Hildebrand v. Stolz

• Decision Date: 05 December 2016
• Docket Number: No. 20160038.,20160038.
• Citation: 888 N.W.2d 197
• Parties: Stacey HILDEBRAND, Plaintiff and Appellee v. Shane STOLZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

888 N.W.2d 197

Stacey HILDEBRAND, Plaintiff and Appellee

v.Shane STOLZ, Defendant and Appellant.

No. 20160038.

Supreme Court of North Dakota.

Dec. 5, 2016.

Bobbi B. Weiler, Bismarck, ND, for plaintiff and appellee.

Justin D. Hager, Bismarck, ND, for defendant and appellant.

McEVERS, Justice.

[¶ 1] Shane Stolz appeals from the district court's order denying his motion to vacate judgment and the judgment granting Stacey Hildebrand primary residential responsibility of their two minor children, requiring Stolz to make $761 per month in child support payments, and partitioning real property held jointly between them. Because the district court did not abuse its discretion denying Stolz's motion to vacate, we affirm. However, the judgment incorrectly states the matter came before the district court "on motion" and "as a stipulated divorce action," rather than an action for partition of real property and for a determination of parental rights and responsibilities. Therefore, we remand for the district court to correct the judgment to accurately reflect this action.

I

[¶ 2] Stacey Hildebrand and Shane Stolz never married, but had three children together. In her complaint filed in March 2012, Hildebrand requested the partition of real property they held jointly, primary residential responsibility of their minor children, and child support payments from Stolz. Stolz filed an answer to the complaint, listing his only denial as Hildebrand being the proper person to have primary residential and decision-making responsibility for the minor children. This is a prolonged dispute which has been continued several times.

[¶ 3] In January 2015, the district court set a trial date for April 29, 2015. Neither party disputes that Stolz's attorney, TaLisa Nemec, received notice from the district court regarding this trial date. Stolz signed an affidavit consenting to Nemec's withdrawal on March 31, 2015. In his affidavit, Stolz stated the withdrawal was based on mutual agreement, waived notice, and requested all future correspondence be mailed to him at a Bismarck address. On April 10, 2015, Nemec moved the court to allow her to withdraw as Stolz's attorney, and submitted a brief and Stolz's affidavit in support.

[¶ 4] The district court granted the motion to withdraw on April 28, 2015. The district court held the trial as scheduled on April 29, 2015. Stolz was not present. The district court noted Nemec's withdrawal and its belief that Stolz intended to proceed as a self-represented litigant. The district court proceeded to hear testimony and receive exhibits. Hildebrand submitted evidence, testimony, and filed a post-trial brief. Hildebrand served the post-trial brief on Stolz on September 11, 2015. On October 5, 2015, the district court issued a memorandum and order finding Stolz in default for failing to appear at the trial, awarding primary residential responsibility to Hildebrand based on the best interest factors, requiring Stolz to make $761 per month in child support payments, and ordering the partition of real property held jointly by Hildebrand and Stolz.

[¶ 5] Before the district court entered judgment, Stolz hired another attorney and moved to vacate the district court's order under N.D.R.Civ.P. 60(b)(1) or (6). Stolz argued he was not aware of the trial date and his counsel did not notify him of the trial date. In support of his argument, Stolz and his wife, Sharon Stolz, submitted affidavits alleging Nemec never notified Stolz of the trial date, and that there was no documentation in the file Stolz received from Nemec after she withdrew regarding a trial date. Stolz also argued the district court erred by granting Nemec's motion to withdraw as counsel the day before the trial began. Stolz did not request a hearing on his Rule 60(b) motion. In reply to Stolz's motion to vacate, Hildebrand submitted an affidavit and an affidavit of the parties' seventeen-year-old daughter alleging Stolz had notice of the trial. Relying on the affidavit from the parties' daughter, the district court found it was "more likely than not that [Stolz] was aware of the April 29, 2015 trial date." The court further found that "[e]ven if he was not made aware by Ms. Nemec, he had an obligation as a self-represented party to apprise himself of the status of this litigation which has been ongoing since March 2012." The district court denied Stolz's motion to vacate and entered a judgment partitioning real property, awarding Hildebrand primary residential responsibility, requiring Stolz to pay child support, and awarding Stolz reasonable parenting time. Stolz appeals.

II

[¶ 6] Stolz moved to vacate the district court's memorandum and order under Rule 60(b), N.D.R.Civ.P., which provides a party may only move for relief from a "final judgment or order." The memorandum and order was not a final judgment. The district court, however, considered Stolz's motion under Rule 60(b), N.D.R.Civ.P. Because a consistent judgment was subsequently entered, we will consider Stolz's arguments in the context of N.D.R.Civ.P. 60(b). See Jury v. Barnes Co. Municipal Airport Authority, 2016 ND 106, ¶ 9, 881 N.W.2d 10.

[¶ 7] Stolz argues the district court erred in denying his motion to vacate the judgment. A motion to vacate lies with the "sound discretion of the trial court, and its decision whether to vacate the judgment will not be disturbed on appeal unless the court has abused its discretion." Kopp v. Kopp, 2001 ND 41, ¶ 7, 622 N.W.2d 726 (citing Peterson v. Peterson, 555 N.W.2d 359, 361 (N.D.1996) ). "A district court abuses its discretion when it acts in an arbitrary, capricious, or unreasonable manner." Investors Title Ins. Co. v. Herzig, 2010 ND 169, ¶ 19, 788 N.W.2d 312 (citing Bjorgen v. Kinsey, 491 N.W.2d 389, 392 (N.D.1992) ). "A trial court acts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable determination." Kopp, at ¶ 7 (citing Peterson, 555 N.W.2d at 361 ). "An abuse of discretion also occurs when a district court misinterprets or misapplies the law." Datz v. Dosch, 2014 ND 102, ¶ 13, 846 N.W.2d 724 (quotation marks omitted). A self-represented party "should not be treated differently nor allowed any more or any less consideration than parties represented by counsel." Horace Farmers Elevator Co. v. Brakke, 383 N.W.2d 838, 840 (N.D.1986) (citing Randall v. Anderson, 286 N.W.2d 515 (N.D.1979) ); see also Jury, at ¶ 14.

A.

[¶ 8] Stolz argues the district court misapplied the law in entering a default judgment, and should have granted Stolz a trial on the merits. Stolz argues the district court should have been more lenient, because trial on the merits is favored. However, Stolz's argument is misplaced. The history of the case itself shows the district court did not enter a default judgment.

Hildebrand commenced this action in March 2012. Stolz answered the complaint and made numerous appearances over the course of this prolonged litigation. Hildebrand did not move for default judgment. None of the procedural requirements for a default judgment after an appearance had been made were requested or applied. The district court did not enter a default judgment against Stolz under N.D.R.Civ.P. 55. Rather, the district court found Stolz to be in "default" on the day of trial for failing to appear at the trial, and it proceeded to receive testimony and exhibits.

[¶ 9] In its memorandum and order, the court observed, "[b]ecause it appears [Stolz] had notice of the trial and failed to appear, the court finds him to be in default. [Hildebrand] testified at trial and offered exhibits which were received in evidence." In its order denying Stolz's motion to vacate, the district court explained that "[a]t the conclusion of the trial, the court took the case under advisement." (Emphasis added.) Litigated judgments, as distinguished by default judgments are those "judgments entered after trial on the merits." Throndset v. L.L.S., 485 N.W.2d 775, 778 (N.D.1992) (quotation marks omitted); see also Goetz v. Gunsch, 80 N.W.2d 548, 552–53 (N.D.1956) (noting a default judgment is one taken against a defendant who fails to answer or enter an appearance on time; not when a defendant does not appear at trial). The district court found Stolz in default for failing to appear at trial, and held trial without him. "Default" is a legal term of art, as well as a type of judgment under N.D.R.Civ.P. 55. See Black's Law Dictionary 480 (9th ed. 2009) ("To be neglectful; To fail to appear or answer"). Here, the district court heard testimony and took evidence, albeit from only one party. Because this was not a default judgment, we decline Stolz's invitation to apply remedial considerations applicable to default judgments.

B.

[¶ 10] Stolz argues the district court erred in granting Nemec's motion to withdraw the day before trial without first deciding if Stolz was aware of trial and that his interests would not be adversely affected. Stolz did not cite any authority supporting his position, and we have found none. Stolz was represented by counsel in January 2016 and provided notice of the trial through his counsel. Stolz signed an affidavit consenting to the withdrawal, waiving further notice. Nemec moved to withdraw under N.D.R.Ct. 11.2. In the motion, Nemec cited to N.D.R.Ct. 3.2, which states "the moving party must serve and file a brief and other supporting papers and the opposing party must have 14 days after service of a brief within which to serve and file an answer brief and other supporting papers." Rule 6(e)(1), N.D.R.Civ.P., adds three days for service. Therefore, under N.D.R.Ct. 3.2, the earliest the district court could have granted the motion to withdraw was April 28, 2015, seventeen days after Nemec moved to withdraw as Stolz's attorney. We will not overturn the district court's decision to...