DeMers v. DeMers

20050184 Sue Ann DeMers, Plaintiff and Appellant
v.
Jeffrey Wayne DeMers, Defendant and Appellee

Appeal from: District Court, Northeast Judicial District, Rolette County
Judge Lester Ketterling
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellee: McIntee Law Firm
Appellant: Bulie Nikolaisen Law PLLC
Term: 04/2006   Argument: 04/20/2006  10:00am
ND cite: 2006 ND 142
NW cite: 717 N.W.2d 545

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
A. The trial court erred as a matter of law and mistake of fact by failing to invoke the statutory presumption against awarding custody to a perpetrator of domestic violence under N.D.C.C. 14-09-06.2(1)(j).
B. The trial court erred, as a matter of law, by not fully addressing the Ruff-Fischer factors in awarding spousal support.
C. The trial court erred, as a matter of law, in not fully addressing the Ruff-Fischer factors in making the property division.

Appellee's Statement of the Issues:
Applicant has waived her right to appeal the issue of property division by demanding and then accepting benefits of the Judgment.
The Trial Court considered the evidence of domestic violence and found that there was insufficient evidence to trigger the presumption relating to domestic violence.
The Trial Court's award of spousal support is within the Ruff-Fischer guidelines, especially in view of the fact that Sue did not want spousal support.
The Trial Court considered the Ruff-Fischer guidelinesin the property division.

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Docket entries:
105/31/2005 NOTICE OF APPEAL: 05/26/2005
205/31/2005 ORDER FOR TRANSCRIPT: 05/26/2005
306/22/2005 RECORD ON APPEAL (2 Vols.), Exhibits, & separates #44 (psych test), #72 (psych - sealed),
406/22/2005 #104 (authorization), #105 (Psych test). Not received was #112 (Exhibit #5)
507/18/2005 MOT. EXT/TIME TRANSCRIPT (letter dated 7-13-05 from Lori Schlieve)
607/18/2005 ACTION BY TRIAL COURT (MTR). Granted: 08/24/2005
708/23/2005 MOT. EXT/TIME TRANSCRIPT (letter dated August 22,2 005, from Lori Schlieve)
808/23/2005 ACTION BY CLERK. Granted: 09/02/2005
908/30/2005 Supplemental Clerk's Certificate dated 8-26-05 (Entry Nos. 218-230)
1008/30/2005 TRANSCRIPTS DATED 9/3/03; 12/1/03; 6/15/04; 7/7/04; & 10/5 thru 10/7/04 (5 vols.)
1108/30/2005 DISK - TRA (9/3/03;12/1/03;6/15/04;7/7/04 & 10/5 - 10/7/04) (CD)
1209/01/2005 Affidavit of Service for tran. to Sue Demers
1310/06/2005 MOT. EXT/TIME APPELLANT BRIEF & Affidavit in Support
1410/06/2005 ACTION BY CHIEF JUSTICE. Granted: 11/22/2005
1511/14/2005 SECOND/MOT. EXT/TIME APPELLANT BRIEF (e-filed)
1611/14/2005 E-FILED MOTION (Mot/Ext/ATB)
1711/15/2005 Appellee's Opposition to Second Motion for Enlargement/Time/File/ATB (faxed)
1811/15/2005 Amended Second Motion/Enlargement/Time/File ATB (e-filed)
1911/16/2005 Reply to Appellee's Opposition to Second Mot/Enlargement/Time/File/ATB (e-filed)
2011/17/2005 ACTION BY CHIEF JUSTICE (Second/Mot/Ext/ATB). Granted: 12/06/2005
2112/01/2005 MOTION TO ALLOW DEFERRED FILING OF APPELLANT'S APPENDIX
2212/01/2005 E-FILED MOTION (Deferred Filing of ATA)
2312/01/2005 ACTION BY CLERK (Granted until 11 days after filing of the AEB - Deferred Filing. Granted
2412/01/2005 of AT Appendix Motion)
2512/05/2005 Third Motion/Enlargement/Time/File ATB (e-filed)
2612/05/2005 E-FILED MOTION (3rd MAT)
2712/06/2005 ACTION BY CHIEF JUSTICE (3rd MAT). Granted: 12/22/2005
2812/06/2005 MOTION TO WITHDRAW DEFERRED APPELLANT APPENDIX MOTION OF 12-01-05
2912/06/2005 ACTION BY CHIEF JUSTICE (Mot w/draw Deferred AT Appendix). Granted
3012/06/2005 MOTION regarding sanction of Appellant (sua sponte)
3112/06/2005 ACTION BY CHIEF JUSTICE Appellant sanctioned $100 to be paid to Mr. DeMers w/proof of payment. Granted: 01/15/2006
3212/06/2005 to this Court.
3312/17/2005 TRANSCRIPT DATED November 30, 2004
3412/19/2005 DISK - (e-mailed) (TRA)(11-30-04)
3512/21/2005 Fourth MOT. EXT/TIME APPELLANT BRIEF & attachment (e-filed)
3612/21/2005 E-FILED MOTION (4th Mot/Ext/ATB)
3712/21/2005 ACTION BY CHIEF JUSTICE. Granted: 12/27/2005
3812/27/2005 APPELLANT BRIEF
3912/27/2005 E-FILED BRIEF (ATB)
4012/27/2005 APPELLANT APPENDIX
4112/27/2005 E-FILED APPENDIX (ATA)
4201/05/2006 Rec'd surcharge fee for ATB & ATA (Receipt No. 16722)
4301/10/2006 Copies of ATB made
4401/10/2006 Copies of ATA made
4501/20/2006 MOT. EXT/TIME APPELLEE BRIEF
4601/20/2006 ACTION BY CLERK - MAE. Granted: 02/07/2006
4701/30/2006 Letter dated January 27, 2006, from Michael McIntee that the $100 payment had been received
4801/30/2006 MOTION to Correct Record
4902/07/2006 NO ACTION TAKEN (Mot/correct record)
5001/30/2006 MOT. EXT/TIME APPELLEE BRIEF (part of Motion to Correct Record)
5101/30/2006 ACTION BY CLERK (13 days after Supp. Clerk's Cert. is filed in the trial court). Granted: 02/21/2006
5201/30/2006 Letter from Michael McIntee that the correction of the Record will be stipulated to
5302/06/2006 Supplemental Clerk's Certificate dated 2-1-06 (Entry Nos. 231-241)
5402/15/2006 APPELLEE BRIEF
5502/15/2006 APPELLEE APPENDIX
5602/17/2006 DISK - aeb
5703/07/2006 MOT. EXT/TIME REPLY BRIEF
5803/07/2006 E-FILED MOTION (RYB)
5903/08/2006 ACTION BY CHIEF JUSTICE (MRY). Granted: 03/27/2006
6003/13/2006 Letter & Opposition to Motion to Enlarge Time dtd 3-10-06 fm Michael McIntee
6103/27/2006 REPLY BRIEF of Appellant
6203/27/2006 E-FILED BRIEF (RYB)
6303/29/2006 Copies of RYB made
6404/20/2006 APPEARANCES: Alan Sorensen; Michael S. McIntee
6504/20/2006 ARGUED: Sorensen; McIntee
6604/20/2006 ORAL ARGUMENT WEBCAST
6706/29/2006 DISPOSITION (and Remanded): AFFIRMED/PT, REVERSED/PT
6806/29/2006 SPLIT OPINION: Kapsner, Carol Ronning
6906/29/2006 (Concur): Crothers, Daniel John: CONCUR
7006/29/2006 (CONCUR and DISSENT): Sandstrom, Dale V.: CON/DIS
7106/29/2006 Costs on appeal taxed in favor of Appellant.
7207/26/2006 MANDATE
7308/02/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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