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Betty Lou Lund v. Orvell G. Lund

March 22, 2011

BETTY LOU LUND,
PLAINTIFF AND APPELLEE
v.
ORVELL G. LUND, DEFENDANTAND APPELLANT



Appeal from the District Court of Bottineau County, Northeast Judicial District, the Honorable Michael G. Sturdevant, Judge. AFFIRMED.

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

N.D. Supreme CourtLund v. Lund,

This opinion is subject to petition for rehearing. [Go to Documents]

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2011 ND 53

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] Orvell Lund appealed from an order denying his motion for a continuance, an order denying his motion to disqualify the district court judge, and a memorandum opinion and order for judgment granting a divorce to Betty Lund and distributing marital property.*fn1 We affirm, concluding: (1) the district court did not abuse its discretion when it denied the motion for a continuance; (2) the district court did not err in denying the motion to disqualify the judge; and (3) the property distribution was not clearly erroneous.

I [¶2] Orvell and Betty Lund were married in 1956. Betty commenced this divorce action in November 2009. Orvell responded on November 30, 2009, by sending a letter to the district court stating, "[a]t this time, I do not intend to secure the services of an attorney providing the settlement of assets is fair and equitable." On January 11, 2010, the district court issued a notice of trial scheduling the trial for April 26, 2010.

[¶3] On March 19, 2010, Orvell filed a motion for a continuance, alleging he had recently hired attorney Theresa Cole and she had another trial scheduled on April 26, 2010. The district court denied the motion on March 22, 2010, noting that it had been ten weeks since the court had issued the notice of trial and Orvell had "unreasonably delayed the search for counsel." On April 7, 2010, Orvell filed a second motion for continuance and a motion to disqualify the assigned district court judge, alleging the judge was biased. The district court denied the motions on April 14, 2010. Cole then moved for permission to withdraw as Orvell's attorney, and the court granted the motion to withdraw on April 19, 2010.

[¶4] Orvell represented himself at the April 26, 2010, trial. The district court granted the divorce and divided the marital property. In doing so, the court determined that a deed purportedly transferring Orvell and Betty's real estate to Orvell and Wendell Lund, the parties' son, was not a legitimate transfer and had been an attempt to deprive Betty of her property and homestead rights. The court also determined that a mechanic's lien filed against the parties' real estate and motor home by Wendell less than a week before the scheduled trial was not legitimate. The court therefore included the full value of the real estate and motor home in the distribution of the marital property, and awarded each party approximately one-half of the marital estate. Orvell appealed and filed a motion in the district court for a stay of the judgment pending appeal. The district court denied the motion.

II [¶5] Orvell has attempted to appeal from the order denying his first motion for a continuance, the order denying his motion to disqualify the judge, and the memorandum opinion and order for judgment. Interlocutory orders and memorandum opinions are generally not appealable, but nonappealable interlocutory orders are reviewable in an appeal from a final judgment. Woodward v. Woodward, 2010 ND 143, ¶ 7, 785 N.W.2d 902; Martinson v. Martinson, 2010 ND 110, ¶ 19, 783 N.W.2d 633; Isaacson v. Isaacson, 2010 ND 18, ¶ 1, 777 N.W.2d 886. An attempted appeal from an order for judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists. Isaacson, at ¶ 1; Riemers v. City of Grand Forks, 2006 ND 224, ¶ 1 n.1, 723 N.W.2d 518. A consistent judgment granting the divorce and distributing the marital property was entered in this case, and we treat the appeal as an appeal from the judgment.

III [¶6] Orvell contends the district court abused its discretion when it denied his motion for a continuance.

[¶7] The district court has broad discretion over the progress and conduct of a trial, and the determination whether to grant a continuance lies within the sound discretion of the district court. Hartleib v. Simes, 2009 ND 205, ¶ 15, 776 N.W.2d 217; State v. Foster, 1997 ND 8, ¶ 6, 560 N.W.2d 194; Peterson v. Zerr, 443 N.W.2d 293, 297 n.3 (N.D. 1989). We will not reverse a district court's decision to deny a motion for a continuance absent an abuse of discretion. In re D.C.S.H.C., 2007 ND 102, ¶ 6, 733 N.W.2d 902; State v. Frohlich, 2007 ND 45, ¶ 11, 729 N.W.2d 148; Clark v. Clark, 2006 ND 182, ¶ 7, 721 N.W.2d 6. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when its decision is not the product of a rational mental ...


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