Eubanks v. Fisketjon

E
                                                                                 FILED
                                                                         IN THE OFFICE OF THE
                                                                      CLERK OF SUPREME COURT
                                                                              JULY 8, 2021
                                                                       STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

2021 ND 124

Trinda Ann Eubanks,                                        Plaintiff and Appellee
      v.
Justin Gary Fisketjon,                               Defendant and Appellant
      and
State of North Dakota,                         Statutory Real Party in Interest

                                No. 20200288

Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Joshua B. Rustad, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by VandeWalle, Justice.

Gregory W. Liebl, Fargo, ND, for plaintiff and appellee.

Jonathan L. Green, Wahpeton, ND, for defendant and appellant.
                            Eubanks v. Fisketjon
                               No. 20200288

VandeWalle, Justice.

[¶1] Justin Fisketjon appealed from a judgment determining primary
residential responsibility of the parties’ minor child and awarding child
support. We reverse a portion of the judgment awarding child support and
remand the case for recalculation of the child support amount. We summarily
affirm the judgment in all other respects.

                                        I

[¶2] The parties were never married. Trinda Eubanks sued Justin Fisketjon
for primary residential responsibility of the parties’ minor child and for child
support in September 2018. On April 25, 2019, the district court ordered
Fisketjon to pay Eubanks $1,208 a month in child support. In February 2020,
the court held a two-day trial. After the trial, Fisketjon filed a motion to reopen
the record to present additional evidence. The court denied his motion. On
September 1, 2020, the court entered judgment awarding Eubanks primary
residential responsibility of the child and the majority of parenting time. The
judgment also ordered Fisketjon to pay Eubanks child support under the same
terms as its initial child support order. Fisketjon filed his notice of appeal on
October 30, 2020.

                                        II

[¶3] Fisketjon challenges the district court’s award of child support, its
primary residential responsibility determination, and its allocation of
parenting time. As a threshold matter, Eubanks claims Fisketjon’s appeal of
the child support issue is untimely because it was not made within sixty days
of the initial order awarding child support, which Eubanks claims is “final” and
“not interlocutory.”

[¶4] “Only judgments and decrees which constitute a final judgment of the
rights of the parties to the action and orders enumerated by statute are



                                        1
appealable.” Brummund v. Brummund, 

2008 ND 224

, ¶ 5, 

758 N.W.2d 735

.
Rule 54(b), N.D.R.Civ.P., states:

      [A]ny order or other decision, however designated, that adjudicates
      fewer than all the claims or the rights and liabilities of fewer than
      all the parties does not end the action as to any of the claims or
      parties and may be revised at any time before the entry of a
      judgment adjudicating all the claims and all the parties’ rights and
      liabilities.

Under Rule 54(b), a district court may certify a judgment disposing of fewer
than all claims as final when it determines there is “no just reason for delay.”
Dellinger v. Wolf, 

2020 ND 112

, ¶ 5, 

943 N.W.2d 772

. “Absent a Rule 54(b)
certification, a decision of the trial court which fails to adjudicate all of the
claims of all of the parties is interlocutory and not appealable.” Kessel v. W.
Sav. Credit Union, 

434 N.W.2d 356

, 357 (N.D. 1989).

[¶5] Here, although the parties were never married, we believe the district
court’s support order is comparable to the temporary support order provided
for in N.D.C.C. § 14-05-23. Eubanks, in her pleading, asked the court to
determine primary residential responsibility, which had not been decided at
the time the temporary support order was issued. The child support order
therefore did not decide all of the claims brought by Eubanks in this action. It
was interlocutory and not appealable. Because Fisketjon filed his notice of
appeal within sixty days of service of notice of entry of the final judgment,
which orders him to pay child support, we conclude his appeal is timely. See
N.D.R.App.P. 4(a)(1). Having determined Fisketjon’s appeal is timely, we turn
to the merits.

                                      III

[¶6] Fisketjon asserts the district court improperly included his roommate’s
share of rent as income in its child support calculation. We apply a mixed
standard of review to appeals from child support determinations:

      “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,

                                       2
      in some limited areas, be matters of discretion subject to the abuse
      of discretion standard of review.” Grossman v. Lerud, 

2014 ND
235

, ¶ 6, 

857 N.W.2d 92

 (quoting State ex rel. K.B. v. Bauer, 

2009
ND 45

, ¶ 8, 

763 N.W.2d 462

). “A finding of fact is clearly erroneous
      if it is induced by an erroneous view of the law, if no evidence exists
      to support it, or if, on the entire record, we are left with a definite
      and firm conviction that a mistake has been made.” Richter v.
      Houser, 

1999 ND 147

, ¶ 3, 

598 N.W.2d 193

.

Gooss v. Gooss, 

2020 ND 233

, ¶ 14, 

951 N.W.2d 247

.

[¶7] Under the child support guidelines set out in N.D. Admin. Code ch. 75-
02-04.1, the district court is required to determine an obligor’s net income and
apply that amount to the guidelines to calculate the child support obligation.
Willprecht v. Willprecht, 

2020 ND 77

, ¶ 29, 

941 N.W.2d 556

. The guidelines
provide definitions for both gross income and net income. See N.D. Admin.
Code § 75-02-04.1-01(4) and (6). Income, for purposes of child support
calculations, is also defined by N.D.C.C. § 14-09-09.10(9) as “any form of
payment, regardless of source, owed to an obligor . . . .”

[¶8] Fisketjon testified at trial:

      I share my apartment with [my roommate] and we both pay half
      of the rent. It’s not rental income to me. He pays half and I pay
      half, so it’s not income.

                                     .   .     .

           He doesn’t pay me per se, he gives me the half. The full
      amount comes out of my checking account and he gives me his half
      — 500.

The rental lease, which listed Fisketjon and his roommate as lessees, was
admitted into evidence. The district court’s judgment includes half the rental
amount as Fisketjon’s income in its child support calculation.

[¶9] We conclude the district court erred as a matter of law. Fisketjon and his
roommate had an equal obligation to pay their landlord the full amount of the
rent under the terms of the lease. The rental obligation is money owed to the


                                         3
landlord; it is not money owed to Fisketjon. Thus, the roommate’s share of the
rent is not a “payment . . . owed to an obligor” as required by the N.D.C.C. §
14-09-09.10(9) definition of income. We reverse the district court’s judgment to
the extent it includes a portion of Fisketjon and his roommate’s rental
obligation as Fisketjon’s income.

                                       IV

[¶10] Fisketjon makes various arguments concerning the district court’s
primary residential responsibility determination and its allocation of
parenting time. We reject his arguments.

                                        A

[¶11] Fisketjon challenges the district court’s primary residential
responsibility determination. He asserts we should take judicial notice that he
pled guilty to disorderly conduct, a charge the court incorrectly characterized
as simple assault in its analysis. Although we grant Fisketjon’s request, it does
not change our decision. Both parties agree the incident underlying the charge
does not raise a presumption of domestic violence under subsection j of the best
interest factors. See N.D.C.C. § 14-09-06.2(1)(j). Because the district court’s
findings support its primary residential responsibility determination, we
summarily affirm under N.D.R.App.P. 35.1(a)(2).

                                        B

[¶12] Fisketjon challenges the district court’s allocation of parenting time
arguing “a district court should have to grant a noncustodial parent as much
time as possible unless and until it issues findings as to why the parenting
time should be reduced.” He requests we remand the case for the district court
to make additional findings concerning his right to parent. We decline to do so.
We have long held parenting decisions must be made in light of the child’s best
interests. See Nelson v. Ecklund, 

283 N.W. 273

, 275 (N.D. 1938) (“the rights of
the parents are to be enforced in the light of the best interest of the child, the
best interests of the child being paramount.”). The requirement that parenting
decisions are determined in light of the child’s best interest is codified. See
N.D.C.C. § 14-09-06.2 (setting out the best interests factors). The district

                                        4
court’s findings support a determination that unequal parenting time is in the
child’s best interests. We summarily affirm under N.D.R.App.P. 35.1(a)(2) and
(7).

                                      C

[¶13] Fisketjon argues the district court erred when it denied his post-trial
motion to reopen the record to present additional evidence concerning
Eubanks’ fitness to parent. We summarily affirm under N.D.R.App.P.
35.1(a)(4). See Vandal v. Leno, 

2014 ND 45

, ¶ 26, 

843 N.W.2d 313

 (a district
court’s decision on whether to reopen the record to receive additional evidence
is reviewed for an abuse of discretion).

                                      V

[¶14] We conclude the appeal is not frivolous and therefore deny Eubanks’
requests for attorney fees under N.D.R.App.P. 38.

                                     VI

[¶15] We reverse the portion of the judgment awarding child support and
remand the case for recalculation of the child support amount in accordance
with this opinion. The judgment is affirmed in all other respects.

[¶16] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




                                      5

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