Appeal from the District Court of Emmons County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[¶1] Heidi Eberle appealed from an order denying her request for attorney's fees, an order denying her motion to compel compliance with N.D.R.Ct. 8.3(a), and an order denying relief from a divorce judgment. We conclude her settlement agreement with John Eberle is unconscionable, and we reverse the district court's order denying relief from the judgment and remand for an equitable division of the marital estate. We affirm the district court's orders denying Heidi Eberle's request for attorney's fees and her motion to compel.
[¶2] John and Heidi Eberle were married in 1996, and have four children. John Eberle is a farmer in rural Emmons County, running a dairy operation and crop farm. Before the marriage, John Eberle farmed approximately 440 acres he had purchased from his parents. In 2004, the parties entered into a contract for deed with John Eberle's mother to purchase another 1,000 acres of farmland. Heidi Eberle was not employed outside of the home during most of the marriage.
[¶3] Heidi Eberle and the children moved out of the parties' residence on February 26, 2007. When Heidi Eberle left she took the parties' 2001 Ford Winstar minivan, some clothing, a few household items, other items of personal property, and $5,000 from a joint bank account. Half of the $5,000 was later returned as part of the settlement agreement to pay for credit card debt.
[¶4] John Eberle hired an attorney and had a settlement agreement prepared. He testified he believes he gave Heidi Eberle the settlement agreement on either March 8 or 9, 2007, he called her on March 11, 2007, to see if she had signed the agreement, and he picked it up on the morning of March 12, 2007. Heidi Eberle testified John Eberle gave her the settlement agreement on March 12, 2007, he made her sign it that morning, and she did not read the agreement before signing it. Heidi Eberle did not speak to an attorney before signing the agreement. The settlement agreement was signed on March 12, 2007, and was filed on March 15, 2007, along with the summons and complaint.
[¶5] The settlement agreement resolved custody, child support, property division, and debt allocation. Under the terms of the settlement agreement the parties have joint legal custody of the children, Heidi Eberle received primary physical custody, and John Eberle received liberal visitation. John Eberle is required to pay $1,200 in child support each month until the oldest child graduates from high school or reaches the age of nineteen, at which time John Eberle will be entitled to a recalculation of his support obligation. The agreement also provides:
Either party may request a review concerning the right to receive or obligation to pay child support by applying to the appropriate child support agency for child support services and indicating, in the manner there provided, the desire to have a child support order and the necessity for the same reviewed as required by law. . . . The parties agree the obligation agreed upon as child support is an upward deviation from what would otherwise be [John Eberle's] support obligation. As substantiated by the attachment, [John Eberle's] support obligation would otherwise be $916.00 per month.
The agreement provides that either party may request review of the right to receive or the obligation to pay child support under N.D.C.C. § 14- 09-08.4.
[¶6] The settlement agreement states both parties waive any entitlement to receive spousal support. The agreement also divided the parties' property. Heidi Eberle received the 2001 Ford Winstar, her new checking account, any furniture and other personal effects in her possession, and any personal clothing or other close personal effects still remaining in the marital residence. John Eberle received all the real property, including the residence and farmland, a 2001 Ford pickup, all farm equipment, machinery, tools, and other items associated with the farm, his checking account, the household goods and furnishings remaining in the marital residence, and all other items of personal property in his possession. John Eberle assumed all debt related to the farm and half of the Capital One credit card debt. Heidi Eberle assumed half of the Capital One credit card debt and all other credit card debt.
[¶7] The district court entered a judgment incorporating the settlement agreement on March 19, 2007. Heidi Eberle moved for relief from the judgment on January 3, 2008, claiming she did not know or understand what she was doing when she signed the agreement, she was under the influence of prescription drugs, she wanted to talk to a lawyer before she signed but John Eberle would not let her, and he refused to leave her house until she signed the agreement. She also moved for sole custody of the children and for a specific visitation schedule.
[¶8] On March 4, 2008, District Court Judge Bruce Haskell issued an order granting Heidi Eberle's motion for relief from the judgment. The court considered whether Heidi Eberle's motion for relief from the judgment should be granted under N.D.R.Civ.P. 60, and found there was no fraud justifying relief from the judgment because there was not any evidence of how the medication may have impacted Heidi Eberle's decision-making or that John Eberle knew the medications affected Heidi Eberle. The court found there were grounds for ordering relief from the judgment under N.D.R.Civ.P. 60(b)(vi) because there was significant marital property, the parties did not discuss the disposition of the real property and farm equipment, and Heidi Eberle was served with the summons and complaint on the same day she signed the settlement agreement which supported a finding that there was no discussion of the disposition of the marital assets. The court granted Heidi Eberle's motion for relief from the judgment to allow for consideration of an equitable distribution of the marital estate.
[¶9] On April 4, 2008, John Eberle moved for certification of the order to allow for an appeal under N.D.R.Civ.P. 54(b). The district court found "Judge Haskell's Memorandum Opinion and Order is not a Final Judgment" and denied John Eberle's motion. Judge Haskell recused himself from hearing any further matters in the case on April 7, 2008. On April 14, 2008, Heidi Eberle filed an answer and counterclaim to John Eberle's initial complaint. She also moved for an award of attorney's fees.
[¶10] On May 7, 2008, Heidi Eberle moved to compel John Eberle to comply with N.D.R.Ct. 8.3(a), which requires parties in divorce cases to prepare a joint informational statement and preliminary property and debt listing. Heidi Eberle also requested attorney's fees. Both parties later filed Rule 8.3 informational statements and property and debt listings. On August 7, 2008, District Court Judge Bruce Romanick denied Heidi Eberle's motion to compel, finding the parties had complied with the rule's requirements. The court also denied Heidi Eberle's request for attorney's fees, finding the information about Heidi Eberle's need for attorney's fees did not justify an award and N.D.C.C. § 14-05-23 should not apply because the attorney's fees would be incurred in attempting to obtain relief from the judgment.
[¶11] After an October 2008 hearing, District Court Judge Bruce Romanick considered Heidi Eberle's motion for relief from the judgment and found the agreement was free from mistake, duress, menace, fraud, and undue influence, the agreement was not unconscionable, and the agreement is binding and remains in full force and effect.
[¶12] Judge Haskell's March 2008 order granted Heidi Eberle's motion for relief from the judgment to allow for consideration of an equitable distribution of the marital estate. After a hearing, Judge Romanick found the settlement agreement was free from mistake, duress, menace, fraud, and undue influence, was not unconscionable, and remains in full force and effect, which reversed Judge Haskell's March 2008 decision. At oral argument, questions were raised about whether the March 2008 order could be modified or reversed by the later district court decision.
[¶13] The March 2008 order was interlocutory in nature. The court found there were grounds for ordering relief from the judgment, but allowed for further proceedings to equitably distribute the marital estate. John Eberle moved for certification of the order to allow for an appeal, but his motion was denied. Interlocutory orders generally are not appealable and may be revised or reconsidered any time before the final order or judgment is entered. Tibbetts v. Dornheim, 2004 ND 129, ¶ 11, ...