Burns v. Burns

20060218 Cynthia L. Burns, Plaintiff and Appellant
v.
Bartley D. Burns, Defendant and Appellee

Appeal from: District Court, Northwest Judicial District, Ward County
Judge William W. McLees
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellant: Bosard, McCutcheon & Rau, Ltd.
Appellee: McIntee Law Firm
Term: 05/2007   Argument: 05/03/2007  10:45am
ND cite: 2007 ND 134
NW cite: 737 N.W.2d 243

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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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Docket entries:
108/17/2006 NOTICE OF APPEAL: 08/16/2006
208/17/2006 ORDER FOR TRANSCRIPT: 08/16/2006
310/05/2006 MOT. EXT/TIME TRANSCRIPT
410/05/2006 ACTION BY TRIAL COURT (MTR). Granted: 11/14/2006
511/15/2006 MOT. EXT/TIME TRANSCRIPT
611/15/2006 E-FILED MOTION - MTR
711/15/2006 ACTION BY CLERK (MTR). Granted: 12/01/2006
811/30/2006 MOT. EXT/TIME TRANSCRIPT (faxed)
911/30/2006 E-FILED MOTION (MTR)
1011/30/2006 ACTION BY CLERK. Granted: 12/05/2006
1112/05/2006 TRANSCRIPTS DATED OCTOBER 5, 2005 & OCTOBER 6, 2005
1212/05/2006 DISK - TRA (DATED OCTOBER 5, 2005 & OCTOBER 6, 2005)
1312/11/2006 RECORD ON APPEAL, 3 VOL. W/SEPARATES (ENTRY NOS. 63,89-90,107-155). NOT REC'D WAS ENTRY NO. 38.
1412/14/2006 Clerk's Supplemental Certificate of Record dated December 13, 2006 (Entry Nos. 38,199-200)
1501/11/2007 MOT. EXT/TIME APPELLANT BRIEF
1601/11/2007 ACTION BY CLERK (MAT). Granted: 02/13/2007
1702/07/2007 APPELLANT BRIEF
1802/07/2007 APPELLANT APPENDIX
1902/13/2007 8 cc each of corrected TOA and pages for ATB
2001/13/2007 DISK of ATB
2102/23/2007 MOT. EXT/TIME TRANSCRIPT (AE), with Brief in Support and attachments
2202/23/2007 ACTION BY CLERK (MTR). Granted: 03/02/2007
2302/23/2007 MOT. EXT/TIME APPELLEE BRIEF (with MTR)
2402/23/2007 ACTION BY CLERK (30 days after filing of Transcript). Granted: 03/29/2007
2502/26/2007 Order for Transcript filed in the trial court on February 23, 2007, for the transcript dtd 11-22-04
2602/27/2007 Receipt for copy of Order for Transcript by Court Recorder Caryn Nelson
2702/27/2007 Transcript dated 11-22-04
2802/28/2007 DISK - tra (11-22-04) (e-mailed)
2903/19/2007 MOTION TO CORRECT OR MODIFY RECORD WITH BRIEF IN SUPPORT. RspDue: 03/29/2007
3003/21/2007 MOT. EXT/TIME APPELLEE BRIEF (faxed letter from Michael S. McIntee dated 3-21-07)
3103/21/2007 E-FILED MOTION (MAE)
3203/21/2007 ACTION BY CLERK (AEB due 10 days after Court's action on Mot/Correct/Modify/Record). Granted: 04/12/2007
3303/26/2007 Response Filed (Motion to Correct or Modify Record)
3403/28/2007 ACTION BY SUPREME COURT (MOT to correct or modify record). Denied
3504/04/2007 APPELLEE BRIEF
3604/04/2007 APPELLEE APPENDIX
3704/09/2007 DISK - AEB
3805/03/2007 APPEARANCES: Robert S. Rau, Cynthia L. Burns; Michael S. McIntee
3905/03/2007 ARGUED: Rau; McIntee
4005/03/2007 ORAL ARGUMENT WEBCAST
4108/22/2007 DISPOSITION: AFFIRMED
4208/22/2007 SPLIT OPINION: Crothers, Daniel John
4308/22/2007 (CONCUR IN THE RESULT): Sandstrom, Dale V.: CON/RES
4408/22/2007 (CONCUR IN PART AND DISSENT IN PART): Maring, Mary Muehlen: CON/DIS
4508/22/2007 Costs on appeal taxed in favor of appellee
4608/23/2007 Judgment Mailed to Parties
4709/17/2007 MANDATE
4809/19/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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