In Re Estate of Lutz

1999 ND 121, 595 N.W.2d 590, 1999 N.D. LEXIS 113, 1999 WL 432587

• Court: North Dakota Supreme Court
• Decided: June 29, 1999
• Docket: 980390
• Status: Published

Opinions

SANDSTROM, Justice.

[¶ 1] This is an appeal by Lavilla Lutz following our remand for trial of disputed issues in Matter of Estate of Lutz, 1997 ND 82, 563 N.W.2d 90. The trial court ruled in favor of the personal representatives, but left remaining for further hearing and decision “what is necessary in the way of supplemental income to Lavilla from the estate in order to avoid [an] unconscionable result,” and granted Lavil-la Lutz’s request for a N.D.R.Civ.P. 54(b) certification for immediate appeal. On sua sponte review, we conclude the trial court abused its discretion, and improvidently granted the Rule 54(b) certification.

[¶ 2] The unadjudicated issue is intertwined with the adjudicated issues. See Matter of Estate of Zimmerman, 1997 ND 58, ¶ 7, 561 N.W.2d 642. The “unconscionable result” sought to be avoided by the trial court in the future hearing is Lavilla Lutz’s receipt of public assistance benefits. In this appeal, Lavilla Lutz argues the trial court erred in choosing to invoke N.D.C.C. § 14-03.1-06(2) to require the estate to provide support sufficient to keep her off public assistance rather than using N.D.C.C. § 14-03.1-07 to refuse to enforce the premarital agreement in total. Because the trial court has not yet held a hearing to determine the final remedy and the value of the property and amount of support Lavilla Lutz will receive, it is difficult to fully consider whether the' trial court erred in choosing to invoke N.D.C.C. § 14-03.1-06(2). The issue of unconscio-nability is also intertwined with unadjudi-cated factual findings about the relative property values and Lavilla Lutz’s financial circumstances and ongoing needs.

[¶ 3] Moreover, our decision on the merits may not moot the possibility of further proceedings in the trial court followed by yet another appeal. See Gessner v. City of Minot, 529 N.W.2d 868, 870 (N.D.1995). Rule 54(b) certification is not appropriate merely because further proceedings in the trial court will be mooted if one side prevails in the appeal. See, e.g., Peterson v. Zerr, 443 N.W.2d 293, 298 (N.D.1989). In this case, there are no unusual or compelling circumstances for certification either delineated by the trial court or apparent from the record. See Sickler v. Kirkwood, 1997 ND 40, ¶ 7, 560 N.W.2d 532.

[¶ 4] The appeal is dismissed.

[¶ 5] NEUMANN, Acting C.J., KAPSNER, J. and ZANE ANDERSON, D.J., concur. [¶ 6] ZANE ANDERSON, D.J., and GERALD G. GLASER, S.J., sitting in place of VANDE WALLE, C.J., and MARING, J., disqualified.