Gierke v. Gierke

Decision Date13 May 1998
Docket NumberNo. 970207,970207
Citation1998 ND 100,578 N.W.2d 522
PartiesJudith Lynn GIERKE, Plaintiff, Appellant and Cross-Appellee. v. H.F. GIERKE III, Defendant, Appellee, and Cross-Appellant. Civil
CourtNorth Dakota Supreme Court

Jon P. Parrington (argued), of Pustorino, Pederson, Tilton & Parrington, Minneapolis, for plaintiff and appellant.

LaVern C. Neff (argued), of Neff, Cresap, Rathert, Eiken & Irigoin, Williston, for defendant and appellee.

NEUMANN, Justice.

¶1 Judith Lynn Gierke appealed and H.F. Gierke III cross-appealed from a divorce decree dividing their marital property and awarding her spousal support. We hold the appeal is timely, and we would affirm the judgment in its entirety.

¶2 When Judith and H.F. Gierke were married in 1965, he was attending law school and she was working as a sales clerk. During their marriage, they had four children who were all adults when the divorce decree was entered. Upon graduation from law school in 1966, H.F. Gierke entered the military service. He was discharged in 1971 and began practicing law in Watford City. He had received an interest in his parents' ranch, and he also helped operate the ranch. In 1983 he was appointed a justice of the North Dakota Supreme Court, and in 1991 he was appointed judge of the United States Court of Military Appeals. During the marriage, Judith Gierke primarily served as homemaker for the family, but in 1984 she began attending Mary College and received a nursing degree in 1987.

¶3 In 1991, Judith Gierke commenced this divorce action in Mountrail County. In 1993, the trial court entered partial summary judgment granting the parties a divorce, but reserving property distribution and spousal support issues. Those issues were tried in July 1994.

¶4 In March 1995, the trial court issued a memorandum decision valuing the parties' marital estate at $666,216, but finding the parties were heavily burdened with debt which the court eventually valued at $831,263. 1 The parties' marital estate included the ranch, valued at $452,000, and mineral interests, valued at $57,800, given to H.F. Gierke by his parents, as well as a $26,000 office building in Watford City. The court adopted the parties' agreement allowing H.F. Gierke to receive marital property valued at $615,216, and the parties' marital debt. The court awarded Judith Gierke personal property valued at $48,000. The court also awarded each party miscellaneous personal property in their possession, collectively valued at $3,000. The court found Judith Gierke's income in 1993 was $16,000 and H.F. Gierke's gross income in 1993 was $183,523. The court decided Judith Gierke was disadvantaged by the divorce and ordered H.F. Gierke to pay her spousal support of $2,500 per month for five years, $1,500 per month until she was 65, and $1,000 per month thereafter for "so long as [she is] alive." The court also ordered H.F. Gierke to pay Judith Gierke $15,000 in attorney fees.

¶5 In July 1995, H.F. Gierke moved for reconsideration. The trial court denied his motion in February 1996 and ordered him to pay Judith Gierke $1,000 in attorney fees for responding to the motion. The court also issued findings of fact, conclusions of law and an order for judgment in February 1996, and directed Judith Gierke's counsel to prepare an order denying the motion for reconsideration and a judgment. After further posturing by both parties and substitution of counsel for Judith Gierke, she submitted a proposed judgment with some variations from the court's order for judgment. On January 30, 1997, the court sent the parties' attorneys a letter stating it had "reworked and signed [Judith Gierke's] proposed Order and Judgment." The court said it was sending the parties' attorneys a copy of the "adjusted" judgment and was returning the file to the Clerk of Court in Mountrail County. The judgment was stamped "filed" on February 25, 1997. On June 23, 1997, Judith Gierke filed an appeal, and on July 1, 1997, H.F. Gierke filed a cross-appeal from the judgment.

I

¶6 We initially consider whether this appeal is timely under N.D.R.App.P. 4(a), which required a notice of appeal to be "filed with the clerk of the trial court within 60 days of the date of the service of notice of entry of the judgment or order appealed from." 2 The responsibility to serve notice of entry of judgment to commence the period for appeal is upon counsel for the prevailing party, and the time for appeal does not begin to run until notice is served. Lang v. Bank of North Dakota, 377 N.W.2d 575, 578 (N.D.1985). See N.D.R.Civ.P. 77(d) and explanatory note (counsel for prevailing party responsible for serving notice of entry of judgment). This record does not include a service of notice of entry of the judgment, and the time for this appeal technically has not commenced.

¶7 This Court, however, has held "actual knowledge of entry of a judgment or order commences the running of the time for appeal where the actual knowledge is clearly evidenced in the record." Lang, 377 N.W.2d at 578. See also Thorson v. Thorson, 541 N.W.2d 692, 694-95 (N.D.1996); Morley v. Morley, 440 N.W.2d 493, 495-96 (N.D.1989); Klaudt v. Klaudt, 156 N.W.2d 72, 76 (N.D.1968).

¶8 In Lang, the appellant filed a March 1985 appeal from a May 1984 order denying his motion to enjoin foreclosure by advertisement. The record did not establish the appellant was served with notice of entry of the May 1984 order. In June 1984, however, the appellant had filed an application for writ of mandamus in this Court to enjoin the sale of his land. The application was denied. Lang v. Glaser, 359 N.W.2d 884 (N.D.1985). We held the appellant's March 1985 appeal from the May 1984 order was not timely, because the time for appeal began to run when the appellant had actual knowledge of entry of the May 1984 order as evidenced by his June 1984 application for writ of mandamus. Lang, 377 N.W.2d at 578.

¶9 In Morley, an order modifying child custody was entered in May 1987, but the appellant was not served with notice of entry of the order. A subsequent hearing regarding custody was scheduled for September 1987, but was canceled by stipulation of the parties on September 4, 1987. In February 1988, the appellant's attorney caused entry of an amended judgment conforming to the May 1987 order, and gave notice of entry of the amended judgment. The appellant then appealed from the May 1987 order. This Court dismissed the appeal, concluding the appellant's stipulation to cancel the September 1987 hearing regarding custody constituted actual knowledge of the May 1987 custody order clearly evidenced in the record. Morley, 440 N.W.2d at 495-96.

¶10 In Thorson, this Court again confronted an attempted appeal where the appellant was not served with notice of entry of an order dismissing a divorce action. We said "the factual predicate for determining that an appealing party had actual knowledge of entry of the judgment or order has included some action taken by the appealing party, as clearly evidenced in the record." Thorson, 541 N.W.2d at 694. We concluded an affidavit of service by mail prepared on behalf of the trial court did not equate with actual knowledge under our precedents establishing an exception to the requirement of service of notice of entry of judgment by the prevailing party. Id. at 694-95. We decided actual knowledge of entry of an order requires some affirmative action by the appellant evident on the record, and we declined to dismiss the appeal because the record did not include any such action by the appellant which would have rendered the appeal untimely.

¶11 The requirement for service of notice of entry of a judgment or order provides a bright line for starting the time for appeal. Our decisions have permitted a limited exception to that requirement when the appellant has taken some affirmative action as clearly evidenced in the record. Thorson, 541 N.W.2d at 694-95. See Lang, 377 N.W.2d at 578 (appellant's application for writ of mandamus constituted actual knowledge of the order clearly evidenced in the record); Morley, 440 N.W.2d at 495-96 (appellant's stipulation to cancel custody hearing constituted actual knowledge in the record of prior custody modification). We adhere to our decisions requiring actual knowledge evidenced by some affirmative action by the appellant in the record, and we reject H.F. Gierke's attempt to reconstruct the record with correspondence between counsel to attempt to show Judith Gierke's actual knowledge of the judgment. Those documents are not part of the record, see N.D.R.App.P. 10(a) (composition of record on appeal), and do not show the requisite affirmative action by the appellant in the record. Cf. Thorson, 541 N.W.2d at 694 (affidavit of service by mail prepared on behalf of court did not equate with actual knowledge clearly evidenced in the record). Allowing the parties to proceed in this manner would immerse this Court into a factual inquiry about the appellant's actual knowledge and would needlessly inhibit the certainty required for calculating the time for appeal.

¶12 Here, the trial court sent a letter, dated January 30, 1997, to the parties' attorneys indicating it was "sending a photocopy of the 'adjusted' Order and Judgment ... [and was] returning the court file to the Clerk of Court in Mountrail County." The Clerk of the District Court for Mountrail County stamped the judgment "filed" on February 25, 1997. Nothing in this record, however, establishes Judith Gierke was served with notice of entry of the judgment, nor is there any affirmative action by her clearly evidenced in the record until her attorney filed an affidavit of identification and a partial satisfaction of judgment by H.F. Gierke in May 1997. We conclude those documents constitute affirmative action by Judith Gierke which is actual knowledge of the judgment clearly evidenced in the record for purposes of triggering the time for appeal. Judith Gierke's appeal was filed...

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