IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|Kira Lynn Burgard,|
Dammon Jon Burgard,
BRIEF OF THE APPELLEE
Supreme Court No. 20120285
District Court No. 09-2012-dm-00200
Appeal from the judgment entered May 17, 2012
Cass County District Court - East Central Judicial District
The Honorable Steven L. Marquart, Presiding
STEPHEN R. DAWSON
Dawson Law Office
2108 South University Drive
Fargo, ND 58103
Attorney for the Appellee
Attorney Registration No. - 04638
TABLE OF CONTENTS
|Table of Authorities...ii|
|Statement of the Issues||1|
|Statement of the Case||2|
|Statement of the Facts||4|
|I.||The Trial Court acted within its discretion when|
|it granted Kira's Motion for Default Judgment||5|
|II.||The Trial Court properly awarded Kira primary|
|residential responsibility of the parties'|
TABLE OF AUTHORITY
|Koble v. Koble, 743 N.W.2d 797, 2008 ND 11, ¶ 6 (N.D., 2008)10|
|Severson v. Hansen, 529 N.W.2d 167; 168 - 169 (N.D. 1995) ....9|
|State ex rel. Workers Compensation Bureau v. Kostka food Service, Inc., 516 N.W. 2d 278 (N.D. 1994).7, 8|
|Svard v. Barfield, 291 N.W.2d 434, 437 - 438 (N.D. 1980) ....6, 7|
|Weber v. Weber, 512 N.W.2d 723 (N.D. 1994).9|
|Wilson v. Wilson, 364 N.W. 2d 113 (N.D. 1985)...7|
|N.D.C.C. § 14-09-06.2.||9|
|N.D. R.Civ. P. Rule 3||5|
|N.D. R.Civ. P. Rule 4||5|
|N.D. R.Civ. P. Rule 12||5|
|N.D. R.Civ. P. Rule 52 (a)||9|
|N.D. R.Civ. P. Rule 55 (a) (3)5, 6, 7|
|N.D. R. Crt. 3.2.5, 6|
STATEMENT OF THE ISSUES
I. Whether the Trial Court acted within its discretion when it granted Kira's Motion for Default Judgment.
II. Whether the Trial Court properly awarded Kira primary residential responsibility of the parties' minor children.
STATEMENT OF THE CASE
On February 15, 2012, the Appellant (hereafter referred to as "Dammon") admitted service of the Summons and Complaint in this divorce case. (App. 10)
On March 5, 2012, Dammon filed a motion for extension of time within which to "...file and answer or respond...", citing as his reason for the request, "an opportunity to pursue counsel". (App. 12)
On March 7, 2012, the Court issued its Order allowing the Defendant to serve and file his Answer to the Complaint within 30 days. (App. 13)
On April 9, 2012, Appellee (hereafter referred to as Kira) served upon Dammon and filed her Motion for Default Judgment along with her Notice of Motion for Default Judgment, Affidavit of No Answer, Brief in Support of Motion for Default Judgment and Affidavit of Proof for Default Judgment. (App. 17 - 35)
On April 23, 2012, Dammon served his Answer to Kira's Summons and Complaint along with his Counterclaim, Brief isn Response to Motion for Default Judgment and his Affidavit. (App. 36 - 44)
On May 11, 2012, the Court issued its Findings of Fact, Conclusions of Law and Order for Default Judgment against Dammon. On this date the court entered Judgment (by Default) against Dammon. (App. 52 - 86)
On May 21, 2012, Kira served the Notice of Entry of Default Judgment and Decree upon Dammon. (App. 87 - 88)
On June 29, 2012, Dammon served his Notice of Appeal on Kira. (App. 90 - 91)
STATEMENT OF THE FACTS
Kira agrees with paragraphs 12, 13, 15, 17 and 18 of Dammon's Statement of Facts.
Kira disagrees with and objects to paragraph 14 of Dammon's Statement of Facts referencing a Marital Termination Agreement signed by the parties. Notwithstanding that this is not part of any record in this matter, any document identified as a marital termination agreement and signed by Kira was done so as a result of duress, coercion and fear of physical harm, as indicated in Kira's affidavit dated April 26, 2012. (App. 45) In any regard. Damon acknowledges that he was aware this document was of no effect as it was voided by Kira prior to the parties's attempt at mediation and well in advance of his extended deadline for serving and filing his Answer. (App. 42)
Kira disagrees with and objects to paragraph 16 referencing regarding communication between the attorneys representing the parties as this information is not part of any record in this matter and is of no relevance as there is no reference to any purported agreement between the parties to extend the time for service of Dammon's Answer.
I. The Trial Court acted within its discretion when it granted Kira's Motion for Default Judgment.
"If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise appear and the failure is shown by affidavit or otherwise, the court may direct the clerk to enter an appropriate default judgment in favor of the plaintiff and against the defendant as follows:... (3)... If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with a motion for judgment. Notice must be served with the motion and must comply with N.D.R.Ct. 3.2(a)." ( N.D. R.Civ. P. Rule 55 (a) (3))
This divorce action was commenced on February 15, 2012, when Kira served a summons and complaint upon Dammon. (N.D. R.Civ. P. Rule 3; N.D. R.Civ. P. Rule 4 (i)(5); App. 10). Dammon had 21 days within which to serve his Answer. (N.D. R.Civ. P. Rule 12 (a) (1) (A)) Dammon was granted by the trial court, an extension of time for filing his Answer extending his time to answer to April 6, 2012. (App. 13)
Prior to the April 6, 2012, deadline for serving an Answer, Dammon communicated with Kira. In addition, the parties participated in mediation. (App. 42, 43, 45) Eventually Dammon's attorney communicated with Kira's attorney, however this communication between attorneys occurred after the expiration of the time for the service and filing of Dammon's Answer. (App. 43)
Dammon's communication with Kira following service of the Summons and Complaint and before the expiration of the time for service of his Answer is an appearance and entitles Dammon to notice of Kira's intention to seek default relief. Specifically, Dammon is entitled to Notice of Motion and Motion for Judgment. ( N.D. R.Civ. P. Rule 55 (a) (3)). Dammon was served with Kira's Motion for Default Judgment and Notice of Motion along with other supporting documents on April 9, 2012. (App. 34) Pursuant to rule 55 (a) (3), the motion was brought pursuant to Rule 3.2 of the North Dakota Rules of Court and provided that the motion would be decided on briefs alone unless one of the parties asked for a hearing. Dammon then had 14 days to respond to the motion and could demand a hearing and an opportunity for oral argument or the taking of testimony. ( N.D. R.Civ. P. Rule 55 (a) (3); N.D. R. Crt. Rule 3.2) (App. 35)
Dammon did serve his Brief in Response to Motion for Default Judgment on April 23, 2012, however he did not request a hearing on the motion or an opportunity to make an oral argument or present testimony. (App. 40 - 41, 44) As neither party requested a hearing, the trial court decided Kira's motion on briefs alone and granted her request for a default judgment, entering its order accordingly on May 11, 2012. (App. 52 - 69)
In Svard v. Barfield, Svard was awarded a judgment by default against Barfield. Barfield had not received notice of Svard's motion for default judgment and the issue before the Court was whether or not Barfield had appeared for the purpose of notice under Rule 55. The Court concluded that Barfield's attendance at a meeting with Svard did constitute an appearance and therefore he was entitled to an eight day notice before the trial court could take action on Svard's motion for default judgment. In making its decision, the Court said, "We conclude that Barfield made an "appearance" as contemplated by Rule 55(a)(3) when he met with Svard, Goodman, and Zastrow at the restaurant and was entitled to a notice of at least eight days under Rule 55(a)(3) prior to the court hearing the application for a default judgment against Barfield. We are not concluding that a default judgment may never be obtained against Barfield, but that Barfield is entitled to eight days' notice before a default judgment may be heard and entered. Because the notice was not given before the application for default judgment was heard, the court should have denied the application for default judgment. The default judgment is set aside, the decision of the district court is reversed, and the case is remanded for further proceedings, if any, consistent with this opinion." Svard v. Barfield, 291 N.W.2d 434, 437 - 438 (N.D. 1980) (emphasis added)
In the matter before this Court, Dammon was afforded at least three opportunities to answer the complaint or request a hearing before the trial court. This rule and procedure is designed to give a defendant a fair opportunity to have their matter heard on the merits. Wilson v. Wilson, 364 N.W. 2d 113 (N.D. 1985). However, a hearing is not required in every application for default judgment, even if the Defendant has made an appearance. State ex rel. Workers Compensation Bureau v. Kostka food Service, Inc., 516 N.W. 2d 278 (N.D. 1994). It was Dammon's lack of action including his failure to answer and his failure to request a hearing on Kira's motion, which allowed the trial court to properly exercise its discretion in granting Kira default relief.
II. The Trial Court properly awarded Kira primary residential responsibility of the parties' minor children.
The trial court did not abuse its discretion in granting Kira default relief so the question becomes whether the trial court's award of primary residential responsibility to Kira was proper.
In Severson v. Hansen, this Court said, "In an initial child-custody determination, a trial court must decide custody on the best interests and welfare of the child. In determining the best interests of the child, the trial court has substantial discretion, but it must consider and evaluate the factors listed in NDCC 14-09-06.2. Id. Although the trial court is not required to make a separate finding on each statutory factor, the court's findings should be stated with sufficient specificity so that we can understand the factual basis for its decision." Severson v. Hansen, 529 N.W.2d 167; 168 - 169 (N.D. 1995) (cite omitted).
A trial court's determination of child custody is a finding of fact and will not be set aside on appeal under NDRCivP 52(a) unless it is clearly erroneous. Weber v. Weber, 512 N.W.2d 723 (N.D. 1994).
Findings of fact, "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." N.D.R.Civ.P. 52(a). Findings are clearly erroneous when a finding of fact is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Koble v. Koble, 743 N.W.2d 797, 2008 ND 11, ¶ 6 (N.D., 2008)
In this matter the trial court was aware that Kira was and always had been the primary care giver for the minor children of the parties and that her employment schedule allowed her to be home with the children both before and after school. (App. 22) In addition, the trial court was aware that Dammon had committed domestic violence against Kira in the past; that he was reluctant to provide financial support for the children during the pendency of the divorce action; that he did not allow Kira access to the marital home to collect personal property for herself and the children; that he does not help the children wake up and get ready for school in the morning when the children are at his residence; that it is Dammon's mother, not Dammon, who provides the bulk of care for the minor children when they are at his residence, and; that Dammon's work schedule requires him to work several week nights until 10:00 P.M. or later during which he would be unavailable to provide parenting. (App. 45- 47)
From this evidence the trial court properly found that it is in the best interests of the minor children to award primary residential responsibility to Kira. (App. 53).
In the matter now before this Court, the trial court properly granted Kira's request for judgment by default where Dammon did not serve an Answer to her Summons and Complaint until 67 days following the service of the Summons and Complaint upon him, he was provided notice of Kira's motion for default relief and although he did respond to Kira's motion, he did not request a hearing on Kira's motion.
The trial court properly awarded Kira primary residential responsibility of the minor children. The trial court had sufficient evidence before it from Kira's two affidavits to enter findings and its findings that primary residential responsibility with Kira was in the best interests of the children were not clearly erroneous.
Kira respectfully requests that this court affirm the trial courts judgment and that costs and attorney's fees be awarded to her.
Dated this 14th day of September, 2012.
|STEPHEN R. DAWSON|
|Attorney for the Plaintiff/Appellee|
|2108 South University Drive|
|Fargo, North Dakota 58103|
|Attorney Registration Number - 04638|