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Cody v. Cody

Supreme Court of North Dakota

January 15, 2019

Beverly J. Cody, Plaintiff and Appellee
v.
Lee A. Cody, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge. AFFIRMED.

          Thomas M. Jackson, Bismarck, ND, for plaintiff and appellee; submitted on brief.

          Lee A. Cody, self-represented, defendant and appellant; submitted on brief.

          OPINION

          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.

         I

         [¶ 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.

         II

         [¶ 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 necessary.

         [¶ 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 arbitrarily, ...


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