TO: Chief Justice VandeWalle, Justice Neumann, Justice Sandstrom, Justice Maring, Justice Kapsner
FROM: Mike Hagburg
RE: Proposed Amendment to N.D.R.Ct. 3.3
The Court has before it a proposed amendment to N.D.R.Ct. 3.3 that would allow a judge other than the original judge to amend or enforce a child support order or judgment. The amendment is intended to ease resolution of child supports matters in rural areas by allowing circuit riding judges to rule on such matters regardless of whether they entered the original judgment.
The Court asked whether a change of judge could be sought if a new judge was assigned under the amended rule.
Under N.D.C.C. § 29-15-21(3), "[a]ny proceeding to modify an order for alimony, property division, or child support pursuant to section 14-05-24 or an order for child custody pursuant to section 14-05-22 must be considered a proceeding separate from the original action and the fact that the judge sought to be disqualified made any ruling in the original action does not bar a demand for a change of judge."
When the Joint Procedure Committee discussed the change of judge issue, the consensus was that judges assigned to preside over child support enforcement actions could not be bumped because child support enforcement actions were not covered by N.D.C.C. § 29-15-21(3). A Committee member explained that child support enforcement matters routinely were handled by whatever judge was available. The Committee seemed to agree, however, that judges could be bumped if assigned to rule in a child support modification matter.
This Court has held that judge assignment, judge reassignment and judge changes are procedural matters. See Traynor v. Leclerc, 1997 ND 47, 561 N.W.2d 644. Therefore, the Court has authority to make rules relating to these matters. N.D. Const. art. VI, § 3. The Court has chosen to accept the change of judge guidelines in N.D.C.C. § 29-15-21 as "reasonable and workable." Traynor, 1997 ND 47, ¶ 14. If the Court chooses, however, it may promulgate rules that supersede, alter or expand the guidelines in N.D.C.C. § 29-15-21. Interest of D.J.H., 401 N.W.2d 694 (N.D. 1987).