Burns v. Burns
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| 20060218 |
Cynthia L. Burns, Plaintiff and Appellant
v.
Bartley D. Burns, Defendant and Appellee
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| Appeal from: |
District Court,
Northwest Judicial District,
Ward County
Judge William W. McLees |
|
Nature of Action: |
Child Cust & Support (Div.\other)
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| Counsel: |
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| Term: |
05/2007 Argument: 05/03/2007 10:45am
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| ND cite: |
2007 ND 134
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| NW cite: |
737 N.W.2d 243
Listen to recording of oral argument
using RealPlayer Basic,© a free download.
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| Issues: |
Appellant's Statement of the Issues:
1.Should custody be awarded to a parent that hits his children and has a history of doing so, merely because they have lived in the home community and when the visiting parent took steps to take the children from an abusive setting and is the parent
that provided the majority of the care to the children over their lives.
2.Did the Court err by admitting into evidence, and using, non-disclosed, but discovery requested expert testimony.
Appellee's Statement of the Issues:
1. Does the specific needs of a handicapped child outweigh the form of control by a parent, where one parent alleges abuse by such form of control, and where the alleged form of control had been approved by a child abuse investigation, and the
complaining parent has abused the children, leaving bruises on the children?
a. Is spanking a child, as a form of discipline, child abuse?
b. Is a control method by one parent, which is not abuse of a child, and has been approved by investigation, grounds to remove an autistic child from his familiar surroundings?
2. Is it reversible error for a trial court to admit the factual testimony of a special education teacher who is fully educated, licensed and experienced in special education of autistic children, wherein the objecting party submitted the same
testimony of a similar, but un-educated and un-licensed teacher's aide on the same issues claiming lack of discovery disclosure and where the opposing party did not ask for a continuance and later admits that the testimony presented is not a
surprise?
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| 1 | | 08/17/2006 | |
NOTICE OF APPEAL: 08/16/2006 |
| 2 | | 08/17/2006 | |
ORDER FOR TRANSCRIPT: 08/16/2006 |
| 3 | | 10/05/2006 | |
MOT. EXT/TIME TRANSCRIPT |
| 4 | | 10/05/2006 | |
ACTION BY TRIAL COURT (MTR). Granted: 11/14/2006 |
| 5 | | 11/15/2006 | |
MOT. EXT/TIME TRANSCRIPT |
| 6 | | 11/15/2006 | |
E-FILED MOTION - MTR |
| 7 | | 11/15/2006 | |
ACTION BY CLERK (MTR). Granted: 12/01/2006 |
| 8 | | 11/30/2006 | |
MOT. EXT/TIME TRANSCRIPT (faxed) |
| 9 | | 11/30/2006 | |
E-FILED MOTION (MTR) |
| 10 | | 11/30/2006 | |
ACTION BY CLERK. Granted: 12/05/2006 |
| 11 | | 12/05/2006 | |
TRANSCRIPTS DATED OCTOBER 5, 2005 & OCTOBER 6, 2005 |
| 12 | | 12/05/2006 | |
DISK - TRA (DATED OCTOBER 5, 2005 & OCTOBER 6, 2005) |
| 13 | | 12/11/2006 | |
RECORD ON APPEAL, 3 VOL. W/SEPARATES (ENTRY NOS. 63,89-90,107-155). NOT REC'D WAS ENTRY NO. 38. |
| 14 | | 12/14/2006 | |
Clerk's Supplemental Certificate of Record dated December 13, 2006 (Entry Nos. 38,199-200) |
| 15 | | 01/11/2007 | |
MOT. EXT/TIME APPELLANT BRIEF |
| 16 | | 01/11/2007 | |
ACTION BY CLERK (MAT). Granted: 02/13/2007 |
| 17 | | 02/07/2007 | |
APPELLANT BRIEF |
| 18 | | 02/07/2007 | |
APPELLANT APPENDIX |
| 19 | | 02/13/2007 | |
8 cc each of corrected TOA and pages for ATB |
| 20 | | 01/13/2007 | |
DISK of ATB |
| 21 | | 02/23/2007 | |
MOT. EXT/TIME TRANSCRIPT (AE), with Brief in Support and attachments |
| 22 | | 02/23/2007 | |
ACTION BY CLERK (MTR). Granted: 03/02/2007 |
| 23 | | 02/23/2007 | |
MOT. EXT/TIME APPELLEE BRIEF (with MTR) |
| 24 | | 02/23/2007 | |
ACTION BY CLERK (30 days after filing of Transcript). Granted: 03/29/2007 |
| 25 | | 02/26/2007 | |
Order for Transcript filed in the trial court on February 23, 2007, for the transcript dtd 11-22-04 |
| 26 | | 02/27/2007 | |
Receipt for copy of Order for Transcript by Court Recorder Caryn Nelson |
| 27 | | 02/27/2007 | |
Transcript dated 11-22-04 |
| 28 | | 02/28/2007 | |
DISK - tra (11-22-04) (e-mailed) |
| 29 | | 03/19/2007 | |
MOTION TO CORRECT OR MODIFY RECORD WITH BRIEF IN SUPPORT. RspDue: 03/29/2007 |
| 30 | | 03/21/2007 | |
MOT. EXT/TIME APPELLEE BRIEF (faxed letter from Michael S. McIntee dated 3-21-07) |
| 31 | | 03/21/2007 | |
E-FILED MOTION (MAE) |
| 32 | | 03/21/2007 | |
ACTION BY CLERK (AEB due 10 days after Court's action on Mot/Correct/Modify/Record). Granted: 04/12/2007 |
| 33 | | 03/26/2007 | |
Response Filed (Motion to Correct or Modify Record) |
| 34 | | 03/28/2007 | |
ACTION BY SUPREME COURT (MOT to correct or modify record). Denied |
| 35 | | 04/04/2007 | |
APPELLEE BRIEF |
| 36 | | 04/04/2007 | |
APPELLEE APPENDIX |
| 37 | | 04/09/2007 | |
DISK - AEB |
| 38 | | 05/03/2007 | |
APPEARANCES: Robert S. Rau, Cynthia L. Burns; Michael S. McIntee |
| 39 | | 05/03/2007 | |
ARGUED: Rau; McIntee |
| 40 | | 05/03/2007 | |
ORAL ARGUMENT WEBCAST |
| 41 | | 08/22/2007 | |
DISPOSITION: AFFIRMED |
| 42 | | 08/22/2007 | |
SPLIT OPINION: Crothers, Daniel John |
| 43 | | 08/22/2007 | |
(CONCUR IN THE RESULT): Sandstrom, Dale V.: CON/RES |
| 44 | | 08/22/2007 | |
(CONCUR IN PART AND DISSENT IN PART): Maring, Mary Muehlen: CON/DIS |
| 45 | | 08/22/2007 | |
Costs on appeal taxed in favor of appellee |
| 46 | | 08/23/2007 | |
Judgment Mailed to Parties |
| 47 | | 09/17/2007 | |
MANDATE |
| 48 | | 09/19/2007 | |
RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE |