Otten v. Otten, 993 N.W.2d 523

Background

Jessica and Nicholas Otten litigated a divorce; bench trial was set for Sept. 20, 2022.
Nicholas's counsel moved to withdraw on Aug. 23, 2022; Nicholas was incarcerated and said he first learned of withdrawal about a week before trial. He requested a continuance to review records and obtain counsel.\
The district court denied the continuance, citing the case history, Nicholas’s conduct that caused prior delays, and urgency to resolve residential responsibility and parenting time in the child’s best interests.\
At trial the court admitted and weighed various documents (noting hearsay where present) and made foundational/evidentiary rulings on the record; Nicholas did not object to evidence at trial.\
Nicholas appealed, arguing the continuance denial, erroneous admission/reliance on Jessica’s testimony/documents, and that the court erred in dividing marital property, applying best-interest factors, and awarding parenting time. Jessica sought appellate attorney’s fees as a frivolous appeal.\
The Supreme Court affirmed the district court’s judgment and denied Jessica’s request for appellate attorney’s fees.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Denial of continuance	Opposed; urged prompt resolution and cited defendant-caused delays and child-protection urgency	Needed time because counsel withdrew, was incarcerated, had not reviewed filings, and might need new counsel	Denial was not an abuse of discretion given case history, delays caused by defendant, and need to protect child; court reasonably weighed factors
Admission/weight of Jessica’s testimony/documents	Evidence admissible; court limited hearsay and weighed exhibits appropriately	Testimony/documents were conflicting, questionable, and defamatory; should not have been relied on	Nicholas waived appellate evidentiary objections by not objecting at trial; court did not abuse discretion and properly weighed evidence in a bench trial
Division/valuation of marital property	Valuations and division supported by record	Valuations were erroneous and based on conflicted evidence	Property-valuation and division findings not clearly erroneous; appellate court will not reweigh evidence
Best-interest factors and parenting time award	Award protects child’s best interests given defendant’s conduct	Award rested on objectionable evidence and was erroneous	Findings on best-interest factors and parenting time are not clearly erroneous; affirmed

Key Cases Cited

Lund v. Lund, 795 N.W.2d 318 (N.D. 2011) (district court has broad discretion over continuances; abuse-of-discretion standard)
Schrodt v. Schrodt, 971 N.W.2d 861 (N.D. 2022) (continuance motions must be promptly filed; court may waive timing for unavoidable circumstances)
Cody v. Cody, 921 N.W.2d 679 (N.D. 2019) (district court has broad discretion on evidentiary matters; no general right to counsel in civil cases)
In re A.S., 733 N.W.2d 232 (N.D. 2007) (denial of continuance may be affirmed to avoid prolonging children’s uncertainty)
Buchholz v. Buchholz, 982 N.W.2d 275 (N.D. 2022) (property valuations are factual findings reviewed for clear error; standard for awarding appellate fees)
Lessard v. Johnson, 936 N.W.2d 528 (N.D. 2019) (residential-responsibility findings reviewed under clearly erroneous standard)
Williams v. Williams, 962 N.W.2d 601 (N.D. 2021) (parenting-time decisions are factual findings subject to clear-error review)
Senger v. Senger, 983 N.W.2d 160 (N.D. 2022) (explains clearly erroneous standard and presumption a bench trial court considers competent evidence)
Berdahl v. Berdahl, 977 N.W.2d 294 (N.D. 2022) (factual findings may rest on a range of evidence; appellate court defers)
Monson v. Monson, 583 N.W.2d 825 (N.D. App. 1998) (failure to object at trial waives evidentiary challenges on appeal)
Boldt v. Boldt, 966 N.W.2d 897 (N.D. 2021) (appellate court will not reweigh evidence)
Grasser v. Grasser, 909 N.W.2d 99 (N.D. 2018) (credibility determinations in a bench trial lie with the district court)