Hartleib v. Simes

20080307 Brock Hartleib, Plaintiff, Appellee
and Cross-Appellant
v.
Ashley Simes, n/k/a Ashley
Farrell,and Susan Simes,
Guardian of L.S.,
a minor child, Defendants, Appellants
and Cross-Appellees
--------------
Guardian ad Litem for L.S.,
a minor child, Wayne D. Goter,
Attorney at Law, Defendant and Appellee

Appeal from: District Court, South Central Judicial District, Morton County
Judge David E. Reich
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellant: Suzanne Marie Schweigert
Appellant: Tracy JoHanna Lyson
Appellee: Brenda A. Neubauer
Appellee: Wayne D. Goter
Term: 09/2009   Argument: 09/17/2009  10:30am
ND cite: 2009 ND 205
NW cite: 776 N.W.2d 217

Listen to recording of oral argument in MP3 format

Issues: 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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Docket entries:
111/25/2008 NOTICE OF APPEAL: 11/21/2008
211/25/2008 ORDER FOR TRANSCRIPT: 11/21/2008
311/28/2008 Acknowledgment of OTR from Cynthia Kurtz
411/28/2008 Acknowledgment of OTR & RETENTION OF RECORD ON APPEAL from Sharon Fox: 01/10/2009
512/05/2008 NOTICE OF CROSS APPEAL, filed in trial court on 12-3-08
612/29/2008 Transcripts dated November 30, 2007
712/29/2008 DISK-TRA (11/30/07) e-mailed
812/29/2008 CERTIFICATE OF SERVICE OF COPIES OF TRANSCRIPTS (11/30/07).
901/06/2009 MOT. EXT/TIME TRANSCRIPT
1001/06/2009 ACTION BY TRIAL COURT - MTR. Granted: 02/20/2009
1101/06/2009 TRANSCRIPT DATED April 18, 2008
1201/06/2009 DISK - TRA (4-18-08) (e-mailed)
1301/07/2009 Certificate of Service of TRA (4-18-08)
1402/20/2009 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.)
1502/20/2009 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
1602/20/2009 copies of transcripts dated 7-24&25-07 & 8-9-07 (See Entry Nos. 137 & 245 of ROA for hard copies)
1702/23/2009 MOT. EXT/TIME APPELLANT BRIEF (faxed letter from Suzanne Schweigert dated 2-23-09)
1802/23/2009 E-FILED MOTION (Mot/Ext/ATB) (faxed)
1902/23/2009 ACTION BY CLERK (Mot/Ext/ATB). Granted: 05/01/2009
2002/20/2009 RECORD ON APPEAL 5 Volumes and separates including exhibits, tapes, CD's and sealed items
2103/24/2009 MOTION FOR Enlargement of Word Limit
2204/07/2009 Letter identifying issues for the Appellant's brief
2304/07/2009 ACTION BY CHIEF JUSTICE (granted a total of 13,000 words for the Appellants' brief). Granted
2404/29/2009 MOTION FOR extension of page limits
2504/29/2009 E-FILED MOTION
2604/29/2009 ACTION BY CHIEF JUSTICE. Denied
2705/01/2009 APPELLANT BRIEF
2805/01/2009 APPELLANT APPENDIX
2905/07/2009 DISK - atb (e-mailed)
3005/08/2009 Corrected cover pages for ATB & ATA
3105/21/2009 MOT. EXT/TIME APPELLEE BRIEF
3205/21/2009 E-FILED MOTION (MAE)
3305/21/2009 ACTION BY CLERK (MAE). Granted: 07/06/2009
3406/08/2009 MOT. EXT/TIME APPELLEE BRIEF (Guardian ad Litem)
3506/08/2009 ACTION BY CHIEF JUSTICE (Guardian ad Litem). Granted: 08/06/2009
3606/23/2009 MOT. EXT/TIME APPELLEE BRIEF
3706/23/2009 E-FILED MOTION (MAE)
3806/24/2009 ACTION BY CHIEF JUSTICE (MAE). Granted: 08/06/2009
3907/24/2009 NOTICE OF ORAL ARGUMENT MAILED
4007/29/2009 APPELLEE BRIEF (Guardian ad Litem)
4108/03/2009 DISK-AEB (Guardian ad Litem) CD-ROM
4208/03/2009 Rec'd 8 copies of corrected cover page for AEB (Guardian ad Litem)
4308/06/2009 APPELLEE BRIEF (Hartlieb)
4408/06/2009 APPELLEE APPENDIX (Hartlieb)
4508/06/2009 DISK - AEB (Hartlieb) (e-mailed)
4608/10/2009 MOT. EXT/TIME REPLY BRIEF (e-mailed)
4708/10/2009 E-FILED MOTION (MRY)
4808/11/2009 ACTION BY CLERK (MRY). Granted: 09/08/2009
4908/27/2009 Motion for extension of word limit of RYB
5008/28/2009 ACTION BY CHIEF JUSTICE (Request for word limit of Reply Brief granted to a total of 4,000 words). Granted
5109/08/2009 REPLY BRIEF of Appellant (E-filed) (PDF)
5209/08/2009 E-FILED BRIEF (RYB)(PDF)
5309/09/2009 Made 7 copies of RYB
5409/17/2009 APPEARANCES: Suzanne Schweigert and Tracy Lyson/Brenda Neubauer/Wayne Goter, Guardian Ad Litem
5509/17/2009 ARGUED: Schweigert/Neubauer/Goter
5609/17/2009 ORAL ARGUMENT WEBCAST
5712/15/2009 DISPOSITION: AFFIRMED
5812/15/2009 UNANIMOUS OPINION: VandeWalle, Gerald W.
5912/15/2009 Costs on appeal taxed in favor of appellee
6012/16/2009 Judgment E-mailed to Parties
6101/11/2010 MANDATE
6201/13/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
6301/13/2010 Returned 1st, 2nd & 3rd supplemental certificates to District Court
6401/15/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
6501/19/2010 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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