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Brummund v. Brummund

December 16, 2008

CLARICE A. BRUMMUND, PLAINTIFF AND APPELLANT
v.
CARLTON D. BRUMMUND, DEFENDANT AND APPELLEE



Appeal from the District Court of Dickey County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

The opinion of the court was delivered by: Maring, Justice

DISMISSED.

[¶1] Clarice Brummund appealed from a district court judgment interpreting a prenuptial agreement. We conclude we do not have jurisdiction and dismiss the appeal.

I.

[¶2] Clarice and Carlton Brummund were married in March 1994. Prior to their marriage, they entered into a prenuptial agreement which included a listing of the property brought into the marriage by each party. Included in that property listing was farmland in Dickey County owned by Carlton Brummund.

[¶3] Clarice Brummund brought this action for divorce in 2007, seeking an equitable division of the parties' property and an award of spousal support from Carlton Brummund. The parties agreed to bifurcate the issue of the interpretation of the prenuptial agreement, and a hearing was held on that issue. The primary dispute regarding the prenuptial agreement was whether it applied to the appreciation in value of Carlton Brummund's farmland during the duration of the marriage. The district court concluded that the prenuptial agreement was unambiguous and applied to the appreciation in value of the farmland. Judgment was entered ordering that "the parties may maintain their own, separate property as set forth in the unambiguous language of the [sic] listed in Exhibit A of the Antenuptial Marital Property Agreement." The judgment states that "there is no just reason for delay in the entry of final judgment" and that it "is final pursuant to Rule 54(b) of the North Dakota Rules of Civil Procedure."

II.

[¶4] Before we consider the merits of an appeal, we must determine whether we have jurisdiction. North Dakota State Elec. Bd. v. Boren, 2008 ND 182, ¶ 4, 756 N.W.2d 784; Buchholz v. Barnes County Water Bd., 2008 ND 158, ¶ 5, 755 N.W.2d 472; Sanderson v. Walsh County, 2006 ND 83, ¶ 4, 712 N.W.2d 842. The right to appeal is a jurisdictional matter and, even if the parties do not raise the issue of appealability, we must dismiss the appeal on our own motion if we conclude we do not have jurisdiction. Buchholz, at ¶ 5; In re A.B., 2005 ND 216, ¶ 5, 707 N.W.2d 75.

[¶5] Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable. In re A.B., 2005 ND 216, ¶ 5, 707 N.W.2d 75; Choice Fin. Group v. Schellpfeffer, 2005 ND 90, ¶ 6, 696 N.W.2d 504. Under N.D.R.Civ.P. 54(b), the district court is authorized to enter a final judgment adjudicating fewer than all of the claims of all of the parties if the court expressly determines that there is no just reason for delay and expressly directs the entry of judgment. Choice Fin. Group, at ¶ 7. The district court in this case invoked Rule 54(b) and certified the judgment as final. On appeal, this Court is not bound by the district court's Rule 54(b) certification, and we will review the district court's decision, employing the abuse of discretion standard, to determine whether certification was improvidently granted. Choice Fin. Group, at ¶ 7; Public Serv. Comm'n v. Wimbledon Grain Co., 2003 ND 104, ¶ 7, 663 N.W.2d 186. A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Martin v. Trinity Hosp., 2008 ND 176, ¶ 17, 755 N.W.2d 900; Choice Fin. Group, at ¶ 7.

[¶6] We have cautioned that certification under Rule 54(b) should not be routinely granted, but is reserved for those cases involving unusual circumstances where failure to allow an immediate appeal would create demonstrated prejudice or hardship:

Certification under N.D.R.Civ.P. 54(b) is available only in the "`infrequent harsh case'" warranting the extraordinary remedy of an otherwise interlocutory appeal. For Rule 54(b) certification to be valid, the party seeking certification must demonstrate that without it prejudice or hardship will result, such that the case's circumstances are "`unusual and compelling'" or "`out-of-the-ordinary.'"

Mann v. North Dakota Tax Comm'r, 2005 ND 36, ¶ 12, 692 N.W.2d 490 (quoting Dimond v. State ex rel. State Bd. of Higher Educ., 1999 ND 228, ¶ 15, 603 N.W.2d 66).

[¶7] The burden is upon the party seeking Rule 54(b) certification to demonstrate extraordinary circumstances or unusual hardship. Wimbledon Grain, 2003 ND 104, ¶ 8, 663 N.W.2d 186. Furthermore, when determining whether to certify the judgment as final under Rule 54(b), the district court "must consider the strong policy against piecemeal appeals and must delineate the unusual or compelling circumstances requiring interlocutory appellate review." Id. The court must do more than merely recite the language of the rule:

[I]n granting the certification, the trial court merely repeated the language of Rule 54(b). We have explained that when the lower court certifies an appeal it must "delineate unusual or compelling circumstances justifying Rule 54(b) certification," rather than simply parrot the language of the rule. Sickler v. Kirkwood, 1997 ND 40, ΒΆΒΆ 6-7, 560 N.W.2d 532. The court below did not justify the certification in any way; it did not delineate a single unusual or compelling factor presented by this case ...


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