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Solwey v. Solwey

Supreme Court of North Dakota

March 22, 2018

Lisa D. Solwey, Plaintiff and Appellee
v.
Thomas J. Solwey, Defendant and Appellant and State of North Dakota, Real Party in Interest

          Appeal from the District Court of Foster County, Southeast Judicial District, the Honorable James D. Hovey, Judge. AFFIRMED.

          Steven T. Ottmar, Jamestown, ND, for plaintiff and appellee.

          Timothy C. Lamb, Grand Forks, ND, for defendant and appellant.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Thomas J. Solwey (Solwey) appealed from a first amended judgment awarding split residential responsibility of his and Lisa D. Solwey /Hilbert's (Hilbert) minor children. We affirm.

         I

         [¶ 2] Solwey and Hilbert were married on August 8, 1998 and divorced on October 9, 2013. Hilbert was awarded primary residential responsibility of all four children (M.L.S., C.T.S., K.E.S., and K.D.S.). Solwey was ordered to pay $1, 247 per month in child support.

         [¶ 3] In August 2015, Solwey moved to modify primary residential responsibility. Under the heightened standard for such motions within two years of the previous order, the district court dismissed the motion without an evidentiary hearing for lack of prima facie case. See N.D.C.C. § 140906.6(1) and (3). Solwey did not appeal that order.

         [¶ 4] In November 2015, Solwey moved to modify primary residential responsibility under N.D.C.C. § 140906.6(4) and (6). The district court again denied for lack of prima facie case. Solwey appealed to this Court and the district court order was reversed and remanded with an order for evidentiary hearing. See Solwey v. Solwey, 2016 ND 246, 888 N.W.2d 756.

         [¶ 5] An evidentiary hearing was held in March 2017. The district court ruled at the outset of the hearing that only C.T.S. and K.E.S. (twins) would be considered under the motion to modify. Solwey argued the family should be treated as a cohesive unit and therefore K.D.S., the youngest, should also be considered under the motion to modify. The district court ruled this Court's mandate for evidentiary hearing did not apply to K.D.S. The parties mutually agreed M.L.S., who is no longer a minor, would not be considered.

         [¶ 6] The first amended judgment was entered in August 2017, awarding Hilbert primary residential responsibility of M.L.S. and K.D.S., awarding Solwey primary residential responsibility of C.T.S., and awarding shared joint equal residential responsibility of K.E.S. The district court ordered that Solwey's new child support obligation of $436 per month commence June 2017.

         [¶ 7] Solwey appealed, but only filed a partial transcript of the evidentiary hearing. "If an appeal is taken in a case in which an evidentiary hearing was held, the appellant must order a transcript of the proceedings... [and] the order for a transcript... must be filed with the clerk of [the supreme] court with the notice of appeal." State v. Cook, 2014 ND 18, ¶ 4, 843 N.W.2d 1 (citing N.D.R.App.P. 10(b)). This Court has said repeatedly: "The appellant assumes the consequences and the risk for the failure to file a complete transcript. If the record on appeal does not allow for a meaningful and intelligent review of alleged error, we will decline review of the issue." Id. (citations omitted).

         II

         [¶ 8] Solwey argues the district court abused its discretion in setting a commencement date for the new child support order nearly two years after ...


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