*1 639 tips case than the teacher certifi- balance educators favor of the requirement. cation state.5 power impose has the to
The state judgments The of conviction are af- regulations quality as to the reasonable firmed.
the education and instruction furnished. Nebraska, 390, 400, Meyer v. 262 U.S. 43 ERICKSTAD, C.J., and VANDE 625, 627, (1923), 67 L.Ed. 1045 S.Ct. WALLE, MESCHKE, JJ., GIERKE and Supreme “[p]ractical stated Court concur. young only рossible ly, education of is by especially qualified
in schools conducted
persons devote themselves thereto.” guarantee teaching certificate is no
While teacher, competent holder is it guarantee has been holder
exposed knowledge competent to the that a Benton, supra.
teacher should have. See
We believe that teacher certification
requirement public, for instructors in non schools
public, reasonably or home is a amply justified. narrow one and See THOMAS, Appellee, Plaintiff and State, (Ala. Jernigan 1242 v. So.2d v. Crim.App.1982). ap Teacher certification pears among personal to us to be least THOMAS, Defendant ly intrusive now methods available satis Appellant. seeing fy prime state’s interest in No. Civ. 10969. taught by persons. children capable its are thing argue Supreme
It is one that state of North Court Dakota. government gоod-faith honor the should ef Feb. 1986. parents forts of to educate their children at requiring parents home without those Indeed, teaching
hold certificate. ours is diverse, ever-changing society every
reasonable effort should be to accom made disparate religious those
modate or
philosophical practices. beliefs How
ever, to failure claim that state’s
alter abolish teacher certification
requirement under these circumstances has
resulted in the violation of constitutional
rights Balancing is another matter. religious
defendants’ beliefs and the nature imposed upon burden those beliefs requirement the teacher certification
against the state’s interest certification ensuring
as a means of that its children are by capable persons,
educated we find the have also deem defendants claimed their Amendment. We this insufficient to raise they convictions should be reversed because are for our the state consideration constitutional I, issue, E.g., in violation of Article Section 3 of North and we decline to address Jones it. Bureau, argu- Comp. their v. Dakota Constitution. extent of North Dakota Workmen’s quote generally that section in their brief and N.W.2d See State — —, Jewett, (1985). parallel provision” that it is "a state First Vt. A.2d 233 *2 responded by Keogh a to Mr.
Merlyn
letter
27, 1984,
February
in which he stat-
dated
legal
afford
ed: “At this time
cannot
my
because of
finacal
situa-
services
[sic]
Merlyn
condition bills.”
tion and health
throughout
appeared pro se
the modifica-
before the District Court
County. Following
hearing
a
on
of Stark
1984,
17,
district
on
December
court
19, 1984, entered an amended
December
Dickinson,
judgment
provided
which
increased
Keogh,
plaintiff
A.
Robert
support.
child
appellee.
18, 1985, Merlyn brought
February
a
Greenwood,
On
Greenwood, Greenwood &
judgment
motion to vacate the amended
Dickinson,
appellant;
for defendant and
ar-
60(b)(iv)
(vi),
pursuant to Rule
N.D.R.
gued by Mark L. Greenwood.
Merlyn
represent-
Civ.P. At that time
was
by attorney
Merlyn
ed
Mark Greenwood.
LEVINE,' Justice.
Betty’s
modify
contended that
motion to
appeals
Merlyn Thomas
from the order
judgment
should have been served
County deny-
of the District Court
Stark
upon
his
record in the
ing
his motion to vacate
amended
person-
divorce action rather than
propriеty
ment. We consider
serv-
Merlyn’s
ally.
trial court denied
mo-
ing
judgment upon
motion to amend
appealed.1
tion and he has
party,
rather than
60(b)(iv), N.D.R.Civ.P.,
allows the
represented
party in the
initial
provide
judgment
court to
relief from a
action. We affirm.
Merlyn
which is void.
contends that Bet-
Merlyn
Betty
were
When
Thomas
ty's
comply with Rule
failure to
N.D.
1977,
County
divorced
Stark
R.Civ.P., deprived
jurisdiction
the court of
represented by attorney
was
Robert Baird
and rendered the
amended
Merlyn
represented
was
its
void.
trial
under
Mark Greenwood. Pursuant to the divorce
continuing jurisdiction over
actions
judgment, Betty
custody
awarded
support provisions,
which include child
Merlyn
the three minor children and
clearly
subject
jurisdiction.
had
matter
pay
support.
ordered to
child
Furthermоre,
clearly
trial
1981, Merlyn appeared
pro se before
personam jurisdiction
Merlyn through
over
County
the District Court of Mercer
on an
personal
upon Merlyn
the sheriff’s
order to show cause.
was ad-
motion and order to show cause.
judged
support pay-
to be
arrears
We fail to see how service of the motion
ments and was ordered to make increased
upon Merlyn personally,
rather than
payments
payments
to include
on the ar-
attorney,
juris-
his
can divest the court of
rearages.
diction. We conclude that the trial court
denying Merlyn’s
did not err in
motion
counsel,
Betty employed
her
60(b)(iv).
under Rule
1983, and,
Keogh, in
Robert
late
on Febru-
3, 1984,
ary
Merlyn’s
an order to show cause and
vacate the amended
motiоn to
was served
was also based
N.D.R.Civ.P.,
60(b)(vi),
upon Merlyn personally by
provides
the sheriff.
Merlyn’s
ap-
regarding
purported appeal
raises no issues
notice of
states that
Judgment
peals
denying
from the
motion to
from the "Order for Amendment of
order
his
Judgment.”
vacate and from the "Order for Amendment of
Judgment
and Amendment to
We therefore
Judgment."
Merlyn’s purported appeal from the "Or-
and Amendment to
deem
brief, however,
Judgment
appeals
der for Amendment of
and Amend-
his
states that he
Judgment”
and he
to be waived.
from
order
Cox,
of cases. See also Cox v.
from a final
457 F.2d
may relieve
a court
(3rd Cir.1972);
Scarth
“any other
reason
judgment or order
Scarth,
121, 128-129,
operation
211 Or.
justifying relief from the
P.2d
(1957).
however,
application
appears,
An
144-145
judgment.”
to vacate
all of these cases
factual
subsection
ad-
involve
situations
*3
different
from the instant case.
dressed to the sound discretion
the trial
those
court,
attorney,
its decision will not be
cases service was made on the
disturbed
complained
an
of discretion.
and the client
that such
on
absent
abuse
service
Zundel,
inadequate.
Zundel v.
146
901 was
We also notе that
N.W.2d
those
(N.D.1966).
apparently
In order to determine whether
cases
did not involve rules sim-
5(b),
deny-
court abused its discretion in
ilar to Rule
N.D.R.Civ.P.
ing Merlyn’s
we must review Bet-
5(b), N.D.R.Civ.P.,
adopted
Rule
nearly
5(b),
alleged
N.D.R.
ty’s
violation
corresponding
verbatim from the
federal
Civ.P.
rule,
interpretive
and we therefore look to
5(b)
required
construing
contends that Rule
federal caselaw as an aid in
our
E.g.,
Thоmpson,
v.
Shark
upon
Mark
own rule.
serve
373
Greenwood,
attorney in the 1977 di- N.W.2d
863
We have
pertinent
portion
construing
found one case
vorce action.2
the federal rule
5(b) provides:
construing
adapta-
and one case
state’s
persuasive
tion of the rule which we find
“(b) Service —How Made. Whenever
resolving the issue before us.
required
these rules service
party repre-
permitted to be made
In Tilghman
Tilghman,
F.Supp.
57
attorney
by
sented
an
the service shall
(D.D.C.1944),
the ex-wife moved the
attorney
be made
unless service
allowing attorneys
court for an order
fees
by the
party
himself is ordered
for
court.”
money
alimony
for a
for
arrear-
“represented
ages,
holding
and for an order
the ex-hus-
contends
contempt.
attornеy”
an
Mark Greenwood
band
The ex-husband was
because
attorney
personally,
quash
still listed
of record
and he moved to
as
action,
ground
the initial divorce
there is
the motion on the
that Rule
F.R.Civ.P.,
required
upon his attor-
no indication in the record of
contact
service
court,
ney.
Merlyn and Greenwood
the 6V2
the motion
between
quash,
stated:
year
between thе conclusion of
divorce and the commencement
obtain,
plaintiff
“It
is true
not
did
presented
proceeding.
We are thus
advance, an order of
question
attorney
with the
whether
attorney,
instead of the
represents
a client
in the
but
cannot believe the Rules are to be
action continues to
the client 6V2
narrowly
construed so
as to make such
years
after the divorce
ground
invalidating
failure a
the ser-
herein.
construction
be
vice
Such
would
presented
jurisdictions
Other
have been
contrary
spirit
purpose
to their
regarding
propri-
questions
with similar
epitomized
which is
in Rule 1 Federal
ety of service of a motion to
Procedure,
Rules of Civil
wherein it is
par-
judgment upon
opposing
they
should be construed to
stаted
divorce,
ty’s attorney in the initial
with an
just, speedy,
inexpensive de-
secure
apparent
split among
jurisdic-
the various
every
termination of
action.
tions which have considered the issue. See
“Indeed,
Annot.,
(1955),
An-
it would seem to be desirable
A.L.R.2d 1115
(and
not.,
(1921),
compilation
practice,
A.L.R. 627
for a
motions of this character
tional,
discussed,
previously
any error in service
defect.
2. As
procedural,
jurisdic-
not
in this case would be a
indicated),
I have heretofore so
when the
does not have an attor-
personally
defendant
under order of
ney. Admittedly under Alaska’s Rules
record,
rather than his
presently
of Civil Procedure as
constitut-
likely
whenever there is
showing
to be a
ed,
preferred procedure
is to obtain
that,
after
suрerior
permission
prior
court’s
final
has lost con-
making
a motion on
By
tact with his
practice,
client.
such
Nevertheless,
personally.
this minor
there is removed from consideration the
non-compliance
with Civil Rule
prior
adjudication
lack of actual notice
vacation of the
contempt
commitment;
and order of
Balchen,
question.”
supra, 566 P.2d at
rеquired
and the court is
rely
solely upon
presumption
of continued
We
with the rationale expressed in
representation by
after
Tilghman and Balchen.
In the absence of
*4
give validity
order to
facts which would indicate that the other
service of
Tilghman,
such motions.”
su-
party’s attorney continues
represent
to
pra,
F.Supp.
at 418.
entry
prior
after
of the
judgment,
divorce
it
Balchen,
In Balchen v.
ney-client relationship, presump- there is no continuing representation by an at-
torney in a divorce matter after judgment.”
I believe that statement to be too broad general
as a statement. easily is more
made under these circumstances
some expired 6V2 since the date and the time
Betty’s motion to modify