C.B.D. v. W.E.B.
| Decision Date | 28 October 1980 |
| Docket Number | No. 9788,9788 |
| Citation | 298 N.W.2d 493 |
| Parties | C.B.D., M.D.D., a minor child by his guardian ad litem Thomas Jensen, Director of Cass County Social Services Center, Plaintiffs and Appellees, v. W.E.B., Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Tenneson, Serkland, Lundberg, Erickson & Marcil, Fargo, for plaintiffs and appellees; argued by Ronald H. McLean, Fargo.
Chapman & Chapman, Bismarck, for defendant and appellant; argued by Daniel J. Chapman, Bismarck.
The defendant, W.E.B. (hereinafter Walter), appeals from the judgment entered in Cass County District Court which found that he was the father of C.B.D.'s (hereinafter Cheryl) son, M.D.D. (hereinafter Matthew). The judgment required Walter to pay child support but denied him visitation rights. We affirm the judgment. Because this case was brought under Chapter 14-17, N.D.C.C. (Uniform Parentage Act), all names used herein are pseudonyms.
Cheryl began working for Walter in California in 1973 after she was graduated from the University of California Los Angeles (U.C.L.A.). A serious romantic relationship grew between the parties, even though Walter was married to someone else. The parties agreed to have a child together. This child, Matthew, was born March 3, 1976. Walter paid for Cheryl's medical expenses resulting from the conception of Matthew. When Matthew was born, Walter requested to be named the father on the birth certificate. Walter also paid support in the amount of $75.00 per week.
Walter's company had difficulties and quit doing business in 1976. At this time, Walter and Cheryl were starting law school together at the University of Southern California. Walter quit after a week and moved his wife and family to Fargo, North Dakota, while he began law school at the University of North Dakota in Grand Forks. He asked Cheryl to move to Grand Forks to live with him. Walter purchased a condominium in Grand Forks shortly after Matthew and Cheryl arrived. During this time, Walter resided weekdays in Grand Forks with Cheryl while going to school, and weekends in Fargo with his wife and family. Walter flunked out of law school and moved back to Fargo in January of 1977 where he began working as a realtor. In February, he arranged for an apartment across the hall from his mother's apartment for Cheryl and Matthew. During this time, Walter paid Cheryl about $600 per month for support.
In July, Walter told Cheryl he had left his wife. That night, their second child was conceived. That child is not a party to this action. Walter returned to his wife several days later. This action to determine paternity of Matthew and for child support was begun in July 1977. Walter continued support payments until November 1977.
During the negotiations in connection with this action, Walter had several attorneys who represented him. Pursuant to Section 14-17-09, N.D.C.C., a hearing was held before a referee in September 1978. After further negotiations, the trial was set for January 21, 1980. Notice was sent to Walter at his last known address which was in Texas. At this time, he had no attorney of record. Walter wrote to the trial judge and intimated that he could not afford an attorney. In response, the judge asked Walter to send him a detailed listing of his assets and liabilities including his wife's assets and liabilities. In response, Walter sent the trial judge a letter in which he indicated that he could not afford to travel to Fargo or to hire an another attorney. He did not reveal his or his wife's assets and liabilities, nor object to being asked for a listing of either his or his wife's assets and liabilities. He did request that he be named the father of Matthew, that nominal child support be awarded Cheryl, and that he receive visitation rights.
Walter was not represented at trial. Cheryl was the only witness at trial. The court, sitting without a jury, found that Walter was the father of Matthew, that he should have no visitation rights, that he owed past support in the amount of $300 a month from December 1977 to January 1980, and that he should pay $200 a month child support thereafter until Matthew reached majority. The court also allowed Cheryl immediate possession of a $10,000 bond furnished by Walter in 1979. Walter raises five issues on appeal: (1) Was Walter entitled to an attorney under Section 14-17-18 of the North Dakota Century Code? (2) Was improper evidence admitted in the absence of any objection? (3) Was the court's award of support clearly erroneous? (4) Was it error to deny Walter visitation rights? (5) Was the court's order awarding immediate payment of the $10,000 bond in violation of Rule 62(a) of the North Dakota Rules of Civil Procedure?
The crux of this appeal is the absence of Walter at the trial and that he had no counsel to represent him at the trial to safeguard his rights. Section 14-17-18, N.D.C.C., provides:
There is nothing in the record to indicate that any request was made by Walter for court-appointed counsel. Walter's brief states that the request was in a letter addressed to the trial court which was admitted into evidence at the hearing as the court's exhibit No. 1. Court's exhibit No. 1, however, is a request by Walter addressed to the trial court dated January 16, 1980, that he, Walter, be named the father of Matthew, that he be required to pay nominal support, and that he receive visitation rights.
A letter to Walter from the trial court dated January 2, 1980, indicates that a letter was received by the court. In that letter the court said: "If your letter is to be considered as a request for the appointment of a lawyer, then this court needs a detailed listing of all your assets and debts in which (you) shall also include your wife's assets and debts." Walter did not send to the court any information regarding his financial position. His response dated January 16, 1980, was court's exhibit No. 1, which Walter's brief erroneously states was Walter's first letter to the court. In this letter, Walter states it is impossible for him to travel to Fargo or hire another attorney and requests certain action at the hearing. He requested: (1) that the court name him as the father of Matthew; (2) that he be allowed to visit Matthew; (3) that Cheryl be prohibited from interfering with his business; and (4) that nominal support be awarded (Cheryl for Matthew) as soon as he was able to support his family. The trial which Walter did not attend and at which he was not represented was held January 21, 1980.
Walter now asserts that counsel should have been appointed for him and that it was improper for the court to ask him to list his wife's assets and debts. On appeal, counsel for Walter asserts that all a party under the Uniform Parentage Act need do is assert that he is financially unable to obtain counsel and then the burden shifts to the court to either prove that the party has assets or appoint counsel for the party. Such an assertion is without merit. Determination of financial inability is a question of fact. State v. Jensen, 241 N.W.2d 557, 561 (N.D.1976). (While Jensen refers to standards for appointment of counsel in a criminal case, not a civil case, it is a helpful reference for determination of appointment of counsel under the Uniform Parentage Act, as no more should be required under the latter than in a criminal case where one's personal freedom is at stake.)
Walter was asked to divulge his present financial status, but he failed to do so. This case had been before the court for two and a half years. In prior hearings, there was testimony received that Walter had income of $100,000 in 1971 and 1972, and $60,000 in 1973; that Walter had lived in a house which was sold for $260,000 in California; that he purchased an $85,000 house in Fargo for cash; and that during the same time period he purchased a condominium in Grand Forks. The court was also informed that Walter owned valuable possessions including a diamond ring, a Mercedes-Benz 450SEL, and a Steinway Grand Piano worth $25,000 to $30,000. Additionally, prior to Walter's request for appointment of counsel, the court learned that Walter had earned a real estate commission of $29,000 in 1979. The court was not required to ignore these facts regarding Walter's financial situation when determining whether or not to appoint counsel. Therefore, as those facts related to the past, it was not improper for the court to request a listing of Walter's assets and liabilities. Having failed to comply with the court's request, Walter cannot now complain about the lack of counsel.
Walter also contends that it was error for the court to require a listing of his wife's assets and liabilities in addition to his own. He relies on State v. Jensen, 241 N.W.2d 557 (N.D.1976), which contains an appendix regarding appointment of counsel in criminal cases. Paragraph four of this appendix states that in a criminal case, the initial determination for appointment of counsel shall be made without regard to family resources. In this case, however, Walter had been found to have transferred his interest in the family home in Fargo to his wife in violation of a temporary restraining order. Walter contended that it was his wife's money which had been used in purchasing the house, that his name was only listed as joint tenant, and that the transfer had no effect on his real assets. The court, however, determined otherwise and ordered him to either regain his interest in the home or post a $10,000 certificate of deposit with the clerk of court. Walter posted the $10,000 certificate of deposit. Under these circumstances, the court's request for financial information concerning Walter's wife was...
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