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State v. Wolff

June 10, 2010

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



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Susan J. Thomas, Judicial Referee.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

REMANDED.

Opinion

[¶1] Troy Allan Wolff appealed from the referee's order vacating the second amended judgment in this paternity action. We remand to the district court for further explanation of the referee's decision.

I.

[¶2] This case raises both procedural and substantive issues. For clarity, the procedural issues will be addressed first, followed by the substantive issues.

A.

[¶3] In 1996 the State sued Wolff, seeking to establish his paternity of C.A.W. and initiate a child support order. In 1997, the district court issued a default judgment finding Wolff to be C.A.W.'s natural father and Nancy Ann Neva (now Schlect) to be C.A.W.'s natural mother. The district court also established a child support obligation for Wolff of $333 per month. Schlect was given primary residential responsibility of the child, subject to Wolff's right to reasonable parenting time.*fn1 In 1999, Wolff and Schlect stipulated to a reduction of Wolff's child support obligation to $298 per month, due to a decrease in his income. The district court entered an amended judgment reflecting the stipulation. Wolff and Schlect entered into another stipulation in January 2009. Wolff was represented by counsel, while Schlect was not. The stipulation addressed child support and residential responsibility of C.A.W. The district court entered a second amended judgment reflecting the stipulation.

[¶4] In October 2009, a Special Assistant Attorney General representing the Child Support Enforcement Program moved to vacate the second amended judgment under N.D.R.Civ.P. 60(b)(i), (vi). The State specifically declared it did not request oral argument. The State alleged it was a party to the action under N.D.C.C. § 14-09-09.26.

[¶5] Wolff filed a response, asserting Schlect concurred in his arguments. Schlect did not file her own response. In his response, Wolff requested oral argument on the State's motion. Rule 3.2(a)(3) of the North Dakota Rules of Court, governing motions practice in the courts, states:

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 movant has previously served notice indicating that the motion is to be decided on briefs. The party requesting oral argument shall secure a time for the argument and serve notice upon all other parties. Requests for oral argument or the taking of testimony must be made not later than five days after expiration of the time for filing the answer brief.

Wolff did not secure a time for a hearing as required by N.D.R.Ct. 3.2(a)(3) and the district court did not hold a hearing.

[¶6] Judicial Referee Susan J. Thomas issued an order vacating the second amended judgment. Referee Thomas also sent Wolff a notice of findings and order and right of review, informing him:

You have the right of review by the District Court Judge upon filing a written request for such review, with specifications of error, with the Clerk of the District Court within (5) five days after receiving this Notice. . . . The Findings and Order of the Judicial Referee are deemed to have the effect of an Order of ...


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