Schnell v. Schnell

• Decision Date: 24 March 1977
• Docket Number: No. 9263,9263
• Citation: 252 N.W.2d 14
• Parties: Joan G. SCHNELL, Plaintiff and Appellee, v. Robert D. SCHNELL, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 14

252 N.W.2d 14

Joan G. SCHNELL, Plaintiff and Appellee, v. Robert D. SCHNELL, Defendant and Appellant.

Civ. No. 9263.

Supreme Court of North Dakota.

March 24, 1977.

Syllabus by the Court

1. Once the time for appealing from a judgment has expired, an amendment of the judgment is appealable only to the extent the original judgment was amended. It does not reinstate the appealability of those portions of the judgment which are unaffected by the amendment.

2. A motion for amendment of a judgment, if made within ten days, suspends the running of the time for appeal; if not made within ten days, the time for appeal is not suspended. Rule 59(j), N.D.R.Civ.P.; Rule 4(a), N.D.R.App.P.

3. A motion to amend a judgment which is not timely made may be considered as a motion to reopen the judgment under Rule 60(b), N.D.R.Civ.P., if it seeks relief available under the latter rule, but the making of such motion does not suspend the running of the time for appeal.

4. Rule 60, N.D.R.Civ.P., is not to be used as a substitute for appeal, and free, calculated, and deliberate choices are not to be relieved from.

5. A court of general jurisdiction which has jurisdiction of the parties and the subject matter is not deprived of jurisdiction by acts in excess of its power.

6. Orders of a court of general jurisdiction which are within its jurisdiction and not appealed within the time allowed for appeal are final even if erroneous.

7. A temporary reduction in net income of a party required to pay alimony or support money is not necessarily such a "change of circumstances" as to require modification of an award of alimony or support.

Leonard H. Bucklin, of Zuger & Bucklin, Bismarck, for plaintiff and appellee.

Maurice R. Hunke, Dickinson, for defendant and appellant.

VOGEL, Justice.

This is an appeal from several post-trial rulings made in a divorce action. The trial court entered its findings of fact, conclusions of law, and order for judgment on May 17, 1974. The findings of fact were full and comprehensive, covering many aspects of the extensive income and financial holdings of the parties, particularly the appellant. He had, and still has, very extensive real estate holdings and substantial income from fees earned as an auctioneer, income from a sales ring in which he is a part-owner, and ranching operations. Among the matters covered in the findings of fact and the judgment entered shortly thereafter, which are material to this appeal, are these: (1) the creation of a trust known as the "Schnell Ranch Trust" which would hold real estate and personal property of the parties used for ranching and operate the ranch until the youngest child of the parties attained the age of 21 years or completed college education, and thereafter terminate, at which time $78,594.77 (the value of certain property separately owned by Robert Schnell) would be returned to him, and the balance of the property conveyed in equal shares to the plaintiff and the defendant; and that (2) Robert Schnell was required to pay $700 per month to Joan Schnell for support and maintenance and $200 per month for the support and maintenance of each child, as well as certain other educational and medical expenses, until each child reaches the age of 21 years or completes four years of college education. (The termination of the trust and the support payments were incorrectly stated in the original judgment and modified by stipulation and order at a later date.)

The original judgment was entered on May 28, 1974. The appellee, Joan Schnell, asserts that many of the issues which Robert Schnell attempts to raise in the present appeal are res judicata. In order to determine which issues, if any, are res judicata, we must examine some of the numerous post-trial motions and rulings made.

RES JUDICATA ISSUE

A notice of appeal was filed on July 25, 1974. That notice specifies that the appeal is "from the entire judgment . . . other than that part of the judgment awarding a final decree of divorce dissolving the bonds of matrimony between the plaintiff and defendant and awarding custody of the minor children to the plaintiff." On October 28, 1974, the parties stipulated to dismiss the appeal.

Thereafter, the parties made various motions to amend the judgment, none The district court apparently treated the motions to amend as if they were motions under Rule 60, asking for relief from, or amendment of, the judgment. All of them were considered by the court. Most were denied, but a few modifications of the judgment were made.

of them within the time limit specified by Rule 59(j), N.D.R.Civ.P., which specifies a ten-day period of time for making motions to amend. If the motions had been made within the ten-day period, they would have suspended the running of the time for appeal, as provided by Rule 4, N.D.R.App.P. Since the motions were not timely, they do not suspend the running of the time for appeal. Rule 4(a), N.D.R.App.P. See 9 Moore's Federal Practice P 204.12(2). Such a motion, even though not timely made and not effective to suspend the running of the time for appeal, may still be considered by the court as a motion to reopen the judgment under Rule 60(b), N.D.R.Civ.P., if it seeks relief available under that rule (see 9 Moore's Federal Practice P 204.12(2)), as the motions before us did. All of such motions asked the court to modify the judgment in one respect or another.

Assuming that the motions were properly treated as motions to grant relief from, or to amend, the judgment, as permitted by Rule 60, still the time for appeal was not thereby extended, since motions under Rule 60 do not suspend the running of the time for appeal. Rule 60(b) expressly states that "A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation."

Thus the time for appeal from the 1974 judgment would have expired 60 days from notice of its entry. Rule 4(a), N.D.R.App.P. The filing of the notice of appeal on July 25, 1974, suspended the running of the time for appeal while it was pending, but that time began to run again when the parties stipulated for the dismissal of the appeal. The dismissal of an appeal makes the judgment final and res judicata. United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). However, as we have stated, the court entered orders allowing some minor changes in the judgment. Amended judgments in accordance with the orders were thereupon entered. To the extent that the amended judgments modified the original judgment, and only to that extent, the entry of the amended judgments permitted a new time for appeal to begin running. As stated in 9 Moore's, supra, P 204.12(1):

"It should be noted that an order refusing relief under Rule 60(b) is itself an appealable order, but the appeal brings up only the correctness of the order. It does not permit the appellant to attack the underlying judgment for error that he could have complained of on an appeal from it."

We note, finally, that Rule 60 is not to be used as a substitute for an appeal (Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950); Hefty v. Aldrich, 220 N.W.2d 840 (N.D.1974)), and that there must be an end to litigation some day, and free, calculated, deliberate choices are not to be relieved from (City of Wahpeton v. Drake-Henne, Inc., 228 N.W.2d 324 (N.D.1975); Ackermann, supra; Hefty v. Aldrich, supra; In re Braun, 145 N.W.2d 482 (N.D.1966)). Cases applying the doctrine of res judicata in divorce cases include Klaudt v. Klaudt, 156 N.W.2d 72 (N.D.1968), and Steele v. Steele, 189 N.W.2d 660 (N.D.1971).

We therefore conclude that all the provisions of the original judgment which were not included within subsequent amendments to that judgment by the court and appealed by timely notice of appeal from such amended judgment are res judicata and not appealable.

Based upon this analysis, we now examine the issues raised by the appellant to determine which, if any, are appealable.

The appeal now before us is based upon a notice of appeal filed on July 9, 1976, which states that the defendant appeals from the judgment of May 19, 1976, from the order for change of trustee and amendment of judgment dated May 4, 1976, and from that certain order for amended judgment dated

May, 4, 1976, and from that certain order on motions and for amendment of judgment dated May 11, 1976. It goes on to say that it appeals "from so much of said amended judgment and orders" as (1) denies the defendant's motion and application to terminate and dissolve the "Schnell Ranch Trust" nunc pro tunc as of May 17, 1974, the date it was established, upon the ground that the trust was and is not authorized by law and the district court's creation of the trust was in excess of its jurisdiction, power, and authority; (2) denied the defendant's motion and application to terminate all child-support payments to the plaintiff for children of the parties who have reached the age of majority; (3) denied the defendant's motion and application to reduce the amount of alimony payments and support payments by reason of a material change of circumstances constituting a 60-percent reduction in the defendant's personal income from the time the original judgment was entered; and (4) denied the defendant's motion and application to amend the judgment so as to provide for payment of interest on $78,594.77 which was determined to be separate property of the defendant but which was subjected to the trust.

ESTABLISHMENT OF TRUST

The original judgment in 1974 provided for the establishment of the Schnell Ranch Trust. Subsequent orders of the district court had provided for a change of trustee, and for changes in authority of the trustee and for various matters relating to the operation of the trust. However, none of the subsequent orders affected the establishment of the trust, which was accomplished by the original judgment of 1974. The time for appeal from that...