text: Morley v. Morley :: 1989 :: North Dakota Supreme Court Decisions :: North Dakota Case Law :: North Dakota Law :: US Law :: Justia
  Justia › US Law › Case Law › North Dakota Case Law › North Dakota Supreme Court Decisions › 1989 › Morley v. Morley
  440 N.W.2d 493 (1989)
  Patrick Robert MORLEY, Plaintiff and Appellee, v. Janice Mae MORLEY, Defendant and Appellant.
  Civ. No. 880099.
  Goulet Law Firm, Wallace R. Goulet, Jr., Grafton, for plaintiff and appellee.
  Craft, Thompson and Boechler, Dale J. Craft, argued, Fargo, for defendant and appellant.
  In January of 1984, Jan, accompanied by Greg and Sarah, moved to Tempe, Arizona to attend a university. Soon after, Pat sent Troy to live with Jan. In May 1984, Jan began working for a real estate business at Tempe. Jan was soon promoted, with a raise and a rent discount, to another position in Phoenix where she attended another university part-time. In August 1985, Jan was again promoted, with another raise and a free apartment, but again she moved for the opportunity, this time to the Denver area.
  At Aurora, Colorado, the childrens' schools had nine-week terms, each followed by a three-week vacation. Jan's mother, who had helped care for the children, left to help another family member. Without her mother's help, Jan had financial difficulty caring for her children while working and going to school. When her appeals to Pat for more financial assistance went unheeded, Jan asked Pat to take the children for the first three-week school vacation in 1985. Pat refused, but proposed taking *494 them for the rest of the school year. On October 1, 1985, Jan sent the children to live with Pat in Grand Forks.
  Notice of entry of the order was not served on Jan or her attorney. However, the next entry in the record shows that a hearing was set for September 9, 1987 "to effect the return of the minor children ... after a period of visitation" with Jan. On September 2, 1987, that hearing was cancelled by a written stipulation which said that the "children have been returned" by Jan. On December 4, 1987, Jan was ordered to show cause why she failed to pay the child support directed in the May 4, 1987 order. This hearing, too, was cancelled in mid-December when Jan paid arrearages. It is plain that Jan knew about the order modifying permanent custody months before her exertions in 1988.
  In late February 1988, Jan's attorney caused the clerk of court to enter an amended judgment, reciting that "the Court ... now makes and enters the following amended judgment and decree." This amendment conformed to the order of May 4, 1987 on custody of the children and on the other matters. Jan's attorney gave notice of entry of this amended judgment to Pat on March 1, 1988. Then, on March 30, 1988, Jan's attorney filed a garbled notice of appeal "from the amended judgment entered in these proceedings ... on May 4, 1987." This appeal came over ten months after the transfer of permanent custody was complete and final.
  By the time Jan's appeal was orally argued before us in December 1988, the children had been in Pat's principal custody for more than three years. The duration of this continuity prompts us to examine whether Jan's appeal was timely. While Pat has questioned neither the timeliness of the appeal nor this court's jurisdiction, we often on our own initiative give attention to our power to hear an appeal. J.S.S. v. P.M.Z., 429 N.W.2d 425 (N.D.1988). If we are not authorized to hear the appeal, we must dismiss it.
  "In a civil case the notice of appeal ... shall be filed with the clerk of the trial court within 60 days of the date of the service of notice of entry of the judgment or order appealed from...."
  Ordinarily, as NDRAppP 4(a) says, the time for appeal of a judgment or order begins when notice of its entry is served. Counsel for the prevailing party is responsible for serving notice of entry of a judgment. NDRCivP 77(d). The Explanatory Note to Rule 77(d) says: "The 60-day time period for appeal by the adverse party does not start until notice of entry of judgment is served [see Rule 4(a), NDRAppP]." *495 North Dakota Court Rules, p. 139 (West Publishing Co. 1988). Notice of entry of the May 4, 1987 order was not served on Jan or her counsel. Thus, regular procedures were not followed.
  But irregular procedures do not extend the time for appeal indefinitely. Actual knowledge of entry of an order, when clearly evidenced by the record, commences the running of the time for appeal. Lang v. Bank of North Dakota, 377 N.W.2d 575 (N.D.1985). Lang appealed more than 10 months after an adverse order. The record showed that Lang had actual notice of the order within a month after its entry. We dismissed Lang's appeal as untimely, reaffirming several prior holdings that actual knowledge begins the time for appeal, even without service of a notice of entry. That holding applies here.
  The belated entry of an amended judgment by the clerk, caused by Jan's attorney, did not extend or renew her time for appeal. Formal entry of a separate judgment by the clerk of court is no longer necessary unless judicial action directs it. NDRCivP 58.[1] The modification order did not direct entry of a judgment or of an amendment to the prior judgment. The modification order of May 4, 1987 was complete in itself.
  An order, which is complete, which is final, and which does not anticipate or direct further action, is appealable.[2]*496 NDRCivP 54(a) declares that a judgment includes "any order from which an appeal lies." Jan's right to appeal was properly from the complete and final decision of May 4, 1987. Her appeal on March 28, 1988 was too late.
  ERICKSTAD, C.J., and GIERKE, JJ., concur.
  [1] NDRCivP 58 now reads:
  "Upon the filing of an order for judgment, the prevailing party shall submit to the clerk an appropriate form of the judgment. The clerk shall sign and file the judgment and make an entry of it in the register of civil actions and attach the judgment to the judgment roll.
  [2] A ruling which is incomplete is not appealable. Thus, an oral ruling was not appealable. State v. Klocke, 419 N.W.2d 918 (N.D.1988). However, where a signed written order and judgment consistent with the oral ruling were subsequently entered, the appeal was treated as one from the judgment. State v. Hogie, 424 N.W.2d 630 (N.D.1988). Correspondingly, a memorandum decision, which directed entry of a further judgment and which was not intended to be final, was not appealable. Chas. F. Ellis Agency, Inc. v. Berg, 214 N.W.2d 507 (N.D.1974); Brown v. Will, 388 N.W.2d 869 (N.D.1986). Similarly, a memorandum decision, which anticipated a further hearing and which was not intended to be final, was not appealable. Midwest Federal Savings Bank v. Symington, 393 N.W.2d 753 (N.D.1986).
  A ruling which is not final as to all pending claims and parties is not appealable without special action by the trial court. NDRCivP 54(b). See also Brown v. Will, supra; Gillan v. Saffell, 395 N.W.2d 148 (N.D.1986); Herzog v. Yuill, 399 N.W.2d 287 (N.D.1987); Gast Construction Company v. Brighton Partnership, 422 N.W.2d 389 (N.D.1988); Matter of Estate of Stuckle, 427 N.W.2d 96 (N.D.1988); and Sargent County Bank v. Wentworth, 434 N.W.2d 562 (N.D.1989).
  On the other hand, a timely appeal from a memorandum decision or an order for judgment has been often considered when the record included a judgment which was consistent with directions of the memorandum or order. Federal Savings and Loan Insurance Corporation v. Albrecht, 379 N.W.2d 266 (N.D.1985); Olson v. Job Service North Dakota, 379 N.W.2d 285 (N.D.1985); Dunseith Sand & Gravel Co., Inc. v. Albrecht, 379 N.W.2d 803 (N.D.1986); Brakke v. Rudnick, 409 N.W.2d 326 (N.D.1987); Lang v. Bank of Steele, 415 N.W.2d 787 (N.D. 1987); Wolf v. Anderson, 422 N.W.2d 400 (N.D. 1988); and Dickinson Public School District v. Sanstead, 425 N.W.2d 906 (N.D.1988). Also, timely appeals from "the entry of judgment or the notice of entry of judgment" have been considered as proper appeals from the prior judgments. Vanderhoof v. Gravel Products, Inc., 404 N.W.2d 485, 488 (N.D.1987). An order about attorney's fees which followed an amended order that "constituted a final and complete adjudication of the remaining issues" was held appealable. J.S.S. v. P.M.Z., 429 N.W.2d 425, 428 (N.D.1988).