Paulson v. Meinke

• Decision Date: 11 July 1984
• Docket Number: No. 10629,10629
• Citation: 352 N.W.2d 191
• Parties: Oscar I. PAULSON and June R. Paulson, Plaintiffs, Appellees, and Cross-appellants, v. Arthur MEINKE and Ellenora Meinke, as Personal Representatives of the Estate of Claire Paulson, Defendants, Appellants, and Cross-appellees. Civ.
• Court: North Dakota Supreme Court

Page 191

352 N.W.2d 191

Oscar I. PAULSON and June R. Paulson, Plaintiffs, Appellees, and Cross-appellants, v. Arthur MEINKE and Ellenora Meinke, as Personal

Representatives of the Estate of Claire Paulson,

Defendants, Appellants, and

Cross-appellees.

Civ. No. 10629.

Supreme Court of North Dakota.

July 11, 1984.

Leland F. Hagen, Fargo, for plaintiffs, appellees, and cross-appellants.

Lee W. Mosher (argued), Golden Valley, Minn., and Russell G. Nerison, of Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for defendants, appellants, and cross-appellees.

VANDE WALLE, Justice.

Arthur and Ellenora Meinke, personal representatives of the estate of Claire Paulson, appealed from the judgment of the district court of LaMoure County, entered on October 25, 1983, by Judge Gordon O. Hoberg. Judge Hoberg, who vacated a prior judgment entered by Judge M.C. Fredricks, amended the findings of fact and conclusions of law by imposing a constructive trust in favor of Oscar and June Paulson on property located in LaMoure County. The later judgment, like the prior judgment, refused to impose a constructive trust in favor of the Paulsons on property in Ransom County. The Paulsons cross-appealed from the earlier judgment entered on February 28, 1983, which refused to impose constructive trusts in their favor on property in LaMoure and Ransom counties. We reverse the judgment and remand for a new trial.

In 1977 Oscar Paulson, the brother of the deceased Claire Paulson, and his wife, June, experienced financial difficulties. They executed and delivered warranty deeds to Claire which conveyed property located in Ransom and LaMoure counties. Claire assumed various financial obligations and forgave the Paulsons' personal indebtedness.

Claire Paulson died and left a will dated August 31, 1979, in which he named as his beneficiaries Claire Andrud, the natural son of Claire, and Karen Cleveland, the daughter of the Meinkes, who are the personal representatives of Claire's estate.

In a trial to the court the Paulsons sought to establish that they were entitled to constructive trusts in their favor on the property in LaMoure and Ransom counties. After listening to the testimony of eleven witnesses and reviewing documents, Judge Fredricks made 43 detailed findings of fact and completely rejected the Paulsons' claim for relief. The Paulsons moved for a new trial and sought to vacate the judgment. Judge Hoberg heard the motions because Judge Fredricks had retired. He amended the findings of fact and conclusions of law and imposed a constructive trust in favor of the property in LaMoure County.

On appeal the Meinkes raise several issues, one of which is dispositive insofar as it forecloses our consideration of the other issues in this appeal. That issue involves the validity of the amendment of the findings of fact and conclusions of law of Judge Fredricks, the trial judge who heard the testimony, by Judge Hoberg, the trial judge who succeeded him in office, so as to substantially reverse the decision made by Judge Fredricks. ¹

In Company A, First Reg. N.D. Nat. Guard T. School v. State, 55 N.D. 897, 215 N.W. 476 (1927), this court in the syllabus by the court, held:

"Where, upon the resignation of a trial judge, a cause is left undetermined, a succeeding trial judge cannot decide or make findings in the case without a trial de novo on all of the issues."

In this instance the trial judge did not leave the case undetermined but had actually issued a decision upon which judgment was entered. But the rule announced above must apply even more emphatically in this case. The reason for the rule is obvious. The trial judge who makes a decision involving a disputed question of fact should have the opportunity to see and hear the witnesses and determine their credibility. Although Judge Hoberg had read the transcript of the proceedings before Judge Fredricks, this court has often stated that "cold print" is no substitute for the opportunity of the trial judge to hear and observe the witnesses. See, e.g., State v. Olson, 290 N.W.2d 664 (N.D.1980). Judge Hoberg, in reviewing the record, was in a position no different from the position of an appellate court when it has only the record before it.

Rule 63, N.D.R.Civ.P., which is identical to Rule 63, F.R.Civ.P., provides that if, by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court after findings of fact and conclusions of law are filed, any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties. The rule further provides that if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may grant a new trial. See also, Sec. 27-05-27, N.D.C.C. Thus it appears clear that Judge Hoberg had the authority to amend the findings of fact and conclusions of law. The issue is not one of authority under the rules to do so, but rather the issue is one of due process. In cases tried without a jury, the general rule is that a party litigant is entitled to a decision on the facts by a judge who heard and saw the witnesses, and a deprivation of that right is a denial of due process. See 46 Am.Jur.2d, Judges, Sec. 37.

We agree with the solution adopted by the Idaho Supreme Court in Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734, 737 (1960). Idaho had...