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Lessard v. Johnson

Supreme Court of North Dakota

December 17, 2019

Julie Lessard, Plaintiff and Appellee
v.
Kevin Johnson, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek, Judge.

          Michael L. Gjesdahl, Fargo, ND, for plaintiff and appellee; submitted on brief.

          Kristin A. Overboe, Fargo, ND, for defendant and appellant; submitted on brief.

          OPINION

          CROTHERS, JUSTICE.

         [¶1] Kevin Johnson appeals from an amended judgment granting Julie Lessard a divorce and from orders denying his motions for a new trial and for contempt. Johnson argues the district court erred in denying his motion for a new trial, deciding primary residential responsibility for the parties' children, dividing the marital estate, and denying his motion for contempt. We affirm.

         I

         [¶2] Johnson and Lessard were married in 2006, and have three minor children together. In 2018 Lessard sued for divorce, requesting the district court award her primary residential responsibility for the parties' children, order Johnson to pay child support, and equitably distribute the parties' assets and debts. Johnson responded and requested the court award him primary residential responsibility for the children, child support, spousal support, an equitable division of the marital estate, and attorney's fees. The parties filed a joint asset and debt listing under N.D.R.Ct. 8.3.

         [¶3] The trial was scheduled for October 2, 2018, but was rescheduled to December 6, 2018. Johnson's attorney moved to withdraw as counsel, which the district court granted on October 31, 2018. On November 30, 2018, Johnson's new counsel filed a notice of appearance. On December 4, 2018, Johnson moved for a continuance, arguing he recently hired a new attorney, Lessard hampered his efforts to do so because she controlled marital funds, and she was unwilling to give him enough money to hire an attorney. The court denied Johnson's motion.

         [¶4] After a court trial, the district court awarded Lessard primary residential responsibility for the children, awarded Johnson parenting time, ordered Johnson's child support obligation was $0 per month, and ordered neither party shall pay the other spousal support. The court also divided the marital estate and ordered that each party was responsible for his or her own attorney's fees. Judgment was entered, and was later amended.

         [¶5] On March 6, 2019, Johnson moved to modify primary residential responsibility for the children. He also moved for a new trial and relief from the judgment, arguing the irregularities in the proceedings, including the district court's denial of his motion for a continuance, prevented him from having a fair trial. He argued the court's property division was not equitable and the court did not explain the disparity in the division, and the court did not properly apply the best interest factors in deciding primary residential responsibility for the children. Johnson also moved to amend the judgment and to hold Lessard in contempt. Lessard opposed the motions. The district court denied Johnson's post-judgment motions. Johnson timely appealed.

         II

         [¶6] Johnson argues the district court erred by denying his motion for a new trial under N.D.R.Civ.P. 59 because the court's failure to grant his request for a continuance prejudiced the presentation of his case and deprived him of an equal opportunity to prepare for trial. He claims he requested a continuance for good cause because Lessard controlled the marital funds and she refused his request for money, which restricted his efforts to find an attorney.

         [¶7] A district court has discretion in deciding whether to grant or deny a motion for a new trial under N.D.R.Civ.P. 59(b). Riddle v. Riddle, 2018 ND 62, ¶ 5, 907 N.W.2d 769. Our review of the court's decision is limited to deciding whether the court manifestly abused its discretion. Id. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id.

         [¶8] Under N.D.R.Civ.P. 59(b)(1), a court may grant a motion for a new trial on the grounds of "irregularity in the proceedings of the court, jury, or adverse party, or any court order or abuse of discretion that prevented a party from having a fair trial[.]" Under N.D.R.Ct. 6.1(b) a motion for a continuance "shall be promptly filed as soon as the grounds therefor are known and will be granted only for good cause shown[.]"

         [¶9] The district court denied Johnson's motion for a new trial. The court explained that the parties were told to be ready for trial on October 2, 2018, written discovery was closed, the parties engaged in mediation, the parties essentially agreed to the financial items, and primary residential responsibility for the children remained an issue. The court found Johnson's first attorney withdrew on October 31, 2018, new counsel filed a notice of appearance on November 30, 2018, and Johnson moved for a continuance two days before trial on December 4, 2018. The court found Johnson knew he needed new counsel but he waited one month before acquiring new counsel and he failed to show how the failure to grant a continuance was an irregularity in the proceedings of the court that prevented him from having a fair trial. The court found each party was allowed time to present their case, almost all of the parties' exhibits were accepted, each party was allowed to testify, and the failure to grant a continuance did not prevent a fair trial.

         [¶10] Johnson failed to establish the district court abused its discretion by denying his motion for a new trial. We conclude the court did not act in an arbitrary, unreasonable, or unconscionable manner by denying Johnson's motion for a new trial.

         III

         [¶11] Johnson argues the district court erred in awarding Lessard primary residential responsibility for the parties' children. He contends the court failed to consider relevant best interest factors and erred by finding his alcoholism played a significant role in weighing the best interest ...


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