Child Cust & Support (Div.\other)

Laib v. Laib , 2008 ND 129,
When the district court in a divorce proceeding has made specific findings that the domestic violence presumption against an award of custody has been triggered and the perpetrator has failed to rebut the presumption, the court may not later change custody to the perpetrator unless the court finds by clear and convincing evidence that the presumption has been rebutted.
A motion for relief from a judgment is not a substitute for an appeal.
O'Connor v. Jensen , 2008 ND 125,
Amended judgment modifying child support obligation is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Lawrence v. Delkamp , 2008 ND 111, 750 N.W.2d 452
Rule 43(a), N.D.R.Civ.P., permits, and does not mandate, courts to allow presentation of testimony by contemporaneous transmission.
The admissibility of telephonic testimony is conditioned on good cause in compelling and unexpected circumstances and the availability of appropriate safeguards.
It is within the district court's discretion to deny a party's request to allow telephonic testimony in the absence of appropriate safeguards, and it is within the district court's discretion to determine that having someone onsite to administer an oath or affirmation is an appropriate safeguard required for the admissibility of telephonic testimony.
Walberg v. Walberg , 2008 ND 92, 748 N.W.2d 702
Statutes are construed to harmonize them and avoid an unreasonable result or unjust consequence.
An agreement purporting to waive past-due child support is void and may not be enforced unless the child support obligee and any assignee of the obligee have consented to the agreement in writing and the agreement has been approved by a court of competent jurisdiction.
Wessman v. Wessman , 2008 ND 62, 747 N.W.2d 85
A district court's award of custody is treated as a finding of fact and, on appeal, will not be reversed unless it is clearly erroneous.
Under N.D.C.C. 14-09-06.1, a district court must award custody of a child to the person who will promote the best interests and welfare of the child.
When there is credible evidence of domestic violence, it dominates the hierarchy of "best interest" factors to be considered.
When a district court addresses whether evidence of domestic violence triggers the presumption under N.D.C.C. 14-09-06.2(1)(j), we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court's rationale regarding the application of the presumption.
Stanhope v. Phillips-Stanhope , 2008 ND 61, 747 N.W.2d 79
To constitute a material change in circumstances for a change of custody, improvements in the noncustodial parent's situation must be accompanied by a decline in the condition of the children with the custodial parent over the same period of time.
Niemann v. Niemann , 2008 ND 54, 746 N.W.2d 3
A court does not reach the consideration of the best interest factors, which include the domestic violence presumption, unless the court first finds a significant change in circumstances.
If domestic violence exists under the definition in N.D.C.C. 14-07.1-01 but does not rise to the level necessary to invoke the presumption contained in N.D.C.C. 14-09-06.2(j), there may nevertheless be a change of circumstances which may justify a change in custody under N.D.C.C. 14-09-06.6.
Serr v. Serr , 2001 ND 56, 746 N.W.2d 416
Where parties stipulate to a custody arrangement, it must be given a great deal of deference, and to provide certainty in the future, the parties must be bound by the stipulated arrangement.
When a stipulation is incorporated into a judgment, this Court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract.
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.
Young v. Young , 2008 ND 55, 746 N.W.2d 153
To modify visitation, the moving party must establish a material change of circumstances has occurred since the prior visitation order and it is in the best interests of the child to modify the order.
A material change in circumstances sufficient to amend a visitation order is similar to, but is distinct from, a material change in circumstances sufficient to change custody.
Frueh v. Frueh , 2008 ND 26, 745 N.W.2d 362
In considering whether the moving party has established a prima facie case warranting an evidentiary hearing on a motion to change custody, a district court may not weigh conflicting issues of fact raised in the parties' affidavits.
On appeal, the denial of an evidentiary hearing on a motion to change custody is reviewed under an abuse-of-discretion standard.
Kourajian v. Kourajian , 2008 ND 8, 744 N.W.2d 274
A party seeking custody modification under N.D.C.C. 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party.
The purpose of the prima facie case requirement in N.D.C.C. 14-09-06.6(4) is to avoid holding custody modification hearings based on mere allegations alone.
Koble v. Koble , 2008 ND 11, 743 N.W.2d 797
A district court's decisions on child custody are treated as findings of fact and will not be set aside on appeal unless clearly erroneous.
In making an initial custody determination, the district court must apply the factors listed in N.D.C.C. 14-09-06.2(1) and award custody to the person who will better promote the best interests and welfare of the child.
Evenson v. Evenson , 2007 ND 194, 742 N.W.2d 829
Marital property valuations within the range of evidence presented to the district court are not clearly erroneous.
In deciding whether to award attorney fees in a divorce proceeding, the district court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the actions of either party have increased the time spent on the case.
Evidence must have been in existence at the time of trial to constitute newly discovered evidence.
A new trial normally will not be granted to enable the movant to present her case under a different theory than she adopted at trial.
Kienzle v. Yantzer , 2007 ND 167, 740 N.W.2d 393
When a stipulation is incorporated into a judgment, the judgment is interpreted and enforced, not the underlying contract.
A district court's interpretation of its own judgment is entitled to deference when the language of the judgment is ambiguous.
A district court's decision whether to allow a custodial parent to relocate out of state with the child is a finding of fact, and will not be overturned on appeal unless clearly erroneous.
Bertsch v. Bertsch , 2007 ND 168, 740 N.W.2d 388
The law of the case doctrine applies only to issues decided by final judgments.
A district court has broad discretion regarding the scope of discovery.
A district court discovery order must be obeyed by the party to whom the order was issued. Failure to obey the order will result in a sanction, requiring the failing party to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified.
Lee v. Lee , 2007 ND 147, 738 N.W.2d 479
A trial court has subject matter jurisdiction to order a party to pay spousal support beyond the party's original spousal support obligation, even when the original obligation has already ended, when reconsideration of an interrelated child support obligation could constitute a change in circumstances for purposes of the spousal support obligation.
A change in a child support obligation may constitute a material change in circumstances requiring reconsideration of an interrelated spousal support obligation.
Attorney's fees will not be awarded absent a showing of need or a showing that an appeal was frivolous.
Burns v. Burns , 2007 ND 134, 737 N.W.2d 243
A continuance is the proper remedy for a party claiming surprise, and a judgment will not ordinarily be reversed on appeal for surprise when no request is made for a continuance at the time and there is no showing of inability to meet the situation.
If evidence of domestic violence does not rise to the level to trigger the presumption against an award of custody, the court may still consider the evidence as one of the best interest factors.
A district court's concerns about maintaining the custodial relationship that existed prior to the divorce and allowing the child to attend the same school and live in the same house are all valid considerations under N.D.C.C. 14-09-06.2(1)(d).
Being a child's primary caretaker does not guaranty a custody award in a divorce action.
Graner v. Graner , 2007 ND 139, 738 N.W.2d 9
A district court's decision on a custodial parent's motion to relocate out-of-state will be reversed on appeal only if it is clearly erroneous.
Increased visitation expenses and distance are not a sufficient basis to deny a custodial parent's motion to relocate.
A court may not modify custody within two years of an order establishing custody, unless the court finds the modification is in the child's best interests and there is willful denial of visitation, the child's environment endangers the child's physical or emotional health or impairs the child's emotional development, or the noncustodial parent has had primary physical care of the child for longer than six months.
Helfenstein v. Schutt , 2007 ND 106, 735 N.W.2d 410
Family therapy may not be denied on the basis of the recommendation of experts unless the party seeking family therapy has been given the opportunity to cross-examine the experts.
Wagner v. Wagner , 2007 ND 101, 733 N.W.2d 593
After including all of the parties' marital assets, the court must consider the Ruff-Fischer guidelines in its distribution of the parties' assets.
A long-term marriage supports an equal distribution of property. Liquidation of an ongoing farming operation is ordinarily a last resort.
Property division and spousal support are interrelated and intertwined and often must be considered together.
Dvorak v. Dvorak , 2007 ND 79, 732 N.W.2d 698
When a post-decision motion is made in a civil case, and a notice of appeal is filed before it is decided, a party who wants the disposition of the motion reviewed on appeal must file either an amended notice of appeal or a separate notice of appeal from the order deciding the motion.
An obligor whose child support obligation is delinquent cannot disclaim any interest that obligor might have in a trust, and his attempt to assign or otherwise disclaim the interest is voidable. Any attempt to disclaim the interest after notice of delinquency is furnished to the person administering the trust is absolutely void.
Under agency principles, notice to an attorney, on matters for which the attorney is acting for the client, is notice to the client.
Lynch v. Sweeney , 2007 ND 81, 732 N.W.2d 377
In visitation disputes, a district court must award a noncustodial parent reasonable costs and attorney fees if the court finds there has been willful and persistent denial of visitation rights by the custodial parent.
A district court's decision about the reasonableness and amount of attorney fees to award will not be overturned on appeal absent an abuse of discretion.
Dietz v. Dietz , 2007 ND 84, 733 N.W.2d 225
To obtain an evidentiary hearing on a motion for a custody modification, the party seeking the custody modification must file moving papers and supporting affidavits that establish a prima facie case justifying the modification.
If the party opposing a motion to modify custody presents counter affidavits which conclusively establish the moving parties' allegations have no credibility, or even if uncontradicted the parties' allegations are insufficient on their face to justify a custody modification, the court may find the moving party has not established a prima facie case for modification and may deny the motion without an evidentiary hearing.
A party bringing a contempt proceeding is entitled to a hearing unless the party voluntarily, intentionally, or knowingly waives the hearing.
Mantz v. Mantz , 2007 ND 073, 734 N.W.2d 342
A second amended judgment modifying a child support obligation is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Hieb v. Hieb , 2007 ND 57, 734 N.W.2d 342
Divorce judgment dividing marital property and awarding spousal support, attorney fees, and costs is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Lorenz v. Lorenz , 2007 ND 49, 729 N.W.2d 692
In determining the value of the parties' marital estate, a district court must include all the parties' assets and debts in the marital estate.
A substantial disparity in the property distribution must be explained.
A district court's findings of fact must be sufficient to allow a reviewing court to understand the basis for the district court's decision.
The decision whether to award spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous.
Jelsing v. Peterson , 2007 ND 41, 729 N.W.2d 157
An initial award of custody must be made to one parent before a court may decide whether to allow a custodial parent to relocate with a child to another state.
Lucier v. Lucier , 2007 ND 3, 725 N.W.2d 899
A spousal support obligation may be modified if the district court finds there is a material change in circumstances after examining the reasons for the changes in income and the extent to which the changes were contemplated.
A contemplated change in circumstances is not a change that justifies modifying spousal support.
When modifying a spousal support award, the district court must adequately explain its rationale in determining the new support amount.
Lawrence v. Delkamp , 2006 ND 257, 725 N.W.2d 211
A person may waive the rights and privileges to which that person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution.
Waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege.
Harshberger v. Harshberger , 2006 ND 245, 724 N.W.2d 148
The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") establishes the criteria for deciding which state's courts have subject matter jurisdiction to make a child custody decisions involving interstate custody disputes, and subject matter jurisdiction under the UCCJEA cannot be conferred by agreement, consent, or waiver.
The UCCJEA applies to paternity actions only when custody or visitation is an issue.
A subsequent motion in a pending paternity action that implicates the jurisdictional requirements of the UCCJEA does not relate back to the beginning of the original paternity action that did not raise custody or visitation as an issue.
A judgment entered without subject matter jurisdiction is void.
Klein v. Larson , 2006 ND 236, 724 N.W.2d 565
In an initial custody decision, the trial court must award custody to the parent who will better promote the best interests and welfare of the child.
A parent's numerous prior criminal offenses, although not involving crimes of moral turpitude, are relevant evidence of the parent's moral fitness.
Eifert v. Eifert , 2006 ND 240, 724 N.W.2d 109
In deciding custody, a district court may consider the child's interaction and interrelationships with a party's extended family and others who may significantly affect the child's best interests.
Dunnuck v. Dunnuck , 2006 ND 247, 724 N.W.2d 124
An order denying a motion to modify child support that is intended to be the final order of the court is appealable.
The party requesting a change in child support must show a material change of circumstances if the motion to amend is brought within one year of the entry of the order sought to be amended.
A district court's decision not to modify a child support obligation because there has been no material change in circumstances is a finding of fact that will not be reversed unless it is clearly erroneous.
Ibach v. Zacher , 2006 ND 244, 724 N.W.2d 165
For child visitation, a district court's finding of no material change in circumstances may be reversed as a matter of law on appeal when the custodial parent and child have moved a significant distance and the non-custodial parent has developed a medical condition requiring treatment that conflicts with the existing visitation schedule.
Jochim v. Jochim , 2006 ND 186, 721 N.W.2d 25
A divorce action abates on the death of a party.
Hagel v. Hagel , 2006 ND 181, 721 N.W.2d 1
When a district court provides no indication of the evidentiary and theoretical basis for its decision, the Supreme Court is left to speculate whether factors were properly considered and the law was properly applied, leaving the Court unable to perform its appellate function.
Clark v. Clark , 2006 ND 182, 721 N.W.2d 6
A district court's decisions to admit expert testimony or deny a continuance will not be reversed absent an abuse of discretion.
A district court's decision whether to allow children to testify about their custody preference is reviewed under the abuse of discretion standard.
Rotating custody arrangements are in a child's best interests only if the parents are able to cooperate and set aside their differences and conflicts in their role as parents.
A district court's custody decision under the best-interest-of-the-child analysis is subject to the clearly erroneous standard of review.
Because a proper finding of net income is essential to determine the correct amount of child support under the child support guidelines, as a matter of law, a district court must clearly set forth how it arrived at the amount of income and the level of support.
A district court cannot include depreciation deductions in income when determining an obligor's child support obligation.
Dvorak v. Dvorak , 2006 ND 171, 719 N.W.2d 362
A custodial parent seeking to change the residence of a child to another state has the burden to prove by a preponderance of evidence that the move is in the child's best interest.
A district court's explanation for a disparity in a property distribution must be sufficient to understand the rationale of its determination.
In deciding whether to award attorney's fees for an appeal in a divorce proceeding, a district court must balance the parties' needs and ability to pay.
Molitor v. Molitor , 2006 ND 163, 718 N.W.2d 13
A trial court's custody decision is a finding of fact that will not be set aside on appeal unless it is clearly erroneous.
A trial court's findings of fact in child custody cases should be stated with sufficient specificity to enable the appellate court to understand the factual basis for the court's decision.
The failure to raise the issue of judicial bias in the trial court precludes appellate court review on appeal.
When a party seeking modification of custody within two years of issuance of a custody order does not prove any of the grounds listed under N.D.C.C. 14-09-06.6(5) as a basis for modification, the trial court does not err in denying a motion to change custody.
Gietzen v. Gabel , 2006 ND 153, 718 N.W.2d 552
When there is credible evidence of domestic violence, it is the predominate factor in a child custody decision.
Specific findings and conclusions are required when a district court addresses whether evidence of domestic violence triggers the presumption against awarding custody of a child to a perpetrator of domestic violence.
When reciprocal domestic violence is claimed, a district court must make specific findings on the degree of violent behavior by each parent.
Wilson v. Ibarra , 2006 ND 151, 718 N.W.2d 568
To justify a termination of all visitation, physical or emotional harm resulting from the visitation must be demonstrated in detail.
Lautt v. Lautt , 2006 ND 161, 718 N.W.2d 563
The standard of review for child support determinations depends on the issue appealed: a de novo standard applies to questions of law; a clearly erroneous standard applies to questions of fact; and an abuse of discretion standard applies to discretionary matters.
A district court errs by failing to close the record following the hearing and to address a child support modification motion.
DeMers v. DeMers , 2006 ND 142, 717 N.W.2d 545
The statutory presumption against awarding custody to the perpetrator of domestic violence applies when the district court finds there is credible evidence of domestic violence and at least one incident of domestic violence resulted in serious bodily injury or involved the use of a dangerous weapon, or there is a pattern of domestic violence within a reasonable proximity to the proceeding.
A party waives the right to appeal a divorce judgment if she unconditionally, voluntarily, and consciously accepts the benefits of the judgment.
The district court must adequately explain a substantial disparity in a property distribution.
Roth v. Hoffer , 2006 ND 119, 715 N.W.2d 149
A district court may correct clerical errors after an appellate court has decided an appeal if the correction is the type envisioned by N.D.R.Civ.P. 60(a) and the appellate court has not ruled explicitly or implicitly on the issue that is the subject of the correction.
A correctable clerical mistake may be made by a party.
Porter v. Porter , 2006 ND 123, 714 N.W.2d 865
A district court must analyze all four Stout-Hawkinson factors in determining whether a custodial parent may move out of state with a child.
Lausen v. Hertz , 2006 ND 101, 714 N.W.2d 57
A court may, without an evidentiary hearing, deny a motion seeking modification of custody, unless the court finds the moving party has established a prima facie case justifying modification.
An unappealed judgment authorizing the custodial parent to remove the child from the state is res judicata.
Marchus v. Marchus , 2006 ND 81, 712 N.W.2d 636
A modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date. The district court may set a later effective date, but its reasons for doing so should be apparent or explained.
Interest of Spicer , 2006 ND 79, 712 N.W.2d 640
When a district court fails to specifically state its findings, its decision will not be upset when valid reasons for the decision are discernable, either by deduction or inference.
A district court's finding that a non-custodial parent consented to the custodial parent relocating out of state with the parties' child is subject to the clearly erroneous standard of review.
A district court's decision on modification of visitation is a finding of fact that will not be reversed unless clearly erroneous.
Manning v. Manning , 2006 ND 67, 711 N.W.2d 149
The three-day extension under N.D.R.App.P. 26(c) for filing a notice of appeal does not apply when the extension is sought to be used by the party who served notice of entry of the judgment or order.
The district court decides credibility in a bench trial.
A guardian ad litem, as an advocate for the children, may give a custody recommendation.
A court may impose reasonable restrictions on the length of a hearing and the number of witnesses allowed.
Thompson v. Olson , 2006 ND 54, 711 N.W.2d 226
Whether injuries rise to the level of serious bodily injuries for purposes of applying the domestic violence presumption against custody is a finding of fact which will not be reversed on appeal unless it is clearly erroneous.
Sack v. Sack , 2006 ND 57, 711 N.W.2d 157
The disadvantaged-spouse requirement for spousal support is abolished.
Spousal support decisions are to be based on the Ruff-Fischer guidelines.
A court may award items of personal property to a party if the other party agrees to the award in court.
Rothberg v. Rothberg , 2006 ND 65, 711 N.W.2d 219
An order denying a motion to modify child support or spousal support that is intended to be the final order of the court is appealable.
Conclusory, general findings of fact do not comply with N.D.R.Civ.P. 52(a), and the trial court must specifically state the subordinate facts upon which its ultimate factual conclusions rest.
In deciding whether to award attorney fees in a divorce proceeding, the court must consider the parties' financial needs and ability to pay.
Sisk v. Sisk , 2006 ND 55, 711 N.W.2d 203
Visitation between a non-custodial parent and child is presumed to be in that child's best interests but may be curtailed or eliminated if likely to endanger a child's emotional or physical health.
A trial court must award reasonable attorney fees and costs to the non-custodial parent if there has been a willful and persistent denial of visitation.
Berge v. Berge , 2006 ND 46, 710 N.W.2d 417
When a trial court does not clearly state how it calculated the amount of child support, the Supreme Court will reverse and remand for an explanation even if the record contains adequate evidence for the trial court to make a precise finding.
Nonrecurrent payments are includable in an obligor's income for determining child support.
It is improper to calculate an obligor's annual employment income based on a mid- year pay stub when the obligor's employment income is reflected on the obligor's prior year's tax return.
If an obligor's most recent annual earnings are a more reliable indicator of future circumstances, the most recent annual earnings may be used to calculate a child support obligation.
Maynard v. McNett , 2006 ND 36, 710 N.W.2d 369
When divorced parents share custody, the designation of a single custodian is not required, each parent can be declared a custodian, and both parents have all the legal rights designated to a custodial parent.
A parent with joint legal and physical custody may not be granted permission to move with the divorced parents' child, unless the district court first determines the best interests of the child require a change in primary custody to that parent.
A parent with joint physical and legal custody who wishes to relocate with the child must make two motions before the parent may be given permission to relocate: one for a change of custody and one to relocate with the child.
When a parent with joint legal and physical custody moves for change of custody and permission to relocate, the statutory best-interests-of-the-child factors must be applied rather than the Stout-Hawkinson factors, because the Stout-Hawkinson factors were designed to address the best interests of the child when a primary custodian has already been designated.
Bertsch v. Bertsch , 2006 ND 31, 710 N.W.2d 113
In deciding whether to award attorney fees under N.D.C.C. 14-05-23, the trial court must balance one party's needs against the other party's ability to pay.
In awarding attorney fees, fault is only relevant to the extent one party has unreasonably escalated the fees.
Hilgers v. Hilgers , 2006 ND 23, 709 N.W.2d 343
An appeal may be taken from a memorandum decision if it was intended to be a final order of the court.
The certification of familiarity requirement under N.D.R.Civ.P. 63 applies when a successor judge replaces another judge who is unable to proceed with a hearing or trial that has begun.
Korynta v. Korynta , 2006 ND 17, 708 N.W.2d 895
When calculating child support, a trial court must not base its child support award on an extrapolation of an obligor's future income, unless evidence of the obligor's recent past circumstances are not a reliable indicator of his future circumstances.
Hewson v. Hewson , 2006 ND 16, 708 N.W.2d 889
A trial court does not have continuing jurisdiction to modify a property distribution in a divorce judgment, but has continuing jurisdiction to modify child support.
Agreements between parents as to the support and maintenance of a child shall only be accepted by a trial court if they are in the child's best interest.
An agreement between parents purporting to prohibit or limit the power of a court to modify future child support violates public policy and is invalid.
As a matter of equity, a divorcing parent attempting to satisfy her child support obligation by foregoing a rightful share of the marital property is entitled to offset the amount of marital property given up against her child support obligation so long as it does not supercede the child's right to support.
When the equitable-offset remedy calculation results in a credit in favor of the obligor, the obligor receives only a credit against her future child support obligations and is not entitled to reimbursement for that credit.
Simon v. Simon , 2006 ND 29, 709 N.W.2d 4
The offset provisions of the split custody and equal custody regulations of the child support guidelines continue to apply to the parents' child support obligations when one parent assigns the right to receive child support to the State as reimbursement for TANF benefits received.
Kobs v. Jacobson , 2005 ND 222, 707 N.W.2d 803
A trial court errs as a matter of law when it does not clearly set forth how it determined the obligor's income and resulting support obligation.
Without ordering the parties to present more information and making specific findings of fact, a trial court cannot arbitrarily ignore the guidelines simply because it feels the obligor's tax returns do not adequately reflect his income.
Depreciation deductions may not be added back in when determining an obligor's net income under the guidelines.
An obligor who proved he earned more than six-tenths of the prevailing amount earned in the community by one with similar qualifications and similarly employed would still be presumed underemployed if he makes less than one-hundred and sixty-seven times the federal hourly minimum wage.
Hoff v. Fitterer , 2005 ND 186, 705 N.W.2d 807
Under the child support guidelines, in cases of underemployment an obligor's ability to pay child support is not determined solely upon actual income, but also takes into account the obligor's earning capacity.
In cases of underemployment, the child support guideline subsection resulting in the greatest imputed income must be used.
Clark v. Clark , 2005 ND 176, 704 N.W.2d 847
When the district court provides no factual findings or explanation for the basis of its custody decision, remand is necessary.
A district court must make factual findings regarding spousal support.
An award of grandparent visitation or custody is clearly erroneous if exceptional circumstances do not exist, the best interests of the child were not examined, and the grandparent did not petition the court for visitation or custody.
A successor judge taking over a case must either make a N.D.R.Civ.P. 63 certification before resuming proceedings or order a new trial.
Mastrony v. Mastrony , 2005 ND 165, 704 N.W.2d 573
Divorce judgment awarding custody and dividing the marital estate is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Lagro v. Lagro , 2005 ND 151, 703 N.W.2d 322
An abuse-of-discretion standard is used to review a district court's denial of an evidentiary hearing on a change-of-custody motion.
A party seeking a change of custody must present prima facie evidence to warrant an evidentiary hearing. Prima facie evidence is admissible evidence that, if uncontradicted, would be sufficient to justify a judgment in the presenting party's favor. Affidavits must be competent in order to fulfill the legislative requirement of showing prima facie evidence before the moving party is entitled to an evidentiary hearing.
Bladow v. Bladow , 2005 ND 142, 701 N.W.2d 903
Issues that are not raised in pleadings may be tried by the express or implied consent of the parties.
A motion to modify child custody may be made within two years after entry of an order establishing custody when the court finds a persistent and willful denial or interference with visitation.
A party seeking modification of a custody order must establish a prima facie case justifying modification in order to receive an evidentiary hearing.
Split custody of siblings is not preferred.
A trial court has discretion in awarding attorney fees in a domestic relations case.
A trial court errs as a matter of law when it fails to follow the child support guidelines.
Simburger v. Simburger , 2005 ND 139, 701 N.W.2d 880
Once an initial custody decision has been made, visitation is governed by N.D.C.C. 14-05-22(2).
A party moving to modify visitation bears the burden of establishing that a material change in circumstances has occurred since the prior visitation order and that it is in the best interest of the child to modify the order.
Lee v. Lee , 2005 ND 129, 699 N.W.2d 842
A child support amount must be established in accordance with the guidelines.
A spousal support award may be modified upon a showing of a material change in circumstances.
Attorney fees in a divorce action are based on a determination of one party's need and the other party's ability to pay.
Gonzalez v. Gonzalez , 2005 ND 131, 700 N.W.2d 711
Proposed findings prepared by trial counsel become the findings of the court when it affixes its signature to them.
In addressing whether there is evidence of domestic violence that triggers the statutory presumption against the perpetrator receiving custody of a child, the trial court must make specific factual findings and conclusions.
When the trial court decides custody between two fit parents, the court on appeal will not retry the case or substitute its judgment for that of the trial court if there is evidence to support the decision.
Reineke v. Reineke , 2005 ND 132, 699 N.W.2d 859
An ex-wife's enhanced burden to satisfy marital debt discharged in bankruptcy by her ex-husband is a material change in circumstances warranting a modification of spousal support, and such a modification does not violate U.S. bankruptcy law.
Brandner v. Brandner , 2005 ND 111, 698 N.W.2d 259
The trial court must determine net marital worth by considering all property and debt accumulated by the parties.
A court errs as a matter of law if it fails to comply with the child support guidelines in determining an obligor's child support obligation.
A trial court's decision whether to award past child support is discretionary and will not be overturned on appeal unless the court has abused its discretion.
Negaard v. Negaard , 2005 ND 96, 696 N.W.2d 498
An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal.
An appeal of a contempt finding must be made within "60 days after entry of the judgment or order being appealed."
When imposing contempt under N.D.C.C. ch. 27-10, a court must first consider whether a remedial or punitive sanction is applicable and then apply the appropriate procedures for imposing the sanction.
In a custody, support, or visitation proceeding, a trial court may, in its discretion and on its own initiative, appoint a guardian ad litem for a minor child when the court has reason or special concern as to future welfare of the child.
Under Section 28-26-01(2), N.D.C.C., a court may award reasonable actual and statutory costs, including reasonable attorney fees, for defending a frivolous claim.
Woods v. Ryan , 2005 ND 92, 696 N.W.2d 508
In deciding whether to change custody of a child, a court must use a two-part analysis, considering first whether there has been a material change of circumstances, and then, if the court decides there has been, deciding whether a change in custody is necessary to serve the best interests of the child.
Hanson v. Hanson , 2005 ND 82, 695 N.W.2d 205
A district court may modify a prior custody order after a two-year period following the date of entry of an order establishing custody if the court finds that a material change in circumstances has occurred and that the modification is necessary to serve the best interest of the child. A party seeking to modify a custody order bears the burden of showing that a change of custody is required.
A district court must first calculate the presumptively correct child support amount before it can depart from the Child Support Guidelines.
Paulson v. Paulson , 2005 ND 72, 694 N.W.2d 681
A trial court cannot delegate to anyone the power to decide questions of child custody or related issues.
When a party agrees to the court's appointing one person to serve as both custody investigator and guardian ad litem, that party waives the right to object that the court's appointee is in violation of the rules of court when she acts as the child's advocate and also testifies at the custody proceedings.
A trial court's denial of a motion for continuance will not be set aside on appeal absent an abuse of discretion by the trial court.
Litoff v. Pinter , 2005 ND 73, 704 N.W.2d 286
An order denying a motion for reinstatement of unsupervised visitation is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Dvorak v. Dvorak , 2005 ND 66, 693 N.W.2d 646
Tax returns from the most recent five years are properly used to determine the self-employment income of an obligor in calculating child support obligations.
In awarding attorney's fees in a divorce action, a court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party has unreasonably increased the time spent on the case.
Larson v. Larson , 2005 ND 67, 694 N.W.2d 13
In construing a statute, courts are to ascertain the legislature's intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.
As amended, N.D. law does not allow a court to award post-minority child support for college expenses.
Frieze v. Frieze , 2005 ND 53, 692 N.W.2d 912
Section 14-09-06.6(5), N.D.C.C., limits the grounds upon which a court may grant a motion to change custody which is brought within two years following entry of the order establishing custody, and includes the persistent and willful denial of interference with visitation or a present environment which may endanger or impair the child's physical or emotional health or development.
When a stepparent's career takes him or her out of state to secure a job, allowing the spouse and stepchildren to relocate to that place is crucially important to maintaining family continuity and stability.
When the relevant factors weigh in favor of the custodial parent's request to relocate the children, the trial court's denial of the motion constitutes reversible error.
Sweeney v. Sweeney , 2005 ND 47, 693 N.W.2d 29
In divorce proceedings, a trial court must award reasonable attorney fees and court costs to one parent if it finds the other parent has made an allegation of harm to the child that is false and not made in good faith or if the court finds there has been willful and persistent denial of the noncustodial parent's visitation rights by the custodial parent.
The court cannot, to avoid imposing a significant burden on the offending party or to avoid disrupting the parties' improved relationship, ignore its mandate to award reasonable attorney fees and costs when there has been willful and persistent denial of visitation rights.
Ingebretson v. Ingebretson , 2005 ND 41, 693 N.W.2d 1
An award of permanent spousal support to a party who requested support for ten years must be supported by sufficient findings and based on the record.
The district court must consider all evidence, including a party's testimony, when determining that party's need for the purpose of awarding spousal support.
A district court is not limited by a party's testimony when awarding spousal support as long as justification is provided for an award that exceeds the party's request.
Wigginton v. Wigginton , 2005 ND 31, 692 N.W.2d 108
An award of restricted visitation is not clearly erroneous when based on evidence in the record.
The effective date of a child support obligation can be different from the date of the motion to modify if there are sufficient good reasons for it.
An allocation of income tax dependency exemptions, based on the evidence in the record, is not clearly erroneous.
Interest of D.P.O. , 2005 ND 39, 692 N.W.2d 128
On appeal, an issue will not be decided if it has become moot because events have occurred which make it impossible for the Court to issue relief or the passage of time has made the issue moot.
The decision to award grandparents visitation separate from the mother's is not clearly erroneous when it is in the best interest of the child and is based on consideration of the evidence in the record.
Fast v. Mayer , 2005 ND 37, 692 N.W.2d 138
When a trial court considers restrictions on a noncustodial parent's visitation rights, the standard of proof required is a preponderance of the evidence.
A custodial parent seeking to prevent the noncustodial parent from having unsupervised visitation must establish, by a preponderance of the evidence, that physical or emotional harm will likely result from allowing the noncustodial parent unsupervised visitation.
Schmidt v. Bakke , 2005 ND 9, 691 N.W.2d 239
Waiver of an objection to the timeliness of a motion precludes the objection from being raised at a later date.
The effect of the separation of siblings is a consideration in the trial court's analysis of the best interests of the child and whether to grant a motion to relocate a child out of this state.
An offer of proof is needed for review of a court's exclusion of evidence. Without an offer of proof, a determination of whether the exclusion of testimony was prejudicial cannot be made. Failure to make an offer of proof may be excused if the question was in proper form on its face and was so framed as to clearly admit an answer favorable to the claim or defense of the party producing it.
Christoffersen v. Giese , 2005 ND 17, 691 N.W.2d 195
When computing child support obligations, N.D. Admin. Code sec. 75-02-04.1-07(9) requires income be imputed from an obligor's actual income in a twelve-month consecutive period, not an extrapolated amount from less than twelve months.
The party who moves for amendment of a child support order has the burden of proving the existing amount is not in conformity with the amount required by the guidelines. Failure to meet this burden can result in denial of the motion.
Boumont v. Boumont , 2005 ND 20, 691 N.W.2d 278
The Child Support Guidelines' equal-physical-custody provision mandates the appropriate formula for calculating child support in cases where a divorce judgment or court order provides each parent with physical custody of their children exactly 50% of the time, regardless of the actual custodial arrangement subsequently exercised by the parties.
Cole v. Cole , 2005 ND 7, 694 N.W.2d 22
An order denying a motion to vacate the judgment entered in a divorce action is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Foster v. Foster , 2004 ND 226, 690 N.W.2d 197
A custody determination should be based on the best interests of the child and will not be overturned unless clearly erroneous.
Failure to allow a party 10 days to object to proposed findings of fact before a judgment is filed is harmless error because N.D.R.Ct. 7.1(b)(3) and N.D.R.Civ.P. 52(b) provide a remedy for that party.
A guardian ad litem may make a custody recommendation when advocating the best interests of the child.
Hawley v. LaRocque , 2004 ND 215, 689 N.W.2d 386
A party moving for a change of child custody must establish a prima facie case justifying the custody modification before an evidentiary hearing will be held.
A moving party has failed to bring a prima facie case if their allegations are insufficient, on their face, to justify custody modification.
General, bare-bones allegations, without specificity, are insufficient to meet the required prima facie standard.
Striefel v. Striefel , 2004 ND 210, 689 N.W.2d 415
The Ruff-Fischer guidelines apply to both property division and spousal support, which ordinarily must be considered together.
Pensions and retirement benefits are marital assets subject to equitable distribution by the court.
Edwardson v. Lauer , 2004 ND 218, 689 N.W.2d 407
The clearly erroneous standard of review applies to a district court judgment changing a minor's name under the Uniform Parentage Act.
Roberson v. Roberson , 2004 ND 203, 688 N.W.2d 380
Conflicting testimony will not be reweighed and credibility will not be reassessed on appeal.
While the wholesale adoption of one party's proposed findings of fact discouraged, if the adopted findings adequately explain the basis of the trial court's decision, we will uphold them unless clearly erroneous.
Oppegard-Gessler v. Gessler , 2004 ND 141, 681 N.W.2d 762
A custodial parent may not change the residence of a child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree.
The best interests of the child are the primary consideration in determining whether a custodial parent should be allowed to relocate with the child to another state.
A trial court that fails to give sufficient credence to the importance of keeping the custodial family intact commits reversible error.
Tibbetts v. Dornheim , 2004 ND 129, 681 N.W.2d 798
Generally, interlocutory orders in an action are merged into the final judgment and may be reviewed on appeal of that judgment.
All of the issues between parties are merged in the final judgment.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
Hilgers v. Hilgers , 2004 ND 95, 679 N.W.2d 447
N.D.R.Civ.P. 6(e), permitting an additional three days to be added to the time for service by mail, does not apply to extend the time when the time begins to run only after actual receipt of notice.
A letter opinion is not an appealable order unless followed by a subsequently entered consistent judgment or order.
The Supreme Court exercises its supervisory authority only to rectify errors and prevent injustice when no adequate alternative remedies exist.
A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court.
Roth v. Hoffer , 2004 ND 72, 688 N.W.2d 402
Divorce judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(7).
Heinz v. Heinz , 2004 ND 66, 688 N.W.2d 402
Amended divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Oldham v. Oldham , 2004 ND 62, 677 N.W.2d 196
A party waives an issue by not providing supporting argument.
Without supportive reasoning or citations to relevant authorities, an argument is without merit.
Seibel v. Seibel , 2004 ND 41, 675 N.W.2d 182
When two years have passed since a prior custody order, a court may modify child custody if there is a significant change of circumstances since the original custody decree, and if this change is necessary to serve the best interests of the child.
Whether there was a change of circumstances requiring modification of custody in the best interests of the children is not considered when the parent seeking modification has not proven a material change in circumstances.
The principle standard in awarding attorney's fees in litigation about marital obligations between former spouses is one party's need and the other's ability to pay.
Morton Co. S.S.B. v. Schumacher , 2004 ND 31, 674 N.W.2d 505
Use of a dangerous weapon without domestic violence is not enough to create a rebuttable presumption against awarding custody under N.D.C.C. 14-09-06.2(1)(j).
Under some circumstances, destroying property with a dangerous weapon could be domestic violence.
If a presumption against custody arises under N.D.C.C. 14-09-6.2(1)(j), the presumption must be rebutted by clear and convincing evidence.
Clear and convincing evidence to rebut a presumption against custody may require the accused to demonstrate why custody with the accuser is not in the child's best interests.
Clear and convincing evidence exists to rebut the presumption when none of the "best interests of the child" factors favor the other party.
Peters-Riemers v. Riemers , 2004 ND 28, 674 N.W.2d 287
A pro se defendant in a contempt proceeding must be informed of the right to court-appointed counsel when a remedial contempt sanction includes the likelihood of incarceration.
Tank v. Tank , 2004 ND 15, 673 N.W.2d 622
On appeal, a trial court's denial of an evidentiary hearing on a motion to modify custody is reviewed de novo.
A party seeking a change of child custody is entitled to an evidentiary hearing if the party presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if proved, would support a change in custody.
Potential endangerment to a child's physical or mental health or a mature child's reasonable preference to live with one parent may be a significant change of circumstances supporting custody change.
A custodial parent's willful and consistent denial or interference with the non-custodial parent's visitation may also be a significant change warranting custody change, if the denial or interference affects the child's best interests.
Mock v. Mock , 2004 ND 14, 673 N.W.2d 635
A party seeking a change of child custody is entitled to an evidentiary hearing if he presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody change.
Potential endangerment to a child's physical or mental health may be a significant change of circumstances supporting a modification of custody.
The district court may consider pre-divorce conduct when the facts were unknown to the court at the time of the original stipulation.
Amsbaugh v. Amsbaugh , 2004 ND 11, 673 N.W.2d 601
The owner of real property may testify as to the value of his land without further qualification or special knowledge.
If a property valuation is within the range of evidence, it is not clearly erroneous.
A property division need not be equal to be equitable, but a substantial disparity must be explained.
In determining an equitable allocation of repayment of debts, the trial court may consider which parties have incurred particular debts and the purposes for the debts.
Both economic and non-economic fault are proper factors for the trial court to consider in dividing marital property.
Uncontrolled drinking contributing to the breakdown of a marriage can be considered a matter of fault in determining whether a spouse is disadvantaged.
Eberhardt v. Eberhardt , 2003 ND 199, 672 N.W.2d 659
A sufficient foundation can be established for the admission of medical bills into evidence by the claimant's testimony the bills were incurred.
The question of whether evidence should be excluded for lack of authentication is primarily within the sound discretion of the trial court.
A trial court's determination on visitation is a finding of fact that will not be reversed unless it is clearly erroneous.
Negaard v. Negaard , 2003 ND 178, 674 N.W.2d 21
Post-judgment divorce order granting costs and attorney's fees summarily affirmed under N.D.R.App.P. 35.1(a)(4), (7).
Litoff v. Pinter , 2003 ND 172, 670 N.W.2d 860
Although visitation between a child and the noncustodial parent is ordinarily presumed to be in the best interest of the child, visitation may be curtailed or eliminated entirely if it is likely to endanger the child's physical or emotional health.
McDowell v. McDowell , 2003 ND 174, 670 N.W.2d 876
By signing the findings of fact prepared by an attorney, the district court accepts those findings as its own.
The tender-years doctrine has been repealed in North Dakota.
The public policy of this state is that there is to be no gender bias in custody decisions regardless of the age of the child.
The amount of child support can be set at a date prior to a motion to modify if good reason exists for doing so.
The district court need not predict the income of a child support obligor for past support when tax returns are available.
Klingenstein v. Klingenstein , 2003 ND 165, 674 N.W.2d 21
A judgment awarding spousal support and dividing marital property is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Damron v. Damron , 2003 ND 166, 670 N.W.2d 871
A custodial parent's homosexual household is not grounds for modifying custody within two years of a prior custody order in the absence of evidence the children's environment endangers or potentially endangers the children's physical or emotional health or impairs the children's emotional development.
Ralston v. Ralston , 2003 ND 160, 670 N.W.2d 334
A custodial parent does not need court approval to move a child out of state when the noncustodial parent has moved from the state before or after the divorce decree and lives more than fifty miles from the residence of the custodial parent.
Orvedal v. Orvedal , 2003 ND 145, 669 N.W.2d 89
When the trial judge who enters an original divorce decree clarifies that decree, the court on appeal affords the clarification considerable deference.
When a divorce decree provides for liberal visitation as agreed to by the parties, the inability of the parties to agree is a substantial change of circumstances for modification of visitation.
When a child support obligor is unemployed or underemployed, the trial court is permitted under the child support guidelines to impute income to the obligor.
Torgerson v. Torgerson , 2003 ND 150, 669 N.W.2d 98
An obligor need not show a material change in circumstances if the motion to modify child support is brought more than one year after entry of the support order.
Income may not be imputed based on underemployment absent adequate evidence of the obligor's gross income from earnings and of the prevailing amounts earned in the community by persons with similar work history and occupational qualifications.
Under current child support guidelines, depreciation is not added back into an obligor's net income to determine support obligations.
Krank v. Krank , 2003 ND 146, 669 N.W.2d 105
In making its custody decision, the trial court is not required to make specific findings of fact on each factor under N.D.C.C. 14-09-06.2(1), but the court should consider all relevant factors in making the decision.
Benson v. Benson , 2003 ND 131, 667 N.W.2d 582
When a North Dakota court issues an initial custody decree, the state retains exclusive, continuing jurisdiction to modify the decree unless: (1) a North Dakota court determines the child and at least one parent no longer have a significant connection with the state and the state no longer has substantial evidence concerning the child, or (2) it is determined by North Dakota or another state that all of the parties to the custody dispute have moved away from the state.
A North Dakota court may decline to exercise jurisdiction upon determining that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.
Interest of D.P.O. , 2003 ND 127, 667 N.W.2d 590
Establishment of a psychological parent relationship does not end the trial court's inquiry in making a custody decision, but merely furnishes a justification for the award of custody to a party other than the natural parent.
When a psychological parent and a natural parent each seek a court-ordered award of custody, the natural parent's paramount right to custody prevails unless the court finds it in the child's best interests to award custody to the psychological parent to prevent serious harm or detriment to the child.
As a prerequisite to awarding grandparent visitation, the trial court must determine whether the visitation would be in the best interests of the child and whether the visitation would interfere with the parent-child relationship.
Montgomery v. Montgomery , 2003 ND 135, 667 N.W.2d 611
The trier of fact is entitled to weigh and evaluate testimony, and is not required to accept even undisputed testimony.
A trial court exercises broad discretion in determining whether to hold an individual in contempt.
Volz v. Peterson , 2003 ND 139, 667 N.W.2d 637
A party seeking modification of child custody is entitled to an evidentiary hearing if she presents a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in her favor.
Potential endangerment to a child's physical or mental health, or a mature child's reasonable preference to live with one parent, may constitute a significant change of circumstances supporting a modification of custody.
Coons v. Coons , 2003 ND 115, 665 N.W.2d 60
Where a presumption of domestic violence has been made and not yet rebutted, interim custody may be transferred from the presumed perpetrator until the presumption is rebutted by clear and convincing evidence.
Peters-Riemers v. Riemers , 2003 ND 96, 663 N.W.2d 657
A moot issue will be determined if the controversy is one of great public interest and involves the authority and power of public officials or if the matter is capable of repetition, yet evading review.
An appeal does not stay proceedings for enforcement of a judgment.
An indigent pro se defendant in a privately-initiated contempt proceeding must be informed of the right to court-appointed counsel when a remedial contempt sanction includes the likelihood of incarceration.
Hogan v. Hogan , 2003 ND 105, 665 N.W.2d 672
That the trial court's decision did not follow the custody investigator's recommendation is not convincing evidence that the court failed to adequately consider the report or erred in exercising its judgment in its custody award.
A party who fails to present specific evidence of a property's value lacks evidence that a trial court erred in granting a percentage of the marital or nonmarital estate in a property division if, at the time of the trial, the court finds the valuation is too speculative.
Fercho v. Remmick , 2003 ND 85, 662 N.W.2d 259
An appellate court decides the threshold issue of mootness before reaching the merits of an appeal.
An appeal is moot if an appellate court is unable to render effective relief due to the lapse of time, or the occurrence of an event before the appellate court renders its decision.
An appeal will be dismissed if the issue becomes moot and there is no actual controversy to be decided.
Kostrzewski v. Frisinger , 2004 ND 108, 680 N.W.2d 271
As a general rule of statutory construction, a specific statute governs over a more general statute.
When a party files a foreign child custody judgment, a trial court shall confirm the judgment unless a person contesting the validity of the registered judgment establishes one of the three grounds listed in N.D.C.C. 14-14.1-25(4).
Mere registration of a foreign child custody judgment does not require determination of the registering court's jurisdiction under N.D.C.C. 14-14.1-14.
Sommers v. Sommers , 2003 ND 77, 660 N.W.2d 586
A party moving to dismiss an appeal for acceptance of benefits of a judgment must clearly establish waiver of the right to appeal by the other party.
Ordinarily, fair market value, not liquidation value, is the proper method of valuing property in a divorce.
In valuing a business that is not going to be liquidated, expenses and theoretical tax liabilities that would only be incurred upon liquidation should not be deducted.
Flattum-Riemers v. Flattum-Riemers , 2003 ND 70, 660 N.W.2d 558
A trial court's decision to change the location of a hearing to a county other than the county of venue will not be reversed on appeal unless the court has abused its discretion.
A party seeking a change of venue under N.D.R.Civ.P. 39.1(b)(1)(C) based upon the convenience of witnesses and furtherance of the ends of justice must demonstrate with specificity the identity of the witnesses, their place of residence, and the nature, necessity, and relevance of their testimony.
A trial court may under N.D.R.Civ.P. 6(d) to shorten the time for serving notice of a motion, and its decision will be reversed on appeal only for an abuse of that discretion.
Schmidt v. Schmidt , 2003 ND 55, 660 N.W.2d 196
A trial court determining the best interest and welfare of a child in making a custody decision may appropriately consider such things as the child's interaction and interrelationships with a party's extended family and other people, such as childcare providers and others who may significantly affect the child's best interests.
A party may include in a brief materials not in the record if they are judicially cognizable apart from the record as authorities marshaled in support of a legal argument, but may not include material seeking to supplement the evidentiary record.
Lanners v. Johnson , 2003 ND 61, 659 N.W.2d 864
When a plaintiff presents a prima facie case for child custody modification, an evidentiary hearing must be held.
Lawrence v. Delkamp , 2003 ND 53, 658 N.W.2d 758
A party seeking custody modification under N.D.C.C. 14-09-06.6(4) is entitled to an evidentiary hearing only if the party brings a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party.
For purposes of awarding attorney fees under N.D.C.C. 28-26-01(2) against a party bringing a frivolous claim for relief, a claim is considered frivolous when there is such a complete absence of actual facts or law that a reasonable person could not have expected a favorable judgment.
Neidviecky v. Neidviecky , 2003 ND 29, 657 N.W.2d 255
In reviewing a trial court's award of custody between two fit parents, the Supreme Court will not retry the case or substitute its judgment for that of the trial court.
Prior to making an equitable distribution of the marital property in a divorce action, the trial court must include as part of the marital estate all of the parties' assets, regardless of the source, and the court must include as marital debt all loans, including those incurred prior to the marriage or after the parties separated.
Shields v. Shields , 2003 ND 16, 656 N.W.2d 712
Spousal support is appropriate for a disadvantaged spouse who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity.
Hanson v. Hanson , 2003 ND 20, 656 N.W.2d 656
N.D.R.Civ.P. 59(j) does not apply to a motion for change of custody. Rather, a motion to modify custody is properly brought under N.D.C.C. 14-09-06.6.
A trial court's decision to modify custody is a finding of fact that will not be overturned unless it is clearly erroneous.
Engh v. Engh , 2003 ND 5, 655 N.W.2d 712
A party moving for a change in child custody within two years after entry of an order establishing custody may get an evidentiary hearing only if the trial court first determines the moving party has established a prima facie case justifying a modification by showing willful interference with visitation, danger to the child's health, or a change in primary physical care of the child to the other parent for longer than six months.
Sweeney v. Sweeney , 2002 ND 206, 654 N.W.2d 407
A trial court's decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review on appeal.
The word "shall" in N.D.C.C. 14-09-06.5 and 14-09-24 creates a mandatory duty, and, if requested by a party, a trial court must award costs and reasonable attorney's fees if there has been a false allegation of abuse of child which was not made in good faith or if there has been a willful and persistent denial of visitation rights by a custodial parent.
A trial court may not suspend a noncustodial parent's child support obligation as an offset against amounts owed by the custodial parent for interfering with visitation.
Hilgers v. Hilgers , 2002 ND 173, 653 N.W.2d 79
A decision to appoint a guardian ad litem for a child is within the trial court's discretion, and its determination will not be overturned absent an abuse of discretion.
The trial court errs by not deciding the issue of visitation when both parties present requests for modification that are different from the existing visitation provisions.
The standard of review for the effective date of a child support modification is abuse of discretion. The burden is on the obligor to present sufficient documentation of income to justify a modification.
A party seeking custody modification is entitled to an evidentiary hearing if the party provides sufficient evidence that a material change in circumstances has occurred since the prior order and modification is necessary to serve the best interests of the child.
Huntress v. Griffey , 2002 ND 160, 652 N.W.2d 351
When the trial court's findings of fact are inadequate, an appellate court is unable to properly review the trial court's decision.
Johnson v. Johnson , 2002 ND 151, 652 N.W.2d 315
Because parents have a mutual duty to support their children, failure to award interim child support to the custodian of a child is error as a matter of law.
Use of the Bullock formula to distribute retirement pay is not mandatory.
To award spousal support, the trial court must find the requesting spouse is disadvantaged.
Boehm v. Boehm , 2002 ND 144, 651 N.W.2d 672
The decision to grant or deny a motion for continuance is within the trial court's discretion, and its determination will not be overturned absent an abuse of discretion.
A trial court's marital property valuations within the range of evidence are not clearly erroneous.
In setting the child support obligation, a trial court uses the most recent information available.
BeauLac v. BeauLac , 2002 ND 126, 649 N.W.2d 210
To find a person in contempt of a prior court order, that person must have had actual notice or knowledge of that order.
Although the courts do not look favorably upon separating siblings in custody cases, a split custody award is not absolutely prohibited where the trial court finds that type of custody arrangement desirable under the circumstances.
Although a trial court should make specific factual findings and conclusions regarding the statutory presumption against awarding custody to a person who has perpetrated domestic violence, specific findings are not required when there is insufficient evidence of domestic violence to trigger the presumption.
Geinert v. Geinert , 2002 ND 135, 649 N.W.2d 237
A modification of child support should generally be made effective from the date of the motion to modify, absent good reason to set some other date. If the trial court sets some later date, it must specifically explain its reasons for doing so.
Imputing income to a child support obligor who has voluntarily changed employment, but is not unemployed or underemployed, is within the discretion of the trial court.
Sevland v. Sevland , 2002 ND 110, 646 N.W.2d 689
Supervised visitation is not required unless there is a serious bodily injury, use of a dangerous weapon, or a pattern of domestic violence.
The visitation statute is not designed to place into the hands of children power over the occurrence, length, time, or place of the visits.
Shaw v. Shaw , 2002 ND 114, 646 N.W.2d 693
A child support obligor is entitled to an adjustment of a child support obligation for extended visitation if the trial court orders visitation or custody for the obligor parent that exceeds sixty out of ninety consecutive nights.
Mayer v. Mayer , 2002 ND 109, 651 N.W.2d 692
Order refusing to vacate a stipulated divorce decree is summary affirmed under N.D.R.App.P. 35.1(a)(4).
Churchill v. Churchill , 2002 ND 93, 647 N.W.2d 706
Order denying motion for a new trial or amended findings is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (4).
Peters-Riemers v. Riemers , 2002 ND 72, 644 N.W.2d 197
When the state constitution was adopted in 1889 there was no common law or statutory right to a jury trial in divorce actions, and, therefore, N.D. Const. art. I, sec. 13 does not provide a right to a jury trial in divorce actions.
Failure to provide truthful and accurate financial information to a potential spouse upon entering a premarital agreement is sufficient ground to render the agreement unenforceable.
N.D. Const. art. XI, sec. 23, providing that a woman's property, upon marriage, remains her separate property and is not liable for the debts of her husband, is not part of our divorce law and has no application to the division of marital assets in dissolving a marriage.
Harger v. Harger , 2002 ND 76, 644 N.W.2d 182
When a motion seeking modification of a child support order is brought within one year after its entry, the movant has the burden of demonstrating a material change in circumstances and the burden of presenting sufficient evidence to justify modification under the child support guidelines.
A remedial sanction for contempt of court is appropriate for a willful failure to comply with a court order directing compliance with the provisions of a divorce decree.
Berg v. Berg , 2002 ND 69, 642 N.W.2d 899
There is a presumption only supervised visitation will be allowed a noncustodial parent who has committed domestic violence, and to award unsupervised visitation the court must enter specific findings showing there is clear and convincing evidence the presumption has been rebutted.
Under N.D.C.C. 14-09-08.10, the custodial parent must provide health insurance coverage for the children if it is available at no or nominal cost. Otherwise, the noncustodial parent must provide health insurance coverage for the children if it is available at reasonable cost. If neither situation exists, the trial court has discretion to make other provisions for health insurance coverage for the children.
Negaard v. Negaard , 2002 ND 70, 642 N.W.2d 916
A move sought in good faith and to gain legitimate advantages for the custodial parent and the child must not be denied simply because visitation cannot continue in the existing pattern.
A custodial parent's past behavior is a relevant fact for the trial court to weigh in considering his or her motion to change a child's residence to another state.
DesLauriers v. DesLauriers , 2002 ND 66, 642 N.W.2d 892
The deliberate infliction of mental anguish upon one parent and the children by the other parent is relevant to the custody determination and may be considered by the trial court.
In a custody determination, a trial court has no obligation to consider the preference of an immature child, but the trial court may determine whether or not a child is capable of intelligently choosing between parents.
The debt produced by using credit cards to benefit the entire family is, like property, neither uniquely the husband's nor the wife's and is to be allocated by the trial court in its equitable division of the marital estate.
Wagaman v. Burke , 2002 ND 51, 642 N.W.2d 178
An order changing summer custody into summer visitation is an order establishing custody for purposes of the two-year restriction on motions to change custody.
Dufner v. Dufner , 2002 ND 47, 640 N.W.2d 694
If the evidence establishes one of the grounds for divorce, it is not necessary for the court to make findings on other available grounds.
For the purposes of determining a child support obligation, temporary income is included in the obligor's gross income.
Primary caretaker status does not enjoy paramount status in a child custody determination.
Zeller v. Zeller , 2002 ND 35, 640 N.W.2d 53
When the relevant factors for consideration in determining a motion to change the residence of a child to another state weigh in favor of the custodial parent's request to relocate the child, the trial court's denial of the motion is reversible error.
A stipulated divorce provision for an automatic change in custody upon the occurrence of a future event is unenforceable and the district court retains control over the rights of children, regardless of any contrary agreements of divorcing parties.
Kelly v. Kelly , 2002 ND 37, 640 N.W.2d 38
An order changing custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
When the previous custody award was based on the parties' stipulation, the trial court must consider all relevant evidence in making a considered and appropriate custody decision.
Olson v. Olson , 2002 ND 30, 639 N.W.2d 701
A marital property valuation within the range of evidence presented to the trial court is not clearly erroneous.
A proper finding of net income is essential to a correct child support determination.
Knutson v. Knutson , 2002 ND 29, 639 N.W.2d 495
In considering whether a settlement agreement between divorcing parties should be enforced, the trial court should inquire: (1) whether the agreement is free from mistake, duress, menace, fraud, or undue influence; and (2) whether the agreement is unconscionable.
In the context of improperly coercing a spouse to sign a settlement agreement, undue influence is the improper use of power or trust in a way that deprives a person of free will and substitutes another's objective.
When the child support guidelines do not address a situation, as in the case of parents having joint physical custody of a child for equal amounts of time, the trial court must enter an order appropriate to the needs of the child and the ability of the parent to pay.
Gleich v. Gleich , 2001 ND 185, 636 N.W.2d 418
A child support obligor is entitled to an adjustment of a child support obligation for extended visitation if the visitation ordered by the trial court exceeds sixty out of ninety consecutive nights.
Stockert v. Stockert , 2001 ND 160, 639 N.W.2d 706
Denial of motion for change of custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Dickson v. Dickson , 2001 ND 157, 634 N.W.2d 76
A custodial parent proposing a move to another state is not required to first seek employment outside the general area.
Although relevant to a custodial parent's proposed move to another state, a comparative cost-of-living analysis is not required.
In considering the location of family members on the noneconomic aspects of a proposed move, simply adding the number of relatives in each location and comparing the two numbers is an improper method for determining whether a move will enhance the noneconomic aspects of the lives of the custodial parent and the parties' child.
Stoppler v. Stoppler , 2001 ND 148, 633 N.W.2d 142
An award of custody is a finding of fact, which will not be disturbed on appeal unless clearly erroneous.
A trial court's determination on visitation is treated as a finding of fact.
To make an equitable distribution of marital property, the trial court must first determine the net worth of the parties' property.
A court cannot consider property division and spousal support separately in a vacuum, but must examine those issues together.
Selzler v. Selzler , 2001 ND 138, 631 N.W.2d 564
A court, for good cause, may excuse a custody investigator from attending the entire proceedings, but only if the court makes reasonable accommodations to preserve the parties' right to examine the investigator in light of all of the testimony given.
The credibility of witnesses, including expert witnesses, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A presumption against awarding custody to a parent who has sexually abused a child arises if the abuse resulted in serious bodily injury, involved the use of a dangerous weapon, or constituted a pattern within a reasonable time proximate to the proceeding.
Hoverson v. Hoverson , 2001 ND 124, 629 N.W.2d 573
Economic misconduct requires misconduct which results in waste of marital assets or reduction of the net marital estate.
A trial court must provide sufficient explanation for its property distribution to permit a reviewing court to determine the basis for its distribution.
In calculating an obligor's deduction from net income for tax obligations, a hypothetical federal income tax obligation specified in the child support guidelines must be used..
Tweit v. Erickson , 2001 ND 119, 636 N.W.2d 674
Amended divorce judgment summarily affirmed under N.D.R.App. 35.1(a)(2) and (4).
Corbett v. Corbett , 2001 ND 113, 628 N.W.2d 312
A trial court's child custody decision and property distribution are findings of fact which will not be reversed on appeal unless clearly erroneous.
Spousal support in an amount to negate child support is inappropriate.
Only court-ordered visitation can be considered in deciding whether there is extended visitation which justifies a downward deviation in the presumptively correct amount of child support.
Johnson v. Johnson , 2001 ND 109, 627 N.W.2d 779
A finding by the trial court as to future intentions of a party is not affected by a subsequent decision by that party to engage in conduct contrary to the finding, and the subsequent conduct does not constitute grounds for a new trial on the basis of newly discovered evidence.
An irregularity in proceedings that will justify a new trial is one that prevents a party from having a fair trial.
Demming v. Demming , 2001 ND 108, 629 N.W.2d 585
Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (7).
Kinzley v. Kinzley , 2001 ND 89, 629 N.W.2d 585
The trial court's judgment is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Halvorson v. Halvorson , 2001 ND 75, 629 N.W.2d 585
Judgment denying a motion for reconsideration of a child support order is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Yantzer v. Yantzer , 2001 ND 77, 629 N.W.2d 585
Trial court's order denying a motion for change of custody is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Minar v. Minar , 2001 ND 74, 625 N.W.2d 518
A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor's child support obligation.
Under the child support guidelines, an obligor's ability to pay child support is not determined solely upon actual income, but also takes into account the obligor's earning capacity.
The child support guidelines must be applied using common sense and in consideration of the circumstances.
A court may delay payment of a portion of child support when the obligor's income is temporarily reduced.
Every child support order entered in this state must address health insurance coverage for the child.
Hentz v. Hentz , 2001 ND 69, 624 N.W.2d 694
Past unreasonable behavior in withholding contact between the noncustodial parent and the child is a relevant fact for the trial court to weigh in considering the custodial parent's motion to relocate to another state.
Tibor v. Tibor , 2001 ND 43, 623 N.W.2d 12
The presumptively correct child support guidelines are rebutted by a preponderance of the evidence establishing a noncustodial parent's reduced ability to provide support due to visitation travel expenses and a downward deviation from the guidelines is in the best interests of the children. Until the guidelines define a "reduced ability to pay," an affidavit from the noncustodial parent testifying as to net income and anticipated travel expenses is sufficient rebuttal evidence. A trial court may use its discretion to determine whether visitation travel expenses may be deducted directly from the child support payments or from the noncustodial parent's gross monthly income to calculate net income for the purpose of determining the appropriate child support obligation, as the guidelines do not provide a method for calculating the deviation.
The child support guidelines may be rebutted by evidence of travel expenses for only court-ordered visitations, not for discretionary visitation travel expenses.
Lohstreter v. Lohstreter , 2001 ND 45, 623 N.W.2d 350
When the circumstances are appropriate, rehabilitative spousal support may continue after the remarriage of the disadvantaged spouse.
A trial court may impute income to an obligor of child support only if the obligor is unemployed or underemployed.
Peek v. Berning , 2001 ND 34, 622 N.W.2d 186
An award of rotating physical custody is only appropriate after finding the parents can communicate and cooperate sufficiently to ensure the child's best interests would not be jeopardized by an alternating custody schedule.
Northrop v. Northrop , 2001 ND 31, 622 N.W.2d 219
A trial court must articulate a rationale for a substantial disparity in the distribution of the marital estate.
Hurt v. Hurt , 2001 ND 13, 621 N.W.2d 326
Evidence of domestic violence which does not trigger the statutory presumption under N.D.C.C. 14-09-06.2(1)(j) remains one of the best interest factors to be considered by the court.
A guardian ad litem's recommendation on child custody is not conclusive.
A trial court's custody determination is a finding of fact that is not set aside on appeal unless clearly erroneous.
Mayo v. Mayo , 2000 ND 204, 619 N.W.2d 631
In deciding a motion to modify custody, a trial court must consider whether there has been a significant change of circumstances and whether modification is necessary to serve the best interests of the child.
The credibility of witnesses, including experts, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review.
A trial court may question witnesses.
Logan v. Bush , 2000 ND 203, 621 N.W.2d 314
When a child support obligor voluntarily changes employment resulting in a reduction in income, income may be imputed without a showing that the obligor is unemployed or underemployed.
Imputed income must be based upon an obligor's actual income in a prior twelve-month period, not upon the hypothetical amount the obligor would have earned had she remained at her prior job.
"Extended visitation" warranting adjustment of child support is determined by the amount of visitation ordered, not the amount of visitation actually exercised. Summer visitation "not exceeding two months" is "extended visitation."
A child support obligor who continues paying support after the support obligation for the oldest child had ceased is not entitled to a credit for "overpayment" when the amount was less than would have been due for the remaining children using current income under the guidelines.
O'Neill v. O'Neill , 2000 ND 200, 619 N.W.2d 855
A movant seeking change of custody, who brings allegations, supported by affidavit, demonstrating a custodial environment which may be endangering the childrens' physical or mental health, presents a prima facie case entitling the movant to an evidentiary hearing.
If the allegations of a movant seeking a modification of child custody are so unfounded and unsupported as to render them false and not made in good faith, the court can award costs and reasonable attorney fees.
Anderson v. Resler , 2000 ND 183, 618 N.W.2d 480
In deciding a request to change custody, the court must consider whether there has been a significant change of circumstances and whether modification is necessary to serve the best interests of the child.
Persistent and willful denial or interference with visitation may result in a change of custody.
Johnson v. Johnson , 2000 ND 170, 617 N.W.2d 97
The doctrine of equitable adoption may be applied to impose a child support obligation and to justify an award of visitation.
The trial court must make an equitable distribution of the property of divorcing parties, indicating its rationale for the distribution.
A trial court may award spousal support if it finds a claimant is a disadvantaged spouse; such a determination is a finding of fact.
Krug v. Carlson , 2000 ND 157, 615 N.W.2d 564
A court may consider the child support guideline amount in determining reasonable reimbursement of past expenses to a custodial parent.
Cox v. Cox , 2000 ND 144, 613 N.W.2d 516
Nonpayment of support is an important consideration in determining whether a parent has abandoned a child, but it does not, in itself, constitute abandonment.
A court cannot award custody to a third party rather than to a natural parent, under a "best interests of the child" test, unless it first determines that exceptional circumstances exist to trigger the best-interests analysis.
Tulintseff v. Jacobsen , 2000 ND 147, 615 N.W.2d 129
Remand for clarification of findings of fact is unnecessary when, through inference or deduction, this Court can discern the rationale for the result reached by the trial court.
A trial court's determination on whether the presumption against awarding custody to the perpetrator of domestic violence is applicable is a finding of fact which will not be reversed unless it is clearly erroneous.
Wagner v. Wagner , 2000 ND 132, 612 N.W.2d 555
A "mortgage on real estate" does not include a judgment lien.
Olson v. Olson, , 2000 ND 120, 611 N.W.2d 892
A custodial parent has the burden of proving a proposed move to another state is in the best interest of the child.
Tishmack, Stern v. Tishmack , 2000 ND 103, 611 N.W.2d 204
A trial court's determination of whether a custodial parent's requested move is in the best interests of the child is a finding of fact which will not be reversed unless it is clearly erroneous.
Schiff v. Schiff , 2000 ND 113, 611 N.W.2d 191
Domestic violence can affect a noncustodial parent's visitation rights.
There is no presumption that overseas visitation is detrimental to a child's best interests.
There must be evidence of the value of the items a party seeks to have included as in- kind income before the trial court may include those items in calculating a child support obligor's gross income.
Kjelland v. Kjelland , 2000 ND 86, 609 N.W.2d 100
A guardian ad litem's opinion and a party's commitment to parenting are appropriately considered in determining custody.
A trial court's custody determination will not be overturned unless it is clearly erroneous.
Lauer v. Lauer , 2000 ND 82, 609 N.W.2d 450
An obligor need not show a material change in circumstances if the motion to modify child support is brought more than one year after entry of the support order.
Under the child support guidelines, income may not be imputed based on underemployment absent adequate evidence of the obligor's gross income from earnings and of the prevailing amounts earned in the community by persons with similar work history and occupational qualifications.
In a contempt proceeding, the trial court may award attorney fees to the complainant.
Mellum v. Mellum , 2000 ND 47, 607 N.W.2d 580
A trial court's rationale for distributing property must be discernible.
A trial court may award a greater amount of property to a spouse in lieu of spousal support where there are sufficient income-producing assets to achieve self-sufficiency.
A finding of contempt will not be reversed unless there is a clear abuse of discretion.
Goff v. Goff , 2000 ND 57, 607 N.W.2d 573
When a guardian ad litem files an investigative report with the district court, the parties must have a opportunity to call and cross-examine the guardian ad litem.
Berg v. Berg , 2000 ND 36, 606 N.W.2d 895
To award unsupervised visitation to a parent who has perpetrated domestic violence, the trial court must make specific, detailed findings of fact, outlining the relevant evidence and delineating the factors considered by the court.
A child support obligor must be ordered to provide health insurance coverage for the child if it is available through an employer, union, or group plan.
Berg v. Berg , 2000 ND 37, 606 N.W.2d 903
When it is unclear whether the trial court considered and resolved a critical issue, remand is necessary to afford the court an opportunity to address the issue.
The determination whether contempt has been committed and remedial sanctions are warranted lies within the sound discretion of the trial court.
Henry v. Henry , 2000 ND 10, 604 N.W.2d 234
Under N.D. Admin. Code 75-02-04.1-07(3), a monthly gross income based on earning capacity equal to the greatest of three methods of calculation must be imputed to a child support obligor who is unemployed or underemployed.
Hendrickson v. Hendrickson , 2000 ND 1, 603 N.W.2d 896
Meyers v. Meyers , 1999 ND 230, 606 N.W.2d 137
The court's divorce decree awarding custody of the minor children to the father is summarily affirmed under N.D.R.App.P. 35.1.
Laude v. Laude , 1999 ND 203, 600 N.W.2d 848
A permanent spousal support award is not a claim against an obligor's retirement pension when the obligee has waived all right, title, interest, and claim to the pension and the parties expressly stipulated to submit the spousal support issue to the trial court.
Quarne v. Quarne , 1999 ND 188, 601 N.W.2d 256
A motion for change of custody supported by affidavits stating the custodial parent had physically abused the child constituted, as a matter of law, a prima facie case entitling the movant to an evidentiary hearing on the motion.
An amended judgment or order dealing only with peripheral custody issues, such as visitation, does not restart the two-year period for applying the less stringent elements for obtaining a change of custody under N.D.C.C. 14-09-06.6(6).
Myers, k/n/a Meissner v. Myers , 1999 ND 194, 601 N.W.2d 264
There is a strong preference to decide cases on the merits.
Although the preference of a mature child may be particularly significant in a change of custody proceeding, it is not necessarily determinative. A change of custody should only be made when the reasons for transferring custody substantially outweigh the child's stability with the custodial parent.
It is preferable for the trial court to make the initial determination of an award of attorney's fees on appeal.
Wagner v. Wagner , 1999 ND 169, 598 N.W.2d 855
A North Dakota district court does not have subject-matter jurisdiction to enforce a bankruptcy stipulation that has not been incorporated into a divorce decree.
An order may be issued nunc pro tunc to clarify, but not modify, parties' rights.
Rowley, f/k/a Cleaver v. Cleaver , 1999 ND 158, 598 N.W.2d 125
A district court has exclusive continuing jurisdiction over child support when the court made the initial award and one of the parties continues to live in North Dakota.
Service of process is valid under N.D.R.Civ.P. 5 for notice of a hearing to change the amount of child support.
Schumacher v. Schumacher , 1999 ND 149, 598 N.W.2d 131
Where allegations of domestic violence by one party do not rise to the level triggering the domestic violence presumption, specific factual findings regarding the effect the allegations have on the presumption are not required.
Where no objection was made to questions regarding rehabilitative spousal support and party continued with cross-examination on the issue, the issue was tried by the implied consent of the parties.
Where an obligor fails to present the information necessary to calculate income, the obligor is precluded from asserting the income calculation based on what little evidence was presented is clearly erroneous.
Tibor v. Tibor, , 1999 ND 150, 598 N.W.2d 480
The statute governing change of residence of minor children applies where parents have joint custody.
Flattum-Riemers v. Flattum-Riemers , 1999 ND 146, 598 N.W.2d 499
Where a trial court enters an order in a divorce action, the appropriate time to raise arguments concerning the validity of the order is prior to the entry of the judgment or in an appeal from the judgment, rather than in response to a trial court's order to show cause for failing to follow the order.
Love, f/k/a Carsen v. DeWall , 1999 ND 139, 598 N.W.2d 106
When a custodial parent relocates with the child to another state, the trial court may, when appropriate, award visitation to grandparents who previously had custody.
Greenwood v. Greenwood , 1999 ND 126, 596 N.W.2d 317
The trial court has broad discretion in evidentiary matters, and its rulings will only be reversed if its discretion has been abused.
A spousal support award may be modified upon a showing of a material change in circumstances, which is something substantially affecting the financial abilities or needs of a party.
The district court's determination of an unforseen material change in circumstances justifying a reduction of spousal support is a finding of fact that will not be set aside on appeal unless it is clearly erroneous.
Generally, a spousal support obligor's remarriage does not justify modification of spousal support.
Ackerman v. Ackerman , 1999 ND 135, 596 N.W.2d 332
District court's findings under the best-interests-of-the child test should be consistent and clear.
District court must award child support where an interim custody award is made.
Nefzger v. Nefzger , 1999 ND 119, 595 N.W.2d 583
Alcoholism is not an absolute bar to a parent obtaining child custody.
A parent's extramarital relationships and past marijuana usage are not irrefutable indications of lack of moral fitness.
A guardian ad litem's recommendation on child custody is not conclusive.
Temporary rehabilitative spousal support can be awarded to a disadvantaged spouse to continue an accustomed standard of living.
Riehl v. Riehl , 1999 ND 107, 595 N.W.2d 10
Permanent spousal support is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities lost during the course of the marriage or where the disadvantaged spouse is capable of rehabilitation but permanent support is needed to equitably distribute the overall reduction in the parties' separate standard of living.
Holtz v. Holtz , 1999 ND 105, 595 N.W.2d 1
A mother's mental inability to parent a child as the child matures constitutes a material change of circumstances warranting a change of custody.
A mother's mental inability to parent a child that required, in the child's best interests, a change of custody to the father constituted clear and convincing evidence to rebut the presumption against custody arising from the father's past incidents of domestic violence.
Moilan v. Moilan , 1999 ND 103, 598 N.W.2d 81
North Dakota does not follow the "minimalist" view of spousal support, which has as its object minimal self-sufficiency, but has adopted the "equitable" view, which attempts to enable the disadvantaged spouse to obtain "adequate" self support. The trial court must attempt to balance the burden created by the divorce and a spouse may be disadvantaged if he has foregone opportunities or lost advantages as a result of the marriage, or if he has contributed during the marriage to his wife's increased earning capacity.
An unequal distribution of marital property based solely upon the parties' economic contributions to the marital estate, without considering other relevant factors, is clearly erroneous.
Marital property must be valued as of the date of trial.
Cook, f/k/a Eggers v. Eggers , 1999 ND 97, 593 N.W.2d 781
In determining child support, the trial court must consider all sources of the obligor's income, including imputed earnings, in-kind income received on a regular basis, and gifts exceeding a value of one thousand dollars.
Goff v. Goff , 1999 ND 95, 593 N.W.2d 768
Under the first Stout factor, a trial court's relocation decision must give due weight to the possibility a proposed move will enhance both the economic and noneconomic aspects of the custodial family unit.
A restructured visitation schedule after a move need not provide an equal amount of visitation time.
Barth v. Barth , 1999 ND 91, 593 N.W.2d 359
Sanctions for discovery abuse must be reasonably proportionate to the misconduct.
Wintz, f/k/a Crabtree v. Crabtree , 1999 ND 85, 593 N.W.2d 355
North Dakota district court properly declined to exercise jurisdiction to modify custody, under N.D.C.C. 14-14-07(3), where North Dakota is an inconvenient forum and a court in another state is a more appropriate forum.
Green v. Green , 1999 ND 86, 593 N.W.2d 398
In deciding custody, before a court can rely on a guardian ad litem's investigative report the parties must have an opportunity to call and cross-examine the guardian ad litem and persons contacted.
State ex rel. Melling v. Ness , 1999 ND 73, 592 N.W.2d 565
A move to another state which benefits the health and well-being of a custodial parent is beneficial to the parent's child, and is in the child's best interests.
Evidence of a firm job offer in another state is relevant in assessing economic advantages for a custodial parent's move to that state.
If a trial court grants a custodial parent's motion to remove a child from the state, evidence related to the proposed move cannot support a competing motion for change of custody.
Luna v. Luna, , 1999 ND 79, 592 N.W.2d 557
Under the Parental Kidnapping Prevention Act, a North Dakota court retains exclusive continuing jurisdiction to modify its custody order, when the child still lives in North Dakota, or when one of the parties still lives in North Dakota and there is a significant connection between the child and the state.
A North Dakota court will decline to exercise its jurisdiction to modify custody, when the state is not a convenient forum.
Hill f/k/a Weber v. Weber , 1999 ND 74, 592 N.W.2d 585
If the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development, there is as a matter of law a material change in circumstances that warrants a change of custody.
Hawkinson v. Hawkinson , 1999 ND 58, 591 N.W.2d 144
The fourth factor in Stout v. Stout is rephrased as: "The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation."
Weigel v. Weigel , 1999 ND 55, 591 N.W.2d 123
The reasons for a substitution of judge should be stated on the record.
N.D.R.Civ.P. 63 requires a successor judge to certify familiarity with the record and to determine the case may be completed before that judge without prejudice to the parties.
Hendrickson v. Hendrickson , 1999 ND 37, 590 N.W.2d 220
Withholding child support payments from a child because a custodial parent refuses to comply with visitation is improper.
Child support payments are to be used for a child's current expenses unless the trial court finds it is in the best interests to set aside the payments for future expenses.
Buchholz v. Buchholz , 1999 ND 36, 590 N.W.2d 215
Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.
A district court must clearly state how it arrives at an unemployed obligor's imputed income under the Child Support Guidelines.
Ramstad v. Biewer , 1999 ND 23, 589 N.W.2d 905
Modifying child custody is a two-step inquiry. First, there must have been a significant change of circumstance since the original custody determination. Second, the significant change of circumstance must compel or require, in the best interests of the child, a change of custody.
Wetzel v. Wetzel , 1999 ND 29, 589 N.W.2d 889
For acceptance of property under a divorce judgment to be a waiver of the right to appeal, the objecting party must demonstrate prejudice or a very clear intent by the appealing party to accept the judgment.
Shared custody is not favored, and must be supported by specific findings demonstrating shared custody is in the best interests of the child.
Martin, f/k/a Rath v. Rath , 1999 ND 31, 589 N.W.2d 896
Undocketed automatic judgments for past-due child support obligations under N.D.C.C. 14-08.1-05 are treated as ordinary judgments under state law.
Under N.D.C.C. 9-12-07, if no contrary intent is expressed, payments made for child support arrearage should be applied first to any interest due on the earliest maturing child support obligation, and then to any principal due on that obligation, with any remaining excess going to the next earliest maturing support obligation in a similar manner.
Schmaltz v. Schmaltz , 1998 ND 212, 586 N.W.2d 852
A trial court may award custody of children to the father, when the father and mother are both well fit to care for them, the children expressed a preference to reside with their father and the father had been their primary caretaker and had formed a closer bond with them, even though he may have had an extramarital affair.
Under the child support guidelines, the court can reduce an obligor's child support obligation if the court finds a reduced ability to pay because of travel expenses incurred by the obligor for visitations.
Buffalo v. Buffalo , 1998 ND 208, 595 N.W.2d 602
Amended judgment terminating child support obligations summarily affirmed under N.D.R.App.R. 35.1(a)(2).
Gullickson v. Gullickson , 1998 ND 207, 595 N.W.2d 602
Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Reiswig v. Reiswig , 1998 ND 211, 595 N.W.2d 602
Divorce judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Gregg v. Gregg , 1998 ND 204, 586 N.W.2d 312
Award of custody to the mother, even though she was away from the children for a considerable period while receiving additional education, was not clearly erroneous where the mother maintained a close bond with the children, was best able to promote their welfare, and was willing to facilitate the children's relationship with their father.
Award of temporary spousal support to the wife was clearly erroneous where the wife's income and earning potential were greater than her spouse, who was ordered to pay the support.
Olson v. Olson , 1998 ND 190, 585 N.W.2d 134
Under the child support guidelines, the custodial parent is the parent who provides primary care for a greater proportion of time. The noncustodial parent must pay child support and is not entitled to an abatement of the support obligation for temporary periods during which the child resides with the noncustodial parent.
A child support order must include a statement of the obligor's net income and how it was determined by the trial court.
The effective date for an amended child support order is within the discretion of the court.
Krizan v. Krizan , 1998 ND 186, 585 N.W.2d 576
A change in custody is not warranted where there is no significant change of circumstances from the date of the original custody determination.
A trial court may not retroactively modify child support obligations when visitation is extended, but there is no permanent change in custody.
Party challenging denial of attorney's fees and costs must affirmatively establish an abuse of discretion by the trial court.
Failing to confer with opposing counsel before setting hearing dates with the trial court is not a sanctionable offense in the absence of a court rule or court order requiring counsel to confer.
Cline v. Cline , 1998 ND App 11, 585 N.W.2d 145
Where a trial court provides a reasoned explanation supported by evidence in the record, the court does not abuse its discretion in denying post-trial motions to alter or amend a judgment.
Carver v. Miller , 1998 ND App 12, 585 N.W.2d 139
A perpetrator of domestic violence may be awarded child custody if the other parent is unfit.
A party seeking a deviation from the presumptively correct amount of child support has the burden of proof.
If a trial court orders supervised visitation, it should set specific guidelines for implementing that visitation.
Keller v. Keller , 1998 ND 179, 584 N.W.2d 509
In considering a custodial parent's request to move a child out-of-state, the court must give appropriate weight to evidence of the advantages, economic and non-economic, of the move to the custodial parent and child.
The preference of a mature teenager is a significant factor for the court to consider in determining whether a move is in the child's best interests.
Jarvis v. Jarvis , 1998 ND 163, 584 N.W.2d 84
Uninsured medical expenses paid by the obligor are a deduction from gross income when setting the child support amount, consequently they are not part of the child support amount determined by the guidelines.
The cost of a child's daycare may justify an increase from the guideline amount of child support.
The child support guidelines prohibit a court from considering an obligor's daily living expenses when setting child support.
Monson v. Monson , 1998 ND App 9, 583 N.W.2d 825
A letter duly directed and mailed is presumed received in the regular course of business.
A party's failure to object waives any evidentiary challenges.
To apply the child support guidelines, a trial court must determine the child support obligor's net income.
Larson v. Larson , 1998 ND 156, 582 N.W.2d 657
A motion to reopen is the proper procedure when a party wishes to submit additional evidence after the parties have rested and the hearing has concluded.
Without a motion to reopen, a trial court errs by amending its decision on child support based upon affidavits submitted after the parties have rested, the hearing has concluded, and the court has issued its memorandum opinion.
Severson v. Severson , 1998 ND App 6, 583 N.W.2d 120
The trial court's child custody award and distribution of marital property were not clearly erroneous.
Henry v. Henry , 1998 ND 141, 581 N.W.2d 921
A presumed father's request for genetic paternity testing must be made by a motion to the trial court.
Trial court's imputation of income to an underemployed obligor is not clearly erroneous when supported by evidence of earnings by others in the community with the same skills and experience.
Accumulation of child s