Manning v. Manning

20050065 Anita Manning, n/k/a
Anita Marchant, Plaintiff and Appellee
v.
Phillip C. Manning, Defendant and Appellant

Appeal from: District Court, Northeast Judicial District, Pembina County
Judge Donovan John Foughty
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellant: Pro se
Appellee: Pro se
Term: 12/2005   Argument: 12/13/2005  Waived
ND cite: 2006 ND 67
NW cite: 711 N.W.2d 149


Issues: Appellant's Statement of the Issues:
I. The trial court's failure to find a presumption of abuse and domestic violence was clearly erroneous.
II. The Trial Court erred in allowing one person to serve as Guardian Ad Litem and Custody Investigator, and is reviewable as a matter of law.
III. The court violated Canons 3E(1) and 3B(7) of the Code of Judicial Conduct and failed to disqualify as mandated.
IV. The Court erred in denying the Appellant's motion for spoliation of evidence when finding Marchant took no steps to destroy evidence, and is clearly erroneous.
V. The trial court failed to follow the two step analysis set forth by the legislature, and it's finding is clearly erroneous.
VI. Due process right to 'fundamentally fair' and full hearing was denied and as a matter of law, is fully reviewable.
VII. Social Service conduct represented a fraud upon the court, and the court's failure to recognize was clearly erroneous.

Appellee's Statement of the Issues:
I. Whether the district erred when it found no presumption of domestic violence.
II. Whether the district court erred when it appointed one person to serve the dual role of Guardian Ad Litem and Custody Investigator.
III. Whether the district court's alleged violations of judicial canons warranted disqualification.
IV. Whether the district court abused its discretion when it ruled there was no evidence of spoliation.
V. Whether the district court failed to follow the two-step procedure on the statute for modification of custody.
VI. Whether the district court violated the parties' constitutional due process rights when it limited the length of a custody trial to two and one-half days.
VII. Whether the district court abused its discretion when it did not accept accusations of fraud by social services.
VIII. Whether the district court erred when it denied Manning's motion for relief from Judgment under North Dakota Rule of Civil Procedure 60(b)(iv) and (vi).

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Docket entries:
102/23/2005 NOTICE OF APPEAL: 02/22/2005
202/23/2005 ORDER FOR TRANSCRIPT (Wendy Asperheim): 02/22/2005
303/14/2005 Letter from Wendy Asperheim dated 3-11-05 RE: Suspension of Transcript Preparation
403/14/2005 MOT. EXT/TIME APPELLANT BRIEF (due to suspension of transcript preparation)
503/25/2005 RECORD ON APPEAL (11 Volumes) including exhibits and sealed separates. Not forwarded with the ROA
603/25/2005 were Nos. 190 (Cassett Tapes), 298 (Def. Ex. #2 - Video Tape), 308 (Pl. Ex. #3 - Madison's shoe),
703/25/2005 320 (Pl. Ex. #7 - Photos), 321 (Pl. Ex. #9 - Cassett Tape). The ROA contains numerous sealed
803/25/2005 envelopes. Envelopes #48, 68, 71, 320, 330 & 351, were opened, not sealed when received and
903/25/2005 exhibits & photos were missing from Nos. 48 (Exh A & C missing), 68 (Ex. A-J missing),
1003/25/2005 320 (Photos missing), and 330 (6 Photos missing).
1104/01/2005 Court Recorder Received Payment for preparation of Transcript prep of transcript resumed
1204/13/2005 MOT. EXT/TIME TRANSCRIPT (Wendy Asperheim)
1304/13/2005 ACTION BY TRIAL COURT. Granted: 05/18/2005
1404/13/2005 SUPPLEMENTAL "AMENDED" CLERK'S CERTIFICATE OF RECORD (Entries 410 thru 419)
1504/27/2005 MOTION to Withdraw as counsel by Robert Fleming; Affidavit and Brief in Support; Aff. Service. RspDue: 05/09/2005
1604/27/2005 E-FILED MOTION (by fax)
1705/05/2005 ACTION BY CHIEF JUSTICE (Mot/Withdraw/Counsel - Fleming). Granted
1805/05/2005 MOTION TO REMAND (Entitled "Motion For Leave to File Rule 60(b) Motion")
1905/05/2005 ACTION BY CHIEF JUSTICE (Mot/Remand). Granted
2005/06/2005 ORDER OF REMAND
2105/06/2005 Order of Remand Mailed to Parties
2205/06/2005 2nd Supplemental Clerk's Certificate dated 5-5-05 (Entry Nos. 420-430)
2305/16/2005 TRANSCRIPTS DATED 12/3/03;12/19/03;3/8/04;3/11/04;3/12/04;3/30/04;6/17/04;8/30/04;&9/8/04 (9 vols.)
2405/18/2005 DISK (3) (TRA) (12/3/03;12/19/03;3/8/04;3/11/04;3/12/04;3/30/04;6/17/04;8/30/04;&9/8/04)
2508/04/2005 Copy of Memorandum Opinion and Order Denying Rule 60(b) Motion
2608/04/2005 Reset briefing schedule after remand
2708/04/2005 ACTION BY CHIEF DEPUTY CLERK. Granted: 09/13/2005
2808/15/2005 Notice of Appeal Denial of Rule 60(b) Motion (included in document requesting extensions). Granted
2908/15/2005 ACTION BY CHIEF JUSTICE (File as 2nd Notice of Appeal)
3008/15/2005 MOT. EXT/TIME APPELLANT BRIEF (part of 2nd NOA document)
3108/15/2005 ACTION BY CHIEF JUSTICE (MAT). Granted: 09/30/2005
3208/15/2005 MOTION FOR EXTENDED LENGTH OF APPELLANT BRIEF (Part of 2nd NOA Document)
3308/15/2005 ACTION BY CHIEF JUSTICE (Mot. for Extended Length of ATB) (Part of 2nd NOA Document). Denied
3408/18/2005 Second Notice of Appeal filed in the trial court on August 15, 2005
3508/29/2005 3RD SUPPLEMENTAL CLERK'S CERTIFICATE OF RECORD DATED AUGUST 24, 2005 (432-460) INCLUDING SEPARATES
3609/13/2005 Transcript dated 7-20-05
3709/14/2005 DISK of tra dtd 7-20-05
3809/30/2005 MOTION regarding visitation treated as motion for remand
3909/30/2005 ACTION BY CHIEF JUSTICE (Mot/Remand). Granted
4009/30/2005 ORDER OF REMAND
4109/30/2005 APPELLANT BRIEF (e-filed pdf)
4209/30/2005 E-FILED BRIEF (ATB)
4309/30/2005 APPELLANT APPENDIX
4409/20/2005 E-FILED APPENDIX (ATA)
4510/03/2005 Order of Remand Mailed to Parties
4610/10/2005 MOTION to Defer Appendix and Notice of Service by Fax
4710/10/2005 E-FILED MOTION to defer appendix (by facsimile)
4810/14/2005 Received the $25 ATB surcharge fee (Receipt No. 16325)
4910/17/2005 Copies of ATB from Central Duplicating
5010/19/2005 Motion to Defer Appendix withdrawn
5110/28/2005 APPELLEE BRIEF
5210/28/2005 APPELLEE APPENDIX (attached to AEB)
5311/04/2005 DISK - aeb (e-mailed)
5411/08/2005 Table of Contents for AEA
5511/09/2005 MOTION FOR LEAVE TO WITHDRAW AS COUNSEL signed by Robert M. Light & STIPULATION FOR WITHDRAWAL
5611/10/2005 ACTION BY CHIEF JUSTICE (Robert Light has been allowed to withdraw as counsel for Anita Marchant). Granted
5711/14/2005 Corrected Certificate of Service by Mail of the Mot/Leave/Withdraw/Counsel
5811/21/2005 REPLY BRIEF (e-filed (pdf)) - filed subject to approval of the Court
5911/21/2005 E-FILED BRIEF (RYB - pdf)
6011/21/2005 Copies made of RYB
6112/02/2005 Letter dated 12-02-05 from Appellee Anita L. Marchant requesting waiver of oral argument (faxed)
6212/02/2005 E-FILED MOTION (AE's request to waive)
6312/02/2005 ACTION BY SUPREME COURT (OA waived on behalf of AE). Granted
6412/12/2005 Letter dated 12-12-05 from Phillip Manning requesting waiver of OA on behalf of AT (faxed)
6512/12/2005 ACTION BY SUPREME COURT (OA waived on behalf of AT). Granted
6612/13/2005 APPEARANCES: submitted on briefs under NDRAppP 34(f)
6712/13/2005 ARGUED: submitted on briefs under NDRAppP 34(f)
6803/29/2006 DISPOSITION: AFFIRMED/PT, DISMISSED/PT
6903/29/2006 UNANIMOUS OPINION: Sandstrom, Dale V.
7003/29/2006 Costs on appeal taxed in favor of appellee
7104/04/2006 Judgment Mailed to Parties
7204/13/2006 MOTION FOR Recusal or Alternatively, Motion for Stay
7304/20/2006 ACTION BY SUPREME COURT. Denied
7405/08/2006 MANDATE
7505/17/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
7609/17/2012 EXPUNGED - Nonpermanent record items destroyed

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