In re NCC, 990339.

• Decision Date: 29 June 2000
• Docket Number: No. 990339.,990339.
• Citation: 612 N.W.2d 561,2000 ND 129
• Parties: In the Interest of N.C.C. N.C.C., David E. Braaten, Director of Grand Forks County Social Service Board, Guardian Ad Litem for N.C.C., Plaintiffs, and C.J.W., Plaintiff and Appellant, v. C.S.C., Defendant and Appellee.
• Court: North Dakota Supreme Court

612 N.W.2d 561

2000 ND 129

In the Interest of N.C.C.

N.C.C., David E. Braaten, Director of Grand Forks County Social Service Board, Guardian Ad Litem for N.C.C., Plaintiffs, and C.J.W., Plaintiff and Appellant, v. C.S.C., Defendant and Appellee.

No. 990339.

Supreme Court of North Dakota.

June 29, 2000.

Thomas J. Kuchera, Kuchera, Stenehjem, Walberg & Sharp, Grand Forks, ND, for plaintiff and appellant.

Constance L. Triplett, Triplett Law Office, Grand Forks, ND, for defendant and appellee.

KAPSNER, Justice.

[¶ 1] C.J.W. ("the mother") appeals from the district court's order denying her motion to amend the judgment and from its judgment changing custody of N.C.C. ("the child") from her to C.S.C. ("the father"). We hold the district court did not clearly err in changing custody. We therefore affirm.

I

[¶ 2] The child was born on February 26, 1994, in Grand Forks, North Dakota. The mother and the father never married. In December 1994, the district court issued a judgment establishing paternity, awarding custody to the mother, establishing the father's child support obligation, and granting reasonable visitation rights to the father.

[¶ 3] In July 1997, the father moved to establish structured visitation. He asserted the mother had often denied him visitation since June 1996 and the mother had taken the child and left the state. At a subsequent hearing, the mother conceded she had temporarily left the state. The district court advised the mother she could not take the child and move from the state without either the father's permission or the court's permission. The court also warned both parties that future lack of cooperation could result in loss of custody and placement with a third party. The mother admitted she "put a stop to [the father's visitation] until he could find his own home and car to come and get [the child] and that never did successfully turn out." The court ordered the parties to submit to psychological evaluations and any counseling deemed necessary and indicated a structured supervised visitation schedule would be set following the evaluations.

[¶ 4] Without obtaining the father's or the court's permission, the mother moved with the child to Oklahoma in March 1998. She sent a letter informing the father she was leaving the state but did not indicate where she was going.

[¶ 5] Emphasizing the mother's move from the state without permission, the mother's continued lack of cooperation, and his good faith efforts to comply with the court's directives, the father moved to change custody. In September 1998, the court issued an interim order, granting the father temporary physical custody of the child and directing authorities to contact the father when the child's whereabouts were discovered. In late 1998, authorities located the child and the mother, and the child was returned to Grand Forks. The mother also returned.

[¶ 6] After a hearing, the court issued a decision in March 1999, finding there had been a material change in circumstances since the 1994 judgment and the child's best interests would be served by changing custody. The court explained "[s]ince entry of judgment in December 1994, there has been a continuing and orchestrated frustration of [the father's] visitation rights with his son by [the mother], and this frustration has impeded a paternal bonding between [the father] and his son." In an amended judgment issued on April 6, 1999, the court awarded physical custody to the father, established the mother's child support obligation at $314 per month, and granted liberal visitation rights to the mother. Notice of entry of the amended judgment was issued on April 8, 1999.

[¶ 7] On April 23, 1999, the mother filed a motion for a stay and for further amendment of the judgment. In her motion, the mother indicated she moved to modify the amended judgment "insofar as it relates to child support," "[m]otion is made pursuant to Rule 59, NDRCivP," and "[m]ovant does not request oral argument." Asserting the court relied on improper employment information, the mother contended the court's child support order did not comply with the child support guidelines. She requested both parties be ordered to submit a joint child support computation. In August 1999, the mother amended her motion, submitting child support worksheets and a request for a hearing.

[¶ 8] A hearing took place in September 1999. The mother argued the child support computations were erroneous because they were based on a job she never acquired and they failed to consider she had another child in her household.

[¶ 9] On October 7, 1999, the court issued an order denying the mother's N.D.R.Civ.P. 59 motion and reducing the mother's child support obligation to $250 per month. A second amended judgment incorporating the reduced child support obligation was filed on October 7, 1999. The mother filed a notice of appeal indicating she appeals from "the Order denying her motion for a new trial under Rule 59" and from the judgment changing custody. Here, however, the mother only challenges the district court's judgment changing custody and does not raise any issues regarding the denial of her N.D.R.Civ.P. 59 motion.

II

[¶ 10] Emphasizing the mother, in her N.D.R.Civ.P. 59 motion, only challenged child support determinations in hearings, briefs, and other documents submitted to the district court, the father argues the mother's attempt to now raise custody issues should be rejected. We have explained although not necessary to bring a N.D.R.Civ.P. 59(b) motion in order to appeal the underlying judgment, "when a motion for new trial is made in the lower court, the moving party is limited on appeal to a review of the grounds presented to the trial court, even if the appeal is also from the judgment itself." Larson v. Kubisiak, 1997 ND 22, ¶ 5, 558 N.W.2d 852.

[¶ 11] Here, we need not consider whether the mother properly raised issues in her motion because, although the mother and the district court sometimes labeled her motion as one for a new trial, we conclude her motion was actually one to alter or amend the judgment. We are not bound by the district court's or a party's label, and may look to the substance of the motion to determine its proper classification. "Improper labels are not binding on appeal." Cumber v. Cumber, 326 N.W.2d 194, 195-96 (N.D.1982) (holding an interlocutory determination was erroneously labeled a "judgment"); see also City of Grand Forks v. Henderson, 297 N.W.2d 450, 453 (N.D.1980)

(concluding objections to attorney fees and the related proceedings were the equivalent of a N.D.R.Civ.P. 59(j) motion). A party, however, bears the burden to correctly label its motion so as to inform the adversary of the nature of the motion and the relief sought. See N.D.R.Civ.P. 7(b)(2) (providing "[t]he rules applicable to captions and other matters of form of pleadings apply to all motions"); Vande Hoven v. Vande Hoven, 399 N.W.2d 855, 859 (N.D.1987) (explaining "[t]he paramount purpose of Rule 7(b), N.D.R.Civ. P., as well as the other procedural rules governing pleadings and motions, is to inform a party of the nature of the claims being asserted against him and the relief demanded by his adversary"). We will not always look beyond a party's labels. Since the mother properly captioned her motion as seeking amendment of the judgment and only mischaracterized the motion as one for a new trial in later proceedings, we will look beyond such mischaracterization.

[¶ 12] Unlike a N.D.R.Civ.P. 59(b) motion for a new trial, a N.D.R.Civ.P. 59(j) motion to alter or amend a judgment does not usually request a reexamination of issues of fact. Rather, a motion to alter or amend "may be used to ask the court to reconsider its judgment and correct errors of law." 47 Am.Jur.2d Judgments § 743 (1995 & Supp.1999). The failure to properly apply the child support guidelines to the facts involves an error of law. Richter v. Houser, 1999 ND 147, ¶ 3, 598 N.W.2d 193. Both the mother's initial motion to amend and her amended motion to amend indicate she sought to correct the child support order so that it complied with the guidelines. The mother asserted the district court improperly computed her obligation by considering inappropriate employment information and by failing to consider another child lived in her household. At the hearing on her motion, the mother again contended the district court erred in calculating her child support obligation. Because the mother requested the district court reconsider its judgment and correct errors of law, her motion was a N.D.R.Civ.P. 59(j) motion to alter or amend the judgment rather than a N.D.R.Civ.P. 59(b) motion for a new trial. The mother accordingly is not limited in her appeal from the judgment to a review of the grounds presented in her motion to the trial court. See Larson, at ¶ 5. The issue of custody is reviewable under N.D.R.App.P. 35(a).

III

[¶ 13] The father challenges the timeliness of the mother's appeal from the judgment. Under N.D.R.App.P. 4(a)(4), the time for filing a notice of appeal from a judgment is tolled by a party's timely motion under N.D.R.Civ.P. 59(j). City of Grand Forks v. Henderson, 297 N.W.2d 450, 453 (N.D.1980) (concluding objections to attorney fees and the related proceedings were a Rule 59(j) motion which "tolled the time for appeal and established a new time period beginning from the notice of entry of the amended judgment"). A motion is timely under N.D.R.Civ.P. 59(j) if served and filed no later than 15 days after notice of entry of the judgment. Following the denial of a N.D.R.Civ.P. 59(j) motion, N.D.R.App.P. 4(a)(4) provides a party has the full 60 days to appeal from the judgment. Id.

[¶ 14] The mother's appeal is timely. The mother timely moved for relief under N.D.R.Civ.P. 59(j) because she submitted her motion no more than 15 days after notice of entry of the judgment changing custody. Notice of entry of the judgment was issued on April 8, 1999...