Allery v. Whitebull

• Decision Date: 21 July 2022
• Docket Number: 20210316
• Citation: Allery v. Whitebull, 977 N.W.2d 726 (N.D. 2022)
• Parties: Braden ALLERY, Plaintiff and Appellant v. Regan WHITEBULL, Defendant and Appellee
• Court: North Dakota Supreme Court

977 N.W.2d 726

Braden ALLERY, Plaintiff and Appellant

v.Regan WHITEBULL, Defendant and Appellee

No. 20210316

Supreme Court of North Dakota.

FILED JULY 21, 2022

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.

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 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), 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. Stolz , 2016 ND 225, ¶ 16, 888 N.W.2d 197(quotingCity 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(quotingUS 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(quotingVann 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.SeeHall 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:

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(quotingGepner 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.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....