Hilgers v. Hilgers, 20030252

• Decision Date: 05 May 2004
• Docket Number: No. 20030252,20030252
• Citation: 679 NW 2d 447,2004 ND 95
• Parties: Brenda M. Hilgers, Plaintiff and Appellee v. Douglas G. Hilgers, Defendant and Appellant.
• Court: North Dakota Supreme Court

2004 ND 95

679 NW 2d 447

Brenda M. Hilgers, Plaintiff and Appellee v. Douglas G. Hilgers, Defendant and Appellant.

No. 20030252

Supreme Court of North Dakota.

Filed May 5, 2004

Douglas G. Hilgers (pro se), 911 South 72nd Avenue West, Duluth, MN 55807; submitted on brief.

Brenda M. Hilgers, plaintiff and appellee; no appearance.

Opinion of the Court by Sandstrom, Justice.

Sandstrom, Justice.

[¶1] Douglas G. Hilgers appealed from a district court letter opinion denying his motion to set aside, amend, or reconsider earlier orders involving spousal and child support obligations arising out of his divorce from Brenda M. Hilgers. We conclude that Douglas Hilgers has attempted to appeal from a nonappealable order but that the exercise of our supervisory authority is appropriate under the circumstances. We conclude the district court did not abuse its discretion in refusing to reconsider Douglas Hilgers' request for relief from the divorce judgment and for an award of spousal support from Brenda Hilgers. However, we conclude the district court abused its discretion in failing to address other spousal and child support issues raised by Douglas Hilgers. We dismiss the appeal and direct the district court to address the spousal and child support issues Douglas Hilgers has repeatedly raised in his motions.

I

[¶2] Douglas Hilgers and Brenda Hilgers were married in 1980 and had four children. Brenda Hilgers sued for divorce in Ward County District Court, and following default divorce proceedings, a divorce judgment was entered in September 1998. At the time of the divorce, only two of the children were minors. Brenda Hilgers, who lives in Bottineau, North Dakota, was awarded custody of the minor children, and Douglas Hilgers, who lives in Duluth, Minnesota, was ordered to pay $977 per month in child support. Douglas Hilgers was also ordered to pay $500 per month spousal support to Brenda Hilgers until the minor son "has reached the age of 19 or graduated from high school, whichever occurs first." In October 1998, Douglas Hilgers unsuccessfully moved for relief from the divorce judgment under N.D.R.Civ.P. 55 and 60(b), but the amount of child support was later reduced to $610 for the two children. In Hilgers v. Hilgers, 2002 ND 173, ¶ 29, 653 N.W.2d 79, this Court affirmed the district court's denial of Douglas Hilgers' motion for a change of custody, but we reversed and remanded with directions that the court create a visitation schedule and explain its reasoning for setting the effective date of the child support reduction at December 1, 2000.

[¶3] While the appeal in Hilgers was pending, Douglas Hilgers continued filing motions with the district court. On August 5, 2002, he filed a motion to review and modify the spousal support order, and he supported the motion with an affidavit claiming his net monthly income was almost $1,400 less than the amount relied upon in the default divorce proceedings. After the remand in Hilgers, the district court, in January 2003, issued an order setting a visitation schedule and explaining the reasons for reducing child support effective December 1, 2000. The judge also recused from the case, and the case was reassigned to another judge, who, in February 2003, denied Douglas Hilgers' request to change venue to a location closer to his home.

[¶4] On March 3, 2003, Douglas Hilgers filed a letter with the district court, complaining about the court's refusal to grant a hearing on his motion for review and modification of the spousal support and child support orders. On March 27, 2003, Douglas Hilgers was convicted in Bottineau County District Court of removing his minor son from the state during 2001 in violation of a custody decree. On March 28, 2003, he sought an order for a temporary change of custody of his minor son, and the Ward County District Court, on April 2, 2003, granted the motion, pending a hearing. On May 8, 2003, Douglas Hilgers again filed a motion, accompanied with a brief and affidavit, requesting a review and modification of his child and spousal support obligations and termination of the spousal support award and requesting that Brenda Hilgers submit "wage records" so her child support obligation could be determined in accordance with the Child Support Guidelines. Following a hearing, on May 13, 2003, the district court ordered the custody of the minor son be changed to Douglas Hilgers, terminated his child support obligation effective April 2, 2003, and ordered Brenda Hilgers to begin paying child support from that date "in the minimal amount of $168 a month." The court indicated in a letter accompanying the order that "[t]his amount could be elevated in the future dependent upon Ms. Hilgers' earnings." The order did not address spousal support.

[¶5] On June 12, 2003, Douglas Hilgers filed another motion for "Modification of the Support Orders" and "for just relief upon his previouse [sic], multiple petitions." He asked the court to issue a child support order, to terminate the spousal support he had been ordered to pay, and, upon a showing of Brenda Hilgers' financial status, to order that she pay him "custodial parent spousal support." He complained that, since custody of the child had been changed, he had received none of the child support ordered, and he sought to have Brenda Hilgers' child support obligation determined under the Child Support Guidelines. He also sought review and modification of "the perpetual withholdings of the Defendant's wages so as to permit him some access to health care and a minimal subsistence . . . ." He also relied on "the Rules pertaining to default judgements [sic]" because Brenda Hilgers had not responded "to any of his petitions." In a one-sentence letter from the district court, dated June 17, 2003, and filed June 19, 2003, the court stated, "I have reviewed the file and any requests for spousal support by Mr. Hilgers from Ms. Hilgers is denied."

[¶6] On June 25, 2003, Brenda Hilgers filed a letter to the clerk of district court "in response to the Notice of Arrears and possible Contempt of Court notice I have received." She complained, "There was no child support hearing" and "I have never received notice requiring financial income to base this order on. How was this amount determined?" She stated, "Until I am allowed a fair hearing on this issue I have no intention of paying Doug Hilgers one penny of my hard earned income" because of his refusal to comply with previous court orders. She attached to the letter a financial ledger showing that, through May 15, 2003, Douglas Hilgers had $3,140.98 in child support arrearages and $13,544.03 in spousal support arrearages.

[¶7] Upon learning that Brenda Hilgers was no longer a resident of Ward County, the district court, on July 2, 2003, on its own motion under N.D.C.C. § 14-09-08.1, ordered that a certified copy of the court's "child support and/or spousal support" order be filed with the clerk of the district court for Bottineau County and notified the parties "inquiries are to be directed to" the Bottineau County Clerk of Court.

[¶8] On July 7, 2003, Douglas Hilgers filed with the Ward County District Court a motion to set aside or amend the "Orders of the Court" under N.D.R.Civ.P. 52, 55 and 60. He sought "all relief either denied or not addressed as requested in his petitions." He again complained that he had not received any child support payments from Brenda Hilgers and that the court did not cite "any income information in its determination, as required by statute and ignores the movant's petition for orders to obtain appropriate information." He requested "reasonable withholding of the defendant's wages, to contribute toward the mounting arrears," the establishment of "just and lawful support for the minor child . . . based upon the income of the mother . . . ," termination of the spousal support he was ordered to pay, a "reasonable amount" be withheld from his wages, and an explanation as to why he was denied spousal support in the court's June 19, 2003, ruling. This motion was also accompanied by an affidavit.

[¶9] In a letter dated July 14, 2003, Douglas Hilgers asked the Ward County District Court whether his prior motions were being considered and whether he must await their resolution before he could address "this order for a change of venue?" He objected to the court's failure to address his "latest motions for reconsideration" and argued "venue is not convenient to all of the parties" because he lived in Duluth, "500 miles from Bottineau." On August 21, 2003, the Ward County District Court judge sent him a two-page letter explaining that the "case has not been moved to Bottineau" but "is still venued in Ward County" and that the court could not transfer the case to Minnesota. The court further stated:

You have access to this court and you have availed yourself of that access. The pro se filings by yourself are numerous in this case. You choose that avenue rather than retaining counsel. It is your right to appear on a pro se basis. However, you are still required to follow our Rules of Civil Procedure and you are responsible for your own failures if you choose not to follow our Rules of Civil Procedure.

The court did not mention the child or spousal support issues.

[¶10] On September 2, 2003, Douglas Hilgers filed a notice of appeal. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06.

II

[¶11] Douglas Hilgers does not specify from what he is appealing in his notice of appeal except "rulings of the Court." However, in an accompanying "Petition For Review and Relief Of The District Courts [sic] Spousal and Child Support Orders," he states he is seeking "relief from the order denying a reconsideration of the Spousal Support orders denied in the Order of June 17, 2003."

[¶12] Under N.D.R.App.P. 4(a)(1), a notice of appeal must be filed "with the clerk of district court within 60 days from service of notice of...