Whitmire v. Whitmire, 970155

• Decision Date: 10 November 1997
• Docket Number: No. 970155,970155
• Citation: 570 N.W.2d 231
• Parties: Burton L. WHITMIRE, Plaintiff and Appellant, v. Audree WHITMIRE, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 231

570 N.W.2d 231

1997 ND 214

Burton L. WHITMIRE, Plaintiff and Appellant, v.Audree WHITMIRE, Defendant and Appellee.

Civil No. 970155.

Supreme Court of North Dakota.

Nov. 10, 1997.

Severin, Ringsak & Morrow, Bismarck, for plaintiff and appellant; argued by William C. Severin.

Kapsner and Kapsner, Bismarck, for defendant and appellee; argued by Leslie Bakken Oliver.

MESCHKE, Justice.

¶1Burton Whitmire appealed denial of his motion to quash an emergency ex parte order giving his former wife, Audree Whitmire, sole custody of their daughter, Sierra, and also appealed the subsequent Second Amended Judgment.We reverse the Second Amended Judgment, but affirm the refusal to quash the emergency order.

¶2 Burton and Audree married in January 1993, and their daughter, Sierra, was born in April 1993.They were divorced in December 1995 for irreconcilable differences.The stipulated judgment placed primary physical custody of Sierra with Audree, and directed that Burton would have reasonable visitation.¹

¶3 While Burton's June 18, 1996 motion to change primary custody of Sierra to himself was still not completely resolved, one of Burton's weekend visitations with Sierra was scheduled to begin on Friday, March 21, 1997.Instead of picking up Sierra at 6 p.m., as the judgment authorized, Burton picked up Sierra earlier, near 10:15 a.m., at her daycare provider's house.Audree attempted to reach Sierra by phone throughout the weekend, but her efforts were unsuccessful, as were Audree's inquiries to Burton's family.Audree's mother, however, phoned Burton's grandmother, who told her Burton had taken Sierra to Jamaica.When Sierra was not returned on time, and unable to locate her, Audree went to the police station Sunday evening to report Sierra's disappearance.

¶4 On Monday, March 24, 1997, Audree telephoned Burton's employer and learned he had not reported for work.Concerned for Sierra, Audree immediately made, with her affidavit about these developments, an "Emergency Motion to Modify the Divorce Judgment With Respect to Custody of the Minor Child" that sought to obtain sole custody of Sierra and to suspend Burton's unsupervised visitations until further order of the court.The trial court granted the motion ex parte and entered an emergency order that placed Sierra's sole custody with Audree and directed all visitation by Burton to be supervised by the Family Safety Center "until further order of the Court."²

¶5 On the same day, March 24, Audree's counsel served the emergency order on Burton's counsel by both facsimile transmission and hand delivery.SeeNDRCivP5(b).On March 31, 1997, Burton moved to quash the emergency order for lack of a prior evidentiary hearing and, alternatively, requested a hearing on "the necessity and validity" of it.Burton filed an accompanying brief but neither requested oral argument nor scheduled a time for hearing.Audree formally responded, resisted quashing, but did not object to a hearing.

¶6 On April 4, 1997, without an evidentiary hearing and without further notice, a Second Amended Judgement was entered by the clerk at the instigation of Audree's counsel.The Second Amended Judgment granted Audree sole custody of Sierra, and restricted Burton to supervised visitation with Sierra.On April 8, 1997, Audree's counsel served notice of entry of the Second Amended Judgment on Burton's counsel by mail.

¶7 Acting on the briefs, the trial court denied Burton's motion to quash on May 15, 1997.On May 21, 1997, Burton appealed the order denying his motion to quash the emergency order and also appealed the Second Amended Judgment.

¶8 This Second Amended Judgment was entered without notice or hearing, apparently because the emergency order was entitled "Order to Amend Divorce Judgment."Under NDRCivP 58, a judgment is usually entered "[u]pon the filing of an order for judgment" when it is intended to be final and effective, not temporary.However, this order was ex parte and without any hearing, it was based on an emergency and, procedurally, it could only be temporary.SeeNDROC 8.2;NDCC 32-06-06 and 32-06-07.Since an ex parte emergency order is temporary, it cannot direct entry of a final judgment.

¶9 Generally, an "order made ... without notice is not appealable...."NDCC 28-27-02(7).Yet, "after a hearing is had upon notice which ... refuses to set aside an order previously made without notice," even an order initially issued ex parte becomes appealable when "an appeal might have been taken from such order so made without notice, had the same been made upon notice."Id.Some kind of hearing was held here, even though not an evidentiary one and, on the briefs, the trial court refused to set aside this temporary order that resulted in entry of an amended judgment.Thus, we conclude this judgment is reviewable.

¶10 Our scope of review also reaches "any intermediate order ... which involves the merits and necessarily affects the judgment...."NDRAppP35(a).Hence, we also review the intermediate order denying Burton's motion to quash the emergency order.

¶11 Ex parte, interim, and temporary orders in all domestic relations cases are expressly governed by North Dakota Rules Of Court 8.2."The provisions which may be included in an ex parte interim order are temporary custody...."NDROC 8.2(a)(3)."No interim order may issue except upon notice and hearing unless the court specifically finds exceptional circumstances."Id. at (a)(1).An exceptional circumstance for an ex parte order, without notice and hearing, is the need to protect a child in a custody dispute.NDROC 8.2(a)(1)(B).While neither of these parties referred to NDROC 8.2, and each counsel thought it applied only to temporary orders during the pendency of an initial divorce action, NDROC 8.2 is expressly intended for all "interim orders in domestic relations cases."A post-decree motion seeking to modify the terms of custody or visitation in a divorce decree is a domestic relations case.

¶12 Ordinarily, a parent in Audree's position would move to modify the divorce judgment and, contemporaneously, make a subsidiary motion for an interim temporary order pending full hearing on the motion to modify.Audree did not carefully frame each motion separately.For a temporary order in a domestic relations case, NDROC 8.2 requires a specific notice to be given to the party against whom the interim order is directed:

An interim order issued ex parte must provide specifically:

A.That the party to whom the order is directed, upon written motion may have a hearing upon the necessity for the issuance of the order....

NDROC 8.2(a)(5) A. In this case, Audree's counsel also failed to properly notify Burton and his counsel that, as NDROC 8.2(a)(5) A directs, he may "have a hearing upon the necessity" of the interim order by making a "written motion" for one.³

¶13 While Audree's counsel would have helped everyone by framing the motions better and giving due notice for a hearing on the requested interim order, there were procedural blunders all around in this case.The trial court, in its discretion, might have refused an ex parte order that did not state the notice required by the applicable rule.Instead, it entered a temporary order to deal with the facially demonstrated emergency.SeeNDROC 8.2(a)(2): "No ex parte interim order may be issued unless the movant executes an affidavit setting forth specific facts justifying the issuance of the order."Audree filed an affidavit that facially justified an emergency order.

¶14 While Burton's counsel timely responded to the emergency order, his motion to quash was not the procedure contemplated by NDROC 8.2.No evidentiary affidavit accompanied or followed his motion to challenge the lack of an emergency or to support an evidentiary hearing to contest the lack of necessity for an ex parte order.

¶15 Generally, in American English, "a motion to quash is usu[ally] a motion to nullify a writ or subpoena."Bryan A. Garner, Modern Legal Usage 725 (2d ed.1995).A motion to quash is more like a motion to dismiss for failure to state a claim for relief.SeeNDRCivP12(b)(v).But Audree's affidavit satisfactorily set forth specific facts that facially furnished grounds for an emergency temporary order.

¶16The trial court so ruled in its May 15th order: "That [emergency ex parte] order is effective until further order of the Court."Without evidence that challenges the need for an emergency order, as the rule contemplates, an emergency temporary order should be continued to address the demonstrated emergency.Under NDROC 8.2(a)(6), an "ex parte interim order remains in effect until it is amended following a court hearing."

¶17The party contesting the need for an emergency temporary order must do so with affidavits.Part of NDROC 8.2(e)(2) says: "Unless the court otherwise orders, evidence ... in opposition to the interim order must be presented by affidavit.Evidence presented by affidavit may not be considered unless, at the time of the evidentiary hearing, the party offering the affidavit makes the affiant available for cross examination."⁴Since Audree adequately demonstrated an emergency with her affidavit, and Burton failed to marshal evidence to contest that emergency, the trial court did not abuse its discretion in refusing to quash the emergency order.

¶18 Unless the trial court directs otherwise, the...