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State of North Dakota

August 18, 2011

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 Douglas R. Herman, Judge.

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

N.D. Supreme CourtState ex. rel. Schlect v. Wolff,

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

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2011 ND 164

AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

[¶1] Troy Wolff appeals from a district court order affirming and adopting a judicial referee's order granting the State's motion for relief from judgment and vacating the second amended judgment in this paternity action. We conclude the State is a real party in interest and has standing, the second amended judgment contains unenforceable provisions, and the court did not err in vacating the second amended judgment. We affirm.

I

[¶2] In 1996 the State sued Wolff, seeking to establish his paternity of C.A.W. and obtain a child support order after Nancy Ann Schlect, formerly known as Nancy Ann Neva, and C.A.W. began receiving public assistance. In 1997 the district court issued a default judgment finding Wolff to be C.A.W.'s natural father and Schlect to be C.A.W.'s natural mother. The court also established a child support obligation for Wolff. Schlect was given custody of the child. In 1999 Wolff and Schlect stipulated to a reduction of Wolff's child support obligation, and an amended judgment was entered incorporating the stipulation. The State was a party and signed the 1999 stipulation.

[¶3] In January 2009, Wolff and Schlect entered into another stipulation. Wolff and Schlect agreed they would have equal residential responsibility of the child, and they agreed to modify the child support obligation. They agreed Wolff does not have an obligation to pay child support to Schlect, Schlect agreed to forgive Wolff's obligation to pay support or delinquent support, and Wolff agreed he will not seek child support from Schlect. The district court entered a second amended judgment incorporating the stipulation.

[¶4] In October 2009, the State moved to vacate the second amended judgment under N.D.R.Civ.P. 60(b). The State alleged it was a party to the action under N.D.C.C. § 14-09-09.26, it did not agree to the stipulation, and it did not have notice or an opportunity to be heard before the stipulation was incorporated into the second amended judgment. Wolff filed a response and requested oral argument, but he did not schedule a time for a hearing as required by N.D.R.Ct. 3.2(a)(3). A hearing was not held.

[¶5] The judicial referee entered an order vacating the second amended judgment. Wolff did not request the district court to review the referee's order, but he appealed the referee's decision to this Court. In State, County of Cass ex rel. Schlect v. Wolff, 2010 ND 101, 783 N.W.2d 642, we remanded for further explanation of the judicial referee's decision. We also questioned whether the case was properly before the judicial referee or whether an order specifically referring the case to the judicial referee was required. Id. at ¶ 8. We directed the district court to consider N.D. Sup. Ct. Admin. R. 13, which provides rules for the appointment and referral of cases to judicial referees, and to clarify the order of the presiding judge to determine whether the referee had jurisdiction to hear the State's motion to vacate judgment. Wolff, at ¶ 8.

[¶6] On September 1, 2010, the East Central Judicial District revised its standing order for judicial referees. The order cleared up any ambiguity about whether separate individual case assignments are necessary and provides that certain cases referred to judicial referees do not require separate case-by-case referral orders. On September 2, 2010, the district court entered an order in this case, citing the September 1, 2010, standing order and remanding the matter to the judicial referee to clarify her reasoning for vacating the second amended judgment.

[¶7] On November 18, 2010, the judicial referee entered an order explaining her prior order vacating the second amended judgment. The judicial referee ruled the State is a party to the action under N.D.C.C. § 14-09-09.26 because Schlect has received assistance from the State in the past under N.D.C.C. ch. 50-09 and Schlect has had an open file with the state child support enforcement program since June 1996. The referee also ruled the second amended judgment contains invalid and unenforceable provisions because it limits Wolff's ...


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