Isaacson v. Isaacson

• Decision Date: 26 January 2010
• Docket Number: No. 20090114.,20090114.
• Citation: 777 N.W.2d 886,2010 ND 18
• Parties: Erik R. ISAACSON, Plaintiff and Appellant v. Traci L. ISAACSON, Defendant and Appellee.
• Court: North Dakota Supreme Court

777 N.W.2d 886

2010 ND 18

Erik R. ISAACSON, Plaintiff and Appellant v. Traci L. ISAACSON, Defendant and Appellee.

No. 20090114.

Supreme Court of North Dakota.

January 26, 2010.

Christina Anne Sambor (argued), Damian John Huettl (appeared) and Gregory C. Larson (on brief), Larson, Latham and Huettl, PLLP, Bismarck, ND, for plaintiff and appellant.

Sherry Mills Moore, Bismarck, ND, for defendant and appellee.

CROTHERS, Justice.

[¶ 1] Erik Isaacson has attempted to appeal from the district court's Memorandum Opinion, Findings of Fact, Conclusions of Law, and Order for Judgment establishing visitation, child support, division of marital property and spousal support. Generally, orders and memorandum opinions are not appealable. Zueger v. Carlson, 542 N.W.2d 92, 94 n. 2 (N.D. 1996). However, "because there is a subsequently entered consistent judgment, we consider the appeal to be from the subsequently entered consistent final judgment." Christian v. Christian, 2007 ND 196, ¶ 5, 742 N.W.2d 819. Erik Isaacson's appeal is properly before this Court. We affirm, concluding that Erik Isaacson's failure to preserve an adequate record for appeal prevents us from considering his due process claims and that the district court did not err in basing its valuation of Traci Isaacson's trust on uncontested evidence.

I

[¶ 2] Erik Isaacson and Traci Isaacson were married in 1993 and have three minor children together. Erik Isaacson filed for divorce in August 2007, seeking sole physical custody of the children, child support and attorney's fees. Traci Isaacson answered, and the district court ordered the parties to file a joint information statement under Rule of Court 8.3. The district court scheduled trial for July 10 and 11, 2008. Before trial, the parties stipulated to a continuance and to the appointment of a custody investigator. Trial was rescheduled for December 10 and 11, 2008.

[¶ 3] A property and debt listing was filed with the district court on November 26, 2008. Included in the listing under the category of personal property in Traci Isaacson's possession were breast implants. Erik Isaacson valued the implants at $5,500 while Traci Isaacson assigned them no value. A trust in Traci Isaacson's name was also included in the property and debt listing under the category of financial assets. Erik Isaacson valued the trust at $90,000, while Traci Isaacson assigned it no value.

[¶ 4] At the beginning of the divorce hearing, the district court struck the breast implants from the property and debt listing, stating,

"[Breast implants are] the most ridiculous thing I've ever seen listed on a property and debt listing, next to the cat litter and cat box I had in my very first divorce, is going to be stricken. It's just insulting that people would waste time putting that on a property and debt listing. Likewise item 96, the Lasix eye surgery is going to be stricken.... I can't imagine people would actually waste time thinking that breast implants are marital assets and Lasix surgery was a marital asset. It just defies common sense. I don't know how you would expect me to award breast implants. Do you want me to have them cut out and given to Mr. Isaacson, have the Lasix surgery given to Mr. Isaacson? It's absolutely nonsense. Do not waste the Court's time with stuff like this."

[¶ 5] The district court also addressed time management at the beginning of trial, stating,

"All right. Now in terms of the trial of this case, the court takes a ten minute recess every hour on the hour, so you can plan on that. That will be two ten minute recesses today, three this afternoon, two tomorrow, three tomorrow afternoon. The court keeps track of the time and divides the time in half. Each of you will be given half the time to present your case. The case will finish on time so you better gauge your witnesses accordingly. All right."

[¶ 6] Erik Isaacson used most of the trial's first day to present his case. Erik Isaacson testified to the value of Traci Isaacson's trust, and the court ordered Traci Isaacson to bring information regarding the trust with her to the second day of trial. At the close of the first day of trial, Traci Isaacson informed the court that both parties agreed to provide written summations of the case, if permissible. The court agreed to the post-trial briefing and informed the parties of their remaining time.

"[Erik Isaacson], you have 111 minutes left, and [Traci Isaacson], you have 237 minutes left. So gauge yourself accordingly because this trial is going to be finished by 5 o'clock tomorrow. I've reserved about 15 minutes for me to ask some questions at the end of the day, so plan accordingly."

[¶ 7] On the second day of trial, Erik Isaacson extensively cross-examined Traci Isaacson. During his cross-examination, the court reminded Erik Isaacson that he had five minutes of time remaining and that Traci Isaacson still had witnesses to call to the stand. Erik Isaacson reserved the remainder of his time and waived his cross-examination of Traci Isaacson's last three witnesses, choosing instead to call his sister as a witness and to take the stand himself.

[¶ 8] Both parties submitted post-trial briefs. The district court considered the parties' arguments and circulated a draft of its order for the parties' review. The parties' feedback was incorporated into the court's final order, and Traci Isaacson was granted sole physical custody with Erik Isaacson receiving liberal visitation. The district court equally divided the marital estate after determining that Traci Isaacson's trust had no value. Erik Isaacson timely filed this appeal.

II

[¶ 9] Erik Isaacson argues the district court improperly denied his due process right to a full and fair hearing by limiting the amount of time he was given for cross-examination. Trial courts exercise great latitude and discretion in conducting a trial and in controlling the presentation of evidence. Selzler v. Selzler, 2001 ND 138, ¶ 10, 631 N.W.2d 564. But Erik Isaacson does not argue the district court abused its discretion by limiting his cross-examination. Erik Isaacson only argues his due process rights were violated. The constitutional nature of his claim invokes a de novo standard of review. Rowley v. Cleaver, 1999 ND 158, ¶ 8, 598 N.W.2d 125.

A

[¶ 10] Erik Isaacson argues his due process rights were violated when the district court restricted his cross-examination of several key witnesses. "Procedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a meaningful opportunity for a hearing appropriate to the nature of the case." St. Claire v. St. Claire, 2004 ND 39, ¶ 6, 675 N.W.2d 175 (quoting Walbert v. Walbert, 1997 ND 164, ¶ 9, 567 N.W.2d 829). The variant nature of due process "negates the concept of inflexible procedures universally applicable to every imaginable situation; instead, the requirements imposed by [due process] are flexible and variable and dependent upon the particular situation being examined." Jensen v. Satran, 332 N.W.2d 222, 227 (N.D. 1983). Here, however, Erik Isaacson's assignment of a vague constitutional error to the district court's trial methods prevents us from reaching the substance of his procedural due process claim.

[¶ 11] A November 2007 scheduling order notified Erik Isaacson and Traci Isaacson their trial would encompass two days. At the outset of the December 2008 trial, the court reminded the parties of the applicable time restrictions, a courtesy that was repeated at the conclusion of the first day. As the second day of trial came to a close, the court interrupted Erik Isaacson's cross-examination of Traci Isaacson and informed him his time was running short. Erik Isaacson made no objection and reserved his remaining time, but he did not request additional time for trial or make an offer of proof concerning what further testimony he planned on eliciting on cross-examination. Similarly, no objection or offer of proof was made when Erik Isaacson waived his right to cross-examine three of Traci Isaacson's last witnesses. We cannot review the alleged prejudicial effect of Erik Isaacson's time restrictions without objections and without evidence in the record or a sufficient offer of proof. Thompson v. Olson, 2006 ND 54, ¶ 7, 711 N.W.2d 226.

[¶ 12] Erik Isaacson's brief and oral argument focus on what could have been proven at trial, claiming that the testimony of Traci Isaacson and her final three witnesses was particularly relevant to the district court's decision and that he would have rebutted their allegations of domestic violence and swayed the court to rule in his favor if he had been allowed a full cross-examination. Erik Isaacson neither lodged objections nor made offers of proof indicating what he intended to prove. Absent timely objections and offers of proof, we are left to speculate whether Erik Isaacson was prejudiced by the procedures about which he complains. Lockwood v. Baird, 59 N.D. 713, 719, 231 N.W. 851, 853 (1930) ("The judicial power vested in the courts extends only to the determination of actual controversies properly before the courts, and does not authorize a court to act in an advisory capacity and to give its opinion on mooted questions or abstract propositions."). Given the facts of this case, Erik Isaacson's due process challenge is not ripe for consideration, and we decline to pass judgment on his abstract proposition.

B

[¶ 13] Erik Isaacson argues his due process rights were violated when the district court denied him the opportunity to present closing arguments. "[L]itigants in civil nonjury cases ... have a right to have their attorneys make a final argument." Fuhrman v. Fuhrman, 254 N.W.2d 97, 101 (N.D.1977). The right to closing arguments can be waived by the parties and narrowed by the courts, but it cannot be unilaterally denied. Id. The protections afforded closing arguments flow from the important functions they serve. Closing arguments can correct...