Allery v. Whitebull

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 21, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 140Braden Allery, Plaintiff and Appellant
v.
Regan Whitebull, Defendant and Appellee
No. 20210316
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable David E. Reich, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice, joined by Chief Justice Jensen and
Justices Crothers and Tufte. Justice VandeWalle filed a dissenting opinion.
Kyle R. Craig, Minot, ND, for plaintiff and appellant; submitted on brief.
Breanna K. Delorme, Grand Forks, ND, for defendant and appellee; submitted
on brief.
Allery v. Whitebull
No. 20210316
McEvers, Justice.
[¶1] Braden Allery appeals from an order denying his motion for relief from
a default judgment modifying primary residential responsibility for the
children he has with Regan Whitebull. Allery argues the district court erred by
denying his N.D.R.Civ.P. 60(b) motion for relief from the judgment. We
conclude the court did not abuse its discretion and affirm.
I
[¶2] Allery and Whitebull have two minor children together. In 2019, the
district court entered a judgment awarding Allery and Whitebull equal
residential responsibility of the children. In March of 2021, Whitebull moved
to amend the judgment. She asserted a material change in circumstances had
occurred because the parties no longer live in the same area and the children
are now both school-aged. She claimed the parties could not agree where the
children should be enrolled in school. Her motion noted she “is hopeful that
this issue can be resolved prior to the end of this school year, so that the parties
have ample notice of the parenting plan before summer break.” She requested
the district court award her primary residential responsibility for the children
and allow Allery parenting time during the summer. Her motion papers were
personally served on Allery. The sheriff ’s return of service shows he was served
in Parshall.
[¶3] Allery did not respond to the motion. The district court entered an order
finding Whitebull established a prima facie case justifying modification of
primary residential responsibility and ordered an evidentiary hearing. The
court served the order and notice of hearing on Allery at a Bismarck address.
Allery did not appear at the evidentiary hearing, and Whitebull moved for
entry of default judgment. On the day of the hearing, after it had concluded,
Allery learned through social media the hearing had been held. Allery sent a
letter to the district court the same day, stating that he never received notice
of the hearing. He also stated he called the courthouse and was informed notice
1
of the hearing was sent to a Bismarck address. He claimed he has not lived at
the Bismarck address in three years, and he has lived in Parshall for the past
two years. He requested the court reschedule the evidentiary hearing and send
notice to his current address.
[¶4] The district court did not reschedule the hearing. The court granted
Whitebull’s motion for default judgment and awarded her primary residential
responsibility of the children. The court entered an amended judgment
providing Allery parenting time every other weekend during the school year,
six weeks during the summer, and on alternating holidays. Allery moved for
relief from the judgment under N.D.R.Civ.P. 60(b) requesting the district court
vacate the order due to excusable neglect or based on the strong public policy
of adjudicating matters on the merits. Allery claimed he was not properly
notified of the evidentiary hearing, Whitebull had actual knowledge that he
resided at an address different from where the notice was sent, Whitebull
properly served the motion at his current address, and he immediately moved
for relief. The district court denied Allery’s motion after briefing and a hearing.
The court concluded Allery’s failure to respond to the motion to amend the
judgment did not constitute excusable neglect that would entitle him to relief
from the judgment under N.D.R.Civ.P. 60(b)(1). The court also concluded there
were no extraordinary circumstances present entitling Allery to relief from the
judgment under N.D.R.Civ.P. 60(b)(6).
II
[¶5] On appeal, Allery argues the district court abused its discretion because
evidence established he did not receive notice of the evidentiary hearing. He
claims notice of the hearing was sent to an address he has not lived at in
several years, he did not waive his right to notice of the hearing or the
opportunity to present argument by failing to respond to Whitebull’s motion to
modify, and Whitebull conceded she knew Allery did not reside at the Bismarck
address.
[¶6] The district court may relieve a party from a final judgment under
N.D.R.Civ.P. 60(b) for: “(1) mistake, inadvertence, surprise, or excusable
neglect; . . . (3) fraud (whether previously called intrinsic or extrinsic),
2
misrepresentation, or misconduct by an opposing party; [or] . . . (6) any other
reason that justifies relief.” This Court previously described the limitations of
N.D.R.Civ.P. 60(b)(6):
The use of the rule is limited by many considerations. It is not to
be used as a substitute for appeal. It is not to be used to relieve a
party from free, calculated, and deliberate choices he has made. It
is not to be used in cases where subdivisions (1) to (5) of Rule 60(b)
might be employed—it and they are mutually exclusive. Yet
60(b)(6) can be used where the grounds for vacating a judgment or
order are within any of subdivisions (1) to (5), but something more
or extraordinary which justifies relief from the operation of the
judgment must be present.
Hildebrand v. Stoltz, 2016 ND 225, ¶ 16, 888 N.W.2d 197 (quoting City of
Wahpeton v. Drake-Henne, Inc., 228 N.W.2d 324, 330 (N.D. 1975)).
[¶7] “A movant for relief under Rule 60(b) has a burden of establishing
sufficient grounds for disturbing the finality of the judgment.” DCI Credit
Servs., Inc. v. Plemper, 2021 ND 215, ¶ 7, 966 N.W.2d 904 (quoting US Bank
Nat’l Ass’n v. Arnold, 2001 ND 130, ¶ 23, 631 N.W.2d 150). On appeal, “we do
not determine whether the court was substantively correct in entering the
judgment from which relief is sought, but determine only whether the court
abused its discretion in ruling that sufficient grounds for disturbing the finality
of the judgment were not established.” Carroll v. Carroll, 2017 ND 73, ¶ 8, 892
N.W.2d 173 (quoting Vann v. Vann, 2009 ND 118, ¶ 10, 767 N.W.2d 855). A
court abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or when it misinterprets or misapplies the law. DCI
Credit, at ¶ 7.
[¶8] We have recognized greater liberty should be used in granting a motion
for relief under N.D.R.Civ.P. 60(b) when the matter involves a default judgment
rather than a judgment after a trial on the merits. See Hall v. Estate of Hall,
2020 ND 205, ¶ 11, 950 N.W.2d 168. Relevant considerations guide the district
court when deciding whether to grant relief from a default judgment:
3
This [C]ourt has long encouraged trial courts to be more lenient
when entertaining Rule 60(b) motions to vacate default judgments
as distinguished from “litigated” judgments, that is, judgments
entered after trial on the merits. While a trial court certainly has
discretion to grant or deny a Rule 60(b) motion to vacate a default
judgment, the range of that discretion is limited by three
important considerations. First, Rule 60(b) is remedial in nature
and should be liberally construed and applied. Second, decisions
on the merits are preferable to those by default. Third, as a
consequence of the first two considerations, where timely relief is
sought from a default judgment and the movant has a meritorious
defense, doubt, if any, should be resolved in favor of the motion to
set aside the judgment so that cases may be decided on their
merits.
Hall, at ¶ 11 (quoting Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 14,
637 N.W.2d 681).
[¶9] The district court held Allery’s failure to respond did not constitute
excusable neglect that would entitle him to relief from the judgment under
N.D.R.Civ.P. 60(b)(1). The court determined Allery “created his own problem
with service to his former address by not responding to the motion to amend
until after the hearing was completed,” and Allery’s decision not to respond
was “a free, calculated, and deliberate choice.” The court also concluded there
were no extraordinary circumstances present that would entitle Allery to relief
from the judgment under N.D.R.Civ.P. 60(b)(6). The court found Whitebull
presented evidence to support modification of primary residential
responsibility. The court noted the children were attaining school age and the
parties live in different locations. The court found the current plan was
unworkable and not in the best interests of the children.
A
[¶10] On appeal, Allery raises a claim for relief under N.D.R.Civ.P. 60(b)(3).
However, he did not include allegations of fraud, misrepresentation or
misconduct in his motion for relief, the arguments raised in his brief, or his
argument in the district court. When a party fails to properly raise an issue or
argument before the district court, it may not do so for the first time on appeal.
4
Schiele v. Schiele, 2015 ND 169, ¶ 16, 865 N.W.2d 433. Because it was not
preserved, we decline to address Allery’s argument under N.D.R.Civ.P. 60(b)(3).
B
[¶11] Allery argues the district court erred when it did not grant him relief
under N.D.R.Civ.P. 60(b)(1) and (6). We are not persuaded the district court
abused its discretion. Whitebull served her motion to modify residential
responsibility on Allery and he chose not to respond to the motion or to update
the district court with his mailing address. “[A] Rule 60(b) motion should not
be used to relieve a party from free, calculated and deliberate choices, and a
party is obligated to take legal steps to protect his or her own interests.” State
v. White, 2018 ND 58, ¶ 14, 907 N.W.2d 765. A disregard of legal process is not
excusable neglect under Rule 60(b)(1). State v. $33,000.00 U.S. Currency, 2008
ND 96, ¶ 14, 748 N.W.2d 420. Had Allery appeared after he was served with
the motion or responded in some fashion, the court would have known his
updated address and could have successfully notified him of the hearing. As
the dissenting opinion notes, it is true Whitebull’s motion stated the parties
“no longer reside in the same area.” However, it would be impractical for court
staff to review all of the filings in each case to decipher whether a party’s
address has changed during the course of litigation. Moreover, even if court
staff had reviewed the filings in this case, there was nothing in the record to
indicate the Parshall address was Allery’s new residence. Allery may have
thought it was unnecessary to respond to Whitebull’s motion, but he still had
an obligation to provide the court with his new address. White, at ¶ 14 (it is
the litigant’s responsibility to protect his or her legal interests).
[¶12] Allery also has not provided anything extraordinary to justify relief
under N.D.R.Civ.P. 60(b)(6). His motion did not contain a proposed response
explaining why the district court’s decision was not in the best interests of the
children. “If prompt application is made to set aside a default judgment and
this application contains an answer disclosing a meritorious defense, the court
should sustain the motion and permit the case to be heard upon its merits.”
Kinsella v. Kinsella, 181 N.W.2d 764, 769 (N.D. 1970) (emphasis added); see
also Discover Bank v. Bolinske, 2020 ND 228, ¶ 17, 950 N.W.2d 417 (“Bolinske
5
is not entitled to have the default judgment vacated without filing his answer
or otherwise showing a meritorious defense”); Monster Heavy Haulers, LLC v.
Goliath Energy Servs., LLC, 2016 ND 176, ¶ 27, 883 N.W.2d 917 (holding denial
of motion for relief from default judgment was not an abuse of discretion when
the motion did not contain a proposed answer or suggest a meritorious
defense); Fed. Sav. & Loan Ins. Corp. v. Albrecht, 379 N.W.2d 266, 270 (N.D.
1985) (VandeWalle, J., dissenting) (“[a]n allegation of a meritorious defense
should be a condition precedent to vacating the judgment”). The showing of a
meritorious defense requires an assertion of “specific legal grounds”
substantiated by “credible facts.” $33,000.00 U.S. Currency, 2008 ND 96, ¶¶
18-19. In this case, Allery did not include any argument or identify any facts
to demonstrate the court’s decision was not in the children’s best interests.
[¶13] In primary residential responsibility cases, even in the context of a
default, the district court must carefully consider the best interest of the child
and the moving party must satisfy his or her burden of proof. See N.D.R.Civ.P.
55(a)(2) (before directing entry of default judgment, the court must require the
necessary proof to enable it to determine and grant any relief); see also Warnke
v. Warnke, 2011 ND 212, ¶11, 806 N.W.2d 606 (holding denial of motion to
vacate default judgment determining primary residential responsibility was
not an abuse of discretion when there was “sufficient proof to grant the relief
requested”). In this case, the district court held Whitebull to her burden of
proof as required by N.D.R.Civ.P. 55(a)(2). The court conducted an evidentiary
hearing prior to granting default judgment and found Whitebull presented
testimony and evidence to support her motion. Allery has not provided a
transcript of the evidentiary hearing to dispute these findings. See State v.
McGinnis, 2022 ND 46, ¶ 7, 971 N.W.2d 380 (an appellant that fails to file a
transcript on appeal assumes the risks and consequences of such failure).
Although we may have exercised our discretion differently, we are not
convinced the district court abused its discretion under these circumstances.
III
[¶14] We affirm the district court’s order denying Allery’s motion for relief from
the judgment.
6
[¶15] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
VandeWalle, Justice, dissenting.
[¶16] I respectfully dissent.
[¶17] We have recognized greater liberty should be used in granting a motion
for relief under N.D.R.Civ.P. 60(b) when the matter involves a default judgment
rather than a judgment after a trial on the merits. See Hall v. Estate of Hall,
2020 ND 205, ¶ 11, 950 N.W.2d 168. We have also explained there are relevant
considerations that should guide the district court in deciding whether to grant
relief from a default judgment:
This court has long encouraged trial courts to be more lenient
when entertaining Rule 60(b) motions to vacate default judgments
as distinguished from “litigated” judgments, that is, judgments
entered after trial on the merits. While a trial court certainly has
discretion to grant or deny a Rule 60(b) motion to vacate a default
judgment, the range of that discretion is limited by three
important considerations. First, Rule 60(b) is remedial in nature
and should be liberally construed and applied. Second, decisions
on the merits are preferable to those by default. Third, as a
consequence of the first two considerations, where timely relief is
sought from a default judgment and the movant has a meritorious
defense, doubt, if any, should be resolved in favor of the motion to
set aside the judgment so that cases may be decided on their
merits.
Hall, at ¶ 11 (quoting Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 14,
637 N.W.2d 681).
7
[¶18] The district court denied Allery’s motion for relief, finding there were no
grounds for relief under N.D.R.Civ.P. 60(b)(1) or (6). The court explained:
First, Allery created his own problem with service to his
former address by not responding to the motion to amend until
after the hearing was completed. He was served with a copy of the
motion on March 16, 2021 and the hearing was held May 10, 2021.
Had Allery filed a timely response, the court would have had his
current mailing address for service of the notice of hearing.
Second, Allery’s argument that the clerk of court should have
known he had a new address from the Sheriff ’s return is without
merit. The Sheriff ’s return merely states the location where Allery
was served. The clerk has no way of knowing whether the address
on the return of service is Allery’s residential address for service.
The clerk does not have a duty to investigate whether Allery’s
address has changed. It is Allery’s obligation to inform the court of
any change of address.
The majority similarly states Allery was served with Whitebull’s motion to
modify residential responsibility and chose not to respond to the motion or
update the district court with his mailing address. The majority cites State v.
White, 2018 ND 58, ¶ 14, for the proposition that a Rule 60(b) motion should
not be used to relieve a party from free, calculated, and deliberate choices.
[¶19] In White, 2018 ND 58, ¶¶ 7, 15, this Court held the district court did not
abuse its discretion by denying a Rule 60(b) motion for relief from a judgment
establishing primary residential responsibility when the father claimed he did
not receive notice of the motion to establish parental rights and
responsibilities. The father argued he was entitled to relief because the motion
was mailed to a former address, the mother knew where he was residing, and
the mother purposely mailed the motion to the incorrect address. Id. at ¶ 11.
We said the district court found the father failed to provide his current address
to the mother upon her request, the father told the mother he would be staying
at a friend’s house, and the mother mailed the motion to the friend’s address.
Id. at ¶ 14. We also said the father testified he would have provided his address
if he had known the mother was moving for primary residential responsibility.
Id. We explained “a Rule 60(b) motion should not be used to relieve a party
8
from free, calculated and deliberate choices, and a party is obligated to take
legal steps to protect his or her own interests.” Id. This case is different from
White.
[¶20] This case is more similar to State v. One 2002 Dodge Intrepid Automobile,
2013 ND 234, ¶ 13, 841 N.W.2d 239, in which we held the vehicle owner’s due
process rights were violated when the notice to appear for a forfeiture hearing
was mailed to his residential address rather than his in-custody address. We
concluded the vehicle owner had a due process right to have the notice to
appear for the forfeiture hearing mailed to his last known address. Id. at ¶ 9.
The owner was in custody at all times relevant to the forfeiture action, the
county sheriff personally served the vehicle owner with the summons and
complaint at the detention center, and the State’s Attorney’s Office did not file
a sheriff ’s return until after the forfeiture hearing. Id. at ¶ 11. We explained
the criminal case proceeded in the district court, both the district court and the
State knew or should have been aware that the vehicle owner could no longer
be contacted at a residential address, but the notice of hearing was mailed to
a residential address instead of the in-custody address. Id. We held the vehicle
owner’s due process rights were violated, stating, “The decision to mail the
notice to appear to [the vehicle owner] at a residential address, where the
district court and the [State] knew, or should have known, that [owner] could
not be contacted, was not reasonably calculated to apprise [owner] of the
forfeiture hearing and did not afford him an opportunity to present his case.”
Id. at ¶ 12.
[¶21] Unlike the father in White, Allery did not refuse to give his address to
Whitebull. Whitebull had Allery personally served at his current address in
Parshall, and she was aware he no longer lived in Bismarck. Whitebull stated
in her brief in support of her motion that Allery lives two hours away from her
and she lives in Bismarck. The return of service showing Allery was served
with the motion to modify residential responsibility in Parshall was filed in the
district court on March 26, 2021, before the court ordered an evidentiary
hearing. The district court acknowledged in the order for an evidentiary
hearing that Whitebull stated the parties no longer live in the same area.
Although this information was included in the record, the district court served
9
Allery by mail at a Bismarck address. Similar to One 2002 Dodge Intrepid,
Whitebull and the district court knew, or should have known, Allery would not
receive the notice sent to the Bismarck address. The majority’s decision is
inconsistent with One 2002 Dodge Intrepid.
[¶22] During the hearing on Allery’s motion for relief from judgment, Allery’s
attorney argued the first step in the modification process is for the moving
party to prove a prima facie case for modification and the burden is on the
moving party so a response from the opposing party is not necessary, and the
next step is typically for the case to be referred to the mediation program.
Allery claimed he thought the parties would go through mediation to try to
resolve their issues. Allery was served with Whitebull’s affidavit in support of
her motion, and Whitebull stated in her affidavit that she would like to resolve
the issues through mediation without the assistance of the district court.
Whitebull stated a hearing should be set on the motion if the parties could not
reach an agreement. Under N.D.R.Ct. 8.1(c)(1)(B), a referral to mediation in a
proceeding to modify parental rights and responsibilities “will be made only
after a court order has determined that a prima facie case under N.D.C.C. §
14-09-06.6 has been established, and if the court believes mediation may be
useful to the parties and the children.” The case was never referred to
mediation and the court did not make any findings about whether mediation
would be useful, instead the court found there was a prima facie case shortly
after Allery’s time to respond to the motion expired and immediately scheduled
an evidentiary hearing.
[¶23] Further, although neither party raised it, the district court would have
had Allery’s correct address if procedural rules had been complied with. Under
N.D.R.Ct. 8.3.1(a)(1), “Unless waived by the court under Rule 8.2(c)(1)(C), in
any action for the determination of parental rights or a motion to modify
residential responsibility, the parties and their attorneys must meet in person
or by electronic means to prepare a joint informational statement within 30
days after service of the complaint or entry of an order for an evidentiary
hearing.” The informational statement must be in the form shown in Appendix
L, which includes the address of the party or the party’s attorney. Id. The rule
was intended to:
10
[E]nsure that when a hearing is granted in a modification of
parental rights case, that the court has an opportunity to order
mediation, that both sides have the opportunity to prepare for the
hearing, and that the court receives all the information it needs to
make a decision. . . . [M]odification of parental rights cases are
often just as complex as the initial case and that there often needs
to be just as much preparation by the court and the parties.
Minutes of the Joint Procedure Comm. 27 (Jan. 26, 2017).
[¶24] A joint informational statement was never filed in this case, there was
no request from either party to waive the requirements of the rule, and the
district court did not order the requirements waived. See N.D.R.Ct. 8.3.1(a)(1)
and (c). The court must issue a scheduling order within 30 days after the
informational statement is filed. N.D.R.Ct. 8.3.1(b). A scheduling order was not
issued in this case.
[¶25] Allery contacted the district court the day the evidentiary hearing was
held to inform the court that he did not receive notice of the hearing and to
request another hearing. Allery did not make free, calculated, and deliberate
choices to evade service of notices related to the motion and disregard the
hearing. Allery timely sought relief from the default judgment. The parties had
equal residential responsibility for the children prior to Whitebull’s motion to
modify residential responsibility, and it is preferable and in the children’s best
interests that the motion be decided on the merits after a full evidentiary
hearing. When N.D.R.Civ.P. 60(b) is liberally construed and applied, I believe
Allery is entitled to relief from the amended judgment.
[¶26] Significantly when a party moves for relief from a default judgment
modifying residential responsibility in a close case, the benefit should go to the
moving party because it is in the children’s best interests that a motion for
modification of residential responsibility be decided on the merits after a full
evidentiary hearing. Cf. Helmers v. Sortino, 545 N.W.2d 796, 798 (N.D. 1996)
(superseded by N.D.R.Civ.P. 4(d)(2)) (stating denial of immediate appellate
review would create a substantial injustice by effectively approving a change
of custody through a default judgment when the parent was not properly
11
served with process and without careful and complete investigation of the
child’s best interests). The court should be careful in exercising its discretion
when the lives of children are involved. Under the circumstances of this case I
believe Allery is entitled to an evidentiary hearing and I would reverse the
district court’s order denying Allery’s motion for relief.
[¶27] Gerald W. VandeWalle
12