dissenting.
[¶ 25] The record reflects the district court was confronted with two difficult parties, and a marital estate with a negative value.
[¶26] The affidavit of Carl 0. Flagstad, Josephine Kjonaas’s first attorney, who was permitted to withdraw, reflects the primary reason for his motion to withdraw was the refusal of his client to comply with the court’s order, and refusal of his client to follow his advice to comply with the court’s order. Contrary to the statement of the majority at ¶ 3, Flagstad did not cite “Curtis’s failure to adequately respond to discovery requests,” but did say: “In addition, through discovery, the Plaintiff has indicated that he has none of the documents that one would normally expect him to have in connection with the farming operation which consequently would have to be provided by others.” The court, in denying the motion for a new trial, noted Josephine Kjonaas’s refusal to comply with the court’s order and advice of counsel, “and that as a result counsel was left without funds with which to prosecute a defense.”
[¶ 27] The majority, at ¶ 9, says: “The trial court did not make specific findings on the values of the marital property, nor did the court make findings on the parties’ incomes.” In the motion for new trial, Josephine Kjo-naas complained only of the former, noting the district court said indebtedness exceeded assets. In its memorandum opinion denying the motion for new trial, the district court noted:
Any finding as to the value of the marital estate is of marginal significance because that value is negative.... If indeed a finding is necessary, it would be that, at the time of trial, the Plaintiff was awarded a net marital estate with a negative value of $45,000.00 and that the Defendant was awarded a net marital estate of $8,800.00....
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The Defendant has disregarded this court’s directives, has failed to follow the advice of her previous counsel, purchased a new automobile, and has now sold and appropriated the proceeds to property awarded to the Plaintiff, all the while claiming economic necessity.
[¶ 28] The majority analysis at ¶ 15, to the extent it views the situation from the perspective of the new attorney rather than the party, is flawed. Josephine Kjonaas’s failure to hire her current attorney earlier was not the fault of either the other party or the court.
[¶ 29] Curtis Kjonaas’s failure to timely supplement discovery, even though the other party was unrepresented, was unacceptable. Nevertheless, even in the motion for new trial, Josephine Kjonaas was not able to identify how she was prejudiced beyond the general assertion.
[¶ 30] As for the failure to disclose the expert witness, the majority relies on Dewitz by Nuestel v. Emery, 508 N.W.2d 334, 339 (N.D. 1993), to justify a continuance, and now a new trial. Yet in Deivitz, the sanction was exclusion of the expert — something not sought here.
[¶ 31] In the final analysis, a fair reading of the record reflects the problems were a result of conduct by both parties. I am not persuaded the district court abused its discretion in denying the last minute motion for a continuance, nor in denying the motion for a new trial.
[¶ 32] Dale V. Sandstrom