Bertsch v. Bertsch

20050183 Andrew M. Bertsch, Plaintiff, Appellant
and Cross-Appellee
v.
Lynell C. Bertsch, Defendant, Appellee
and Cross-Appellant
Appeal from: District Court, Northwest Judicial District, Ward County
Judge William W. McLees
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellant: Nilles, Plambeck, Selbo & Harrie, Ltd.
Appellee: Bosard, McCutcheon & Rau, Ltd.
Term: 12/2005   Argument: 12/13/2005  01:30pm
ND cite: 2006 ND 31
NW cite: 710 N.W.2d 113

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Issues: Appellant's Statement of the Issues:
I. Did the Trial Court take into account the best interests of the minor child when setting forth its visitation schedule in this matter?
II. Did the Trial Court err in amending the visitation rights of Andrew and Lindsey by eliminating Tuesday night visitations?
III. Did the Trial Court err in amending the visitation rights of Andrew and Lindsey, which were serving the best interests of Lindsey?
IV. Did the Trial Court err by modifying the visitation schedule which was serving the best interests of the child simply because the child was getting older?
V. Did the Trial Court err in not recognizing sworn admissions made under oath by Lynell to the Court in a judicial proceeding as having the binding effect of a contract?
VI. Did the Trial Court err in not issuing a decision regarding the correct amount of child support payments that have been made in this case?

Reply Brief Issues
1.Did Andrew Bertsch waive his appeal?
2.Did the District Court err on modifying visitation?
3.Did the District Court err in including the language of the original August 15, 2001 Judgment as a part of its Amended Judgment herein?
4.Did the District Court properly calculate child support and the effective date?
5.Did the District Court err in not awarding attorney fees? 6. Did the District Court err in the entering of its Amended Judgment?

Appellee's Statement of the Issues:
I.Did Andrew Bertsch waive his appeal by registering the proceedings in Maryland prior to the entry of judgement in North Dakota.
II.Did the Trial Court err on Modifying Visitation.
III.Did the Trial Court err in not striking the parenting language when it was gratuitously inserted in the 2001 judgement.
IV.Did the Trial Court properly calculate child support.
V.Did the Trial Court err on Attorney fees when the opposing party drove cost and delayed the case.
VI.Did the Trial Court impermissibly revise its memorandum and order by the amended judgement after the Appeal was taken.

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Docket entries:
105/27/2005 NOTICE OF APPEAL: 05/26/2005
206/01/2005 NOTICE OF CROSS APPEAL (filed in trial court on 5-31-05)
306/01/2005 ORDER FOR TRANSCRIPT: 06/01/2005
406/01/2005 MOTION FOR LIMITED REMAND TO TRIAL COURT
506/01/2005 Reset due date of Appellant's Brief (due to remand)
606/01/2005 ACTION BY CLERK (DUE 40 days after TRA is filed; 8/30/05 is approx. date). Granted: 08/30/2005
706/01/2005 ACTION BY CHIEF JUSTICE (MOT/REMAND). Granted
806/01/2005 Order of Limited Remand Mailed to Parties
906/01/2005 ORDER OF REMAND
1006/08/2005 RETENTION OF RECORD ON APPEAL (Laurel Marsh): 07/21/2005
1107/18/2005 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
1207/19/2005 TRANSCRIPT DATED NOVEMBER 16, 2004
1307/20/2005 DISK - TRA (11/16/04)
1408/11/2005 MOT. EXT/TIME APPELLANT BRIEF (faxed)
1508/11/2005 E-FILED MOTION (MAT)
1608/15/2005 ACTION BY CLERK (MAT). Granted: 09/21/2005
1708/17/2005 RECORD ON APPEAL (5 vols.) & Exhibits (Not rec'd were: #12,18,19,21,24,25,26,37,38,39,
1808/17/2005 40,42,43,44,47,48,49,50,51,54,55,56,57,58,59,60,63,64,66,68,71,78,79,80,85,86,87,88,93,95,96,102,
1908/17/2005 223, & 224, which the clerk indicates were withdrawn on 8-21-01)
2009/02/2005 Second Notice of Appeal (filed in trial court on 9-1-05)
2109/08/2005 Amended Notice of Cross-Appeal filed in trial court on 9-6-05
2209/21/2005 APPELLANT BRIEF
2309/21/2005 APPELLANT APPENDIX
2409/21/2005 DISK - ATB (e-mailed)
2509/27/2005 Clerk's Supp. Cert. of ROA dated September 26, 2005, with entries 359-366 attached
2610/20/2005 APPELLEE BRIEF
2710/20/2005 APPELLEE APPENDIX
2810/21/2005 DISK - aeb
2910/25/2005 Page ii for AEB
3011/07/2005 Appellant's and Cross-Appellee's Motion to Strike & Brief in Support. RspDue: 11/18/2005
3111/14/2005 Response to Appellant/Cross-Appellee's Motion to Strike
3211/14/2005 MOTION FOR EXT/WORD/LIMIT/RYB (e-filed)
3311/14/2005 E-FILED MOTION (Mot/Ext/Word/Limit/RYB)
3411/14/2005 ACTION BY CHIEF JUSTICE (Mot/Ext/Word/Limit for RYB). Granted
3511/14/2005 REPLY BRIEF of Appellant
3611/15/2005 Corrected TOA & page 8 for RYB
3711/15/2005 DISK - ryb (e-mailed)
3811/17/2005 SITTING WITH THE COURT: Graff, Benny A.
3911/17/2005 Reply to Response to Appellant's and Cross-Appellee's Motion to Strike
4011/17/2005 E-FILED Reply to Response to Appellant's and Cross-Appellee's Motion to Strike (email)
4111/23/2005 ACTION BY SUPREME COURT (Motion to Strike granted) (Pages 163 through 198 stricken from AEA, and. Granted
4211/23/2005 sanctions in the amount of $1,500 imposed to be paid within 30 days)
4311/29/2005 Revised pages 6, 7, and 14 of Appellee's Brief, w/copy of letter dated 11-28-05 to Mr. Pippin
4411/29/2005 and copy of Bosard McCutcheon & Rau check no. 6841 to Malcolm Pippin in payment of sanctions
4511/30/2005 DISK - Revised AEB
4612/05/2005 MOTION FOR Reconsideration of Motion to Strike (w/Brief and Affidavit in Support)
4712/13/2005 APPEARANCES: H. Malcolm Pippin; Robert S. Rau
4812/13/2005 ARGUED: Pippin; Rau
4912/13/2005 ORAL ARGUMENT WEBCAST
5012/14/2005 ACTION BY SUPREME COURT (Motion for Reconsideration). Denied
5112/21/2005 Supplemental Clerk's Certificate dated 12-19-05 (Entry Nos. 367-371)
5202/02/2006 DISPOSITION (REMANDED): AFFIRMED/PT, REVERSED/PT
5302/02/2006 UNANIMOUS OPINION: VandeWalle, Gerald W.
5402/02/2006 Costs on appeal awarded in favor of Appellee
5502/02/2006 Judgment Mailed to Parties
5603/07/2006 MANDATE
5703/09/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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