Eubanks v. Fisketjon
2021 ND 124
| N.D. | 2021Background
- Parties never married; Eubanks sued Fisketjon in Sept. 2018 for primary residential responsibility of their minor child and for child support.
- On Apr. 25, 2019 the district court entered a child support order ($1,208/month) before deciding primary residential responsibility.
- Two-day trial held Feb. 2020; Fisketjon’s post-trial motion to reopen the record for additional evidence was denied.
- Final judgment (Sept. 1, 2020) awarded Eubanks primary residential responsibility, majority parenting time, and continued the prior child support terms; Fisketjon appealed Oct. 30, 2020.
- Key contested factual/legal point: district court included half of the apartment rent (roommate’s share) as part of Fisketjon’s income for child support.
- Court affirmed primary-residence and parenting-time determinations but reversed the child support calculation and remanded for recalculation.
Issues
| Issue | Eubanks' Argument | Fisketjon's Argument | Held |
|---|---|---|---|
| Timeliness/appealability of the initial child support order | Initial support order was final and appealable; Fisketjon’s failure to appeal earlier is untimely | Initial support order was interlocutory because primary-residence remained undecided; appeal from final judgment is timely | Initial order was interlocutory; Fisketjon’s appeal from the final judgment was timely and considered |
| Inclusion of roommate’s rent share as income | Roommate’s payment counted as income to Fisketjon for guideline calculation | Roommate’s half is not income; both lessees are jointly obligated to landlord and roommate’s share is not a payment owed to him | Court erred as a matter of law including roommate’s share as income; reversed and remanded for recalculation |
| Primary residential responsibility | Eubanks argued findings supported awarding her primary residential responsibility | Fisketjon argued factual errors (e.g., mischaracterizing his plea) and other errors in findings | Findings supported the district court’s decision; affirmed |
| Parenting time allocation | Eubanks supported unequal time as in child’s best interests | Fisketjon argued court must grant as much time as possible to noncustodial parent absent specific findings reducing time | District court’s findings show unequal time is in child’s best interest; affirmed |
| Denial of motion to reopen record | Eubanks supported denial | Fisketjon sought to reopen to present evidence on Eubanks’ fitness to parent | Denial reviewed for abuse of discretion; no abuse found; affirmed |
Key Cases Cited
- Brummund v. Brummund, 758 N.W.2d 735 (N.D. 2008) (final-judgment/appealability rule)
- Kessel v. W. Sav. Credit Union, 434 N.W.2d 356 (N.D. 1989) (interlocutory orders not appealable absent Rule 54(b))
- Dellinger v. Wolf, 943 N.W.2d 772 (N.D. 2020) (Rule 54(b) certification permits finality for fewer-than-all claims)
- Gooss v. Gooss, 951 N.W.2d 247 (N.D. 2020) (standards of review for child support determinations)
- Grossman v. Lerud, 857 N.W.2d 92 (N.D. 2014) (mixed standards of review in child support appeals)
- Willprecht v. Willprecht, 941 N.W.2d 556 (N.D. 2020) (court required to determine obligor’s net income under guidelines)
- Richter v. Houser, 598 N.W.2d 193 (N.D. 1999) (clear-error standard explained)
- Vandal v. Leno, 843 N.W.2d 313 (N.D. 2014) (abuse-of-discretion standard for reopening the record)
- Nelson v. Ecklund, 283 N.W. 273 (N.D. 1938) (parental rights decided by child’s best interests)