Guardianship and Conservatorship of Norman, Matter of, 930310

• Decision Date: 02 September 1994
• Docket Number: No. 930310,930310
• Citation: 521 N.W.2d 395
• Parties: In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF John, James III, and Jamie NORMAN, Minor Children. James E. NORMAN, Petitioner and Appellant, and Dee Mund, Petitioner, v. Susan LEINGANG, Guardian, and John, James III, and Jamie Norman, by and through their guardian ad litem, Melvin L. Webster, Respondents and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 395

521 N.W.2d 395

In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF John, James III, and Jamie NORMAN, Minor Children James E. NORMAN, Petitioner and Appellant and Dee Mund, Petitioner, v. Susan LEINGANG, Guardian, and John, James III, and Jamie Norman, by and through their guardian ad litem Melvin L. Webster, Respondents and Appellees.

Civ. No. 930310.

Supreme Court of North Dakota.

Sept. 2, 1994.

James E. Norman, pro se.

Kapsner & Kapsner, Bismarck, for respondent and appellee Susan Leingang, guardian; argued by Leslie B. Oliver.

Melvin L. Webster, Guardian ad Litem (argued), Bismarck, for respondents and appellees John, James III, and Jamie Norman.

NEUMANN, Justice.

This is an appeal from a county court's denial of a motion to remove the guardian of three minor wards. We remand for consideration of a request for oral argument, but retain jurisdiction of the appeal.

James Norman, Jr., (Norman) murdered his estranged wife, Pamela Norman, in the presence of their three minor children, John, James III, and Jamie Norman. Norman was convicted of a Class AA felony, and sentenced to life in prison.

Following the murder of their mother, the three minor children were placed in the temporary legal custody of Burleigh County Social Services. Temporary physical custody was given to Susan Leingang, Pamela's sister. On January 24, 1992, James and Dee Mund, the children's paternal aunt and uncle, petitioned the County Court for Burleigh County for guardianship of the children. On January 27, 1992, Leingang also petitioned the court for guardianship of the children. After considering both guardianship petitions, the county court concluded that the best interests of the children would be served by granting Leingang's petition, and so ordered. Norman did not appeal this order.

On August 31, 1993, Norman made a motion to the county court, requesting removal of the children from Leingang's home due to abuse and neglect. After considering the briefs of Norman, Leingang, and the guardian ad litem, the county court denied Norman's motion. It is the denial of this motion to remove the minor children from the guardian's home from which Norman now appeals.

Norman, acting pro se, raises four issues: (1) whether the county court erred in denying Norman's motion to remove guardian Susan Leingang, (2) whether the county court erred in awarding Leingang guardianship over the three Norman children, (3) whether the county court judge should have removed herself from presiding over guardianship proceedings due to conflicts of interest, and (4) whether the county court erred in deciding the Rule 3.2 motion without oral argument. We address only the fourth issue at this time.

Norman argues that he should have been allowed to orally argue his Rule 3.2 motion to remove the guardian. Rule 3.2(a) of the North Dakota Rules of Court ¹ provides that timely requests for oral argument must be granted. Requests for oral argument are timely when made within five days of the expiration of the time for filing briefs. See Rule 3.2(a). The rule contemplates the filing of a movant's brief and an answer brief for each adverse party. ² The moving party's brief must be filed with the motion or within five days thereafter. The adverse party has ten days after service of the moving party's brief to serve and file ³ an answer brief. If the moving party's brief was served by mail, Rule 6(e), N.D.R.Civ.P., affords the adverse party an additional three days in which to serve and file the answer brief. See, Moe v. Moe, 460 N.W.2d 411 (N.D.Ct.App.1990). Rule 3.2 states that requests for oral argument are to be made (not served) within five days of the expiration of the time for filing briefs. The use of the plural suggests that the time for filing briefs refers to the deadline for filing the answer brief, and we so hold. The use of the word "made," rather than "served," suggests a requirement for a completed communication, such as a filing, and again, we so hold.

In this case Norman's motion and brief were served by mail on August 30, 1993. The responding parties then had ten days in which to serve and file their answer briefs, plus the additional three days granted by Rule 6(e), N.D.R.Civ.P., because Norman's brief had been served by mail. That makes September 12, 1993, the expiration of the time for filing briefs, and September 17 the deadline to make a request for oral argument. Norman mailed a reply brief on September 14. Rule 3.2 makes no provision for reply briefs, and the trial court arguably had no obligation to consider this one, because leave to file it had not been requested or granted. However, this reply brief also included a request for oral argument which the trial court was required to consider.

The reply brief and request for oral argument were filed on September 16, one day before the deadline for making a request for oral argument. When they were filed, the trial court had already issued the order from which Norman appeals; the order was signed, dated and filed on September 15. The trial court had acted prior to the deadline for requesting oral argument. There is no indication in the record that the trial court considered and acted upon the request after it arrived. We therefore remand for consideration of Norman's request, and for oral argument, if that request is granted, but we retain jurisdiction of the appeal under Rule 35(b), N.D.R.App.P.

While a prisoner's right to appear personally at a civil proceeding is limited, see, In Interest of F.H., 283 N.W.2d 202 (N.D.1979), we note that Rule 3.2 states that, "If any party who has timely served and filed a brief requests oral argument, the request must be granted." Rule 3.2(a), NDROC (emphasis added). Anton v. Anton, 442 N.W.2d 445 (N.D.1989). The rule also states that, "The court may hear oral argument on any motion by telephonic conference."

The appeal is remanded, and jurisdiction is retained.

VANDE WALLE, C.J., concurs.

MAURICE R. HUNKE, District Judge, sitting in place of SANDSTROM, J., disqualified.

MESCHKE, Justice, concurring.

I concur with Justice Neumann's analysis of NDROC 3.2, and with the remand for oral argument while retaining jurisdiction. If James Norman's procedural rights are material, I agree that is the correct analysis. I believe, however, that any procedural oversight below was harmless error, and I would prefer to affirm on the merits. I write separately to explain why.

In Norman's appeal from his conviction for murder, we gave the background of this case:

In the evening of January 13, 1992 James shot and killed his wife, Pamela Norman, in her home. James and Pamela's three children, Jamie, Jimmy, and John, witnessed the shooting. They told police officers that their mother had been shot by their father. Police found the murder weapon in James' automobile. James was arrested the next day, and he was charged with murder.

A jury found James guilty as charged, and he was sentenced by the district court to life imprisonment without possibility of parole for 30 years.

State v. Norman, 507 N.W.2d 522, 523 (N.D.1993). We affirmed Norman's conviction for murder of the mother of his children.

After trial on the permanent appointment of their maternal aunt as the children's custodial guardian, the trial court ruled that Norman's long-term imprisonment for murdering the children's mother resulted in "terminat[ion] or suspen[sion] by circumstances" of "all parental rights of custody" for Norman. NDCC 30.1-27-04. As the children's father, Norman had been notified of the custody proceeding as an "interested party," but he did not appeal the order appointing the children's aunt as their custodial guardian, nor contest the conclusion that all of his parental rights of custody had been suspended by circumstances. See NDCC 30.1-27-04 ("terminated or suspended by circumstances or prior court order ") (my emphasis). In moving to reconsider and change custody, Norman did not claim that the circumstances that suspended "all" of his custodial rights had changed in any way.

The adjudication that Norman's custodial rights are suspended, in my opinion, is the law of this case. See Tom Beuchler Const. v. City of Williston, 413 N.W.2d 336, 339 (N.D.1987) ("[T]he law of the case encompasses not only those issues decided on the first appeal, but also those issues decided by the trial court prior to the first appeal which were not presented for review at the first appeal."); City of Minot v. Freelander, 426 N.W.2d 556, 559 (N.D.1988). The court order that all of Norman's parental rights of custody have been suspended should preclude reconsideration, at least until a change of his circumstances is pled and shown.

In summarily denying Norman's motion to reconsider the custodial placement, the trial court reasoned:

The court concluded that for all practical purposes the decision that was ... made was a custody decision.

For the same reasons, and by analogy, the Court would have to be convinced there was a significant change in circumstances before a change of custody would be considered. James Norman has made no allegations which would satisfy such a burden.

....

... The children were victimized by James Norman and any serious consideration of this motion would simply serve to allow him to continue to victimize them and attempt to exercise unreasonable power and control over them.

(citations omitted). Because I agree with those reasons, I would prefer to affirm the summary denial of the motion to change custody, rather than remand for correction of any procedural omission.

A significant change of circumstances is a well-developed precondition to reconsideration of a custodial decree. We explained the reasons for that proposition recently in Barstad v. Barstad, 499 N.W.2d 584, 587-89 (N.D.1993):

Blotske [v. Leidholm ], [487 N.W.2d 607 (N.D.1992) ] and Delzer [v. Winn ], [491 N.W.2d 741 (N.D.1992) ] capsulize the proposition that in a change of custody...