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Berry v. Berry

Supreme Court of North Dakota

October 17, 2017

Ronald Berry, Plaintiff
v.
Phyllis Berry, Defendant and Appellant

         Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge.

         AFFIRMED.

          Ronald Berry, plaintiff; no appearance.

          Robert S. Rau, Minot, ND, for defendant and appellant.

          Jensen, Justice.

         [¶ 1] Phyllis Berry appealed from a corrected judgment revising the parties' original divorce judgment. Because Phyllis Berry requested the district court retain jurisdiction over the allocation of Ronald Berry's military retirement benefits and the court effectively denied her request for attorney fees, we affirm.

         I

         [¶ 2] Phyllis Berry and Ronald Berry were divorced in a judgment entered on January 24, 2008. Following entry of the judgment, Phyllis Berry requested the district court reconsider its allocation of Ronald Berry's military retirement benefits. The court entered an order denying her motion to reconsider on March 3, 2008.

         [¶ 3] In 2014 both parties initiated post-judgment motions. Ronald Berry sought modification of several provisions of the judgment including the allocation of his military retirement benefits. An Order for Amended Judgment and Judgment were entered on March 5, 2015, which included a denial of Ronald Berry's request for modification of the allocation of his military retirement benefits and directing both parties to complete specific tasks. The district court denied Ronald Berry's motion without prejudice, noted that he had failed to comply with the requirements of N.D.R.Civ.P. 60(b)(6), and provided him an opportunity to file the appropriate materials within 45 days of the order.

         [¶ 4] On October 14, 2015, the district court issued an order recognizing that Ronald Berry had failed to file additional materials to request Rule 60(b) relief and had failed to submit proof that he had complied with all of the directives contained in the March 5, 2015 Amended Judgment. The court ordered the parties to appear at an order-to-show-cause hearing on November 16, 2015.

         [¶ 5] Prior to the hearing on the order to show cause, a proposed Order on Military Retirement Pay addressing allocation of Ronald Berry's military retirement was prepared; the order was drafted as a qualified domestic relations order (QDRO). During the hearing held on November 16, 2015, Phyllis Berry requested that the district court sign the Order on Military Retirement Pay and include within the order a statement that the court was retaining jurisdiction over the allocation of Ronald Berry's military retirement benefits. The court thereafter included a handwritten modification on the QDRO specifically stating that jurisdiction was being retained. The signature line on the QDRO incorrectly states the date as November 16, 2014, but the record indicates it was filed November 18, 2015.

         [¶ 6] On November 18, 2015, the district court issued an order, stating that "[s]anctions for contempt are not appropriate at this time since Ronald is addressing the pending issues before the Court." Phyllis Berry made no subsequent applications for contempt. The order also directed the parties to submit information regarding credits and adjustments to the allocation of retirement benefits. Following the submission of additional materials, the district court held an evidentiary hearing, in part, on the issue of the appropriate allocation of Ronald Berry's military retirement benefits. The court subsequently issued an order for a corrected amended judgment and entered a corrected amended judgment modifying the formula allocating Ronald Berry's military retirement benefits.

         II

         [¶ 7] Phyllis Berry argues the district court erred in modifying the allocation of Ronald Berry's military retirement benefits because Ronald Berry failed to satisfy the ...


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