State v. Wolff

• Decision Date: 18 August 2011
• Docket Number: No. 20110036.,20110036.
• Citation: State v. Wolff, 801 N.W.2d 694, 2011 ND 164 (N.D. 2011)
• Parties: STATE of North Dakota, COUNTY OF CASS, ex rel. Nancy A. SCHLECT, formerly known as Nancy Ann Neva, and C.A.W., a minor child, Plaintiffs and Appelleesv.Troy Allan WOLFF, Defendant and Appellant.
• Court: North Dakota Supreme Court

801 N.W.2d 694

2011 ND 164

STATE of North Dakota, COUNTY OF CASS, ex rel. Nancy A. SCHLECT, formerly known as Nancy Ann Neva, and C.A.W., a minor child, Plaintiffs and Appellees

v.Troy Allan WOLFF, Defendant and Appellant.

No. 20110036.

Supreme Court of North Dakota.

Aug. 18, 2011.

John Douglas Waller(argued) and Janet Katherine Naumann(on brief), Special Assistant Attorneys General, Fargo, N.D., for plaintiffs and appellees.Jonathan T. Garaas, DeMores Office Park, Fargo, N.D., for defendant and appellant.SANDSTROM, Justice.

[¶ 1]Troy Wolff appeals from a district court order affirming and adopting a judicial referee's order granting the State's motion for relief from judgment and vacating the second amended judgment in this paternity action.We conclude the State is a real party in interest and has standing, the second amended judgment contains unenforceable provisions, and the court did not err in vacating the second amended judgment.We affirm.

I

[¶ 2] In 1996the State sued Wolff, seeking to establish his paternity of C.A.W. and obtain a child support order after Nancy Ann Schlect, formerly known as Nancy Ann Neva, and C.A.W. began receiving public assistance.In 1997the district court issued a default judgment finding Wolff to be C.A.W.'s natural father and Schlect to be C.A.W.'s natural mother.The court also established a child support obligation for Wolff.Schlect was given custody of the child.In 1999 Wolff and Schlect stipulated to a reduction of Wolff's child support obligation, and an amended judgment was entered incorporating the stipulation.The State was a party and signed the 1999 stipulation.

[¶ 3] In January 2009, Wolff and Schlect entered into another stipulation.Wolff and Schlect agreed they would have equal residential responsibility of the child, and they agreed to modify the child support obligation.They agreed Wolff does not have an obligation to pay child support to Schlect, Schlect agreed to forgive Wolff's obligation to pay support or delinquent support, and Wolff agreed he will not seek child support from Schlect.The district court entered a second amended judgment incorporating the stipulation.

[¶ 4] In October 2009, the State moved to vacate the second amended judgment under N.D.R.Civ.P. 60(b).The State alleged it was a party to the action under N.D.C.C. § 14–09–09.26, it did not agree to the stipulation, and it did not have notice or an opportunity to be heard before the stipulation was incorporated into the second amended judgment.Wolff filed a response and requested oral argument, but he did not schedule a time for a hearing as required by N.D.R.Ct. 3.2(a)(3).A hearing was not held.

[¶ 5] The judicial referee entered an order vacating the second amended judgment.Wolff did not request the district court to review the referee's order, but he appealed the referee's decision to this Court.In State, County of Cass ex rel. Schlect v. Wolff,2010 ND 101, 783 N.W.2d 642, we remanded for further explanation of the judicial referee's decision.We also questioned whether the case was properly before the judicial referee or whether an order specifically referring the case to the judicial referee was required.Id.at ¶ 8.We directed the district court to consider N.D. Sup.Ct. Admin. R. 13, which provides rules for the appointment and referral of cases to judicial referees, and to clarify the order of the presiding judge to determine whether the referee had jurisdiction to hear the State's motion to vacate judgment.Wolff,at ¶ 8.

[¶ 6] On September 1, 2010, the East Central Judicial District revised its standing order for judicial referees.The order cleared up any ambiguity about whether separate individual case assignments are necessary and provides that certain cases referred to judicial referees do not require separate case-by-case referral orders.On September 2, 2010, the district court entered an order in this case, citing the September 1, 2010, standing order and remanding the matter to the judicial referee to clarify her reasoning for vacating the second amended judgment.

[¶ 7] On November 18, 2010, the judicial referee entered an order explaining her prior order vacating the second amended judgment.The judicial referee ruled the State is a party to the action under N.D.C.C. § 14–09–09.26 because Schlect has received assistance from the State in the past under N.D.C.C. ch. 50–09 and Schlect has had an open file with the state child support enforcement program since June 1996.The referee also ruled the second amended judgment contains invalid and unenforceable provisions because it limits Wolff's ability to seek a modification of the support obligation and the child's rights to support and it does not adhere to the child support guidelines.

[¶ 8] Wolff requested the district court to review the judicial referee's order.On December 14, 2010, the district court entered an order ruling the judicial referee had jurisdiction to hear the State's motion to vacate and adopting and affirming the judicial referee's order after reviewing the record.

[¶ 9] The judicial referee had jurisdiction under N.D.C.C. § 27–05–30andN.D. Sup.Ct. Admin. R. 13(5).The district court had jurisdiction under N.D. Const. art. VI, § 8,N.D.C.C. § 27–05–06, andN.D. Sup.Ct. Admin. R. 13(11).The appeal was timely under N.D.R.App.P. 4(a).This Court has jurisdiction under N.D. Const. art. VI, §§ 2and6, andN.D.C.C. § 28–27–01.

II

[¶ 10] Wolff argues the judicial referee did not have jurisdiction to issue the order vacating the second amended judgment.He contends the case was not properly referred to the judicial referee and the district court's September 1, 2010, order referring certain types of cases to judicial referees cannot apply retroactively to justify the referee's decision to vacate the second amended judgment.He also contends the September 1, 2010, order does not specifically address whether a judicial referee has authority to vacate a judgment ordered by a district judge.

[¶ 11] In Wolff,2010 ND 101, ¶ 8, 783 N.W.2d 642, this Court considered the order appointing the judicial referee.We said the order suggests an additional written order would be required to refer a particular case to the referee and noted there was not an order in the record specifically referring this case to the referee.Id.We held, “[o]n remand, the district court must consider N.D. Sup.Ct. Admin. R. 13 and clarify the order of the presiding judge to determine whether the referee had jurisdiction to hear the State's motion.”Id.

[¶ 12] Rule 13(5), N.D. Sup.Ct. Admin. R., provides the scope of the duties the district court may delegate to a judicial referee:

(a) A presiding judge, after consultation with the district court judges of the judicial district, may authorize a judicial referee to preside in any individual or class of proceedings under:

(1)N.D.C.C. title 14, except contested divorce trials;

(2)N.D.C.C. ch. 27–20; and

(3)N.D.C.C. ch. 28–25.

(b) A judicial referee has such other authority of a district court judge as is necessary to carry out the delegated duties, including the issuance of orders to show cause, temporary restraining orders, temporary injunctions, and the power to impose remedial sanctions for contempt of court.

[¶ 13] On September 1, 2010, the district court revised its standing order referring various classes of cases, including paternity and child support matters, to the judicial referee.On September 2, 2010, the district court entered an order in this case stating that the revisions to the standing order cleared up the ambiguity about whether separate individual case assignments are necessary and that all cases covered by the order are on referral without needing a separate case-by-case referral order.The court specifically referred this case to the referee to clarify her reasoning for vacating the second amended judgment.

[¶ 14] On remand, the district court properly clarified the case had been referred to the judicial referee and remanded the matter to the judicial referee to explain her decision to vacate the second amended judgment.The judicial referee entered an order explaining her decision.Wolff requested the district court to review the judicial referee's decision.The district court reviewed the record and affirmed and adopted the judicial referee's decision.We conclude the judicial referee had jurisdiction.

III

[¶ 15] Wolff argues the State does not have standing to contest the decision.Wolff contends Schlect has not received public financial assistance for more than a decade, he does not owe the State any child support from the time when Schlect was receiving assistance, the State does not have an interest in the action, and the State does not have a right to interfere in private matters between a child's parents.

[¶ 16] Standing is a question of law, which is reviewed de novo on appeal.R.F. v. M.M.,2010 ND 195, ¶ 6, 789 N.W.2d 723.Section 14–09–09.26, N.D.C.C., defines when the State is a real party in interest in paternity or support cases:

The state is a real party in interest for purposes of establishing paternity and securing repayment of benefits paid, future support, and costs in action brought to establish, modify, or enforce an order for support of a child in any of the following circumstances:

1.Whenever aid under chapter 50–09 or 50–24.1 is provided to a dependent child.

2.Whenever application is made and accepted under section 14–09–08.9 or 14–09–08.13.

3.Whenever duties are imposed on the state or its public officials under chapter 14–12.2.

[¶ 17] Under N.D.C.C. § 14–09–09.26(1), the State initially became a real party in interest for purposes of establishing paternity and a child support obligation when the child began receiving aid under N.D.C.C. ch. 50–09 and Schlect assigned her rights to support for the child to the Department of Human Services.A case was opened with the child support enforcement unit, and the...