A Family Court for North Dakota

North Dakota Law Review North Dakota Law Review

Volume 67 Number 3 Article 1

1991

A Family Court for North Dakota A Family Court for North Dakota

Bruce E. Bohlm

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Bohlm, Bruce E. (1991) "A Family Court for North Dakota,"

North Dakota Law Review

: Vol. 67: No. 3, Article

1.

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A

FAMILY

COURT

FOR

NORTH

DAKOTA

BRUCE

E.

BOHLMAN*

In

1989,

54.9%

of

all

actions

filed

in

district court

involved

domestic relations,

including

divorce,

separation,

adult

abuse,

cus-

tody

proceedings,

support

actions,

adoptions,

and

paternity

pro-

ceedings.

1

The

number

of

cases

alone

would

indicate

that

it

is

time

for

specialized

procedures

in

order

to

provide

judicial serv-

ices

expeditiously,

with

preprinted

forms

available

for

use

by

pro

se

litigants,

recognizing

that

the

procedures

will

primarily

be

used

by

persons

with

low

income

and

property

levels.

The

former

family

court

structure

under

Chapter

27-05.1

of

the

North

Dakota

Century

Code

was

designed

to

require

counsel-

ing

for

divorcing

couples.

2

The

Family

Court

Act

actually

impeded

access

to

the

courts

by

not

allowing

a

divorce

to

be

filed

until

the

family

court

jurisdiction

had

either

been

waived

or

until

ninety

days

had

expired

since

the

date

of

filing

the

petition.

3

There

are

basically

two

needs

that

should

be

addressed

through

any

family

court

structure:

1)

a

readily

accessible

court;

and

2)

procedures

which

are

simplified

and

provide

expedited

handling

of

cases.

All

too

often,

when

a

divorce

is

fied,

the

parties must

wait

for

many months before

the

case

comes

on

for

trial. In

the

meantime,

there

may

be

various

other

proceedings,

including

adult

abuse

protection

orders,

and

interim,

or

temporary,

orders

under the

divorce

code.

It

is

not

unusual

to

have

a

case

tried three

times,

if

a

litigant

uses

all

potential

proceedings

available,

including

the

divorce

court

interim

order,

adult

abuse

protection order, and

the

final

divorce

hearing.

Needless

to

say,

the

litigation

only

becomes

worse

with

age,

and

it

cannot

be

said

that

trying

the

matter

over

and

over

again

and

delaying

the

ultimate

resolution

of

the

case

is

in

the

best

interest

of

the litigants-especially

the

children

of

the

litigants.

Divorce

is

a

bitter

process

at

best.

At

worst,

long

delays

and

adversarial

proceedings,

with

all

of

the

usual

posturing, result

in

acrimony

that

can

last

a

lifetime

and

ruin

any

chance

of

effective

*

District

Judge,

Northeast

Central

Judicial

District.

1.

1989

N.D. Judicial

Sys.

Ann.

Rep.

9.

2.

See

N.D.

CENT.

CODE

§

27-05.1 (1974)

(sets

out purposes

and

procedures

of

family

courts).

Chapter

27-05.1

was

repealed

in

the

1991

Legislative

Session.

See

Senate

Bill

2268.

3.

N.D.

CENT.

CODE

§

27-05.1-18

(1974).

NORTH

DAKOTA

LAW

REVIEW

communication

between

parents

caught

up

in

the

seamless

web

of

pre-divorce,

divorce,

and

post-divorce

hearings.

Divorce

does

not

limit

itself

to

any

particular

economic

strata.

Most low

income

clients

must

either

rely

on

the

relatively over-

worked

legal aid

offices

in

the

State

of

North

Dakota

or

obtain

counsel

through

the

North

Dakota

State

Bar

Association

Lawyer

Referral

Program. Even

with

such

innovations

in

recent

years

as

the

Medd

Plan,

4

which

called

for

mandatory

pro

bono

services,

the

poor

are

still

under-served.

As

a

group,

the

poor

constitute

the

greatest

service

need

for

the

judiciary

to

meet.

It

is

tragic

to

think

of

the

cases

that

cannot even

be

filed

because

the

plaintiff

has

no

funds.

The

only

alternative

for

people unable

to

file

is

to

stay

in an

abusive

relationship, separate

informally

without

the

benefit

of

court

ordered

support,

or

use

other

self-help

measures

to

find

relief.

To

avoid

domestic

violence

as

one

of

those

self-help

meas-

ures,

it

is

imperative

that the

judiciary

provide

access

to

the

courts

to

those

who

are

least

able

to

afford

the

luxury

of

litigation.

The

solution

calls

for

innovative

approaches.

Many

states

have

enacted

legislation

that

improves

the speed

with

which

divorces

can

be

handled,

by allowing

parties

who

have

no

children

and

few

assets

to

obtain

a

divorce

by

stipulation

and

no

subsequent

court

appearance,

other

than

the

filing

of an

affidavit.

5

The

affida-

vit

procedure

is

also

used

in

North

Dakota,'

but

there

is

currently

no

rule

of

court

that

provides

for

the procedure.

Arguably,

a

default divorce

can

be granted

by

affidavit

under

Rule

55

of

the

North

Dakota

Rules

of

Civil

Procedure,

which

allows

the

court

to

"require

such

proof

as

may

be

necessary

to

enable

it

to

determine

and

grant

the

relief...

to

which

the

plain-

tiff

may

be

entitled."

'

Hence,

there

is

nothing

inherently

innova-

tive

about

the

process

of

granting

divorces by

way of

stipulation

and

affidavit.

Indeed,

in

most

collection

cases,

default

judgments

are

customarily

issued on

the

basis

of

an

affidavit

of

proof,

which

merely

recites

the

amount

due.

When

the

parties

in

a

divorce

4.

The

Medd

Plan

was

devised

in

1988

by

District Court

Judge

Joel

Medd

of

the

Northeast

Central

Judicial

District and

called

for

mandatory

pro

bono

legal services

(with

certain

exemptions).

In

1989,

the

North

Dakota

State

Bar

Association

adopted,

by

plebiscite,

the

so-called

"opt-out"

plan,

which

is

a

completely voluntary

program

designed

to

increase

the

number

of lawyers

on

the

State

Bar Association

Pro

Bono

Panel.

In

February

of

1991,

48

requests

for

legal

services

in

divorce

matters

were

referred

to

the

Panel.

Only

six

were

filled.

This,

according

to

the

State

Bar

Association

Office,

is

beginning

to

be

a

trend.

5.

See,

e.g.,

CAL. CIV.

CODE

§

4550 (West

1983

&

Supp.

1991)

and

COLO.

REV.

STAT.

§

14-10-120.3

(1987).

6. 1989

N.D.

Judicial

Sys.

Ann.

Rep.

19

(report

of

the

South

Central

Judicial

District).

7.

N.D.R.

Civ.

P.

55(aX2).

354

[Vol.

67:353

A

FAMILY

COURT

FOR

N.D.

action

have

already

agreed upon

the

terms

of

the

divorce,

it

is

not

a

procedural

quantum

leap

to

allow

the

plaintiff

to

appear

by

affidavit.

A

family

court

for

North

Dakota which addresses

the

problems and

concerns

listed

above

must

be

a

court

where

all

family

problems

can

be

resolved

by

the

court,

using

the

full

range

of

services

available

in

the

community,

including

guardian

ad

litem

services

for

minor

children,

counseling,

addiction and

sub-

stance abuse

treatment

programs,

mediation,

domestic

violence

protection

orders

(including criminal

misdemeanor

actions

for

vio-

lations

thereof),

enforcement

proceedings

for

child

custody,

sup-

port

and

visitation,

and

modification

proceedings.

The

goal

of

the

family

court

should

be

to

treat

the

total

legal

ills

of

the

family,

and

to do

so

in

a

timely

manner

with

the

least

possible

trauma

to

all

parties

(especially

children).

Juvenile

court

matters

should

also

be

handled

in

the

family

court,

since

those

cases

impact

significantly

on

other

family

proceedings.

North

Dakota

presently

has

a

small claims

court."

The

proce-

dures

used

in small

claims

court

are

effective

and

result

in

a

speedy

resolution

of

disputes,

even without

the

intervention

of

attorneys.

A

family

court

for

North

Dakota,

while

certainly

not

handling

"small"

claims,

could well

utilize

many

of

the procedures

found

in

such

a

court:

(a)

divorce,

separation,

child

support

proceedings

and

child

custody

matters

(either

original

or

modifica-

tions)

could

be

started

by

the

use

of

preprinted

forms

pro-

vided

by

the

court. The

plaintiff

would

receive

instructions

developed

by

the

court

on

the

use

of

the

forms,

and

a

hearing

would

be

scheduled within

thirty

days

or

less.

If

the

needs

of

children

or

the

parties

required

an

immediate

hearing

to

determine

interim

sup-

port

and

custody,

an

order

for

hearing

could

be

issued

and

the

matter

brought

before

the

court

in

a

very

short

time.

This

procedure

would

obviate

the

issuance of

ex

parte

interim

orders

now

used

(and

also

abused)

as

a

mat-

ter

of

course

in

divorce litigation.

(b)

No

attorney

would

be

necessary,

and

the

pro-

ceedings

would

be

informal.

The

judge

would

be

required

to

ask

questions

of

the

litigants

and

to

take

a

8.

N.D.

CENT.

CODE

§

27-08.1

(1974

&

Supp.

1989).

1991]

355

NORTH

DAKOTA

LAW REVIEW

more

active

role

in

the

proceedings

where

either

one

or

both

of

the

parties

was

not

represented

by

counsel.

(c)

The

proceedings

of

the

family

court

would

be

a

matter

of

record,

just

as

any

other

proceeding

in

district

court.

(d)

The

final

hearing

could

be scheduled

in

thirty

days,

or

as

soon

as

the

court

is

satisfied

that

all

necessary

information

has

been

gathered

and

the

parties

have

had

a

fair

opportunity

to

prepare their

respective

cases.

(e)

Order

and

judgment

forms

(also

preprinted)

could

be

used

by

the

court

to

lessen

the

administrative

burden,

especially

since

uniformity

in

judgment

terms

and

conditions

could

easily

be

placed

on

the

preprinted

form

and

sufficient

space

reserved

for

stating additional

terms

and

conditions

as

circumstances

required.

The

additional

terms

and

conditions

could

be

called

up

on

word

processors

and

documents

speedily

completed.

It

may

be

argued

that

the

informal

proceedings

are

not

ade-

quate

to

deal

with

some

of

the

complex

issues

involved

in

child

custody

disputes.

However,

the

court

still

has

all

of

the

tools avail-

able

and

can

use

guardian

ad

litem

services,

home

studies,

psycho-

logical

evaluations,

and

alcohol

and

other

substance

abuse

evaluations.

There

would

be

little,

if

any,

information

presently

available

through

the

more

formal

litigation

milieu

involving

a

more

passive

judiciary

that

could

not

be obtained

through

the

informal

proceedings.

In

essence,

the

informal

proceedings

would

require

judges

to

be

more

active

in

the

proceedings.

This

can

be

done

without

taking

sides,

and

most

judges

now

are

faced

with

many

cases

where

at

least

one

of

the

litigants

is

acting

pro

se.

Pro

se

litigation

requires

a

court

to exercise

more

of

its

prerogatives

without

the

usual

involvement

of

legal

counsel.

The

proposed

family

court procedures

would

be

available

in

those

cases

where

the

parties

qualify

for legal services,

a

standard

that

allows

eligibility

at

income

levels

of

125%

of

poverty

guide-

lines.

9

For

example,

a

family

of

four

could

qualify

with

a

gross

annual

income

of

$16,750.00.10

Property

ownership

is

limited

to

9. 45

C.F.R.

§

1611.3

(1990).

Congress

established

the Federal

Legal

Service

Corporation

in

order

to

allow

low

income

people

equal

access

to

the

judicial

system.

42

U.S.C.

§

2996

(1988).

10.

56

Fed.

Reg. 9,634

(1991)

(to

be

codified

at

45 C.F.R.

§

1611

appendix

A).

356

[Vol.

67:353

A

FAMILY

COURT

FOR

N.D.

$10,000,

not

including

equity

in

a

homestead.

1

Juvenile

court

cases

would

not

be

subject

to

such

a

limitation

and

would

continue

to

be

processed

under

applicable

law.'

2

There

is

good

reason

for

limiting

the

informal

proceedings

to

cases

where the

income

and

property

levels

meet

eligibility

stan-

dards

for

legal

services.

In

those

cases

where

income

and

property

exceed

the

qualification levels,

there

may

be

a

need

for

more

for-

mal

discovery

techniques,

and

attorneys

would

customarily

be

involved

in proceedings

where

the

parties

had

significant

assets

and

could

afford

to

pay

attorney's

fees.

Even

though

there

might

be

a

need

to

have

formal

and

pro-

longed

proceedings

in

order

to

determine

the

full

extent

of

mari-

tal

assets

and

to

divide

those

assets

between

the

parties

in

an

equitable

manner, the

expedited

proceedings

outlined

herein

could

be

used

for

child

custody,

visitation,

and

support.

It

is

important

to resolve

these

issues

as

quickly

as

possible,

regardless

of

the

parties'

economic

circumstances.

The

expedited

proceed-

ings

would

also

be

useful

in

eliminating

ex

parte

orders,

a

goal

that

is

certainly

consistent

with

due

process.

The

strength

of

the

expe-

dited procedure

is

not

only

speed,

but

involvement

of

both

parties

from

the

very

beginning,

since

the

court

would

have

the

ability

to

schedule

a

hearing

with

both parties

present

within

a

matter

of

hours,

if

necessary.

Where

property

division

requires

a

more

extended

time

period

to

resolve

the

problems,

the

family

court

could

enter

the

divorce itself

and

resolve

all

other

issues

except

for

property

divi-

sion

and

spousal

support,

reserving

those

matters

for

a

later

hear-

ing.

There

is

no

reason

to

delay

the

divorce

itself if

the

marriage

is

no

longer

viable.

The

parties

should

be

allowed

to

reconstruct

their

separate

lives

as

soon

as

possible

in

order

to

gain

the

neces-

sary

independence

and

life

structure

that

will

be

needed

in

the

post-divorce

period.

As

a

possible

adjunct

to

the

expedited

and informal

proce-

dures

of

the

family

court,

discovery

methods

should

also

be

simpli-

fied to

shorten

this

phase

of

the

case.

For

example,

at

the

time

of

filing a

petition

for

divorce

in

the

family

court,

the

plaintiff

could

be

required

to

file

a

complete

financial

statement

(again

on

a

preprinted

form),

and

the

defendant

would

be

required

to

file

a

similar

form

within

ten

days

of

being

served with

the

petition.

11.

Legal

Assistance

of North Dakota,

in

its

discretion,

has

established

the

$10,000

property

ownership

ceiling.

This

ceiling

is

approved

by

the

Legal

Services

Corporation.

12.

See

N.D.

CENT.

CODE

§

27-20

(1974

&

Supp.

1989).

1991]

357

NORTH

DAKOTA

LAW

REVIEW

CONCLUSION

Domestic

relations

cases

do

not

get

better

as

they get

older.

To

the

contrary,

everyone

suffers

by

reason

of

delay

and

proce-

dural

complications

that

do

nothing

to

alleviate

the

traumatic

effect

of

family

disintegration.

If

the

proposal

for

a

family

court

is

to

be

seriously

considered,

there

must

undoubtedly

be

statutes

enacted

and

rules

of

court provided.

However,

the

concept

is

one

that

deserves

discussion.

If

the

legal

system

is

to

be

responsive

to

the

needs

of

those

it

serves,

it

must

take

into

account

the

fact

that

family

law

matters

are

not

the

same

as

contract

or

tort

actions.

The

present

Rules

of

Civil

Procedure

may

provide

an

adequate

framework around

which

to

resolve

disputes concerning

a

breach

of

contract

or

a

tort

action,

but

the

same

procedures

may

be

wholly

inadequate

to

deal

with

the

special

needs

of

a

family going

through

the

pain

of

divorce. With over

fifty

percent

of

the

actions

in

district court

now

involving

the

family,

is

it

not

time

to

recog-

nize

the

special

needs

involved

in allowing

the

parties

to

find

their

way

out

of

the

legal

entanglement

and

emerge

as

intact

as

possible

for

the

benefit

of

themselves

and

their

children?

358

[Vol.

67:353