               Filed 12/6/18 by Clerk of Supreme Court
                      IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                  2018 ND 262


State of North Dakota and
Cheri F. Poitra,                                           Plaintiffs and Appellees

      v.

Shane M. Martin,                                         Defendant and Appellant


                                 No. 20180141


       Appeal from the District Court of Sheridan County, South Central Judicial
District, the Honorable Cynthia M. Feland, Judge.

      AFFIRMED.

      Opinion of the Court by VandeWalle, Chief Justice.

        Heather M. Krumm, Special Assistant Attorney General, Bismarck, ND, for
plaintiff and appellee State of North Dakota.

      Cheri F. Poitra, Bloomington, MN, plaintiff and appellee; submitted on brief.

      Kyle R. Craig (argued), Minot, ND, and Robert G. Ackre (on brief), Cando,
ND, for defendant and appellant.
                               State, et al. v. Martin
                                    No. 20180141


       VandeWalle, Chief Justice.
[¶1]   Shane Martin appealed an order denying his N.D.R.Civ.P. 60(b) motion for
relief from default judgment. We conclude the district court did not abuse its
discretion in denying Martin’s Rule 60(b) motion for relief from judgment. We affirm.


                                           I
[¶2]   Martin is the biological father of Cheri Poitra’s child, I.R.P. Martin and Poitra
are unmarried tribal members of the Turtle Mountain Band of Chippewa. In August
2017, Poitra began receiving services from Bismarck Regional Child Support Unit
(BRCSU). The State sought to establish a child support obligation from Martin and
served him with a summons and complaint in Rolla on September 19, 2017. Martin
completed a financial affidavit and returned it to BRCSU on October 8, 2017, but did
not file an answer or other responsive pleading. On November 7, 2017, the State filed
a N.D.R.Ct. 3.2 motion for default judgment. More than 21 days had passed since
Martin was served and he had appeared but had not filed an answer or other
responsive pleading.
[¶3]   On November 17, 2017, Martin filed a notice of special appearance. The notice
of special appearance did not contain an accompanying affidavit, motion, request for
action, or response to the allegations. Instead, the notice stated only that Martin’s
attorney was entering a special appearance to contest “both subject matter and
personal jurisdiction.” Included with the notice was a copy of a summons and a
petition for custody filed by Martin with the Turtle Mountain Tribal Court on
November 16, 2017.
[¶4]   A hearing on the “notice of special appearance” was held January 11, 2018.
During the hearing, the district court stated numerous times that the notice was not a
motion on which the court could act and instructed Martin to file a motion. On

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February 20, 2018, the district court entered its findings of fact, conclusions of law,
and order for judgment finding Martin in default. Judgment was entered February 21,
2018.
[¶5]    Martin filed a N.D.R.Civ.P. 60(b) motion for relief from judgment on February
28, 2018. A hearing was held March 29, 2018. At the hearing, the district court again
explained that a special appearance is not a motion. The court entered an order
denying the motion for relief from judgment on April 3, 2018.


                                          II
[¶6]    Martin appeals from the district court’s denial of his N.D.R.Civ.P. 60(b)
motion for relief from default judgment. Martin argues that his return of the financial
affidavit and filing of a notice of special appearance was sufficient to preclude a
default judgment under N.D.R.Civ.P. 55(a) and thus the district court erred in denying
his Rule 60(b) motion.
[¶7]    A trial court’s decision to deny relief under N.D.R.Civ.P. 60(b) will not be
overturned on appeal absent an abuse of discretion. Berry v. Berry, 2017 ND 245, ¶
10, 903 N.W.2d 68. This Court does “not determine whether the court was
substantively correct in entering the judgment from which relief is sought, but
determine[s] only whether the court abused its discretion in ruling that sufficient
grounds for disturbing the finality of the judgment were not established.” Knutson v.
Knutson, 2002 ND 29, ¶ 7, 639 N.W.2d 495. An abuse of discretion occurs only when
the trial court acts in an arbitrary, unconscionable, or unreasonable manner, or when
its decision is not the product of a rational mental process leading to a reasoned
determination. Berry, at ¶ 10. An abuse of discretion by the trial court is never
assumed and must be affirmatively established. Shull v. Walcker, 2009 ND 142, ¶ 13,
770 N.W.2d 274.
[¶8]    Rule 60(b), N.D.R.Civ.P., should be invoked only when extraordinary
circumstances are present. Knutson, 2002 ND 29, ¶ 7, 639 N.W.2d 495; Galloway v.
Galloway, 281 N.W.2d 804, 806 (N.D. 1979). The movant has the burden of

                                          2
establishing circumstances extraordinary enough to disturb the finality of a judgment.
Gajewski v. Bratcher, 240 N.W.2d 871, 886 (N.D. 1976). “A decision to submit only
certain evidence at a stage in the proceedings generally cannot later constitute
exceptional circumstances justifying relief from a judgment.” Shull, 2009 ND 142, ¶
14, 770 N.W.2d 274. A motion under N.D.R.Civ.P. 60(b) “should not be used to
relieve a party from free, calculated and deliberate choices he or she has made.” Id.
[¶9]   Martin argues that he appeared by entering a notice of special appearance and
thus default judgment was inappropriate. But an appearance without more, i.e., a
pleading, is not enough. A district court may enter default judgment against a party
who fails to plead or “otherwise appear.” N.D.R.Civ.P. 55(a). An appearance alone
is insufficient to protect a party from default judgment. See Gustafson v. Gustafson,
2014 ND 8, ¶ 10, 841 N.W.2d 743; Shull, 2009 ND 142, ¶ 15, 770 N.W.2d 274. Once
an opposing party has appeared in an action, N.D.R.Civ.P. 55(a)(3) requires the party
be given notice and served with the motion for default judgment according to
N.D.R.Ct. 3.2(a). Gustafson, at ¶ 10. The opposing party has 14 days after service to
“serve and file an answer brief and other supporting papers.” N.D.R.Ct. 3.2(a)(2).
Once the opposing party’s fourteen day time period to respond has passed, the court
may grant default judgment. Gustafson, at ¶10.
[¶10] Here, Martin was provided notice of the motion for default judgment as
required under N.D.R.Civ.P. 55(a)(3) and N.D.R.Ct. 3.2(a) despite uncertainty about
whether an appearance had been made. The district court gave Martin the opportunity,
and specific instructions, to respond and file a motion. However, Martin’s only filing
with the court before entry of the judgment was a notice of special appearance. “[T]he
default judgment must normally be viewed as available only when the adversary
process has been halted because of an essentially unresponsive party.” Perdue v.
Sherman, 246 N.W.2d 491, 495 (N.D. 1976). Here, the record shows that Martin was
an essentially unresponsive party who received proper notice of a default judgment
under N.D.R.Civ.P. 55(a)(3) and N.D.R.Ct. 3.2(a). Martin did nothing before default
was entered. After the motion for relief was entered, Martin again did nothing. The

                                          3
district court did not abuse its discretion in denying Martin’s Rule 60(b),
N.D.R.Civ.P., motion for relief from judgment.


                                       III
[¶11] We affirm the order denying the motion.
[¶12] Gerald W. VandeWalle, C.J.
      Jerod E. Tufte
      Daniel J. Crothers
      Lisa Fair McEvers
      Jon J. Jensen




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