Mund v. Leingang

524 N.W.2d 358, 1994 N.D. LEXIS 246
CourtNorth Dakota Supreme Court
DecidedNovember 21, 1994
DocketCiv. No. 930310
StatusPublished
Cited by1 cases

This text of 524 N.W.2d 358 (Mund v. Leingang) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mund v. Leingang, 524 N.W.2d 358, 1994 N.D. LEXIS 246 (N.D. 1994).

Opinions

NEUMANN, Justice.

This is an appeal from a county court’s denial of a motion to remove the guardian of three minor wards. We remanded temporarily to permit the trial court to hear the moving party’s oral argument, as mandated by Rule 3.2, NDROC.1 We now affirm the county court order.

James Norman, Jr., (Norman) murdered his estranged wife, Pamela, in the presence of their three minor children, John, James III, and Jamie. ' Norman was convicted of a class AA felony, and sentenced to life in prison.

Following the murder of their mother, the three minor children were placed in the temporary legal custody of Burleigh County Social Services. Temporary physical custody was given to Susan Leingang, Pamela’s sister. On January 24, 1992, James and Dee Mund, the children’s paternal aunt and uncle, petitioned the County Court of Burleigh County for guardianship of the children. On January 27, 1992, Leingang also petitioned the court for guardianship of the children. After considering both guardianship petitions, the county court concluded that the best interests of the children would be served by granting Leingang’s petition, and so ordered. Norman did not appeal this order.

On August 31, 1993, Norman made a motion to the county court, requesting removal of the children from Leingang’s home due to abuse and neglect. After considering the briefs of Norman, Leingang, and the guardian ad litem, the county court denied Norman’s motion. It is the denial of this motion to remove the minor children from the guardian’s home from which Norman now appeals.

[360]*360Norman, acting pro se, raised four issues: whether the county court erred in deciding the Rule 3.2 motion without oral argument; whether the county court erred in denying Norman’s motion to remove guardian Susan Leingang; whether the county court erred in awarding Leingang guardianship over the three Norman children; and whether the county court judge should have removed herself from presiding over guardianship proceedings due to conflicts of interest. Following remand, Norman attempts to raise three additional issues: he was not provided a transcript of the oral argument; he had wanted to present the testimony of witnesses in support of his motion, and was not able to do so; and his time for oral argument was limited to 15 minutes. Norman’s first issue was resolved by our temporary remand. In re Guardianship and Conservatorship of John, James III, and Jamie Norman, 521 N.W.2d 395 (N.D.1994). We address each of the others in turn.

I

Norman argues that the trial court erred in denying his motion to remove Lein-gang as guardian of his three children. The basis of Norman’s motion was that the children were being psychologically and emotionally abused by Leingang. The trial court found ■ that there had been no significant change in circumstances since the original guardianship determination. On appeal, Norman’s position is that the trial judge was biased, and as a result, he was unfairly prejudiced. We disagree. There is sufficient evidence to support the trial court’s decision, and Norman has failed to establish any bias.

We apply the clearly erroneous standard when reviewing findings in a guardianship proceeding. NDRCivP Rule 52(a); e.g., In re Guardianship of Renz, 507 N.W.2d 76, 77 (N.D.1993). A finding of fact is clearly erroneous if induced by an erroneous view of the law, if there is no evidence to support it, or if we are left with a definite and firm conviction that a mistake has been made. E.g., Renz, 507 N.W.2d at 77.

The record contains sufficient evidence in support of the trial court’s finding that circumstances have not significantly changed since the granting of the guardianship. Norman attempted to relitigate the original guardianship decision at the trial level, just as he is now attempting to relitigate it at the appellate level. The time for appealing the original guardianship order has long since passed. There is an abundance of evidence which supports the trial court’s decision to deny Norman’s motion to remove the guardian.

Norman has failed to raise any valid evidence of bias or lack of impartiality on the part of the trial judge. A disagreement on legal questions is not evidence of bias, Sargent County Bank v. Wentworth, 500 N.W.2d 862, 879 n. 10 (N.D.1993), just as the mere fact that the judge made a ruling adverse to Norman is not evidence of bias, e.g., Farm Credit Bank of St. Paul et al. v. Brakke et al., 512 N.W.2d 718, 720 (N.D.1994).

II

Norman argues that the trial court erred in granting Leingang’s guardianship petition. As we have already noted, the time for appealing the original guardianship decision has long since elapsed. The trial court did not err in refusing to revisit this issue. We will not revisit it either.

III

Norman argues that the trial judge should have recused herself from presiding over the original guardianship proceedings because of “conflict of interest.” Norman relies on Rule 3(C)(1)(a) of the North Dakota Rules of Judicial Conduct,2 which provides:

C. Disqualification.
(1) A judge’s disqualification is appropriate when the .judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(a) a judge has a personal bias or prejudice concerning a party, or person[361]*361al knowledge of disputed evidentiary-facts concerning the proceeding.

Rule 3(C)(1)(a), NDR Jud Cond. Not only is there no evidence of conflict of interest, but the time for appealing the original guardianship determination has run.

Disqualification is not required merely because a judge has previously presided over a ease in which one of the same parties was involved. Norman has failed to establish any personal bias or prejudice, or any personal knowledge of disputed evidentiary facts on the part of the trial judge. There is no evidence to even suggest that the trial judge acquired out-of-court knowledge pertaining to' disputed facts of the guardianship proceeding, and as we already stated, an adverse ruling does not prove bias.

IV

Norman claims that he was denied a transcript of the oral argument. Rule 10(b), NDRAppP, requires transcripts only in eases in which an evidentiary hearing was held, and makes it the appellant’s duty to order the transcript and to file proof of service of the order with the clerk of the trial court.3 No evidentiary hearing was held on remand, and there is no indication in the record that Norman ever ordered a transcript, as required by Rule 10(b). Furthermore, Norman fails to tell us in his brief exactly what a transcript would disclose to us that would support any of his arguments presented here. The argument has no merit.

V

Norman argues next that there should have been an evidentiary hearing, but the trial court, by limiting its consideration of his motion to affidavits and arguments,' denied him the opportunity to fully present his claims.

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Related

Matter of Norman
524 N.W.2d 358 (North Dakota Supreme Court, 1994)

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Bluebook (online)
524 N.W.2d 358, 1994 N.D. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mund-v-leingang-nd-1994.