Manning v. Manning, 20050065.

• Decision Date: 29 March 2006
• Docket Number: No. 20050065.,20050065.
• Citation: 711 N.W.2d 149,2006 ND 67
• Parties: Anita MANNING, n/k/a Anita Marchant, Plaintiff and Appellee v. Phillip C. MANNING, Defendant and Appellant.
• Court: North Dakota Supreme Court

711 N.W.2d 149

2006 ND 67

Anita MANNING, n/k/a Anita Marchant, Plaintiff and Appellee v. Phillip C. MANNING, Defendant and Appellant.

No. 20050065.

Supreme Court of North Dakota.

March 29, 2006.

COPYRIGHT MATERIAL OMITTED

Anita L. Marchant (submitted on brief), West Fargo, ND.

Phillip C. Manning (submitted on brief), Crystal, ND.

SANDSTROM, Justice.

[¶ 1] Phillip Manning appealed from a judgment granting custody of his two children to his former wife, Anita Marchant; from an order denying his motion for a stay and a new trial; and from an order denying his motion for relief from the judgment. We dismiss the appeals from the judgment and from the order denying the motion for a new trial and a stay because those appeals were not timely filed. We conclude the district court did not abuse its discretion in denying Manning's motion for relief from the judgment and, therefore, we affirm that order.

I

[¶ 2] The parties were married in 1989, in Ohio, when Marchant was 19 years old and Manning was 34 years old. The parties lived in various states during the early part of the marriage until their daughter was born in 1996. In 1997, they moved to North Dakota and Marchant enrolled at the University of North Dakota and obtained part-time employment. Their son was born in 1998. Manning was primarily unemployed and cared for the children while Marchant attended classes. In 2000, Marchant enrolled at the University of North Dakota School of Law, Manning cared for the children while Marchant attended classes, and Marchant cared for the children when she did not attend classes.

[¶ 3] The parties' relationship eventually deteriorated and Marchant filed for divorce in October 2001. Before the divorce action began, Manning wrote to Marchant that he would not agree to a divorce and threatened that a divorce would come with "a price that I know you don't want to pay." Manning later told Marchant he wanted to "destroy" her. A divorce judgment was entered in May 2002, in accordance with a stipulated agreement giving Marchant sole physical custody of their son and Manning sole physical custody of their daughter, and establishing a visitation schedule that would allow the children to spend time together during the weekends.

[¶ 4] The parties' cooperation over visitation crumbled rapidly after the divorce became final. Manning reported to Grand Forks County Social Services that his son may have been struck by Marchant's boyfriend. The ensuing investigation, however, revealed Manning told the child to say he had been slapped and Manning had been degrading Marchant in front of the children. Investigators found the report of abuse may not have been filed in good faith. In August 2002, Manning again claimed Marchant had abused the children and refused to return the son to Marchant at the conclusion of a weekend visitation. Following a hearing, the court ordered the son to be returned to Marchant and admonished the parties to comply with the terms of the divorce judgment. In November 2002, Manning again refused to return the son from visitation because he claimed the child was being abused in Marchant's home. Following an evidentiary hearing, the court ordered Manning to return the child to Marchant.

[¶ 5] Marchant subsequently moved to modify the parenting schedule in the divorce judgment and Manning moved for sole custody of the two children. Marchant responded by also filing a motion seeking sole custody of the children. Manning subsequently filed a petition for writ of supervision or stay of proceedings which was denied by this Court and launched a recall effort against the district court judge handling the case. The district court judge recused herself and another judge was assigned to the case.

[¶ 6] Following a hearing on the motions in March 2004, the district court, on May 20, 2004, amended the original divorce judgment and granted sole custody of both children to Marchant and set forth a visitation schedule for Manning. The court found Manning had not proven his various allegations against Marchant and her boyfriend. The court said:

[Manning] has done what he threatened to do. He engaged in a course of litigation that can best be described as a "scorched earth" approach and one by which he intended to win at all costs. To that end, he corresponded with University of North Dakota officials alleging academic fraud, corresponded with various prosecutors seeking criminal charges against [Marchant], involved himself in [Marchant's] law licensure process, and brought a separate lawsuit against [Marchant] and others whom he perceived had acted in ways adverse to his own interests.

[¶ 7] The court expressed "concern ... whether [Manning] can overcome his anger and bitterness about the divorce," whether he could "overcome his urge to exact revenge on [Marchant]," and whether "his future actions [will] be consistent with the best [interest] of his children." The court also expressed concern over Marchant's "ability to act in the best interest of the children." The court found that "[w]hile both parties love their children and are capable of appropriate parenting, there has been a substantial change of circumstances since entry of Judgment ... which requires a change of custody in order to serve the best interests of the children," because "[Manning's] actions have poisoned the relationship between [Marchant] and the children and it is necessary to modify the custodial arrangements in order to mitigate that damage and to protect the children's emotional health."

[¶ 8] On June 8, 2004, Manning moved for a new trial and a stay. On June 10, 2004, Marchant moved to enforce the amended judgment, claiming Manning had refused to deliver their daughter to her. On June 18, 2004, the district court ordered Manning to comply with the amended judgment and on August 30, 2004, the court issued an order suspending his visitation because he had gone to Canada with the children in violation of the court's order. On September 24, 2004, the Regional Child Support Enforcement Unit moved to amend the May 20, 2004, amended judgment to set Manning's child support obligation. Manning did not file a response. On October 11, 2004, the district court entered an order denying Manning's motion for a new trial and a stay in the proceedings leading to entry of the amended judgment granting custody of the children to Marchant. A second amended judgment was entered on October 15, 2004, which added child support provisions to the amended judgment. Manning filed a notice of appeal on February 22, 2005, indicating he is appealing from the second amended judgment and from the order denying the motion for a new trial and a stay. On May 6, 2005, this Court remanded the case for the filing and disposition of Manning's N.D.R.Civ.P. 60(b) motion for relief from the May 20, 2004, amended judgment. The district court denied the Rule 60(b) motion in an order entered on August 4, 2005. Manning appealed from that order on August 15, 2005.

II

[¶ 9] Manning has appealed from "the Judgment entered against ... Manning... on the 19th day of October, 2004," "the Order denying the motion for stay and new trial entered ... on October 11, 2004," and from the district court's August 4, 2005, denial of his N.D.R.Civ.P. 60(b) motion for relief from the May 20, 2004, amended judgment granting Marchant custody of the parties' two children.

[¶ 10] Before we can consider the merits of an appeal, we must have jurisdiction. Dietz v. Kautzman, 2004 ND 164, ¶ 6, 686 N.W.2d 110. The right to appeal is a jurisdictional matter which this Court will consider on its own, and even if the parties do not question appealability, we must dismiss on our own motion if we conclude that we do not have jurisdiction. In re A.B., 2005 ND 216, ¶ 5, 707 N.W.2d 75.

[¶ 11] Manning's February 22, 2005, appeal from the second amended judgment entered in October 2004 was filed well beyond the 60-day time limit provided under N.D.R.App.P. 4(a)(1). The 60-day period for filing a notice of appeal begins to run upon "service of notice of entry of the judgment or order being appealed." Id. The record reflects that notice of entry of the second amended judgment was filed October 19, 2004, indicating it was mailed to Manning on October 18, 2004, more than four months before the notice of appeal was filed.

[¶ 12] We also conclude Manning failed to timely appeal from the order denying his motion for a new trial and a stay. The record shows notice of entry of the order denying the motion for new trial and stay was served by mail on December 21, 2004, 63 days before Manning's February 22, 2005, notice of appeal was filed. Although the appeal would be timely if the three-day extension for service by mail under N.D.R.App.P. 26(c) was applied, Manning's attorney served notice of entry of the order on Marchant and her attorney. In LaRocque v. LaRocque, 1998 ND 143, ¶ 5, 582 N.W.2d 645, this Court held the three-day extension for filing a notice of appeal does not apply when the extension is sought to be used by the party who served notice of entry of the judgment or order. Furthermore, although under N.D.R.Civ.P. 77(d), the prevailing party must serve a notice of entry of the judgment, and Manning was not the prevailing party, actual notice of entry of judgment starts the running of the time for appeal. See Hilgers v. Hilgers, 2004 ND 95, ¶ 14, 679 N.W.2d 447. The record shows Manning's attorney had actual notice of the order at least by December 21, 2004, and February 22, 2005, is more than 60 days after that date. We therefore dismiss the appeals from the second amended judgment and from the order denying Manning's motion for a new trial and a stay.

[¶ 13] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Manning's appeal from the order denying his N.D.R.Civ.P. 60(b) motion for relief from the judgment is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D....