Tibbetts v. Dornheim

20030267 James E. Tibbetts, Jr., Plaintiff and Appellee
v.
Marybeth Dornheim formerly
known as Marybeth Dornheim
Tibbetts, Defendant and Appellant

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Karen Kosanda Braaten
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellant: Lawyer not licensed in N.D.
Appellant: Morley Law Firm, Ltd.
Appellee: Galstad, Jensen & McCann, P.A.
Term: 04/2004   Argument: 04/26/2004  2:45pm
ND cite: 2004 ND 129
NW cite: 681 N.W.2d 798

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
The following errors of law constitute the basis for the appeal:
1. The court unconstitutionally interfered with a fit custodial parents' right to make decisions for herself and her children;
2. The court unconstitutionally interfered with this families' right to privacy;
3. The court failed to apply presumptions regarding domestic violence as required by North Dakota law;
4. The court failed to grant hearings on motions to modify the divorce judgment as required by North Dakota law;
5. The court violated the mother's constitutional rights to free speech and due process by finding her partially to blame for the father's abuse because she;
a) applied to the courts for relief;
b) exercised her rights to appeal and grieve intitutional decisions;
c) changed attorneys;
d) "allowed" her 17 year old son to come to court to testify;
1. The court violated the mother and childrens' right to due process by refusing to hear the testimony of relevant witnesses;
2. The court made decisions and issued dictum without substantive evidence; and
3. The court made decisions based all or in part by unarticulated judicially noticed "facts" and then refused to make those "facts" available to the Supreme Court on this appeal or to the parties.

Appellee's Statement of the Issues:
1. The Court did not interfere with either of these parties' constitutional rights to make decisions regarding themselves or their children.
2. The Court did not interfere with anyone's right to privacy.
3. The Court correctly applied all laws, including presumptions in our statutes regarding domestic violence
4. The Court allowed all hearings on Motions filed by either party.
5. The Court did not violate anyone's due process or free speech rights afforded under the Constitution of the United States and the State of North Dakota.
6. The Court did not violate anyone's rights as they relate to the presentation of evidence and witnesses.
7. The Court's decisions were based upon the evidence presented and were substantiated by the evidence presented.
8. The Court's decision was based upon admissible evidence and facts, and the entire record is available to this Court on appeal.

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Docket entries:
109/15/2003 NOTICE OF APPEAL: 09/12/2003
209/15/2003 Motion to Appear Pro Hac Vice & Aff/Support (Steven Kraft) (See G.F. Co. Clerk's Certificate
309/15/2003 Nos. 338 & 339)
409/15/2003 ACTION BY CLERK. granted
509/25/2003 ORDER FOR TRANSCRIPT: 09/22/2003
609/26/2003 Request for advance payment for copies of the transcript (Nancy Krogstad)
709/30/2003 Acknowledgement of Order for Transcript (Audrey Timberman)
810/08/2003 MOTION TO WITHDRAW & AFFIDAVIT IN SUPPORT (PATRICK R. MORLEY)
910/14/2003 Affirmation in Opposition to Motion to Withdraw by Steve Kraft
1010/16/2003 Joinder to Plaintiff's Opposition to Motion to Withdraw filed by Patti Jensen AE Counsel
1110/21/2003 TRANSCRIPTS DATED March 17, 2003 & October 17, 2001
1210/23/2003 DISK - TRAs Mar. 17, 2003 & Oct. 17, 2001
1310/29/2003 Ltr from Melissa Schmalenberger stating she has been released as guardian ad litem in this case.
1411/10/2003 Letter from Steven Kraft that withdrawal issue has been resolved
1511/10/2003 TRANSCRIPT DATED June 7, 2003
1611/13/2003 DISK - TRA of June 7, 2003
1711/13/2003 RECORD ON APPEAL (4 vols.), Transcripts (4), & Exhibits. (NOT REC'D: #231--Letter dated 1-3-03 from
1811/13/2003 Becky Dorheim along w/ attachments, which clerk indicates she was unable to locate,
1911/13/2003 and 287--shorthand notes)
2011/13/2003 Letter from Pat Morley that withdrawal issue has been resolved
2111/14/2003 NO ACTION TAKEN (Motion to Withdraw)
2211/17/2003 Supplemental Clerk's Certificate dated 11-14-03 (Entry Nos. 355 & 356)
2311/21/2003 Pursuant to Judge Kleeven's Order dated 11/13/03, the Orig & 2 cc of tra dtd 10-17-03,were returned
2411/21/2003 to Grand Forks Clerk's Office
2512/17/2003 MOTION TO CONSOLIDATE APPEAL w/20030266 (see Notice of Motion, etc. in 20030266)
2612/17/2003 ACTION BY CHIEF JUSTICE (Motion to Consolidate). Denied
2712/17/2003 MOT. EXT/TIME APPELLANT BRIEF (see Notice of Motion, etc., in 20030266)
2812/17/2003 ACTION BY CHIEF JUSTICE (MAT). Granted: 01/30/2004
2912/17/2003 MOTION TO FORWARD ADDITIONAL DISTRICT CT. FILES TO THIS COURT (see Notice of Mot. etc. in 20030266)
3012/17/2003 NO ACTION TAKEN
3101/21/2004 Supplemental Clerk's Certificate dated 1-16-04 (Entry Nos. 357-359 and 148 (Orig & 2 copies of
3201/21/2004 transcript dated 10-17-01)
3301/28/2004 MOT. EXT/TIME APPELLANT BRIEF (Part of document titled Notice of Renewal of Motion)
3401/28/2004 ACTION BY CHIEF JUSTICE. Granted: 02/13/2004
3501/30/2004 Addendum to Motion
3601/30/2004 NO ACTION TAKEN
3702/04/2004 Supplemental Clerk's Certificate dated 2-2-04 (Entry Nos. 360 & 361)
3802/10/2004 MOTION TO DEFER FILING OF APPENDIX
3902/10/2004 ACTION BY CHIEF JUSTICE (MOT/deferred appendix). Granted
4002/11/2004 APPELLANT BRIEF
4102/19/2004 Corrected cover page for ATB received and replaced
4203/01/2004 Corrected Table of Authorities for ATB
4303/01/2004 Signature page for ATB
4403/11/2004 Corrected page 6 for ATB
4503/11/2004 DISK - atb
4603/15/2004 APPELLEE BRIEF
4703/16/2004 Letter dated 3-15-04 from Patrick Morley requesting that he be excused from oral argument
4803/17/2004 ACTION BY CHIEF JUSTICE (request by Mr. Morley to be excused from O.A.). Granted
4903/17/2004 DISK - AEB
5003/29/2004 APPELLANT APPENDIX
5104/01/2004 Copies (7) of Appellant appendix received
5204/05/2004 Received Appellant's Reply Brief - not filed because not in compliance with Rules (overlength)
5304/21/2004 Notice of Motion & Motion for Permission to File a RYB That Exceeds the Length
5404/21/2004 Est. by Rule or in the Alternative to Consider Points One & Two of Said Brief Which Points Fit
5504/21/2004 Within the Length Established by Rule
5604/21/2004 NO ACTION TAKEN
5704/26/2004 APPEARANCES: Steven Kraft; Ronald I. Galstad
5804/26/2004 ARGUED: Kraft; Galstad (Vol. Y; Page 232)
5904/26/2004 ORAL ARGUMENT WEBCAST
6006/30/2004 DISPOSITION: AFFIRMED
6106/30/2004 UNANIMOUS OPINION: Neumann, William A.
6206/30/2004 Costs on appeal taxed in favor of appellee
6307/01/2004 Judgment Mailed to Parties
6407/26/2004 MANDATE
6507/30/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
6611/24/2010 EXPUNGED - Nonpermanent record items destroyed

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