Beverly J. Cody, Plaintiff and Appellee
Lee A. Cody, Defendant and Appellant
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Gail Hagerty, Judge.
M. Jackson, Bismarck, ND, for plaintiff and appellee;
submitted on brief.
Cody, self-represented, defendant and appellant; submitted on
VandeWalle, Chief Justice.
1] Lee Cody appealed from a divorce judgment that distributed
the parties' property and debts. We conclude the record
supports the district court's denial of his request to
appear telephonically at trial and the court did not err when
it clarified its opinion before the final judgment. We
further conclude his issue claiming ineffective assistance of
trial counsel is without merit because this type of claim
does not extend to divorce actions. We affirm.
2] Lee Cody and Beverly Cody were married in 1991. In May
2016, Beverly Cody commenced this divorce action. In June
2016, Lee Cody's attorney filed a notice of appearance
and an answer to her complaint seeking a divorce. In August
2016, the district court scheduled a trial for June 13, 2017.
On June 7, 2017, after initially denying the parties'
stipulated request for a continuance, the court granted a
continuance of the trial. The parties sought the continuance
on grounds of Lee Cody's incarceration and Beverly
Cody's significant health concerns. The trial was
subsequently rescheduled for December 20, 2017.
3] On December 7, 2017, less than two weeks before trial, Lee
Cody served and filed an expedited motion requesting the
district court to permit him to appear telephonically at
trial. His only asserted basis for the motion was that he was
incarcerated in Arkansas and a telephonic appearance was
necessary for him to provide testimony and participate in the
divorce trial. On December 8, 2017, the court entered an
order denying his motion. On December 12, 2017, the parties
served and filed their respective witness and exhibit lists.
On December 20, 2017, the court held a trial. Beverly Cody
appeared in person at the trial with her attorney. Lee Cody
did not appear at trial due to his incarceration, but was
represented at the trial by his attorney. At trial, the court
received various exhibits and testimony from three witnesses.
4] On January 11, 2018, the district court issued an opinion,
which divided the parties' property and debts and made
other determinations including reserving jurisdiction on
Beverly Cody's request for a spousal support award. On
January 19, 2018, Beverly Cody served and filed a request for
clarification of the memorandum opinion, asking the court to
clarify its order regarding the distribution of Lee
Cody's pension. On February 1, 2018, the court granted
the request. On February 7, 2018, the court entered an order
for judgment, incorporating its January 11 opinion and
clarifying that the court directed a division of the pension
benefit consistent with the Bullock formula, which
resulted in a division of the pension benefits earned during
the marriage equally between the parties. Judgment was
entered on February 8, 2018.
5] Lee Cody argues the district court erred in denying his
request to appear at the trial telephonically.
6] Rule 43(a), N.D.R.Civ.P., concerns the form and
admissibility of evidence in civil proceedings and states:
At trial, the witnesses' testimony must be taken in open
court unless a statute, the Rules of Evidence, these rules,
or other court rules provide otherwise. For good cause, or on
agreement of the parties, and with appropriate safeguards,
the court may permit testimony in open court by
contemporaneous transmission from a different location. A
party must give notice if a witness is unable to testify
orally or if testimony by contemporaneous transmission may be
7] The district court has broad discretion in deciding
evidentiary matters. Regan v. Lervold, 2014 ND 56,
¶ 8, 844 N.W.2d 576. We will overturn the district
court's admission or exclusion of evidence only when the
district court has abused its discretion. Id. A
district court abuses its discretion when it acts