Norman v. Leingang

521 N.W.2d 395, 1994 N.D. LEXIS 196

• Court: North Dakota Supreme Court
• Decided: September 2, 1994
• Docket: Civ. 930310
• Status: Published

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 remand for consideration of a request for oral argument, but retain jurisdiction of the appeal.

James Norman, Jr., (Norman) murdered his estranged wife, Pamela Norman, in the presence of their three minor children, John, James III, and Jamie Norman. 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 for 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.

Norman, acting pro se, raises four issues: (1) whether the county court erred in denying Norman’s motion to remove guardian Susan Leingang, (2) whether the county court erred in awarding Leingang guardianship over the three Norman children, (3) whether the county court judge should have removed herself from presiding over guardianship proceedings due to conflicts of interest, and (4) whether the county court erred ■in deciding the Rule 3.2 motion without oral argument. We address only the fourth issue at this time.

Norman argues that he should have been allowed to orally argue his Rule 3.2 motion to remove the guardian. Rule 3.2(a) of the North Dakota Rules of Court¹ provides that timely requests for oral argument must be granted. Requests for oral argument are timely when made within five days of the expiration of the time for filing briefs. See Rule 3.2(a). The rule contemplates the filing of a movant’s brief and an answer brief for each adverse party.² The moving party’s brief must be filed with the motion or within five days thereafter. The adverse party has ten days after service of the moving party’s brief to serve and file³ an answer brief. If the moving party’s brief was served by mail, Rule 6(e), N.D.R.Civ.P., affords the adverse party an additional three days in which to serve and file the answer brief. See, Moe v. Moe, 460 N.W.2d 411 (N.D.Ct.App.1990). Rule 3.2 states that requests for oral argument are to be made (not served) within five days of the expiration of the time for filing briefs. The use of the plural suggests that the time for filing briefs refers to the deadline for filing the answer brief, and we so hold. The use of the word “made,” rather than “served,” suggests a requirement for a completed communication, such as a filing, and again, we so hold.

In this case Norman’s motion and brief were served by mail on August 30, 1993. The responding parties then had ten days in which to serve and file their answer briefs, plus the additional three days granted by Rule 6(e), N.D.R.Civ.P., because Norman’s brief had been served by mail. That makes September 12, 1993, the expiration of the time for filing briefs, and September 17 the deadline to make a request for oral argument. Norman mailed a reply brief on September 14. Rule 3.2 makes no provision for reply briefs, and the trial court arguably had no obligation to consider this one, because leave to file it had not been requested or granted. However, this reply brief also included a request for oral argument which the trial court was required to consider.

The reply brief and request for oral argument were filed on September 16, one day before the deadline for making a request for oral argument. When they were filed, the trial court had already issued the order from which Norman appeals; the order was signed, dated and filed on September 15. The trial court had acted prior to the deadline for requesting oral argument. There is no indication in the record that the trial court considered and acted upon the request after it arrived. We therefore remand for consideration of Norman’s request, and for oral argument, if that request is granted, but we retain jurisdiction of the appeal under Rule 35(b), N.D.R.App.P.

While a prisoner’s right to appear personally at a civil proceeding is limited, see, In Interest of F.H., 283 N.W.2d 202 (N.D.1979), we note that Rule 3.2 states that, “If any party who has timely served and filed a brief requests oral argument, the request must be granted.” Rule 3.2(a), NDROC (emphasis added). Anton v. Anton, 442 N.W.2d 445 (N.D.1989). The rule also states that, “The court may hear oral argument on any motion by telephonic conference.”

The appeal is remanded, and jurisdiction is retained.

VANDE WALLE, C.J., concurs. MAURICE R. HUNKE, District Judge, sitting in place of SANDSTROM, J., disqualified.

1 . “(a) Submission of motion. Upon serving and filing a motion, or within 5 days thereafter, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers. Upon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted to the Court unless counsel for any party requests oral argument on the motion. If any party who has timely served and filed a brief requests oral argument, the request must be granted. The party requesting oral argument must secure a time for the argument and serve notice upon all other parties. The court may hear oral argument on any motion by telephonic conference. The court may require oral argument and may allow or require testimony on the motion. Requests for oral argument or the taking of testimony must be made not later than 5 days after expiration of the time for filing briefs." NDROC 3.2(a).

2 . Rule 3.2 neither permits nor forbids the filing of a reply brief by the moving party, thereby leaving that matter to the sound discretion of the trial judge.

3 . Service is completed upon mailing. Rule 5(b), N.D.R.Civ.P. Filing, however, is not. Moe v. Moe, 460 N.W.2d 411 (N.D.Ct.App.1990). While it is not an issue in this case, arguably an answer brief mailed on the last day but not received and filed by the clerk of court until later would not be timely. This filing requirement also raises some difficulty in rural North Dakota, where the clerk of court and the assigned judge are often separated by more than a hundred miles, and counsel often follow the practice of mailing their motions and briefs directly to the judge for timely consideration.