(a) Definition and Application.
(1) A summary proceeding may be used by parties to settle a controversy, dispose of a case, or conduct a trial when a party seeks an order, judgment, or amended judgment, under N.D.C.C. chs. 14-04, 14-05, and 14-09.
(2) A summary proceeding may be used when the combined net assets of the parties do not exceed a fair market value of $50,000, exclusive of the homestead, as defined under N.D.C.C. § 47-18-01.
(b) Beginning of Action - Petition - Summons - Plaintiff's Financial Declaration. An action filed under this rule begins when any person signs and files with the court a petition and financial declaration, and serves the petition and financial declaration on the defendant along with a summons and order for appearance setting a hearing. The initial hearing must be held not less than 14 days, nor more than 40 days after service of the order by the plaintiff on the defendant.
(c) Answer - Defendant's Financial Declaration - Further Relief. The defendant must serve and file an answer and financial declaration at least 2 days before the initial hearing, but no later than 21 days after service of the order for appearance, or the defendant must be considered in default. The defendant may set forth any new matter in the answer and request further relief.
(d) Case Not Suitable for Disposition by Summary Proceeding. Either party may elect to use a non-summary proceeding, without a showing of cause, by filing a notice of election no later than 21 days before the final hearing. If the court decides, based upon the complexity of factual or legal issues, at any stage of the proceeding that the case may not be fairly disposed of under this rule, it may order that the action be decided by the use of a non-summary proceeding.
(e) Hearing Procedures.
(1) Any hearing of the action must be informal. The court must conduct the hearings and may make its own inquiry during the hearings. The hearings must be of record and all testimony must be under oath or affirmation. A trial by jury is not permitted and attorneys may participate. Attorney's fees and costs may be assessed as provided by law. The rules of evidence do not apply to a summary proceeding.
(2) The court must hold the initial hearing with both parties present. No interim order may be issued except on notice and hearing unless the court specifically finds exceptional circumstances as set forth in Rule 8.2. No ex parte interim order may be issued unless the moving party executes a declaration setting forth specific facts justifying the issuance of the order. A restraining and eviction order may not be issued ex parte unless the movant also appears personally and good cause is shown for issuance of the order.
The provisions which may be included in an ex parte interim order are temporary parental rights and responsibilities, parenting time, support and other appropriate expenses, use of real or personal property, restraining and eviction.
A hearing must be scheduled within 14 days of the issuance of the interim order. The party obtaining the ex parte interim order must secure a hearing date and serve the interim order and the order for appearance on the opposing party.
The initial hearing, whether in response to an ex parte interim order or otherwise, must be conducted by the court to afford such temporary relief to the parties and the minor children as provided in Rule 8.2(b).
(3) The court must schedule a final hearing within 60 days after the initial hearing to decide the issues of law and fact. The hearing may be continued as necessary. The court may utilize any services for the protection of persons and property that are available in a non-summary proceeding, including appointment of a guardian ad litem, mediator, or referee. The costs of services may be assessed as provided by law against the parties in the proportion as the court determines just and equitable.
(4) There will be no formal discovery. At the initial hearing, or at any subsequent time, the court must specify information to be furnished in addition to the financial declaration.
(5) Mediation, or other nonadversarial methods, should be used when appropriate as a means of resolving disputes.
(f) Judgment or Order. Based upon the evidence presented, the court must issue a written judgment or order indicating its decision in all cases begun under this rule. A judgment or order may be entered without the appearance of either party at the final hearing. The court may utilize all powers available to a district court which are not in conflict with this rule. The court must make findings of fact and conclusions of law in writing or orally and recorded in open court.
(g) Appeal. An appeal to the Supreme Court may be taken by a party as in any civil action.
(h) Option. The presiding judge of each judicial district may designate one or more judges or referees who will use the proceeding.
Rule 8.5 was made permanent, effective February 12, 2003.
Rule 8.5 was initially adopted, effective October 1, 1996, as a pilot project in two judicial districts. Subdivision (h) was amended, effective August 1, 2001, to permit the presiding judge of each judicial district to designate one or more judges or referees to use the proceeding.
Paragraph (a)(2) was amended, effective March 1, 2011, to increase the limit on combined net assets from $20,000 to $50,000.
Subdivision (b) was amended, effective March 1, 2011, to increase the time to hold the initial hearing from 10 to 14 days after service of the order of appearance.
Subdivision (c) was amended, effective March 1, 2011, to increase the time for the defendant to serve and file an answer and financial declaration from 20 to 21 days after service of the order for appearance.
Subdivision (d) was amended, effective March 1, 2011, to change the time for a party to elect to use a non-summary proceeding from 15 to 21 days before the final hearing.
Rule 8.5 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
SOURCES: Joint Procedure Committee Minutes of April 24, 2020, pages 4-5; September 23-24, 2010, page 25; April 29-30, 2010, page 26; May 21-22, 2009, pages 44-45; January 30-31, 2003; April 26-27, 2001, pages 6-8; September 28-29, 1995, pages 11-12.
CONSIDERED: N.D.C.C. ch. 31-15.