Flattum-Riemers v. Flattum-Riemers

• Decision Date: 06 May 2003
• Docket Number: No. 20020318.,20020318.
• Parties: Jan M. FLATTUM-RIEMERS, Plaintiff and Appellee, v. Roland C. FLATTUM-RIEMERS, Defendant and Appellant.
• Court: North Dakota Supreme Court

660 N.W.2d 558

2003 ND 70

Jan M. FLATTUM-RIEMERS, Plaintiff and Appellee, v. Roland C. FLATTUM-RIEMERS, Defendant and Appellant.

No. 20020318.

Supreme Court of North Dakota.

May 6, 2003.

Rehearing Denied June 3, 2003.

LaRoy Baird III (on brief), Bismarck, ND, for plaintiff and appellee.

Roland C. Riemers (on brief), Grand Forks, ND, pro se.

NEUMANN, Justice.

[¶ 1] Roland Flattum-Riemers has appealed from an amended divorce judgment allowing his ex-wife, Jan Flattum-Riemers, to relocate out of state with three of the parties' children. We affirm, concluding the trial court did not abuse its discretion in changing the location of the hearing to Burleigh County, refusing to change venue to Grand Forks County, and allowing the hearing to proceed on less than 21 days notice.

I

[¶ 2] Roland and Jan were divorced by an August 26, 1998, judgment which incorporated the parties' stipulation awarding custody of their minor children to Jan.¹ In May 2001, Jan desired to leave her employment as a physician in Beulah, North Dakota, to accept a one-year position in Tashkent, Uzbekistan. The parties stipulated that their three sons would reside with Jan in Uzbekistan for the year, and their minor daughter would live with Roland in North Dakota.

[¶ 3] Jan was ultimately offered continued employment in Uzbekistan, and on July 30, 2002, she served upon Roland a motion to relocate the children to Uzbekistan. The hearing on the motion was scheduled for August 13, 2002, in the Burleigh County Courthouse in Bismarck. Roland filed a written motion objecting to the hearing being held in Burleigh County rather than the original county of venue, McLean County, and also moved for a change of venue to Grand Forks County, where he resided. Roland also filed a written motion seeking a change of custody of the parties' minor daughter to him. The parties ultimately stipulated to joint custody of the minor daughter, with Roland to have physical custody so she could continue living with him in North Dakota.

[¶ 4] At the hearing, the trial court rejected Roland's objection to holding the hearing in Burleigh County and denied his motion to change venue to Grand Forks County. The court also rejected Roland's argument, apparently made orally at the hearing, that he had not received adequate notice of the hearing. The trial court granted Jan's motion to relocate the parties' three minor sons to Uzbekistan. An amended judgment was entered, and Roland appealed.²

II

[¶ 5] Roland argues the trial court erred in holding the hearing in Burleigh County rather than McLean County, where the divorce action was venued.

[¶ 6] Rule 39.1(a), N.D.R.Civ.P., governs changes in location of a hearing, proceeding, or trial:

(a) Change in Location of a Hearing, Proceeding, or Trial.

(1) The court may change the location of a hearing, proceeding, or trial to a different county if:

(A) that county's seat is less than ten miles from the seat of the county of venue;

(B) there is reason to believe an impartial trial cannot be obtained in the county of venue; or

(C) considering such factors as the parties' and witnesses' convenience, judicial efficiency, and availability of appropriate facilities, the administration of justice is better served.

(2) If the location of a hearing, proceeding, or trial is changed, the parties shall continue to file with the clerk of court for the county of venue, and the judge originally assigned shall continue to preside over the action. If any party files an objection to the change of trial no later than ten days after the date of notification of the place of trial, the trial must be held where originally venued unless grounds exist for a change of venue as provided in subdivision (b). In the case of a jury trial, the jury panel must be composed of residents of the original county of venue or residents of the judicial district as provided by N.D.C.C. § 27-09.1-05.1.

[¶ 7] Rule 39.1 gives the trial court discretion to hold a hearing in a county other than the county of venue, and its decision will not be disturbed on appeal unless the court has abused its discretion. Cf. State v. Entzi, 2000 ND 148, ¶ 29, 615 N.W.2d 145

(applying abuse of discretion standard in review of trial court's denial of criminal defendant's request that his sentencing hearing be held in the county of venue rather than another county). An abuse of discretion by the trial court is never assumed, and the burden is on the party seeking relief to affirmatively establish it. Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 13, 637 N.W.2d 681. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Wilson v. Koppy, 2002 ND 179, ¶ 10, 653 N.W.2d 68. The party seeking relief must show more than that the trial court made a "poor" decision, but that it positively abused the discretion it has under the rule. US Bank Nat'l Ass'n v. Arnold, 2001 ND 130, ¶ 23, 631 N.W.2d 150. We will not overturn the trial court's decision merely because it is not the same one we may have made. Gepner, at ¶ 13; US Bank, at ¶ 23.

[¶ 8] Our review of this issue on appeal is significantly hampered by Roland's failure to provide a transcript of the evidentiary hearing. When an appeal is taken in a case in which an evidentiary hearing was held, the appellant has a duty to provide a transcript of the proceedings. N.D.R.App.P. 10(b)(1); Wagner ex rel. Wagner v. Squibb, 2003 ND 18, ¶ 5, 656 N.W.2d 674. An appellant assumes the risks and consequences of failing to file a sufficient transcript, and we will decline to review an issue if the record on appeal does not allow a meaningful and intelligent review of the trial court's alleged error. Wagner, at ¶ 5. This principle applies equally to pro se litigants. Weiss, Wright, Paulson & Merrick v. Stedman, 507 N.W.2d 901, 903 (N.D.1993). When the trial court's written findings or order reference or incorporate oral findings or rulings which occurred at the hearing, a failure to provide a transcript will preclude meaningful and intelligent review of those issues. See Peplinski v. County of Richland, 2000 ND 156, ¶ 15 n. 4,

¶ 21, 615 N.W.2d 546. We have previously cautioned Roland about the risks inherent in failing to provide a transcript on appeal, and we declined to address his arguments because of his failure to provide a transcript. See Peters-Riemers v. Riemers, 2002 ND 49, ¶ 9, 641 N.W.2d 83.

[¶ 9] In this case, the trial court's memorandum opinion notes: "Mr. Riemers objected to the hearing taking place in Bismarck rather than Washburn and the Court denied the request on the record." Without a transcript, we do not know what arguments or evidence the parties presented on this issue, nor do we have the benefit of the trial court's rationale for denying Roland's request to hold the hearing in McLean County. Applying the standards under N.D.R.Civ.P. 39.1(a), the issue presented is whether the trial court abused its discretion in holding the hearing in Burleigh County under the facts in this case. Roland's failure to provide a transcript precludes a meaningful and intelligent review of that issue on appeal.

[¶ 10] Roland also argues that, as a matter of law, the trial court was required to hold the hearing in McLean County when Roland objected to the change in location to Burleigh County. Roland relies upon the portion of N.D.R.Civ.P. 39.1(a)(2) which states:

If any party files an objection to the change of trial no later than ten days after the date of notification of the place of trial, the trial must be held where originally venued unless grounds exist for a change of venue as provided in subdivision (b).

[¶ 11] Roland's argument ignores a crucial distinction in N.D.R.Civ.P. 39.1. While the Rule authorizes the trial court to change the location of a "hearing, proceeding, or trial," the above provision requiring a return to the county of venue upon objection by a party specifically applies only to a change in location of the trial. It does not apply when the location of a hearing or proceeding has been changed.

[¶ 12] The history of the development and adoption of N.D.R.Civ.P. 39.1 supports this conclusion. Rule 39.1 was adopted in response to the 1997 Legislature's enactment of statutes governing change in the location of pretrial proceedings and trials. See N.D.C.C. §§ 28-04-09, 28-04-10 (superseded by N.D.R.Civ.P. 39.1); Minutes of the Joint Procedure Comm. 16-17 (Sept. 24-25, 1998); Minutes of the Joint Procedure Comm. 16-17 (Sept. 23-24, 1999); Minutes of the Joint Procedure Comm. 13-15 (Jan. 27-28, 2000). The provision in N.D.R.Civ.P. 39.1(a)(2) requiring that a trial be returned to the county of venue upon objection by a party is virtually identical to language in N.D.C.C. § 28-04-10, one of the statutes the Joint Procedure Committee was considering and which was superseded by N.D.R.Civ.P. 39.1. The statute provided that in civil cases the court may change the location of the trial, and further provided:

If any party files an objection to the change of trial no later than ten days after the date of notice of assignment or reassignment of a judge for trial of the case, the trial must be held where originally venued. In the case of a jury trial, the jury panel must be composed of residents of the original county of venue or residents of the judicial district as provided by section 27-09.1-05.1.

N.D.C.C. § 28-04-10. Other than changing the ten-day trigger date from notice of assignment of judge to notice of the location of trial, and clarifying that the location of trial may be changed if grounds for a change of venue exist, the quoted language of N.D.C.C. § 28-04-10 and N.D.R.Civ.P. 39.1(a)(2) is identical. See Minutes of the Joint Procedure Comm. 17 (Sept. 24-25, 1998) (addressing N.D.C.C. § 28-04-10 and noting parties should be allowed to object ten days after notice...