Hartleib v. Simes
Brock Hartleib, Plaintiff, Appellee
Ashley Simes, n/k/a Ashley
Farrell,and Susan Simes,
Guardian of L.S.,
a minor child, Defendants, Appellants
Guardian ad Litem for L.S.,
a minor child, Wayne D. Goter,
Attorney at Law, Defendant and Appellee
South Central Judicial District,
Judge David E. Reich
|Nature of Action:||Child Cust & Support (Div.\other)|
|Term:||09/2009  Argument: 09/17/2009|
|ND cite:||2009 ND 205|
776 N.W.2d 217
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
I. Whether the Trial Court erred in denying the Appellants their due process rights
II. Whether the Trial Court Erred in Denying Appellants Motions to Vacate the Protective Order
III. Whether the Trial Court erred in terminating the Guardianship
IV. Whether the Trial Court was clearly erroneous in awarding custody of the minor child to Brock Hartleib
V. Whether the Trial Court erred in awarding minimal and restrictive visitation to Susan
VI. Whether the Trial Court erred in granting the Petition for Change of Name
Appellee's Statement of the Issues:
Guardian ad Litem Issues
1. Whether this Court has jurisdiction to review the trial court's protective order of July 25, 2007 and subsequent order of December 12, 2007, denying the appellant's motion to vacate the protective order.
2. Whether the appellant's right to due process of law was violated because they did not get an equal share of trial time to present their case in chief.
3. Whether the trial court abused its discretion in ordering termination of the guardianship and awarding custody of LGH to Brock Hartleib.
Issues of Hartleib
A. Appellee and Cross-Appellant's issues on Cross-Appeal.
1. Susan should not have been awarded visitation rights with the minor child.
a. Susan having visitation would interfere with Brock and the minor child's relationship.
2. Unsupervised visitation between Susan and the minor child is not in the child's best interests.
3. The visitation awarded to Ashley was not in the child's best interests.
a. The trial court awarded visitation beyond the recommendations of the Guardian Ad Litem, Child Custody Investigator, and the child's Therapist.
4. The trial court erred by not awarding Brock reasonable attorney's fees and costs.
B. Restatement of Appellant's issues on Appeal.
1. The trial court erred in denying the Appellants their Due Process Rights.
a. The Appellants were not given the opportunity to be heard on the Protective Order thereby denying them their due process rights.
b. The Appellants were not given an equal share of time to present their case thereby denying them their due process rights.
2. The trial court erred in denying Appellant's motions to vacate the Protective Order.
3. The trial court erred in terminating the guardianship.
4. The trial court was clearly erroneous in awarding custody of the minor child to Brock Hartleib.
a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The moral fitness of the parents.
f. The home, school, and community record of the child.
g. The interaction and interrelationships, or the potential for interaction and interrelations, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests.
h. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
5. The trial court erred in awarding minimal and restrictive visitation to Susan.
6. The trial court erred in granting the Petition for Name Change.
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|1||11/25/2008 NOTICE OF APPEAL: 11/21/2008|
|2||11/25/2008 ORDER FOR TRANSCRIPT: 11/21/2008|
|3||11/28/2008 Acknowledgment of OTR from Cynthia Kurtz|
|4||11/28/2008 Acknowledgment of OTR & RETENTION OF RECORD ON APPEAL from Sharon Fox: 01/10/2009|
|5||12/05/2008 NOTICE OF CROSS APPEAL, filed in trial court on 12-3-08|
|6||12/29/2008 Transcripts dated November 30, 2007|
|7||12/29/2008 DISK-TRA (11/30/07) e-mailed|
|8||12/29/2008 CERTIFICATE OF SERVICE OF COPIES OF TRANSCRIPTS (11/30/07).|
|9||01/06/2009 MOT. EXT/TIME TRANSCRIPT|
|10||01/06/2009 ACTION BY TRIAL COURT - MTR. Granted: 02/20/2009|
|11||01/06/2009 TRANSCRIPT DATED April 18, 2008|
|12||01/06/2009 DISK - TRA (4-18-08) (e-mailed)|
|13||01/07/2009 Certificate of Service of TRA (4-18-08)|
|14||02/20/2009 TRANSCRIPTS DATED 1-22-07; 7-17-07; 1-31-08; 4-22-08; 4-23-08; 04/24/08; & 04/25/08 (7 vols.)|
|15||02/20/2009 DISK - TRA (1/22/07;7/17/07;1-31-08;4/22/08;4/23/08;4/24/08; & 4/25/08)(Also rec'd electronic|
|16||02/20/2009 copies of transcripts dated 7-24&25-07 & 8-9-07 (See Entry Nos. 137 & 245 of ROA for hard copies)|
|17||02/23/2009 MOT. EXT/TIME APPELLANT BRIEF (faxed letter from Suzanne Schweigert dated 2-23-09)|
|18||02/23/2009 E-FILED MOTION (Mot/Ext/ATB) (faxed)|
|19||02/23/2009 ACTION BY CLERK (Mot/Ext/ATB). Granted: 05/01/2009|
|20||02/20/2009 RECORD ON APPEAL 5 Volumes and separates including exhibits, tapes, CD's and sealed items|
|21||03/24/2009 MOTION FOR Enlargement of Word Limit|
|22||04/07/2009 Letter identifying issues for the Appellant's brief|
|23||04/07/2009 ACTION BY CHIEF JUSTICE (granted a total of 13,000 words for the Appellants' brief). Granted|
|24||04/29/2009 MOTION FOR extension of page limits|
|25||04/29/2009 E-FILED MOTION|
|26||04/29/2009 ACTION BY CHIEF JUSTICE. Denied|
|27||05/01/2009 APPELLANT BRIEF|
|28||05/01/2009 APPELLANT APPENDIX|
|29||05/07/2009 DISK - atb (e-mailed)|
|30||05/08/2009 Corrected cover pages for ATB & ATA|
|31||05/21/2009 MOT. EXT/TIME APPELLEE BRIEF|
|32||05/21/2009 E-FILED MOTION (MAE)|
|33||05/21/2009 ACTION BY CLERK (MAE). Granted: 07/06/2009|
|34||06/08/2009 MOT. EXT/TIME APPELLEE BRIEF (Guardian ad Litem)|
|35||06/08/2009 ACTION BY CHIEF JUSTICE (Guardian ad Litem). Granted: 08/06/2009|
|36||06/23/2009 MOT. EXT/TIME APPELLEE BRIEF|
|37||06/23/2009 E-FILED MOTION (MAE)|
|38||06/24/2009 ACTION BY CHIEF JUSTICE (MAE). Granted: 08/06/2009|
|39||07/24/2009 NOTICE OF ORAL ARGUMENT MAILED|
|40||07/29/2009 APPELLEE BRIEF (Guardian ad Litem)|
|41||08/03/2009 DISK-AEB (Guardian ad Litem) CD-ROM|
|42||08/03/2009 Rec'd 8 copies of corrected cover page for AEB (Guardian ad Litem)|
|43||08/06/2009 APPELLEE BRIEF (Hartlieb)|
|44||08/06/2009 APPELLEE APPENDIX (Hartlieb)|
|45||08/06/2009 DISK - AEB (Hartlieb) (e-mailed)|
|46||08/10/2009 MOT. EXT/TIME REPLY BRIEF (e-mailed)|
|47||08/10/2009 E-FILED MOTION (MRY)|
|48||08/11/2009 ACTION BY CLERK (MRY). Granted: 09/08/2009|
|49||08/27/2009 Motion for extension of word limit of RYB|
|50||08/28/2009 ACTION BY CHIEF JUSTICE (Request for word limit of Reply Brief granted to a total of 4,000 words). Granted|
|51||09/08/2009 REPLY BRIEF of Appellant (E-filed) (PDF)|
|52||09/08/2009 E-FILED BRIEF (RYB)(PDF)|
|53||09/09/2009 Made 7 copies of RYB|
|54||09/17/2009 APPEARANCES: Suzanne Schweigert and Tracy Lyson/Brenda Neubauer/Wayne Goter, Guardian Ad Litem|
|55||09/17/2009 ARGUED: Schweigert/Neubauer/Goter|
|56||09/17/2009 ORAL ARGUMENT WEBCAST|
|57||12/15/2009 DISPOSITION: AFFIRMED|
|58||12/15/2009 UNANIMOUS OPINION: VandeWalle, Gerald W.|
|59||12/15/2009 Costs on appeal taxed in favor of appellee|
|60||12/16/2009 Judgment E-mailed to Parties|
|62||01/13/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|63||01/13/2010 Returned 1st, 2nd & 3rd supplemental certificates to District Court|
|64||01/15/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|65||01/19/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|