TO: Joint Procedure Committee
FROM: Andy Forward
DATE: June 21, 2010
RE: Rule 8.2, N.D.R.Ct., Interim Orders in Domestic Relations Cases
At its April meeting, staff was instructed to research whether the ex parte process applies in post-judgment modifications and to draft alternative amendments regarding affidavit practice.
In Whitmire v. Whitmire, 1997 ND 214, &P& 11, 570 N.W.2d 231, the Court said ex parte, interim, and temporary orders in all domestic relations cases are expressly governed by N.D.R.Ct. 8.2. "A post-decree motion seeking to modify the terms of custody or visitation in a divorce decree is a domestic relations case." Id. Under Whitmire, the ex parte process was available in postjudgment modifications.
Following Whitmire, N.D.C.C. &S& 14-09-06.6 was enacted, which deals with limitations on postjudgment modifications of primary residential responsibility. Subsection 4 of N.D.C.C. &S& 14-09-06.6 states:
<BLOCKQUOTE>A party seeking modification of an order concerning primary residential responsibility shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. The court shall set a date for an evidentiary hearing only if a prima facie case is established.</BLOCKQUOTE>
Section 14-09-06.6(4), N.D.C.C., requires a party seeking a postjudgment modification to serve and file a motion and supporting affidavits and give notice to the opposing party. Because notice is required, it appears the ex parte process of N.D.R.Ct. 8.2 would not be available to a party seeking a postjudgment modification. A Westlaw KeyCite of Whitmire shows it has been superseded by rule as stated in Dietz v. Dietz, 2007 ND 84, &P& 19, 733 N.W.2d 225:
<BLOCKQUOTE>In Whitmire v. Whitmire, 1997 ND 214, &P& 11, 570 N.W.2d 231, this Court said that N.D.R.Ct. 8.2 was "expressly intended for all 'interim orders in domestic relations cases,' [and a] post-decree motion seeking to modify the terms of custody or visitation in a divorce decree is a domestic relations case." However, Whitmire, involved a proceeding that occurred before the 1997 adoption of the requirements for a prima facie case in N.D.C.C. &S& 14-09-06.6. If a prima facie case is not established as a preliminary matter under N.D.C.C. &S& 14-09-06.6(4), a hearing on an interim order pending the proceeding for the motion to change custody is not necessary.</BLOCKQUOTE>
The Court appears to say N.D.C.C. &S& 14-09-06.6, rather than N.D.R.Ct. 8.2, applies in postjudgment modifications, but it did not explicitly state that the ex parte process of Rule 8.2 is not available in a postjudgment proceeding. I was unable to find a case that specifically addressed whether the ex parte process of Rule 8.2 applies to a postjudgment modification. There have been cases following the adoption of N.D.C.C. &S& 14-09-06.6, however, when an ex parte interim order was issued to a party seeking a postjudgment modification of custody. See Morton County Social Service Bd. v. Cramer, 2010 ND 58, &P& 6, 780 N.W.2d 688 ; Laib v. Laib, 2008 ND 129, &P& 5, 751 N.W.2d 228 ; Jelsing v. Peterson, 2007 ND 41, &P& 3, 729 N.W.2d 157 ; Bladow v. Bladow, 2005 ND 142, &P& 4, 701 N.W.2d 903; Wigginton v. Wigginton, 2005 ND 31, &P& 5 692 N.W.2d 108.
Although it appears an ex parte order may not be available in light of N.D.C.C. &S& 14-09-06.6 , the Supreme Court has not addressed the issue, and district courts have issued ex parte orders in postjudgment modification proceedings. Staff has prepared an amendment to Rule 8.2(a) stating an ex parte interim order may not be issued on a postjudgment modification of primary residential responsibility unless the moving party also files a motion under N.D.C.C. &S& 14-09-06.6.
Staff has prepared alternative amendments to Rule 8.2(e) regarding affidavit practice and cross examination. The first alternative is to leave the rule as it is. The second alternative would not allow any cross examination of the affiants. The third alternative would allow cross examination if one party gives the other party notice before the hearing of who is going to be cross examined. This is similar to the process used in Cass County.
The proposed amendments to Rule 8.2 are attached, with proposed new material highlighted. There are three alternatives versions: Alt. A, which would require a motion under N.D.C.C. 14-09-06.6 before an order on a postjudgment modification; Alt. B, which would eliminate the requirement to the affiant available for cross-examination; and Alt. C, which would retain the availability requirement contingent on notice of intent to cross examine being provided by the other party.