Rueckert v. Rueckert

Citation499 N.W.2d 863
Decision Date11 May 1993
Docket NumberNo. 920238,920238
PartiesNancy RUECKERT, Plaintiff and Appellee, v. Kevin Mark RUECKERT, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Mark A. Beauchene (argued), of Brothers & Beauchene, Fargo, for plaintiff and appellee.

Naomi Paasch (argued), of Strehlow, Bryan & Paasch, Casselton, for defendant and appellant.

Michele G. Johnson, Asst. Atty. Gen., Bismarck, for amicus curiae State of N.D. Submitted on brief.

NEUMANN, Justice.

Kevin Mark Rueckert appeals from a district court order confirming a judicial referee's denial of his motion to modify Nancy Rueckert's child support obligation. We reverse and remand for further proceedings.

Nancy and Kevin were divorced on August 4, 1987. At that time, Kevin was earning about $19,000 per year at a grain elevator in Ayr, North Dakota, and Nancy was earning "less than minimum wage, plus tips" at a part-time job at a restaurant in Fargo. Pursuant to a stipulation between the parties, the divorce decree granted Kevin physical custody of the couple's two minor children and provided that "[i]n lieu of child support, [Nancy] makes no claim to and [Kevin] is awarded the trailer home and lots located in Ayr, North Dakota, and relinquishes any interest she has in [Kevin's] pension."

In June 1988, Kevin lost his job at the grain elevator. In August 1988, Nancy and Kevin attempted to reconcile, and they both enrolled in college in Wahpeton. Because Kevin lived in a dormitory, he allowed the two children to live with Nancy in family housing. The parties' reconciliation efforts were unsuccessful, and Kevin moved to Moorhead in the fall of 1988. However, he allowed the children to remain with Nancy and asked the court for permission to move them to Moorhead after the school year. Nancy then indicated that she intended to move for a change in custody, and a referee granted Kevin's motion to move the children to Moorhead, pending consideration of Nancy's motion for change of custody.

In September 1989, the parties stipulated to mediation of their custody dispute, but those efforts were also unsuccessful. Thereafter, in the fall of 1990, Kevin resisted Nancy's pending motion for change of custody and sought child support from her. At that time, Nancy had graduated from college with a degree as a medical records technician, and she was earning about $225 per month as a part-time employee at K-Mart. Also, in August 1989, Nancy and another man had a child out-of-wedlock. Meanwhile, Kevin had enrolled in an accounting program at Moorhead State University, and had married Rita Kossick. Rita had two children from a previous marriage, and she and Kevin had a child in October 1990.

On January 18, 1991, the district court entered an order denying Nancy's motion for change of custody and Kevin's motion for child support. The court said that the waiver of child support in the original divorce decree was "contrary to North Dakota law and should not have been approved by this Court. However, it was the parties' agreement, and at this time the Court will honor this provision and deny [Kevin's] request for child support until such time as [Kevin] can demonstrate a significant change of circumstances."

On January 7, 1992, Kevin filed a motion to require Nancy to pay the amount of child support required by the guidelines promulgated by the North Dakota Department of Human Services. See Chapter 75-02-04.1, N.D.A.C. At that time, Kevin was still enrolled in an accounting program at Moorhead State University. According to Kevin, the assets from his marriage to Nancy had been sold to pay bills and support the children from that marriage. According to Kevin, his sole source of support was Rita's $1,000 per month net income and their monthly expenses were about $1,145. Nancy was earning about $770 per month at St. Luke's Hospital. She testified that she lived with the father of her out-of-wedlock child and that she paid their entire rent. According to Nancy, her monthly expenses, including rent, were about $850.

A judicial referee found that, since January 1991, Nancy had not incurred a material change in circumstances to warrant a modification of child support, and that, at the same time, the needs of Nancy's out-of-wedlock child, a factor not considered by the child support guidelines, resulted in monthly expenditures that exceeded her net income. On February 18, 1992, the referee denied Kevin's motion to modify Nancy's child support, and the district court confirmed the referee's decision on February 26, 1992.

On February 26, 1992, and before Kevin had received the district court's confirmation of the referee's decision, he mailed a request for review of the referee's decision to the district court. Kevin's request was filed in the district court on February 28, 1992. The district court thereafter concluded that Kevin's request for review was not timely, and, alternatively, that the referee's decision was not clearly erroneous. Kevin appeals.

Kevin contends the district court erred in determining that his request for review of the judicial referee's decision was not timely. He asserts that his request for review was timely under either the three-day period of Rule 13, Sec. 11(a), North Dakota Supreme Court Administrative Rules and Administrative Orders (AR 13), 1 or the ten-day period of Rule 53(f)(2), N.D.R.Civ.P. 2

We initially consider which rule governs the time for district court review of decisions by a judicial referee. In construing rules of court, we are guided by principles of statutory construction. Walker v. Schneider, 477 N.W.2d 167 (N.D.1991). If there is an irreconcilable conflict between a general and a special statute, the special statute prevails. Section 1-02-07, N.D.C.C.; Shafer v. Job Service North Dakota, 464 N.W.2d 390 (N.D.1990); State v. Brandon, 413 N.W.2d 340 (N.D.1987).

In 1985 the Legislature enacted Section 27-05-30, N.D.C.C., which, pursuant to supreme court rule, authorizes district courts to "assign a referee to preside in any case or proceeding provided for in title 14, chapter 27-20, and chapter 28-25." Pursuant to that statutory authority and Art. VI, Sec. 3, N.D. Const., this court promulgated AR 13 to govern the procedure for proceedings referred to judicial referees under Section 27-05-30, N.D.C.C.

In contrast, Rule 53, N.D.R.Civ.P., is a special-purpose rule of civil procedure which authorizes appointment of a special master for complex matters. Dakota Grain Systems, Inc. v. Rauser, 435 N.W.2d 205 (N.D.1989). Reference to a special master is the "exception and not the rule," and in non-jury actions, "reference may be made only upon a showing that some exceptional condition requires it." Rule 53(b), N.D.R.Civ.P.

At oral argument, counsel for Kevin indicated that this proceeding was referred to the judicial referee under a standing order of reference issued pursuant to AR 13 and Section 27-05-30, N.D.C.C. In Benson v. Benson, 495 N.W.2d 72 (N.D.1993), we considered a similar standing order of reference in the East Central Judicial District. We held that, because AR 13 did not specify a standard for district court review of decisions by judicial referees appointed under AR 13 and Section 27-05-30, N.D.C.C., the clearly erroneous standard of Rule 53(f)(2), N.D.R.Civ.P., governed when the district court review was a review of the record.

In Benson, there was no irreconcilable conflict in the standard of review under AR 13 and under Rule 53, N.D.R.Civ.P. However, in this case there is an irreconcilable difference in the time frame for filing a request for judicial review of a decision of a judicial referee under AR 13 and for serving written objections to the report of a master under Rule 53, N.D.R.Civ.P. Because AR 13 is a special rule for appointment of judicial referees under Section 27-05-30, N.D.C.C., AR 13 governs the time for seeking district court review of a judicial referee's decision. Section 1-02-07, N.D.C.C.; State v. Brandon, supra.

AR 13, Sec. 11(a) requires district court review of a judicial referee's decision if a party "files a written request for a review within three days after receiving the notice in Section 10(b) [of the referee's findings and recommendations together with written notice of the right to review]." In this case, the judicial referee's decision was rendered on February 18, 1992. Assuming that Kevin had three additional days after service of the referee's decision by mail [Rule 6(e), N.D.R.Civ.P] and not counting the intervening weekend [Rule 6(a), N.D.R.Civ.P.], Kevin had until February 26, 1992, to file a request for judicial review. The record reflects that Kevin mailed his request for judicial review on February 26, 1992, and that it was filed in the district court on February 28, 1992. Kevin argues that "[s]ince [his] Request for Review and Brief in Support of same were mailed on February 26, 1992, and service is complete upon mailing [under Rule 5(b), N.D.R.Civ.P.], his Request for Review was timely filed and the District Court erred in finding it was not."

Kevin's argument ignores the difference between service by mail, which is complete upon mailing, and filing, which requires actual receipt. See Dehn v. Otter Tail Power Co., 248 N.W.2d 851 (N.D.1976); Moe v. Moe, 460 N.W.2d 411 (N.D.Ct.App.1990); see also Blades v. United States, 407 F.2d 1397 (9th Cir.1969); Holmes v. Navajo Freight Lines, Inc., 488 S.W.2d 311 (Mo.Ct.App.1972); Dudukovich v. Lorain Metropolitan Housing Authority, 58 Ohio St.2d 202, 389 N.E.2d 1113 (1979). Kevin's request for district court review was not filed until February 28, 1992, and was not timely under AR 13, Sec. 11(a).

Although Kevin did not file a timely request for district court review of the referee's decision, he is not precluded from seeking appellate review of the district court's confirmation of the referee's decision. AR 13, Sec. 10(c) provides that "[i]n the absence of a review pursuant to Section 11, a district court...

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