that Questions not raised before no at the time of their arrests longer effect E.g., will not be considered expired by of law operation it had because Kuhn, 403, 497 406 Taghon v. N.W.2d under N.D.C.C. 32-06-03. that, 1993). But, “where this court has held 1995, court, May 8, agreed and The trial by pertinent statute overlooked a has been charges against the the criminal dismissed court, resulting plain and the both counsel cоncluding that 32-06- concern, public in matter that error a mandatory period 03 of limitations “is a though even will consider the error this court restraining temporary existence brought to either of our attention it is injunction.” The preliminary order or Com parties.” Le Pire v. Workmen’s appealed. Bureau, 111 359 pensation N.W.2d Larsen, also 515 judicial a crimi- of a order is Disobedience (N.D.1994); 178, 182 R. Co. Soo Line N.W.2d 12.1-10-05(1): nal under N.D.C.C. offense (N.D.1979); N.W.2d 464 286 guilty Thomas, A misde- person of a class “1. A City 66 Megarry Bros. v. St. a disobeys resists example, if he or meanor For 708 N.W.2d restraining Pire, though order or temporary lawful 111 at even in Le N.W.2d injunction or oth- inter stipulated or final an incorrect preliminary had the State statute, consid pay- the court pretation other than for the of a state er final parties’ notwithstanding the money, of this the error of a court ered ment of bring attention. it the court’s failure to state.” 804 (N.D.1983); Injunctions Larsen, 42 argument was that the 132 Am.Jur.2d (1969). hand, rely dispositive
appellant purpose deci 10 the other could not On statutes “is interpreting sion the MIDA bond or ruling quo court’s because issued after to maintain the cause in status until Gunsch, raise MIDA appellant bond 69 did trial on the merits.” Gunsch v. (N.D.1954). Thus, in the trial court statutes ordinari- disagreed, reasoning: ly, precedes a temporary restraining order duty appellate re or
“We have
to conduct
if,
light
precedents,
precedes
permanent
view ‘in
of all relevant
turn
merits,
permanent
or
simply
hearing
those cited to
discovered
on the
after
Holloway,
necessary.
court.’ Elder v.
district
is found to be
We believe
[510], -,
1019, 1021, 127 that,
114 S.Ct.
by describing
“temporary
U.S.
as a
restrain-
(1994).
Otherwise,
L.Ed.2d
deci
preliminary in-
ing order” the
might
‘shоrtages in
sions
turn on
counsels’
junction
ordinarily precedes the
trial on
legal
briefing’,
court’s
research or
legislature
merits of the
id., at -,
at
S.Ct.
L.Ed.2d
ambiguity
created
the statute.
appellate
affir
‘could occasion
Id.,
legal
results.’
mation
incorrect
*5
ambiguous
Wе construe
statutes
-,
114
n.
S.Ct. at 1023 3.”
as whole
the
of the
a
to determine
intent
Larsen,
Erickson,
legislature.
at 182. Larsen
v.
534 N.W.2d
515 N.W.2d
eluci-
only
authority,
duty
purpose
our
but our
to
807
The obvious
of
dates
is,
§
applicability
upon
of relevant statutes to
of a
decide the
N.D.C.C.
32-06-03
legal
party,
prevent
provisional
a
par-
controversies whether or not the
to
the misuse of
pointed
remedy,
hearing
ties
to
or
a
before a
the
have
us
them
obtained
on
merits,
particular
perma
construction.
as
effective substitute for a
injunction.
Savings
nent
See German
&
Indeed,
interpretation
the
of a stat
Society Aldridge, Cal.App.
Loan
v.
5
89
question
fully
ute is a
of law that is
renewa
(1907)
(construing
P.
Cal.Code
Zuger
ble
this court.
v. North Dakota
§
upon
Civ.Proc.
which N.D.C.C.
32-
(N.D.
Ass’n,
Ins.
494 N.W.2d
Guar.
patterned).
wrong
06-03
The
to be
1992).
primary purpose
statutory
of
remedied, prolonged delay
hearing
on
intent
the
construction
to ascertain the
of
merits,
tempo
of
the
is as real
the case
a
legislature. Burlington
Northern
rary injunction
it is
a
as
in the case of
As
500 N.W.2d
Larsen
temporary restraining
If we
to
order.
demonstrate,
pursuing
Lе Pire
applying
the six-month limitation as
construe
goal,
adopting
are
limited to
of
we
one
alone,
to
oi*ders
the
opposing
urged
the
constructions of statutes
statute, preventing prolonged
purpose of the
parties
the
when neither constructiоn con
merits,
delay
hearing
the
of
the
would be
legisla
is the
forms with what we believe
a
or
temporary
prelimi
defeated whenever
intention. The critical issue in this
ture’s
Gunsch,
nary
obtained.
validity
temporary injunc
case
the
the
of
(when
injunc
III
granted).
though
even
motion is
tempt order
improp
the trial court
We conclude
here,
Where,
legislature
as
has
stated
rendering a
erly
the statute as
construed
running
of the six-
intended effect
its
injunction auto
having
time limit without demand
month
hearing
matically
if no
is held within
void
hearing
made for
dissolution
been
period.
six-month limitation
run,
time limit
it is
after the
reasonable
32-06-03,
effect,
bеstows
Section
legislature
intended
tem
presume
right
any party
hearing
demand
restraining
remain in
porary
order to
effect.
are thus
parties
within six months.
32-06-03,
Under
process
empowered
expedited
monitor the
right
hearing
be
had the
demand
held
par
legislature
envisiоned. It is for the
six months of the time the
within
limit.
ties’ sake that the statute sets a time
injunction was issued or to seek dissolution
However,
legislature
specify a
Compare
after months.
of the
six
hearing
failure to
remedy for the
demand
Moore,
State’s
“applies only to orders preliminary injunctions.” The
and not to not this issue the trial
State did raise
court. trial court are
Issues raised appeal. on Morstad v.
considered (N.D.1994) (“Because 191, 194 Mor- Eighth
stad did not raise Amendment issue.”); below, do not decide
issue we Whiteman, 79 N.W.2d
State
1956). exception, permit have As a sole first
ted a to raise time defendant affecting error” the de an “obvious rights. v. Aus
fendant’s fundamental (N.D.1994)
tin, 520 N.W.2d 569-570
(“Our power to notice obvious error exer cautiously only exceptional cir
cised
cumstances where the defendant suffered McNair, injustice.”) (citing
serious (N.D.1992)). majority permitting civil cites cases issues or authorities
consideration court, raised the trial which involve
plain ap- dispositive error or which are concludes, majority
peal. But as the howev-
er, II neither the issue considered (nor error), it plain error nor is
involves
dispositive
Phyllis SYMINGTON, Claimant Appellant,
NORTH DAKOTA WORKERS BUREAU,
COMPENSATION
Appellee, County
Pembina Memorial Respondent.
Hospital, No.
Civil 950312.
Supreme of North Dakota. Court
April