from the District Court of Burleigh County, South Central
Judicial District, the Honorable David E. Reich, Judge.
B. Weiler, for plaintiff and appellee.
D. Hager, for defendant and appellant.
1] Shane Stolz appeals from the district court's order
denying his motion to vacate judgment and the judgment
granting Stacy Hildebrand primary residential responsibility
of their two minor children, requiring Stolz to make $761 per
month in child support payments, and partitioning real
property held jointly between them. Because the district
court did not abuse its discretion denying Stolz's motion
to vacate, we affirm. However, the judgment incorrectly
states the matter came before the district court "on
motion" and "as a stipulated divorce action, "
rather than an action for partition of real property and for
a determination of parental rights and responsibilities.
Therefore, we remand for the district court to correct the
judgment to accurately reflect this action. I
2] Stacy Hildebrand and Shane Stolz never married, but had
three children together. In her complaint filed in March
2012, Hildebrand requested the partition of real property
they held jointly, primary residential responsibility of
their minor children, and child support payments from Stolz.
Stolz filed an answer to the complaint, listing his only
denial as Hildebrand being the proper person to have primary
residential and decision-making responsibility for the minor
children. This is a prolonged dispute which has been
continued several times.
3] In January 2015, the district court set a trial date for
April 29, 2015. Neither party disputes that Stolz's
attorney, TaLisa Nemec, received notice from the district
court regarding this trial date. Stolz signed an affidavit
consenting to Nemec's withdrawal on March 31, 2015. In
his affidavit, Stolz stated the withdrawal was based on
mutual agreement, waived notice, and requested all future
correspondence be mailed to him at a Bismarck address. On
April 10, 2015, Nemec moved the court to allow her to
withdraw as Stolz's attorney, and submitted a brief and
Stolz's affidavit in support.
4] The district court granted the motion to withdraw on April
28, 2015. The district court held the trial as scheduled on
April 29, 2015. Stolz was not present. The district court
noted Nemec's withdrawal and its belief that Stolz
intended to proceed as a self-represented litigant. The
district court proceeded to hear testimony and receive
exhibits. Hildebrand submitted evidence, testimony, and filed
a post-trial brief. Hildebrand served the post-trial brief on
Stoltz on September 11, 2015. On October 5, 2015, the
district court issued a memorandum and order finding Stolz in
default for failing to appear at the trial, awarding primary
residential responsibility to Hildebrand based on the best
interest factors, requiring Stolz to make $761 per month in
child support payments, and ordering the partition of real
property held jointly by Hildebrand and Stolz.
5] Before the district court entered judgment, Stolz hired
another attorney and moved to vacate the district court's
order under N.D.R.Civ.P. 60(b)(1) or (6). Stolz argued he was
not aware of the trial date and his counsel did not notify
him of the trial date. In support of his argument, Stolz and
his wife, Sharon Stolz, submitted affidavits alleging Nemec
never notified Stolz of the trial date, and that there was no
documentation in the file Stolz received from Nemec after she
withdrew regarding a trial date. Stolz also argued the
district court erred by granting Nemec's motion to
withdraw as counsel the day before the trial began. Stolz did
not request a hearing on his Rule 60(b) motion. In reply to
Stolz's motion to vacate, Hildebrand submitted an
affidavit and an affidavit of the parties'
seventeen-year-old daughter alleging Stolz had notice of the
trial. Relying on the affidavit from the parties'
daughter, the district court found it was "more likely
than not that [Stolz] was aware of the April 29, 2015 trial
date." The court further found that "[e]ven if he
was not made aware by Ms. Nemec, he had an obligation as a
self-represented party to apprise himself of the status of
this litigation which has been ongoing since March
2012." The district court denied Stolz's motion to
vacate and entered a judgment partitioning real property,
awarding Hildebrand primary residential responsibility,
requiring Stolz to pay child support, and awarding Stolz
reasonable parenting time. Stolz appeals.
6] Stolz moved to vacate the district court's memorandum
and order under Rule 60(b), N.D.R.Civ.P., which provides a
party may only move for relief from a "final judgment or
order." The memorandum and order was not a final
judgment. The district court, however, considered Stolz's
motion under Rule 60(b), N.D.R.Civ.P. Because a consistent
judgment was subsequently entered, we will consider
Stolz's arguments in the context of N.D.R.Civ.P. 60(b).
See Jury v. Barns Co. Municipal Airport
Authority, 2016 ND 106, ¶ 9, 881 N.W.2d 10.
7] Stolz argues the district court erred in denying his
motion to vacate the judgment. A motion to vacate lies with
the "sound discretion of the trial court, and its
decision whether to vacate the judgment will not be disturbed
on appeal unless the court has abused its discretion."
Kopp v. Kopp, 2001 ND 41, ¶ 7, 622 N.W.2d 726
(citing Peterson v. Peterson, 555 N.W.2d 359, 361
(N.D. 1996)). "A district court abuses its discretion
when it acts in an arbitrary, capricious, or unreasonable
manner." Investors Title Ins. Co. v. Herzig,
2010 ND 169, ¶ 19, 788 N.W.2d 312 (citing Bjorgen v.
Kinsey, 491 N.W.2d 389, 392 (N.D. 1992)). "A trial
court acts in an arbitrary, unreasonable, or unconscionable
manner when its decision is not the product of a rational
mental process by which the facts and law relied upon are
stated and considered together for the purpose of achieving a
reasoned and reasonable determination." Kopp,
at ¶ 7 (citing Peterson, 555 N.W.2d at 361).
"An abuse of discretion also occurs when a district
court misinterprets or misapplies the law." Datz v.
Dosch, 2014 ND 102, ¶ 13, 346 N.W.2d 724 (quotation
marks omitted). A self-represented party "should not be
treated differently nor allowed any more or any less
consideration than parties represented by counsel."
Horace Farmers Elevator Co. v. Brakke, 383 N.W.2d
838, 840 (N.D. 1986) (citing Randall v. Anderson,
286 N.W.2d 515 (N.D. 1979)); see also Jury, at
8] Stolz argues the district court misapplied the law in
entering a default judgment, and should have granted Stolz a
trial on the merits. Stolz argues the district court should
have been more lenient, because trial on the merits is
favored. However, Stolz's argument is misplaced. The
history of the case itself shows the district court did not
enter a default judgment. Hildebrand commenced this action in
March 2012. Stolz answered the complaint and made numerous
appearances over the course of this prolonged litigation.
Hildebrand did not move for default judgment. None of the
procedural requirements for a default judgment after an
appearance had been made were requested or applied. The
district court did not enter a default judgment against ...