20190261

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
OCTOBER 2, 2019
STATE OF NORTH DAKOTA

STATE OF NORTH DAKOTA IN THE SUPREME COURT

CASE NUMBER 20190261

Heather Leeann Presswood, )

)
Plaintiff and Appellee, )
) APPELLANT’S BRIEF
v. )
)
Warren Leonard Runyan, III )
)
Defendant and Appellant. )

APPEAL FROM BIFURCATED JUDGMENT AND

DECREE OF DIVORCE ENTERED AUGUST 8, 2019

Made by the Honorable Mark Blumer,

Judge of the District Court, Sargent County,
Southeast Judicial District, North Dakota
District Court Case File Number: 41-2018-DM-00019

Jonathan L. Green
(N.D. Bar I.D. #06853)
Attorney for Plaintiff/Appellant

GREEN LAW FIRM, P.C.

328 Dakota Avenue
Wahpeton, ND 58075
(701) 672-1218

October 2, 2019

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 TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................. pg. 2

TABLE OF AUTHORITIES ....................................................................................... pg. 3

STATEMENT OF JURISDICTION................................................................................ ¶ 1

STATEMENT OF THE ISSUES..................................................................................... ¶ 2

STATEMENT OF THE CASE........................................................................................ ¶ 5

STATEMENT OF THE FACTS ..................................................................................... ¶ 6

STANDARD OF REVIEW ............................................................................................. ¶ 8

LAW AND ARGUMENT ................................................................................................ ¶9

I. Whether the district court erred in granting Heather’s Motion

for Bifurcated Judgment and entering Judgment and Decree of
Divorce on the grounds of irreconcilable differences ......................................... ¶10

a. Whether Heather’s Motion for Bifurcated Judgment was

properly before the Court in accordance with N.D.R.Ct. Rule 3.2 ................ ¶ 11

b. Whether the trial court’s failure to rule on Warren’s Objection

to Motion for Bifurcated Judgment violated due process ............................ ¶ 15

CONCLUSION .............................................................................................................. ¶ 19

CERTIFICATE OF COMPLIANCE ............................................................................. ¶ 20

CERTIFICATE OF SERVICE ...................................................................................... ¶ 21

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 TABLE OF AUTHORITIES

Constitutional Provisions:

N.D. Const. Art. VI §§ 2 and 6 ....................................................................................... ¶ 1

Statutes:

N.D.C.C. § 25-03.3-19 .................................................................................................... ¶ 1

N.D.C.C. § 28-26-01 ..................................................................................................... ¶ 14

Rules:

N.D.R.Ct. Rule 3.2 .................................................................... ¶¶ 3, 11, 12, 13, 14, 17, 18

N.D.R.Civ.P. Rule 3.2(a)(2) ................................................................................. ¶¶ 12, 17

N.D.R.Civ.P. Rule 5(f) .................................................................................................. ¶ 13

Cases:

Collins v. Collins, 495 N.W.2d 293 (N.D.1993) ........................................................... ¶ 17

Fenske v. Fenske, 542 N.W.2d 98 (N.D.1996) ............................................................. ¶ 16

First Western Bank of Minot v. Wickman, 464 N.W.2d 195 (N.D.1990) ..................... ¶ 17

Hoffman v. North Dakota Workers Comp. Bureau, 1999 ND 66, 592 N.W.2d 533 .... ¶ 16

In re Thill, 2014 ND 89, 845 N.W.2d 330 ...................................................................... ¶ 8

Isaacson v. Isaacson, 2010 ND 18, 777 N.W.2d 886 ..................................................... ¶ 8

McWethy v. McWethy, 366 N.W.2d 796 (N.D.1985 ..................................................... ¶ 17

Napoleon Livestock Auction, Inc. v. Rohrich, 406 N.W.2d 346 (1987) ......................... ¶ 8

Peplinski v. County of Richland, 2000 ND 156, 615 N.W.2d 546 ............................... ¶ 16

Rowley v. Cleaver, 1999 ND 158, 598 N.W.2d 125 ..................................................... ¶ 16

Schmalle v. Schmalle, 1998 ND 201, 586 N.W.2d 677 ................................................ ¶ 16

Stutsman County v. Westereng, 2001 ND 114, 628 N.W.2d 305 ................................. ¶ 16

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 STATEMENT OF JURISDICTION

¶1 Appellant/Defendant Warren Leonard Runyan, III (“Warren”) is appealing from

Bifurcated Judgment and Decree of Divorce of the District Court, Sargent County, North

Dakota, granting Appellee/Plaintiff Heather Leeann Presswood (“Heather”) an absolute

divorce on the grounds of irreconcilable difference. (App. 30-31). The North Dakota

Supreme Court has jurisdiction to review the decision of a lower court pursuant to N.D.

Const. Art. VI §§ 2 and 6, and N.D.C.C. § 25-03.3-19.

STATEMENT OF THE ISSUES

¶2 I. Whether the district court erred in granting Heather’s Motion for

Bifurcated Judgment and entering Judgment and Decree of Divorce on the
grounds of irreconcilable differences.

¶3 a. Whether Heather’s Motion for Bifurcated Judgment was

properly before the Court in accordance with N.D.R.Ct. Rule 3.2.

¶4 b. Whether the trial court’s failure to rule on Warren’s Objection

to Motion for Bifurcated judgment violated due process.

STATEMENT OF THE CASE

¶5 This case comes before the North Dakota Supreme Court from the Southeast

Judicial District, Sargent County, through an order by the Honorable Mark T. Blumer on

August 8, 2019, which was subsequently incorporated into a Bifurcated Judgment and

Decree of Divorce that same day. (App. 27-29, 30-31). This action was commenced by

way of service of a Summons and Complaint by the Office of the Sargent County Sheriff

upon Warren on the 15th day of November, 2018. (App. 10). Warren served an Answer

and Counterclaim on December 3, 2018 which was filed of record on December 11, 2019.

(App. 11-12, 13). Heather served and filed a Reply to Counterclaim upon Defendant on

January 15, 2019. (App. 14, 15). On April 29, 2019, Heather filed a Notice of Motion and

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Motion for Bifurcated Judgment and Affidavit of Heather Presswood in Support of Motion

to Bifurcate. (App. 16, 17, 18-19). Heather did not file a brief with her Motion for

Bifurcated Judgment. (App. 3-5). Warren responded by filing an Objection to Motion for

Bifurcated Judgment on May 13, 2019. (App. 20-21, 22). On May 14, 2019, Heather filed

a Certificate of Service upon Jonathan L. Green, Attorney for Warren, relating to her

Motion for Bifurcated Judgment. (App. 23). Warren filed an Objection to Plaintiff’s

Proposed Findings of Fact, Conclusions of Law and Order for Bifurcated Judgment on July

15, 2019. (App. 24-25, 26). The District Court issued its Findings of Fact, Conclusions

and Law and Order for Bifurcated Judgment and Bifurcated Judgment and Decree of

Divorce on August 8, 2019 from which Warren appeals. (App. 27-29, 30-31).

STATEMENT OF THE FACTS

¶6 This action was commenced by way of service of a Summons and Complaint by

the Office of the Sargent County Sheriff upon Warren on the 15th day of November, 2018.

(App. 10). Warren served an Answer and Counterclaim on December 3, 2018 which was

filed of record on December 11, 2019. (App. 11-12, 13). In his Answer, Warren denies

paragraph 8 of the Complaint which states “During the course of the marriage, certain

irreconcilable differences have arisen between the parties which have destroyed the

legitimate objects of the marriage and make the continuance of this marriage impossible

and intolerable. (App. 11 at ¶1(3)). In his Counterclaim, Warren alleges “During the course

of our marriage Plaintiff has committed acts of infidelity which have destroy the legitimate

bonds of marriage and make the continuation of this marriage impossible and intolerable.”

(App. 12 at ¶2(7)).

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¶7 A Notice of Motion and Motion for Bifurcated Judgment was filed by Heather on

April 29, 2019 pursuant to N.D.R.Ct. Rule 3.2. (App. 16, 17, 18-19). At that time, Heather

did not file a brief in support of her motion nor did she file proof of service of the motion.

(App. 3-5). On May 13, 2019, Warren filed an Objection to Motion for Bifurcated

Judgment stating that Heather’s Motion for Bifurcated Judgment was not properly before

the District Court because 1) “Plaintiff failed to file a brief in support of her Motion,

contrary to Rule 3.2” and 2) Plaintiff failed to provide proof of service with her Motion.

(App. 20-21). Warren further stated in paragraph 8 “To the extent that the Court may deem

this Motion properly before the Court, which it should not, then the Defendant denies all

allegations in the Motion and Requests a hearing thereon.” -Id.

- at ¶8. The day after Warren

filed his Objection to Motion for Bifurcated Judgment, Heather filed a Certificate of

Service upon Jonathan L. Green, Attorney for Defendant relating to her Motion for

Bifurcated Judgment on May 14, 2019. (App. 23). At no time has Heather filed a brief in

support of her Motion for Bifurcated Judgment. (App. 3-5). Warren submitted his

proposed Findings of Fact, Conclusions of Law and Order on Plaintiff’s Motion for

Bifurcated Judgment on July 12, 2019. (App. 4). Heather submitted her proposed Findings

of Fact, Conclusions of Law, and Order for Bifurcated Judgment and proposed Bifurcated

Judgment and Decree of Divorce on July 15, 2019. (App. 4). Warren filed an Objection

to Plaintiff’s Proposed Findings of Fact, Conclusions of Law and Order on Plaintiff’s

Motion for Bifurcated Judgment on July 15, 2019. (App. 24-25, 26). The District Court

never ruled on Warren’s Objection to Motion for Bifurcated Judgment, but granted

Heather’s Motion for Bifurcated Judgment in its Findings of Fact, Conclusions of Law,

and Order for Bifurcated Judgment and Decree of Divorce dated August 8, 2019 and

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Bifurcated Judgment and Decree of Divorce was entered later that day. (App. 27-29, 30-

31). It is from this Judgment that Warren now appeals.

STANDARD OF REVIEW

¶8 The Supreme Court reviews a district court’s application of statutes and rules under

the de novo standard of review. Napoleon Livestock Auction, Inc. v. Rohrich, 406 N.W.2d

346, (1987). The Bifurcated Judgment and Decree of Divorce will be affirmed unless it

was induced by an erroneous view of the law or the reviewing court is firmly convinced

that the order is not supported by clear and convincing evidence. In re Thill, 2014 ND 89,

¶ 4, 845 N.W.2d 330. Constitutional claims are reviewed under the de novo standard.

Isaacson v. Isaacson, 2010 ND 18, ¶ 9, 777 N.W.2d 886 (asserting a claim for deprivation

of due process rights).

LAW AND ARGRUMENT

¶9 I. Whether the district court erred in granting Heather’s Motion for

Bifurcated Judgment and entering Judgment and Decree of Divorce
on the grounds of irreconcilable differences.

¶ 10 The district court erred in granting Heather’s Motion for Bifurcated Judgment and

entering Judgment and Decree of Divorce on the grounds of irreconcilable differences

because 1) Heather’s Motion for Bifurcated Judgment was not properly before the district

court and 2) the district court denied Warren due process by failing to rule on his Objection

to Motion for Bifurcated Judgment and Decree.

¶ 11 a. Whether Heather’s Motion for Bifurcated Judgment was

properly before the Court in accordance with N.D.R.Ct. Rule
3.2.

¶ 12 Rule 3.2 of the North Dakota Rules of Court sets for the procedure for filing

motions and provides as follows:

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Rule 3.2. Motions

(a) Submission of Motion.

(1) Notice. Notice must be served and filed with a motion. The
notice must indicate the time of oral argument, or that the motion
will be decided on briefs unless oral argument is timely
requested.

(2) Briefs. Upon serving and filing a motion, the moving party must
serve and file a brief and other supporting papers and the
opposing party must have 14 days after service of a brief within
which to serve and file an answer brief and other supporting
papers. The moving party may serve and file a reply brief within
seven days after service of the answer brief. Upon the filing of
briefs, or upon expiration of the time for filing, the motion is
deemed submitted to the court unless counsel for any party
requests oral argument on the motion.

(3) Requesting oral argument. If any party who has timely served
and filed a brief requests oral argument, the request must be
granted. A timely request for oral argument must be granted
even if the moving party has previously served notice indicating
that the motion is to be decided on briefs. The party requesting
oral argument must secure a time for the argument and serve
notice upon all other parties. Requests for oral argument or the
taking of evidence must be made not later than seven days after
expiration of the time for filing the answer brief. If the party
requesting oral argument fails within 14 days of the request to
secure a time for the argument, the request is waived and the
matter is considered submitted for decision on the briefs. If an
evidentiary hearing is requested in a civil action, notice must be
served at least 21 days before the time specified for the hearing.

(b) Court hearing. The court may hear oral argument on any motion. If
permitted by the court, a hearing may be held using electronic means,
including telephonic conference or interactive television. After
reviewing the parties' submissions, the court may require oral argument
and may allow or require testimony on a motion.

(c) Failure to File Briefs. Failure to file a brief by the moving party may
be deemed an admission that, in the opinion of party or counsel, the
motion is without merit. Failure to file a brief by the adverse party may
be deemed an admission that, in the opinion of party or counsel, the
motion is meritorious. Even if an answer brief is not filed, the moving

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 party must still demonstrate to the court that it is entitled to the relief
requested.

(d) Extension of Time. Extensions of time for filing briefs and other
supporting papers, or for continuance of the hearing on a motion, may
be granted only by written order of court. All requests for extension of
time or continuance, whether written or oral, must be accompanied by
an appropriate order form.

(e) Time Limit for Filing Motion. Except for good cause shown, a motion
must be filed in such time that it may be heard not later than the date set
for pretrial of the case.

(f) Application of Rule.

(1) Conflicting rules. This rule does not apply to the extent it
conflicts with another rule adopted by the Supreme Court.

(2) Probate code. This rule applies to formal proceedings under

Uniform Probate Code.

¶ 13 Heather never filed a brief in support of her N.D.R.Ct. Rule 3.2 Motion for

Bifurcated Judgment. (App. 3-5). In accordance with N.D.R.Ct. Rule 3.2 Heather’s failure

to file a brief may be deemed an admission that the motion is without merit.

Notwithstanding, the district court found the Motion for Bifurcated Judgment to be

meritorious despite Warren having filed an Objection to Motion for Bifurcated Judgment

on the fourteenth (14th) day after the filing of the Motion wherein Warren sets for the

procedural deficiencies of Heather’s Motion. (App. 20-21). The procedural deficiencies

set forth in Warren’s Objection were 1) Heather had not complied with Rule 3.2 inasmuch

as she failed to file a brief, and 2) Heather had not complied with N.D.R.Civ.P. Rule 5(f)

as she had failed to file proof of service of her Motion. Id. In response to Warren’s

Objection, Heather filed proof of service but did not file a brief in support of her Motion.

(App. 3-5, 23). Heather could have refiled her Motion for Bifurcated Judgment along with

the supporting brief and appropriate proof of service in an effort to rectify the her previous

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blunders, but she did not to do so. (App. 3-5). Because Heather did not filed a brief in

support of her Motion the Court should have deemed the Motion to be without merit. See

N.D.R.Ct. 3.2.

¶ 14 Even assuming time had somehow expired for the submission briefs by the parties,

which it most certainly had not, and assuming that both parties had waived oral argument,

which also is not the case, in accordance with Rule 3.2 the district court must decide the

Motion on briefs. Here, neither party submitted briefs, leaving the district court with

nothing from which it could even render a decision. Furthermore, Warren denied the

allegation in Heather’s Complaint that the grounds for divorce were irreconcilable

difference and, in his Counterclaim, alleged that the grounds for divorce were infidelity.

(App. 11-12). Because the parties did not file briefs, the district court lacked a sufficient

basis in both law and fact to enter its Findings of Fact, Conclusions of Law, and Order

Granting Bifurcated Judgment. Furthermore, Warren requested a hearing and was entitled

to a hearing under N.D.R.Ct. Rule 3.2. (App. 21 at ¶8).

¶ 15 b. Whether the trial court’s failure to rule on Warren’s Objection

to Motion for Bifurcated Judgment violated due process.

¶ 16 A person is denied due process when defects in the procedure employed might lead

to a denial of justice. See Stutsman County v. Westereng, 2001 ND 114, ¶ 8, 628 N.W.2d

305; Hoffman v. North Dakota Workers Comp. Bureau, 1999 ND 66, ¶ 12, 592 N.W.2d

533. The fundamental requirements of due process are notice and a fair opportunity to be

heard. Rowley v. Cleaver, 1999 ND 158, ¶ 18, 598 N.W.2d 125; Hoffman, at ¶ 12; Schmalle

v. Schmalle, 1998 ND 201, ¶ 9, 586 N.W.2d 677. Due process requires that parties be

afforded a meaningful opportunity to present objections. See Peplinski v. County of

10
Richland, 2000 ND 156, ¶ 28, 615 N.W.2d 546; Fenske v. Fenske, 542 N.W.2d 98, 100

(N.D.1996).

¶ 17 Rule 3.2(a)(2), N.D.R.Ct., provides specific guidelines governing the filing of

briefs by the parties and the time for serving a response to a motion:

Upon serving and filing a motion, the moving party must serve and file
a brief and other supporting papers and the opposing party must have 14
days after service of a brief within which to serve and file an answer
brief and other supporting papers. The moving party may serve and file
a reply brief within seven days after service of the answer brief. Upon
the filing of briefs, or upon expiration of the time for filing, the motion
is considered submitted to the court unless counsel for any party
requests oral argument on the motion.

In construing N.D.R.Ct. 3.2, the North Dakota Supreme Court has cautioned that "[a]

judgment entered on motion of one party without proper notice and the opportunity to be

heard by the other party is contrary to fundamental principles of justice." First Western

Bank of Minot v. Wickman, 464 N.W.2d 195, 196 (N.D.1990); see also Collins v. Collins,

495 N.W.2d 293, 296 (N.D.1993); McWethy v. McWethy, 366 N.W.2d 796, 798

(N.D.1985).

¶ 18 Heather never filed a brief and, accordingly, the fourteen (14) day period in which

Warren would have needed to respond never commenced. (App. 3-5). Since the time for

filing is triggered by the filing of the moving parties brief, the time for filing could not have

expired. See N.D.R.Ct. 3.2. Warren submitted his Objection to the district court for a

determination of whether the Motion for Bifurcated Judgment was properly before the

district court. (App. 20-21). In his Objection, Warren requests a hearing if the district

court determines that the matter is properly before the court. --

Id. at ¶8. However, the district

court did not rule on Warren’s Objection or provide him with notice that the court would

be moving forward on the Motion for Bifurcated Judgment. (App. 3-5). The district court

11
granted Heather’s Motion for Bifurcated Judgment without giving Warren proper notice

and an opportunity to be heard in violation of his due process rights and contrary to

fundamental principles of justice. (App. 27-31).

CONCLUSION

¶ 19 Based upon the above reasoning, this Court should vacate the Bifurcated Judgment

and Decree of Divorce and remand for further proceedings.

Dated this 2nd day of October, 2019.

GREEN LAW FIRM, P.C.

328 Dakota Avenue
Wahpeton, ND 58075
(701) 672-1218
Attorneys for Defendant - Appellant
By: /s/ Jonathan L. Green
Jonathan L. Green (ND Bar ID #06853)
jon.green@jongreenlawfirm.com

CERTIFICATE OF COMPLIANCE

¶ 20 The undersigned, as attorney for Defendant – Appellant in the above matter, and as

author of the above brief, hereby certifies, in compliance with Rule 32(a) of the North

Dakota Rules of Appellate Procedure, the above brief was prepared with proportional type

face and does not exceed 38 pages.

Dated this 2nd day of October, 2019.

GREEN LAW FIRM, P.C.

328 Dakota Avenue
Wahpeton, ND 58075
(701) 672-1218
Attorneys for Defendant - Appellant
By: /s/ Jonathan L. Green
Jonathan L. Green (ND Bar ID #06853)
jon.green@jongreenlawfirm.com

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STATE OF NORTH DAKOTA IN THE SUPREME COURT

CASE NUMBER 20190261

Heather Leeann Presswood, )

)
Plaintiff and Appellee, ) CERTIFICATE OF SERVICE
) UPON ERICA CHISHOLM
v. ) ATTORNEY FOR
) PLAINTIFF AND APPELLEE
Warren Leonard Runyan, III )
)
Defendant and Appellant. )

¶21 The undersigned attorney represents the Defendant/Appellant, Warren Leonard

Runyan, III, in the above-entitled matter and hereby certifies that on the 2nd day of October,

2019, he served Appellant’s Brief and Appendix electronically upon Erica Chisholm,

attorney for Plaintiff/Appellee, Heather Leaann Presswood, at the following email address:

elchisho@hotmail.com

Dated this 2nd day of October, 2019.

GREEN LAW FIRM, P.C.

328 Dakota Avenue
Wahpeton, ND 58075
(701) 672-1218
Attorneys for Defendant/Appellant
By: /s/ Jonathan L. Green
Jonathan L. Green (ND Bar ID #06853)
jon.green@jongreenlawfirm.com

13
STATE OF NORTH DAKOTA IN THE SUPREME COURT

CASE NUMBER 20190261

Heather Leeann Presswood, )

)
Plaintiff and Appellee, ) CERTIFICATE OF SERVICE
) UPON ERICA CHISHOLM
v. ) ATTORNEY FOR
) PLAINTIFF AND APPELLEE
Warren Leonard Runyan, III )
)
Defendant and Appellant. )

¶21 The undersigned attorney represents the Defendant/Appellant, Warren Leonard

Runyan, III, in the above-entitled matter and hereby certifies that on the 8th day of October,

2019, he served Appellant’s Brief and Appendix electronically upon Erica Chisholm,

attorney for Plaintiff/Appellee, Heather Leaann Presswood, at the following email address:

elchisho@hotmail.com

Dated this 8th day of October, 2019.

GREEN LAW FIRM, P.C.

328 Dakota Avenue
Wahpeton, ND 58075
(701) 672-1218
Attorneys for Defendant/Appellant
By: /s/ Jonathan L. Green
Jonathan L. Green (ND Bar ID #06853)
jon.green@jongreenlawfirm.com

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