Wong v. StateWong v. State
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[¶1] Kendel Flemming appeals a default divorce judgment awarding Amanda Flemming sole ownership of the disclosed marital property and sole discretion to determine Kendel Flemming‘s parenting time with the parties’ two children. Kendel Flemming also argues the district court erred by not including a parenting plan in the judgment and by not addressing the parties’ parental rights and responsibilities. We dismiss the appeal from the default divorce judgment because Kendel Flemming failed to bring a motion in the district court under
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[¶2] Kendel Flemming and Amanda Flemming were married in June 2001 and have two minor children, A.D.F. and B.A.F. The parties have been separated since July 24, 2008, around the time Kendel Flemming was incarcerated. Amanda Flemming filed for divorce on August 28, 2009. Kendel Flemming received the summons and complaint for divorce on October 26, 2009 but did not respond. Kendel Flemming does not dispute that he received the summons and complaint. A notice of the divorce hearing was mailed to Kendel Flemming on December 22, 2009. Kendel Flemming acknowledged receiving the notice of the hearing on December 23, 2009 in a letter his mother brought to the district court hearing. Kendel Flemming did not otherwise respond to the notice of the hearing, and Amanda Flemming moved for a default divorce judgment on December 30, 2009. The hearing was held the next day, and it appears from the record the district court treated the hearing as a default divorce proceeding. The district court heard testimony from Amanda Flemming and Kendel Flemming‘s mother and entered a default divorce judgment. Kendel Flemming did not bring a motion for relief from the default divorce judgment in the district court but brought this appeal.
[¶3] “An issue or contention not raised or considered in the lower court cannot be raised for the first time on appeal.” S.H.B. v. T.A.H., 2010 ND 149, ¶ 12, 786 N.W.2d 706. Issues must be presented in the district court before the issues can become the basis for an appeal. Bentley v. Bentley, 533 N.W.2d 682, 683 (N.D. 1995). The district court creates and develops the record so this Court can review issues, if necessary, with a more complete understanding of the issues. Id. Where a default judgment is entered against a defendant, the defendant should not appeal but may move the district court for relief from the default judgment under
[¶4] Kendel Flemming argues the district court erred by granting Amanda Flemming sole discretion to determine his parenting time with the parties’ children. Kendel Flemming also argues the district court erred by not including a parenting plan in the judgment or addressing the parties’ rights and responsibilities. A court establishing or modifying a divorce judgment providing for parenting time with a child must include a parenting plan under
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[¶5] We dismiss the appeal.
[¶6] Carol Ronning Kapsner
Mary Muehlen Maring
Daniel J. Crothers
Dale V. Sandstrom
Gerald W. VandeWalle, C.J.