RULE 8.5 DOMESTIC RELATIONS SUMMARY PROCEEDING

Obsolete Date: 3/26/1998

(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 where a party seeks an order, judgment, or amended judgment, otherwise in accordance with chapters 14-04, 14-05, 14-06, and 14-09, NDCC.

(2) A summary proceeding may be used when the combined net assets of the parties do not exceed a fair market value of ten thousand dollars, exclusive of the homestead, as defined in section 47-18-01, NDCC.

(b) Beginning of Action - Petition - Summons - Plaintiff's Financial Affidavit. An action filed under this rule begins when any person signs and files with the court a petition and financial affidavit, and serves the petition and financial affidavit on the defendant along with a summons and order for appearance setting a hearing. The initial hearing must be held not less than 10 days, nor more than 40 days after service of the order by the plaintiff on the defendant.

(c) Answer - Defendant's Financial Affidavit - Further Relief. The defendant shall serve and file an answer and financial affidavit at least 2 days before the initial hearing, but no later than 20 days after service of the order for appearance, or defendant shall 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 15 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 shall hold the initial hearing with both parties present. No interim order may issue except upon notice and hearing unless the court specifically finds exceptional circumstances as set forth in Rule 8.2, NDROC. No ex parte interim order may be issued unless the movant executes an affidavit 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 custody, 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 adverse 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), NDROC.

(3) The court shall 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 shall specify information to be furnished in addition to the financial affidavit.

(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 shall 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 shall make findings of fact and conclusions of law in writing or orally and recorded in open court.

(g) Appeal. An appeal to the North Dakota Supreme Court may be taken by a party as in any civil action.

(h) Term. This proceeding shall be implemented on a trial basis for 18-months from the effective date of this rule. Upon consultation with the presiding judge from the Northeast Central Judicial District and the presiding judge from at least one other judicial district, the Supreme Court shall designate the judges who will use the proceeding during the trial period. After the trial period, the Court will decide if statewide implementation of the process is feasible and warranted.