Cody v. Cody , 2019 ND 14 ( 2019 )

Filed 1/15/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 14Beverly J. Cody, Plaintiff and Appellee
v.
Lee A. Cody, Defendant and Appellant
No. 20180120
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Gail Hagerty, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice.
Thomas M. Jackson, Bismarck, ND, for plaintiff and appellee; submitted on
brief.
Lee A. Cody, self-represented, defendant and appellant; submitted on brief.
Cody v. Cody
No. 20180120
VandeWalle, Chief Justice.
[¶1] Lee Cody appealed from a divorce judgment that distributed the parties’
property and debts. We conclude the record supports the district court’s denial of his
request to appear telephonically at trial and the court did not err when it clarified its
opinion before the final judgment. We further conclude his issue claiming ineffective
assistance of trial counsel is without merit because this type of claim does not extend
to divorce actions. We affirm.
I
[¶2] Lee Cody and Beverly Cody were married in 1991. In May 2016, Beverly
Cody commenced this divorce action. In June 2016, Lee Cody’s attorney filed a
notice of appearance and an answer to her complaint seeking a divorce. In August
2016, the district court scheduled a trial for June 13, 2017. On June 7, 2017, after
initially denying the parties’ stipulated request for a continuance, the court granted a
continuance of the trial. The parties sought the continuance on grounds of Lee
Cody’s incarceration and Beverly Cody’s significant health concerns. The trial was
subsequently rescheduled for December 20, 2017.
[¶3] On December 7, 2017, less than two weeks before trial, Lee Cody served and
filed an expedited motion requesting the district court to permit him to appear
telephonically at trial. His only asserted basis for the motion was that he was
incarcerated in Arkansas and a telephonic appearance was necessary for him to
provide testimony and participate in the divorce trial. On December 8, 2017, the court
entered an order denying his motion. On December 12, 2017, the parties served and
filed their respective witness and exhibit lists. On December 20, 2017, the court held
a trial. Beverly Cody appeared in person at the trial with her attorney. Lee Cody did
not appear at trial due to his incarceration, but was represented at the trial by his
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attorney. At trial, the court received various exhibits and testimony from three
witnesses.
[¶4] On January 11, 2018, the district court issued an opinion, which divided the
parties’ property and debts and made other determinations including reserving
jurisdiction on Beverly Cody’s request for a spousal support award. On January 19,
2018, Beverly Cody served and filed a request for clarification of the memorandum
opinion, asking the court to clarify its order regarding the distribution of Lee Cody’s
pension. On February 1, 2018, the court granted the request. On February 7, 2018,
the court entered an order for judgment, incorporating its January 11 opinion and
clarifying that the court directed a division of the pension benefit consistent with the
Bullock formula, which resulted in a division of the pension benefits earned during
the marriage equally between the parties. Judgment was entered on February 8, 2018.
II
[¶5] Lee Cody argues the district court erred in denying his request to appear at the
trial telephonically.
[¶6] Rule 43(a), N.D.R.Civ.P., concerns the form and admissibility of evidence in
civil proceedings and states:
At trial, the witnesses’ testimony must be taken in open court unless a
statute, the Rules of Evidence, these rules, or other court rules provide
otherwise. For good cause, or on agreement of the parties, and with
appropriate safeguards, the court may permit testimony in open court
by contemporaneous transmission from a different location. A party
must give notice if a witness is unable to testify orally or if testimony
by contemporaneous transmission may be necessary.
[¶7] The district court has broad discretion in deciding evidentiary matters. Regan
v. Lervold, 2014 ND 56, ¶ 8, 844 N.W.2d 576. We will overturn the district court’s
admission or exclusion of evidence only when the district court has abused its
discretion. Id. A district court abuses its discretion when it acts arbitrarily,
unconscionably, or unreasonably, or when its decision is not based on a rational
mental process. Id.
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[¶8] Lee Cody broadly contends that Beverly Cody was allowed to present an
unchallenged version of the facts and that he was prevented from presenting his
arguments at trial. He has failed, however, to provide a transcript of the trial on
appeal so our review is limited. See IRET Props. v. Lee, 2018 ND 116, ¶ 7, 910
N.W.2d 868 (“The appellant assumes the consequences and risk of failing to file, and
failure to provide a transcript may prevent a party from succeeding on appeal.”).
Beverly Cody responds, however, that the record and pleadings do not establish good
cause that telephonic testimony was necessary. She asserts the record only shows he
was incarcerated at the time of trial and the court did not abuse its discretion in
denying his request to appear telephonically.
[¶9] In its December 8, 2017 order denying Lee Cody’s expedited motion before
trial, the district court denied his request for telephonic appearance at trial for three
stated reasons: it would be impossible to judge his credibility, the telephone systems
in the courtroom often fail, and it is difficult to make a good record of telephonic
testimony. In reviewing the district court’s reasons, we are concerned that this
rationale would never allow for telephonic trial testimony. Nevertheless, in this case
we conclude the record supports the court’s ultimate decision to deny Lee Cody’s
motion to appear at trial telephonically to participate and testify.
[¶10] Lee Cody’s expedited motion was less than two weeks before the long-
scheduled December 20, 2017 trial. The record shows that Lee Cody received notice
of the trial and was also represented at trial by his attorney. Moreover, despite his
assertions to the contrary, his arguments on appeal simply do not establish what
particular arguments or evidentiary submissions he was prevented from making at
trial, nor does he specifically show what prejudice he has sustained. Under these
narrow facts and circumstances, we therefore conclude the district court’s decision to
deny Lee Cody’s telephonic appearance was not reversible error.
[¶11] While a district court may not have a duty to ensure a party’s presence at trial,
telephonically or otherwise, we caution the court must still undertake the requisite
good-cause analysis under N.D.R.Civ.P. 43 in deciding whether to grant a request to
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allow telephonic testimony. Specifically, a district court may not simply adopt
reasons or policies that amount to an abdication of its judicial responsibility to
exercise discretion under the rule, which itself could constitute an abuse of discretion
under certain circumstances. Cf. State v. Murphy, 2014 ND 202, ¶ 21, 855 N.W.2d
647 (“[C]ourts have . . . held that a trial court’s use of a mechanical sentencing
formula or policy as to any portion of a sentence amounts to a refusal to exercise its
discretion and therefore an abdication of judicial responsibility”). That, however, is
not the case here.
III
[¶12] Lee Cody argues the district court erred when it granted Beverly Cody’s
request for clarification of its opinion.
[¶13] “Interlocutory orders generally are not appealable and may be revised or
reconsidered any time before the final order or judgment is entered.” Martinson v.
Martinson, 2010 ND 110, ¶ 19, 783 N.W.2d 633 (quoting Eberle v. Eberle, 2009 ND
107, ¶ 13, 766 N.W.2d 477). On January 19, 2018, Beverly Cody requested
clarification of the district court’s January 11 memorandum opinion. The court
granted her request on February 1, 2018, and entered its order for judgment on
February 7, 2018. The court entered its final judgment on February 8, 2018.
[¶14] Lee Cody argues that the district court’s changes to its opinion imposed
harsher and completely different terms than those initially provided by the court’s
dissolution order. Beverly Cody argues that Lee Cody did not respond to her
clarification request and did not object to the proposed findings and judgment. She
contends he waived this argument on appeal.
[¶15] We conclude the district court was permitted to clarify its opinion before entry
of the final divorce judgment because the court’s memorandum opinion was
interlocutory. To the extent Lee Cody also challenges the merits of the court’s
clarification, we have explained the purpose of an appeal:
The purpose of an appeal is to review the actions of the trial
court, not to grant the appellant an opportunity to develop and expound
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upon new strategies or theories. The requirement that a party first
present an issue to the trial court, as a precondition to raising it on
appeal, gives that court a meaningful opportunity to make a correct
decision, contributes valuable input to the process, and develops the
record for effective review of the decision. It is fundamentally unfair to
fault the trial court for failing to rule correctly on an issue it was never
given the opportunity to consider. Accordingly, issues or contentions
not raised . . . in the district court cannot be raised for the first time on
appeal.
Hoff v. Gututala-Hoff, 2018 ND 115, ¶ 10, 910 N.W.2d 896 (quoting Spratt v. MDU
Res. Grp., Inc., 2011 ND 94, ¶ 14, 797 N.W.2d 328).
[¶16] Although Lee Cody challenges the district court’s granting Beverly Cody’s
request to clarify its January 11, 2018 opinion, he did not respond or otherwise object
to her request. Moreover, Lee Cody has not provided this Court with a transcript of
the district court proceedings, limiting our review of the merits. On the basis of our
review of the record, we conclude the district court did not err in granting the request
to clarify its memorandum opinion before entry of the final judgment.
IV
[¶17] Lee Cody argues his trial counsel was ineffective in representing him in the
divorce proceedings.
[¶18] We have previously addressed this issue in Riddle v. Riddle, 2018 ND 62, ¶¶
14-16, 907 N.W.2d 769. In Riddle, at ¶ 16, we specifically refused to extend
ineffective assistance of counsel claims to divorce actions, where “there is no
statutory or constitutional right to counsel.” We explained:
Generally, there is no right to counsel in civil matters. However,
the legislature has authorized the appointment of counsel in some
limited civil matters. For example, under N.D.C.C. § 27-20-26, an
indigent parent is entitled to court-appointed counsel. In State v. T.L.,
2008 ND 131, ¶¶ 28-29, 751 N.W.2d 677, this Court acknowledged the
need to recognize claims of ineffective assistance of counsel in
termination of parental rights proceedings because it would be absurd
and meaningless to have a statutory right to appointed counsel but not
to require that the counsel appointed be competent and effective.
However, we will not extend this type of remedy to actions where there
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is no statutory or constitutional right to counsel. In other civil matters,
where counsel is alleged to be deficient or negligent in their
representation, there are other avenues for relief that may be
appropriate.
Riddle, at ¶ 16. We conclude his argument is without merit.
V
[¶19] We have considered Lee Cody’s remaining arguments and consider them to be
without merit or unnecessary to our decision. The judgment is affirmed.
[¶20] Gerald W. VandeWalle, C.J.
Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
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