Foster v. Foster

20040063 Jody Foster, Plaintiff and Appellee
v.
Daniel Foster, Defendant and Appellant

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Gary A. Holum
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellant: Boughey Law Firm
Appellee: #Kenner Sturdevant & Cresap, PC
Term: 11/2004   Argument: 11/16/2004  2:45pm
ND cite: 2004 ND 226
NW cite: 690 N.W.2d 197

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Issues: Appellant's Statement of the Issues:
ISSUE ONE: If the trial court's decision totally fails to provide any analysis or basis, should the Supreme Court consider the attorney-created findings of fact invalid as a matter of law and simply exercise its supervisory powers and decide the case itself de novo, particularly in situations where the trial court has a history of failing to articulate its decisions, a history of failing to make proper findings of fact, and a history of issue letter opinions despite indications from the Supreme Court not to do so? In the alternative, if the attorney-created findings of fact are considered in this matter, are the findings of fact clearly erroneous?
ISSUE TWO: When the district court totally fails to provide any analysis or basis for its decision and also fails to provide opposing counsel ten (10) days in which to respond to the proposed findings of fact wholly created by the prevailing party, should the court disregard such findings of fact?
ISSUE THREE: Can an individual who is specifically appointed as the Guardian ad Litem (and not a custody investigator) be allowed to submit a recommendation as to custody, and if so, must such recommendation be presented at least thirty (30) days prior to the hearing?

Appellee's Statement of the Issues:
ISSUE 1: If the trial court's decision totally fails to provide an analysis or basis, should the Supreme Court consider the attorney created findings of fact invalid as a matter of law and simply exercise its supervisory powers and decide the case itself de novo, particularly in situations where the trial court has a history of failing to articulate its decisions, a history of failing to make proper findings of fact, and a history of issue letter opinions despite indications from the Supreme Court not to do so? In the alternative, if the attorney created findings of fact are considered in this matter, are the findings of fact clearly erroneous.
ISSUE 2: When the District Court fails to provide any analysis or basis for its decision and also fails to provide opposing counsel ten (10) days in which to respond to the proposed findings of fact wholly created by the prevailing party, should the court disregard such findings of fact?
ISSUE 3: Can an individual who is specifically appointed as the guardian ad litem (and not a custody investigator) be allowed to submit a recommendation as to custody, and if so, must such recommendation be presented at least thirty (30) days prior to the hearing?

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Docket entries:
103/09/2004 NOTICE OF APPEAL: 03/05/2004
203/09/2004 ORDER FOR TRANSCRIPT: 03/05/2004
303/09/2004 RETENTION OF RECORD ON APPEAL: 04/24/2004
403/11/2004 Letter from Laurel Marsh to Mr. Boughey dated 3-10-04 RE: acknowledged receipt of Request for Trans
503/24/2004 Copy of letter from Laurel Marsh to Mr. Boughey RE: suspension of trans. preparation
603/29/2004 Copy of Laurel Marsh's letter to Val Weaver re: return of Record to clerk
704/05/2004 RECORD ON APPEAL & Exhibits
804/14/2004 MOT. EXT/TIME TRANSCRIPT
904/14/2004 ACTION BY TRIAL COURT (MTR). Granted: 06/03/2004
1004/16/2004 Supplemental Clerk's Certificate dated 4-15-04 (Entry Nos. 154-158)
1106/04/2004 TRANSCRIPT DATED 10-24-03 & 12-02-03 (Vol. I-TRA dated 10-24-03; Vol. II-TRA dated 12-02-03)
1206/07/2004 Certificate of Service of Copies of Transcript
1306/08/2004 DISKS (2) - TR1 (TRA dated 10-24-03); TR2 (TRA dated 12-02-03)
1407/08/2004 MOT. EXT/TIME APPELLANT BRIEF; AFF. IN SUPPORT
1507/08/2004 ACTION BY CLERK (MAT). Granted: 08/04/2004
1607/30/2004 Corrected page 11 for TRA dated 10-24-03
1708/04/2004 APPELLANT APPENDIX
1808/06/2004 APPELLANT BRIEF
1909/07/2004 MOT. EXT/TIME APPELLEE BRIEF; AFF. IN SUPPORT (Richard L. Hagar)
2009/07/2004 ACTION BY CLERK (MAE). Denied: 09/28/2004
2109/28/2004 APPELLEE BRIEF
2209/29/2004 DISK - aeb
2310/15/2004 Corrected TOA & page 46 for ATB
2410/18/2004 DISK - atb (e-mailed)
2511/16/2004 APPEARANCES: Lynn Boughey; Richard Hagar
2611/16/2004 ARGUED: Boughey; Hagar (Vol. Z; page 56)
2711/16/2004 ORAL ARGUMENT WEBCAST
2812/14/2004 DISPOSITION: AFFIRMED
2912/14/2004 UNANIMOUS OPINION: Kapsner, Carol Ronning
3012/14/2004 (CONCUR IN RESULT): Sandstrom, Dale V.: CON/RES
3112/14/2004 Costs on appeal taxed in favor of Appellee
3212/15/2004 Judgment Mailed to Parties
3301/07/2005 MANDATE
3401/31/2005 Corrected Opinion Page 3
3501/11/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3606/01/2011 EXPUNGED - Nonpermanent record items destroyed

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