Binder v. Binder

• Decision Date: 20 December 1996
• Docket Number: No. 960111,960111
• Parties: John BINDER, Plaintiff and Appellant, v. Mary Ann BINDER, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 738

557 N.W.2d 738

John BINDER, Plaintiff and Appellant, v. Mary Ann BINDER, Defendant and Appellee.

Civil No. 960111.

Supreme Court of North Dakota.

Dec. 20, 1996.

Daniel J. Chapman (argued), Chapman and Chapman, Bismarck, for plaintiff and appellant.

Rauleigh D. Robinson (argued), Bismarck, for defendant and appellee.

MARING, Justice.

John Binder appeals from the judgment entered by Judge Donald Jorgensen on March 14, 1996, granting a decree of divorce to the parties and resolving all issues therein. We affirm.

John Binder (John) and Mary Ann Binder (Mary Ann) began divorce proceedings in July of 1993 after 24 years of marriage. Trial in the matter was held in July 1994 before Judge Donavin Grenz. Judge Grenz issued a Memorandum Opinion on December 23, 1994, but no Findings of Fact, Conclusions of Law, and Order for Judgment was entered. On January 13, 1995, Mary Ann served and filed a motion to amend the findings in the Memorandum Opinion or in the alternative, for a new trial. Judge Grenz left office on December 31, 1994. Thereafter, the successor judge declined to rule on the motions or prepare and sign Findings of Fact, Conclusions of Law, and Order for Judgment based on Judge Grenz' Memorandum Opinion. The case was then assigned to Judge Donald Jorgensen. On July 19, 1995, following Judge Jorgensen's order dated July 12, 1995, the parties entered into a stipulation authorizing Judge Jorgensen to enter substitute Findings of Fact, Conclusions of Law, and Order for Judgment based on his review of the audio tape recordings of the 1994 trial testimony. The stipulation also provided that if the court "determine[d] after a review of the audio recording of the trial that additional information is required to do justice in this case, it may request the same."

After an attempted review of the audio tapes, the court concluded that they were "less than adequate" and ordered a written transcript prepared therefrom. Based on the written transcript and the evidence presented at the first trial, the court granted a new trial and issued Findings of Fact, Conclusions of Law, and Order for Judgment dated January 25, 1996. John moved to vacate the January 25, 1996, Order and Memorandum Decision and for a second new trial. John's motions were denied and judgment was entered on March 14, 1996.

From the inception of this action in July of 1993 to February, 1996, John was represented by attorney Richard Baer. When the parties entered into the stipulation dated July 19, 1995, John was still represented by Baer. Baer continued to represent John through the issuance of Judge Jorgensen's January 25, 1996, Order and Memorandum Decision, which granted a new trial and made Findings of Fact, Conclusions of Law, and Order for Judgment. On February 6, 1996, Baer was replaced by attorney Chapman, who brought John's motion to vacate the order and for a new trial.

John appeals from the March 14, 1996 judgment on the grounds a successor judge cannot render a decision in a case over which he did not preside; the parties cannot stipulate to have a successor judge hear the tapes and render a decision; and the stipulation did not include the court's use of the written transcript.

Counsel for Mary Ann stated at oral argument that Judge Jorgensen made his intentions to order and review a written transcript known to the parties at a conference, and neither objected. The transcript of this conference is not in the record. Mary Ann asked for leave to supplement the record, which we denied.

The issues on appeal can be summarized as follows: (1) Whether Judge Jorgensen violated Rule 63, N.D.R.Civ.P., denying John his due process rights when he ordered a written transcript of the audio tapes and proceeded to retry this case based thereon; (2) whether the stipulation validly permitted Judge Jorgensen to retry the case based on the audio tapes; and (3) whether the stipulation gave Judge Jorgensen the authority to base his findings on the written transcript of the trial.

When an appeal is taken from a trial court's refusal to vacate a judgment or grant a new trial, we review the trial court's order under an abuse of discretion standard. See e.g. Soli v. Soli, 534 N.W.2d 21 (N.D.1995). Although the appeal in this case is taken from the trial court's final judgment, John's arguments focus on whether the trial court exceeded its discretion and his request for relief is for a new trial. The arguments raised in this appeal were the arguments John made in his motion for a second new trial which was denied by order of the court on March 4, 1996. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Hill v. Hill, 392 N.W.2d 819 (N.D.1986). We find nothing in the record to remotely suggest Judge Jorgensen acted arbitrarily, unreasonably, or capriciously.

The parties in this case entered into a stipulation, dated July 19, 1995, in which they agreed that Judge Jorgensen could retry the case and enter his own substitute Findings of Fact, Conclusions of Law, and Order for Judgment and Judgment. ¹ It is well settled that stipulations are to be given a great deal of weight. "A stipulation which is not in defiance of the law and is not a fraud on the court is conclusive upon the parties, at least until they are properly relieved from the terms of the stipulation." Koch Oil Co. v. Hanson, 536 N.W.2d 702, 707 (N.D.1995) quoting Oakes Farming Ass'n v. Martinson Bros., 318 N.W.2d 897, 904 (N.D.1982). The parties in this case agreed by stipulation that Judge Jorgensen could base his Findings of Fact, Conclusions of Law, and Order for Judgment on the audio recording of the trial "if such was of suitable quality." John claims that the Judge's actions in having the audio tapes reduced to written form fell "outside the stipulation". "A stipulation is contractual in nature and its interpretation is a question of law for ...