Capacity to Execute Deed.

The test of whether a person is competent to make a deed is that he should be qualified to do that particular business rationally — not, on the one hand, that he should be capable of doing all kinds of business with judgment and discretion, nor, on the other, that he should be wholly deprived of reason, so as to be incapable of doing the most familiar and trifling work. Nelson v. Thompson, 16 N.D. 295, 112 N.W. 1058, 1907 N.D. LEXIS 52 (N.D. 1907).

Defense of Insanity.

To establish the defense of insanity in an action on a contract, the evidence must show that the defendant was a “person entirely without understanding”. Wood v. Pehrsson, 21 N.D. 357, 130 N.W. 1010, 1911 N.D. LEXIS 98 (N.D. 1911).

Intoxication.

A deed is voidable if the grantor at the time of executing it was so intoxicated as to be incapable of understanding the nature and effect of the transaction. Spoonheim v. Spoonheim, 14 N.D. 380, 104 N.W. 845, 1905 N.D. LEXIS 65 (N.D. 1905).

A party who seeks to avoid a contract on the ground of intoxication must move promptly and within a reasonable time after the intoxication ceases and knowledge of the transaction, or facts sufficient to put him upon inquiry, comes to him, or otherwise he will be deemed to have ratified the transaction. Hauge v. Bye, 51 N.D. 848, 201 N.W. 159, 1924 N.D. LEXIS 81 (N.D. 1924).

A person cannot avoid a contract unless his drunkenness was so excessive that he was utterly deprived of the use of reason and understanding and was altogether incapable of knowing the effect of what he was doing. Hauge v. Bye, 51 N.D. 848, 201 N.W. 159, 1924 N.D. LEXIS 81 (N.D. 1924); Christensen v. Larson, 77 N.W.2d 441, 1956 N.D. LEXIS 126 (N.D. 1956).

Collateral References.

Joinder in instrument as ratification of prior instrument affecting real property ineffective because of intoxication or want of mental capacity, 7 A.L.R.2d 294.

Burden of Proof.

Before a court may set aside a transaction on the ground of mental incapacity, the party attacking the validity of the transaction has the burden to prove the grantor was unable to comprehend the nature and effect of the transaction. Old age alone does not render a person incompetent, even if the mind is weak or impaired or even if capacity to transact general business may be lacking. Estate of Wenzel-Mosset by Gaukler v. Nickels, 1998 ND 16, 575 N.W.2d 425, 1998 N.D. LEXIS 5 (N.D. 1998).

Capacity to Execute Deed.

—In General.

In determining incapacity of a grantor, such as to render his deed invalid, the court must be satisfied that the grantor was not in a situation to transact that particular business rationally. On the one hand, it is not necessary to show that he was capable of doing all kinds of business with judgment and discretion; nor, on the other hand, to show that he was wholly deprived of reason so as to be incapable of doing the most familiar and trifling work. His deed would be void if his mind and memory were in such a situation at the time of executing the deed as to render him wholly incompetent to judge his rights and interests in relation to that transaction. Lee v. Lee, 70 N.D. 79, 292 N.W. 124, 1940 N.D. LEXIS 149 (N.D. 1940); Runge v. Moore, 196 N.W.2d 87, 1972 N.D. LEXIS 168 (N.D. 1972).

There was evidence supporting the district court’s finding that a decedent was competent to contract while in a nursing home because his children testified they did not notice a decline in his cognitive abilities while he was in the nursing home, and his attorney testified he had no reservations about the decedent’s mental capacity during his representation; a doctor acknowledged that neither the decedent’s BIMS nor CAST (nor any test) was determinative of one’s capacity to contract. Hartman v. Grager, 2021 ND 160, 964 N.W.2d 482, 2021 N.D. LEXIS 162 (N.D. 2021).

Lack of Seller’s Capacity.

Where elderly seller was confused about whom he was dealing with and buyer deceived seller about the nature of the transaction by obtaining seller’s signature on the contract for deed when other members of the family were not at home and without informing them of the transaction, there was an inference that buyer was fully aware of seller’s lack of capacity to execute the contract for deed. Slorby v. Johnson, 530 N.W.2d 307, 1995 N.D. LEXIS 48 (N.D. 1995).

Rescission.

This section is ample authority for the rescission of a former contract for mental incapacity, and the reference therein to the chapter on rescission was merely for the purpose of subjecting the rescission to the general rules governing the operation of this remedy. Thronson v. Blough, 38 N.D. 574, 166 N.W. 132, 1917 N.D. LEXIS 63 (N.D. 1917).

Rescission may be for undue influence, which consists in taking an unfair advantage of another’s weakness of mind. Buchanan v. Prall, 39 N.D. 423, 167 N.W. 488, 1918 N.D. LEXIS 38 (N.D. 1918).

Although appellants argued that the findings of lack of mental capacity were clearly erroneous, rescission of a contract on the ground of mental capacity was authorized by the statute, and the trial court found that there was evidence the decedent, who suffered from moderate to severe neurological impairment, was incompetent to make decisions and thus was unable to comprehend the nature of the sale of his property, and thus there was evidentiary support for these findings. Erickson v. Olsen, 2014 ND 66, 844 N.W.2d 585, 2014 N.D. LEXIS 59 (N.D. 2014).

Scope of Statute.

The right to rescind provided by this section is limited to the special class of persons described therein and is subject to the requirements of N.D.C.C. § 9-09-04. Volk v. Volk, 121 N.W.2d 701, 1963 N.D. LEXIS 84 (N.D. 1963), decided prior to the enactment of the Uniform Probate Code.

Signature.

A deed on which the grantor had made her mark was not invalid although it was accompanied on the signature line by the grantor’s written name which was not written by a witness present at the time of the transfer. Runge v. Moore, 196 N.W.2d 87, 1972 N.D. LEXIS 168 (N.D. 1972).

Attorneys’ Fees.

For a case in which the supreme court held that the trial court abused its discretion in awarding attorneys’ fees in a defamation claim, a wrongful discharge claim, a claim of employment discrimination, a claim for interference with contractual rights, and a claim for violation of constitutional rights, see Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Freedom of Speech.

In this state every man may freely write, speak, and publish his opinions on all subjects, but is responsible for an abuse of that privilege to any person injured by such abuse. McCue v. Equity Coop. Publishing Co., 39 N.D. 190, 167 N.W. 225, 1918 N.D. LEXIS 23 (N.D. 1918).

Libel and Slander.

A man’s personal right to be free from defamation of character is not dependent upon the supposed cold necessities of business, so that to sacrifice rights of individual to supposed business necessity becomes controlling in the determining of human relations. Rickbeil v. Grafton Deaconess Hosp., 74 N.D. 525, 23 N.W.2d 247, 1946 N.D. LEXIS 82 (N.D. 1946).

Grant of summary judgment in favor of a writer in a initiative drafter’s defamation action was appropriate because the drafter was at least a limited purpose public figure and he needed to present clear and convincing evidence that the writer’s statements were false and made with actual malice, which he failed to do. It was therefore presumed that the evidence did not exist. Riemers v. Mahar, 2008 ND 95, 748 N.W.2d 714, 2008 N.D. LEXIS 94 (N.D. 2008).

Collateral References.

Defamation: Application of New York Times and related standards to nonmedia defendants, 38 A.L.R.4th 1114.

Defamation: Privilege accorded state or local governmental administrative records relating to private individual member of public, 40 A.L.R.4th 318.

Libel and slander: defamation by cartoon, 52 A.L.R.4th 424.

Libel and slander: defamation by photograph, 52 A.L.R.4th 488.

False light invasion of privacy — disparaging but noncriminal depiction, 60 A.L.R.4th 51.

Intrusion by news-gathering entity as invasion of right of privacy, 69 A.L.R.4th 1059.

Defamation: publication of letter to editor in newspaper as actionable, 54 A.L.R.5th 443.

Validity of regulation by public-school authorities as to clothes or personal appearance of pupils, 58 A.L.R.5th 1.

Defamation of manufacturer, regarding product, other than through statement charging breach or nonperformance of contract, 104 A.L.R.5th 523.

Defamation of building contractor or subcontractor other than through statement charging breach or nonperformance of contract, 106 A.L.R.5th 475.

Defamation of member of clergy, 108 A.L.R.5th 495.

Law Reviews.

Avoiding Claims of Defamation in the Workplace, 72 N.D. L. Rev. 247 (1996).

In General.

To defame a person is to speak evil of him maliciously and where words produce any perceptible injury to the reputation of another they are termed defamatory. Rickbeil v. Grafton Deaconess Hosp., 74 N.D. 525, 23 N.W.2d 247, 1946 N.D. LEXIS 82 (N.D. 1946).

Defamation Not Shown.

Where nurses’ aide made comments in hospital which were breaches of confidentiality of both patient-specific and hospital-specific information, statement in personnel file that her employment was terminated for breach of confidentiality was not defamatory. Eli v. Griggs County Hosp. & Nursing Home, 385 N.W.2d 99, 1986 N.D. LEXIS 303 (N.D. 1986).

Elected state attorney’s claim for defamation was dismissed on summary judgment evidence that the proffered defamatory statements were hearsay and not admissible, as there was no independent evidence of the statement’s trustworthiness. Myers v. Richland County, 2004 U.S. Dist. LEXIS 19944 (D.N.D. Sept. 30, 2004), aff'd in part, vacated in part, 429 F.3d 740, 2005 U.S. App. LEXIS 24582 (8th Cir. N.D. 2005).

Where a former employee claimed that she was defamed by a letter of termination sent by the employer’s counsel to the employee’s attorney, which was sent after the employee’s attorney had made a settlement demand and threatened litigation, the letter was absolutely privileged because it was a communication made preliminary to and related to a proposed or threatened judicial proceeding; in addition, defendants did not publish the letter to anyone other than the employee’s attorney. Humann v. KEM Elec. Coop., Inc., 450 F. Supp. 2d 1006, 2006 U.S. Dist. LEXIS 63537 (D.N.D. 2006), aff'd, 497 F.3d 810, 2007 U.S. App. LEXIS 19136 (8th Cir. N.D. 2007).

Where a former employee claimed that she was defamed when the employer’s attorney testified as a witness at the employee’s unemployment compensation hearing, there was no actionable defamation as a matter of law because an unemployment compensation hearing conducted by Job Service North Dakota is a proceeding authorized by law and statements made by an attorney called as a witness at such proceedings are privileged under North Dakota law. Humann v. KEM Elec. Coop., Inc., 450 F. Supp. 2d 1006, 2006 U.S. Dist. LEXIS 63537 (D.N.D. 2006), aff'd, 497 F.3d 810, 2007 U.S. App. LEXIS 19136 (8th Cir. N.D. 2007).

Grant of summary judgment in favor of a writer in a initiative drafter’s defamation action was appropriate because the drafter was at least a limited purpose public figure and he needed to present clear and convincing evidence that the writer’s statements were false and made with actual malice, which he failed to do. It was therefore presumed that the evidence did not exist. Riemers v. Mahar, 2008 ND 95, 748 N.W.2d 714, 2008 N.D. LEXIS 94 (N.D. 2008).

Collateral References.

Words reflecting upon one in his character as employee as actionable per se, 6 A.L.R.2d 1008.

Action for defamation in course of proceedings for suspension or expulsion from a church or religious society, 20 A.L.R.2d 421.

Professional organization, suspension or expulsion from, 20 A.L.R.2d 531.

Defamatory nature of charges or imputations in conditional or alternative form, 23 A.L.R.2d 1331.

Liability for permitting walls or other portions of place of public resort to be occupied with matter defamatory of plaintiff, 28 A.L.R.2d 1454.

Imputation of perjury or false swearing as actionable per se, 38 A.L.R.2d 161.

Action for libel as remedy of workman blacklisted by labor union, 46 A.L.R.2d 1124.

Statements respecting race, color, or nationality as actionable, 46 A.L.R.2d 1287.

Statement or publication that plaintiff has been indicted or is under indictment, as defamation, 52 A.L.R.2d 1178.

Actionability of statement imputing incapacity, inefficiency, misconduct, fraud, dishonesty, or the like to public employee, 53 A.L.R.2d 8.

Criticism of literary or artistic works, 64 A.L.R.2d 245.

Religion: defamatory nature of statements reflecting on plaintiff’s religious beliefs, standing or activities, 87 A.L.R.2d 453.

Publication by accidental communication, or communication only to plaintiff, 92 A.L.R.2d 219.

Public officials, constitutional aspects of libel and slander of, 95 A.L.R.2d 1450.

Liability of publisher of defamatory statement for its repetition or republication by others, 96 A.L.R.2d 373.

Imputing credit unworthiness to nontrader, 99 A.L.R.2d 700.

Charge of being “crook”, 1 A.L.R.3d 844.

Marital matters: false news reports as to births, betrothals, marriages, divorces, or similar marital matters, 9 A.L.R.3d 559.

Overcharging: statements as to plaintiff’s charging excessive or exorbitant prices or fees, 11 A.L.R.3d 884.

Slut: actionability of charge of being a “slut”, “bitch”, or “son of a bitch”, 13 A.L.R.3d 1286.

What constitutes actual malice, within federal constitutional rule requiring public officials and public figures to show actual malice, 20 A.L.R.3d 988.

Will, libel by, 21 A.L.R.3d 754.

Mental condition: actionability of imputing to private person mental disorder or incapacity, or impairment of mental faculties, 23 A.L.R.3d 652.

Shoplifting: actionability of accusation or imputation of shoplifting, 29 A.L.R.3d 961.

Tax evasion: actionability of accusation or imputation of tax evasion, 32 A.L.R.3d 1427.

Public officer’s privilege in connection with accusations that another has been guilty of sedition, subversion, espionage, or similar behavior, 33 A.L.R.3d 1330.

Actionability of statements imputing inefficiency or lack of qualification to public school teacher, 40 A.L.R.3d 490.

Qualified privilege of reply to defamatory publication, 41 A.L.R.3d 1083.

Right of governmental entity to maintain action for defamation, 45 A.L.R.3d 1315.

Imputation of insolvency as defamatory, 49 A.L.R.3d 163.

Charges of slumlordism or the like as actionable, 49 A.L.R.3d 1074.

Radio or television, defamation by, 50 A.L.R.3d 1311.

Actionability of defamatory statements as to business conduct, relating to a single transaction or occurrence, 51 A.L.R.3d 1300.

Employer’s privilege as to communications to news media concerning employees, 52 A.L.R.3d 739.

Dictation to defendant’s secretary, typist, or stenographer as publication, 62 A.L.R.3d 1207.

School board member, privileged nature of statements or utterances in course of official proceedings, 85 A.L.R.3d 1137.

Liability of telegraph or telephone company for transmitting or permitting transmission of libelous or slanderous messages, 91 A.L.R.3d 1015.

False newspaper report that plaintiff has been arrested, actionability, 93 A.L.R.3d 625.

Newspaper headline, libel by, 95 A.L.R.3d 660.

Restaurant’s food, liability for defamation for criticizing, 96 A.L.R.3d 609.

Publication of “letter to editor” in newspaper as actionable, 99 A.L.R.3d 573.

Labor union’s liability to member for defamation, 100 A.L.R.3d 546.

Imputation of homosexuality as defamation, 3 A.L.R.4th 752.

Proof of injury to reputation as prerequisite to recovery of damages in defamation action — post-Gertz cases, 36 A.L.R.4th 807.

Libel and slander: necessity of expert testimony to establish negligence of media in defamation action by private individual, 37 A.L.R.4th 987.

Criticism or disparagement of character, competence, or conduct of candidate for office as defamation, 37 A.L.R.4th 1088.

Defamation: Application of New York Times and related standards to nonmedia defendants, 38 A.L.R.4th 1114.

Defamation: Privilege accorded state or local governmental administrative records relating to private individual member of public, 40 A.L.R.4th 318.

Defamation action as surviving plaintiff’s death, under statute not specifically covering action, 42 A.L.R.4th 272.

Actionable nature of advertising impugning quality or worth of merchandise or products, 42 A.L.R.4th 318.

Criticism or disparagement of attorney’s character, competence, or conduct as defamation, 46 A.L.R.4th 326.

Libel or slander: defamation by gestures or acts, 46 A.L.R.4th 403.

Defamation: publication by intracorporate communication of employee’s evaluation, 47 A.L.R.4th 674.

Defamation: privilege attaching to news report of criminal activities based on information supplied by public safety officers — modern status, 47 A.L.R.4th 718.

Defamation of class or group as actionable by individual member, 52 A.L.R.4th 618.

Defamation of professional athlete or sports figure, 54 A.L.R.4th 869.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation — Post New York Times cases, 57 A.L.R.4th 404.

Libel or slander: defamation by statement in jest, 57 A.L.R.4th 520.

Imputation of allegedly objectionable political or social beliefs or principles as defamation, 62 A.L.R.4th 314.

Publication of allegedly defamatory matter by plaintiff (“self-publication”) as sufficient to support defamation action, 62 A.L.R.4th 616.

Private contests and lotteries: entrants’ rights and remedies, 64 A.L.R.4th 1021.

Defamation: designation as scab, 65 A.L.R.4th 1000.

Bank’s liability, under state law, for disclosing financial information concerning depositor or customer, 81 A.L.R.4th 377.

Who is “public figure” for purposes of defamation action, 19 A.L.R.5th 1.

Who is “public official” for purposes of defamation action, 44 A.L.R.5th 193.

Defamation: publication of letter to editor in newspaper as actionable, 54 A.L.R.5th 443.

Liability for statement or publication charging plaintiff with killing of, cruelty to, or inhumane treatment of animals, 69 A.L.R.5th 645.

Liability of Newspaper for Libel and Slander - 21st Century Cases. 22 A.L.R.6th 553.

Construction of Defamatory Language.

To render words defamatory and actionable they need not make the defamatory charge in direct terms. Lauder v. Jones, 13 N.D. 525, 101 N.W. 907, 1904 N.D. LEXIS 79 (N.D. 1904).

If the language of an alleged libel is fairly susceptible of a construction rendering it defamatory and therefore actionable, though also susceptible of a contrary construction, the complaint states a cause of action, and it is for the jury to determine whether the words were used in an innocent or defamatory sense. Lauder v. Jones, 13 N.D. 525, 101 N.W. 907, 1904 N.D. LEXIS 79 (N.D. 1904); Meyerle v. Pioneer Publishing Co., 45 N.D. 568, 178 N.W. 792, 1920 N.D. LEXIS 161 (N.D. 1920); Rickbeil v. Grafton Deaconess Hosp., 74 N.D. 525, 23 N.W.2d 247, 1946 N.D. LEXIS 82 (N.D. 1946).

If there is any doubt as to the meaning of a publication claimed to be libelous, so that extrinsic evidence is needed to determine whether it is of actionable character, or if the publication is reasonably susceptible of two constructions, the one innocent and the other libelous, it is for the jury to determine which construction is the proper one. McCue v. Equity Coop. Publishing Co., 39 N.D. 190, 167 N.W. 225, 1918 N.D. LEXIS 23 (N.D. 1918).

Generally, in cases involving the construction of pleadings, it is for the court to determine whether words are libelous per se. Ellsworth v. Martindale-Hubbell Law Directory, 69 N.D. 610, 289 N.W. 101, 1939 N.D. LEXIS 192 (N.D. 1939).

Whether the alleged defamation is fairly warranted by the writing is a question of law for the court to decide; upon finding a reasonable possibility that the ascribed libelous meaning can be given to the material alleged to be defamatory, it is for the jury to determine if the libelous meaning was intended or conveyed. Moritz v. Medical Arts Clinic, P. C., 315 N.W.2d 458, 1982 N.D. LEXIS 224 (N.D. 1982).

In property owner’s action against township for civil libel over letters sent to local newspapers regarding the status of property owner’s lots, where the letters stated that the township board believed that the public should be given notice that the property was subject to the township zoning ordinances and that a plat of the subject property was recorded without the consent of the township supervisors and advised that potential purchasers should review the zoning ordinances and that building permits would be required, the truthful and innocuous language of the letters was not fairly susceptible of a defamatory meaning. Mr. G's Turtle Mt. Lodge, Inc. v. Roland Twp., 2002 ND 140, 651 N.W.2d 625, 2002 N.D. LEXIS 181 (N.D. 2002).

Demurrer to Complaint.

A general demurrer to a complaint in an action for libel admits allegations of falsity, and publication, and malice and the correctness of the innuendo as averred in the complaint, unless the innuendo attributes a meaning to the words which is not justified by the words themselves or by the extrinsic facts with which they are connected. McCue v. Equity Coop. Publishing Co., 39 N.D. 190, 167 N.W. 225, 1918 N.D. LEXIS 23 (N.D. 1918); Englund v. Townley, 43 N.D. 118, 174 N.W. 755, 1919 N.D. LEXIS 27 (N.D. 1919); Langer v. Courier News, 46 N.D. 430, 179 N.W. 909, 1920 N.D. LEXIS 42 (N.D. 1920); Murphy v. Farmers Educ. & Coop. Union, 72 N.W.2d 636, 1955 N.D. LEXIS 143 (N.D. 1955).

Effect on Recipient.

There can be no defamation unless the recipient of the communication believes it to be defamatory, i.e., the plaintiff is defamed in the recipient’s eyes. Little v. Spaeth, 394 N.W.2d 700, 1986 N.D. LEXIS 420 (N.D. 1986).

Hearsay.

Elected state attorney’s claim for defamation was dismissed on summary judgment evidence that the proffered defamatory statements were hearsay and not admissible, as there was no independent evidence of the statements’ trustworthiness. Myers v. Richland County, 2004 U.S. Dist. LEXIS 19944 (D.N.D. Sept. 30, 2004), aff'd in part, vacated in part, 429 F.3d 740, 2005 U.S. App. LEXIS 24582 (8th Cir. N.D. 2005).

Injuries in Respect to Office, Profession, Etc.

Bank’s staff memorandum which stated that the plaintiffs no longer worked at the bank and that any questions concerning trust accounts previously handled by them should be referred to another employee was not defamatory. Jose v. Norwest Bank ND, N.A., 1999 ND 175, 599 N.W.2d 293, 1999 N.D. LEXIS 195 (N.D. 1999).

Plaintiff’s general assertion that he was called “a crazy man” by defendant radio corporation’s employee on the air was insufficient to survive summary judgment in favor of the defendant where the plaintiff failed to allege that the statement caused him any injury in his career or that it injured him in any of the ways required by § 14-02-04. Gaetz v. Clear Channel Corp., 2001 U.S. Dist. LEXIS 7741 (D.N.D. June 6, 2001).

Language Libelous Per Se.

If the language as charged fairly imputes to the plaintiff acts or conduct, which would naturally be followed by the consequence named in the statute, it is libelous per se. Lauder v. Jones, 13 N.D. 525, 101 N.W. 907, 1904 N.D. LEXIS 79 (N.D. 1904); Meyerle v. Pioneer Publishing Co., 45 N.D. 568, 178 N.W. 792, 1920 N.D. LEXIS 161 (N.D. 1920); Langer v. Courier News, 46 N.D. 430, 179 N.W. 909, 1920 N.D. LEXIS 42 (N.D. 1920); Waite v. Stockgrowers' Credit Corp., 63 N.D. 763, 249 N.W. 910, 1933 N.D. LEXIS 233 (N.D. 1933).

A publication accusing another with violation of law, fraud and perfidy in printing ballots is libelous per se. Streeter v. Emmons County Farmers' Press, 57 N.D. 438, 222 N.W. 455, 1928 N.D. LEXIS 147 (N.D. 1928).

Language which charges one with telling falsehoods is not libelous per se. Leonard v. Roberge, 48 N.D. 638, 186 N.W. 252, 1921 N.D. LEXIS 140 (N.D. 1921).

Libel Not Shown.

Grant of summary judgment in favor of a writer in a initiative drafter’s defamation action was appropriate because the drafter was at least a limited purpose public figure and he needed to present clear and convincing evidence that the writer’s statements were false and made with actual malice, which he failed to do. It was therefore presumed that the evidence did not exist. Riemers v. Mahar, 2008 ND 95, 748 N.W.2d 714, 2008 N.D. LEXIS 94 (N.D. 2008).

Employer was entitled to summary judgment on a libel claim because its statements regarding disciplinary actions truthfully described a former employee’s work history and could not reasonably be construed as insinuation, innuendo, or sarcasm conveying a false and defamatory meaning; moreover, its alleged delay in responding was not reasonably and fairly susceptible of a defamatory meaning. Schmitt v. MeritCare Health Sys., Dakota Clinic, Ltd., 2013 ND 136, 834 N.W.2d 627, 2013 N.D. LEXIS 139 (N.D. 2013).

Privileged Communications.

The occasion and circumstances under which a communication claimed to be libelous is made determine whether the publication is privileged. Stafney v. Standard Oil Co., 71 N.D. 170, 299 N.W. 582, 1941 N.D. LEXIS 150 (N.D. 1941).

Privilege is based upon the sound public policy that some communications are so socially important that the full and unrestricted exchange of information requires some latitude for mistake. It is well established that there is no liability for defamatory statements that are privileged. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Where a former employee claimed that she was defamed by a letter of termination sent by the employer’s counsel to the employee’s attorney, which was sent after the employee’s attorney had made a settlement demand and threatened litigation, the letter was absolutely privileged because it was a communication made preliminary to and related to a proposed or threatened judicial proceeding; in addition, defendants did not publish the letter to anyone other than the employee’s attorney. Humann v. KEM Elec. Coop., Inc., 450 F. Supp. 2d 1006, 2006 U.S. Dist. LEXIS 63537 (D.N.D. 2006), aff'd, 497 F.3d 810, 2007 U.S. App. LEXIS 19136 (8th Cir. N.D. 2007).

Where a former employee claimed that she was defamed when the employer’s attorney testified as a witness at the employee’s unemployment compensation hearing, there was no actionable defamation as a matter of law because an unemployment compensation hearing conducted by Job Service North Dakota is a proceeding authorized by law and statements made by an attorney called as a witness at such proceedings are privileged under North Dakota law. Humann v. KEM Elec. Coop., Inc., 450 F. Supp. 2d 1006, 2006 U.S. Dist. LEXIS 63537 (D.N.D. 2006), aff'd, 497 F.3d 810, 2007 U.S. App. LEXIS 19136 (8th Cir. N.D. 2007).

Proof of Special Damages.

It is inappropriate to require proof of special damages in libel actions in which the published communication requires reference to extrinsic facts to establish a defamatory meaning. Vanover v. Kansas City Life Ins. Co., 553 N.W.2d 192, 1996 N.D. LEXIS 203 (N.D. 1996).

Publication.

The dictation of a libelous letter by defendant to his private stenographer, who at his direction transcribes her notes, writes the letter and thereafter has it mailed to the plaintiff as directed by the defendant, is a publication. Rickbeil v. Grafton Deaconess Hosp., 74 N.D. 525, 23 N.W.2d 247, 1946 N.D. LEXIS 82 (N.D. 1946).

Sending letter containing defamatory matter to plaintiff’s spouse was publication. Emo v. Milbank Mut. Ins. Co., 183 N.W.2d 508, 1971 N.D. LEXIS 148 (N.D. 1971).

Retraction Demand.

In an action where a newspaper is charged with publishing an article libelous per se, it is unnecessary to allege a demand for a retraction and special damages. Meyerle v. Pioneer Publishing Co., 45 N.D. 568, 178 N.W. 792, 1920 N.D. LEXIS 161 (N.D. 1920).

Special Verdict Form.

New trial proper where the special verdict form allowed the jury to determine the damages arising from each letter without first finding if each letter met all of the requirements of defamation, as the court instructed. Vanover v. Kansas City Life Ins. Co., 553 N.W.2d 192, 1996 N.D. LEXIS 203 (N.D. 1996).

Sufficiency of Complaint.

Complaint sufficiently stated a claim that defendants had worked together to write, publish, and distribute to third persons a false statement that attorney accepted a bribe to settle a defendant’s case, which would tend to injure attorney in his occupation, and that under this section, the statement was “libel.” Varriano v. Bang, 541 N.W.2d 707, 1996 N.D. LEXIS 12 (N.D. 1996).

Collateral References.

Proof of injury to reputation as prerequisite to recovery of damages in defamation action — post-Gertz cases, 36 A.L.R.4th 807.

Libel and slander: necessity of expert testimony to establish negligence of media defendant in defamation action by private individual, 37 A.L.R.4th 987.

Criticism or disparagement of character, competence, or conduct of candidate for office as defamation, 37 A.L.R.4th 1088.

Defamation: Application of New York Times and related standards to nonmedia defendants, 38 A.L.R.4th 1114.

Defamation: Privilege accorded to state or local governmental administrative records relating to private individual member of public, 40 A.L.R.4th 318.

Defamation: nature and extent of privilege accorded public statements, relating to subject of legislative business or concern, made by member of state or local legislature or council outside of formal proceedings, 41 A.L.R.4th 1116.

Defamation action as surviving plaintiff’s death, under statute not specifically covering action, 42 A.L.R.4th 272.

Actionable nature of advertising impugning quality or worth of merchandise or products, 42 A.L.R.4th 318.

Criticism or disparagement of attorney’s character, competence, or conduct as defamation, 46 A.L.R.4th 326.

Libel or slander: defamation by gestures or acts, 46 A.L.R.4th 403.

Defamation: publication by intracorporate communication of employee’s evaluation, 47 A.L.R.4th 674.

Defamation: privilege attaching to news report of criminal activities based on information supplied by public safety officers — modern status, 47 A.L.R.4th 718.

Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.

Libel and slander: defamation by cartoon, 52 A.L.R.4th 424.

Libel and slander: defamation by photograph, 52 A.L.R.4th 488.

Defamation of class or group as actionable by individual member, 52 A.L.R.4th 618.

Libel and slander: defamation by question, 53 A.L.R.4th 450.

Libel and slander, sufficiency of identification of alleged defamed party, 54 A.L.R.4th 746.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation — post-New York Times cases, 57 A.L.R.4th 404.

Defamation by statement made in jest, 57 A.L.R.4th 520.

Imputation of allegedly objectionable political or social beliefs or principles as defamation, 62 A.L.R.4th 314.

Publication of allegedly defamatory matter by plaintiff (“self-publication”) as sufficient to support defamation action, 62 A.L.R.4th 616.

Liability for statement or publication charging plaintiff with killing of, cruelty to, or inhumane treatment of animals, 69 A.L.R.5th 645.

Libel and slander: statements regarding labor relations or disputes, 94 A.L.R.5th 149.

Liability of Newspaper for Libel and Slander - 21st Century Cases. 22 A.L.R.6th 553.

Actual Damage.

An accusation of the fifth class under this section cannot be slander per se because it is not actionable slander at all unless it causes special damages; in order to establish a cause of action for a publication of the fifth class, it is necessary to allege and prove special damages. Johnson v. Nielsen, 92 N.W.2d 66, 1958 N.D. LEXIS 88 (N.D. 1958).

A false oral publication of a charge that a person who has no profession or gainful occupation is a Communist is a publication of the fifth class and is not actionable unless it causes actual damage. Johnson v. Nielsen, 92 N.W.2d 66, 1958 N.D. LEXIS 88 (N.D. 1958).

Trial court did not err in denying employers’ N.D.R.Civ.P. 50 motion for judgment notwithstanding the verdict based on insufficient evidence of damages in a former employee’s defamation action under N.D.C.C. § 14-02-04. The employee testified she was unable to find employment from the time of her termination until the date of trial; although the employee was not required to prove noneconomic damages, she did testify about the stress she suffered from not being able to find a job as a veterinarian. Forster v. W. Dakota Veterinary Clinic, Inc., 2004 ND 207, 689 N.W.2d 366, 2004 N.D. LEXIS 348 (N.D. 2004), abrogated, Minto Grain, LLC v. Tibert, 2009 ND 213, 776 N.W.2d 549, 2009 N.D. LEXIS 224 (N.D. 2009).

Charge of Unchastity.

It is not necessary to constitute slander that a charge of unchastity should be made in direct terms, but it is sufficient if the words used are such as impute unchastity and if they were so understood by those who heard them. Martinson v. Freeberg, 44 N.D. 363, 175 N.W. 618, 1919 N.D. LEXIS 215 (N.D. 1919).

Claims for Emotional Distress.

Defendants were entitled to summary judgment dismissing plaintiff’s claims for emotional distress where the claims for defamation were barred by the privilege for defamatory statements to law enforcement during the investigation of criminal activity. Richmond v. Nodland, 552 N.W.2d 586, 1996 N.D. LEXIS 194 (N.D. 1996).

Effect on Recipient.

There can be no defamation unless the recipient of the communication believes it to be defamatory, i.e., the plaintiff is defamed in the recipient’s eyes. Little v. Spaeth, 394 N.W.2d 700, 1986 N.D. LEXIS 420 (N.D. 1986).

Elements.

Facts used to establish the elements of slander involved whether a wife made a false and unprivileged report of a defamatory matter to a third party, and this false report resulted in the husband being charged with a crime. The divorce court found these facts in an earlier proceeding, because it found the wife falsely reported to law enforcement that the husband had sexually abused her, and this report resulted in the husband's criminal charges, and these facts found by the divorce court also would have established the elements of defamation. Norberg v. Norberg, 2017 ND 14, 889 N.W.2d 889, 2017 N.D. LEXIS 29 (N.D. 2017).

False Statement.

In order to be slanderous, a statement must first be false. Meier v. Novak, 338 N.W.2d 631, 1983 N.D. LEXIS 346 (N.D. 1983).

Hearsay.

Elected state attorney’s claim for defamation was dismissed on summary judgment evidence that the proffered defamatory statements were hearsay and not admissible, as there was no independent evidence of the statements’ trustworthiness. Myers v. Richland County, 2004 U.S. Dist. LEXIS 19944 (D.N.D. Sept. 30, 2004), aff'd in part, vacated in part, 429 F.3d 740, 2005 U.S. App. LEXIS 24582 (8th Cir. N.D. 2005).

Injuries in Respect to Office, Profession, Etc.

Defendant’s statement that he had chosen not to renew the plaintiffs’ appointments “because other lawyers in the attorney general’s office has trouble working with them” did not impute to the plaintiffs general disqualifications in those respects which their occupation peculiarly required. Little v. Spaeth, 394 N.W.2d 700, 1986 N.D. LEXIS 420 (N.D. 1986).

Defendant’s statements about the plaintiffs’ frequent absences from the office, their failure to carry a fair share of the office’s workload, and the abrasiveness of one of the plaintiffs were not peculiarly harmful to one engaged in the plaintiffs’ profession (assistant attorney general). The statements constituted disparagement of a general character, equally discreditable to all persons. The statements were not defamatory. Little v. Spaeth, 394 N.W.2d 700, 1986 N.D. LEXIS 420 (N.D. 1986).

Bank’s staff memorandum which stated that the plaintiffs no longer worked at the bank and that any questions concerning trust accounts previously handled by them should be referred to another employee was not defamatory. Jose v. Norwest Bank ND, N.A., 1999 ND 175, 599 N.W.2d 293, 1999 N.D. LEXIS 195 (N.D. 1999).

Plaintiff’s general assertion that he was called “a crazy man” by defendant radio corporation’s employee on the air was insufficient to survive summary judgment in favor of the defendant where the plaintiff failed to allege that the statement caused him any injury in his career as required by § 14-02-03 or that it injured him in any of the ways required by this section. Gaetz v. Clear Channel Corp., 2001 U.S. Dist. LEXIS 7741 (D.N.D. June 6, 2001).

No Privilege.

Defendant’s publication of a Giglio letter to a police chief was not a communication made within the proper discharge of defendant’s official duties as an assistant state’s attorney entitled to absolute privilege because defendant was acting in an administrative capacity by informing the chief of her opinion that plaintiff was Giglio impaired and of how her office would proceed with cases in which plaintiff was involved and thus, defendant’s publication of the Giglio letter to the police chief was not an absolutely privileged communication. Krile v. Lawyer, 2020 ND 176, 947 N.W.2d 366, 2020 N.D. LEXIS 175 (N.D. 2020).

Opprobrious Epithets.

In and of itself, the term “a _________ hole” imputes no characteristic, habit, or condition which would fall within the definition of slander contained in this section. Meier v. Novak, 338 N.W.2d 631, 1983 N.D. LEXIS 346 (N.D. 1983).

Presumption of Damage.

If the words used were actionable per se the law will presume damage and no special allegation or proof is essential to sustain an award of damages. Meyerle v. Pioneer Publishing Co., 45 N.D. 568, 178 N.W. 792, 1920 N.D. LEXIS 161 (N.D. 1920); Johnson v. Nielsen, 92 N.W.2d 66, 1958 N.D. LEXIS 88 (N.D. 1958).

Privileged Communications.

Privilege is based upon the sound public policy that some communications are so socially important that the full and unrestricted exchange of information requires some latitude for mistake. It is well established that there is no liability for defamatory statements that are privileged. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Defamatory statements voluntarily made to law enforcement during the investigation of criminal activity are qualifiedly privileged. Richmond v. Nodland, 552 N.W.2d 586, 1996 N.D. LEXIS 194 (N.D. 1996).

Publication.

Trial court did not abuse its discretion in denying judgment notwithstanding the verdict under N.D.R.Civ. P. 50 because the evidence was sufficient for the jury to find that the publication element of defamation had been satisfied under N.D.C.C. § 14-02-04. An employer did not dispute that she told various individuals that a former employee had broken into the employer’s veterinary clinic, poisoned the employer’s horse, and abused her own horse; the jury was not required to believe testimony that prospective employers did not hire the employee for reasons other than the concerns communicated to them by the employer. Forster v. W. Dakota Veterinary Clinic, Inc., 2004 ND 207, 689 N.W.2d 366, 2004 N.D. LEXIS 348 (N.D. 2004), abrogated, Minto Grain, LLC v. Tibert, 2009 ND 213, 776 N.W.2d 549, 2009 N.D. LEXIS 224 (N.D. 2009).

Collateral References.

Proof of injury to reputation as prerequisite to recovery of damages in defamation action — post-Gertz cases, 36 A.L.R.4th 807.

Libel and slander: necessity of expert testimony to establish negligence of media defendant in defamation action by private individual, 37 A.L.R.4th 987.

Criticism or disparagement of character, competence, or conduct of candidate for office as defamation, 37 A.L.R.4th 1088.

Defamation: application of New York Times and related standards to nonmedia defendants, 38 A.L.R.4th 1114.

Defamation: privilege accorded state or local governmental administrative records relating to private individual member of public, 40 A.L.R.4th 318.

Defamation: nature and extent of privilege accorded public statements, relating to subject of legislative business or concern, made by member of state or local legislature or council outside of formal proceedings, 41 A.L.R.4th 1116.

Defamation action as surviving plaintiff’s death, under statute not specifically covering action, 42 A.L.R.4th 272.

Criticism or disparagement of attorney’s character, competence, or conduct as defamation, 46 A.L.R.4th 326.

Libel or slander: Defamation by gestures or acts, 46 A.L.R.4th 403.

Defamation: publication by intracorporate communication of employee’s evaluation, 47 A.L.R.4th 674.

Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.

Libel and slander: defamation by cartoon, 52 A.L.R.4th 424.

Libel and slander: defamation by photograph, 52 A.L.R.4th 488.

Defamation of class or group as actionable by individual member, 52 A.L.R.4th 618.

Libel and slander: defamation by question, 53 A.L.R.4th 450.

Libel and slander, sufficiency of identification of alleged defamed party, 54 A.L.R.4th 746.

Imputation of allegedly objectionable political or social beliefs or principles as defamation, 62 A.L.R.4th 314.

Defamation: designation as scab, 65 A.L.R.4th 1000.

Liability for statement or publication charging plaintiff with killing of, cruelty to, or inhumane treatment of animals, 69 A.L.R.5th 645.

Libel and slander: statements regarding labor relations or disputes, 94 A.L.R.5th 149.

Law Reviews.

Avoiding Claims of Defamation in the Workplace, 72 N.D. L. Rev. 247 (1996).

In General.

Privilege is either absolute or qualified. Absolute privilege is limited to situations in which the free exchange of information is so important that even defamatory statements made with actual malice are privileged (see subdivisions (1) and (2) of this section.) In contrast, a qualified privilege may be abused and does not provide absolute immunity from liability for defamation (see subdivisions (3) and (4) of this section.) Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Candidate’s argument that N.D.C.C. § 14-02-05 was unconstitutional was without merit where the candidate failed to provide any supportive reasoning or citations to relevant authorities; instead, it relied on a mere assertion that the statute was unconstitutional, which was not enough. Riemers v. Grand Forks Herald, 2004 ND 192, 688 N.W.2d 167, 2004 N.D. LEXIS 322 (N.D. 2004).

Abuse of Qualified Privilege.

—In General.

A qualified privilege is abused if statements are made with actual malice, without reasonable grounds for believing them to be true, and on a subject matter irrelevant to the common interest or duty. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Urologist’s statements to a deceased patient’s family regarding a surgeon’s treatment of the patient were properly ruled subject to a qualified privilege under N.D.C.C. § 14-02-05(3). The question of whether the urologist abused the qualified privilege by not following hospital procedures in communicating with the patient’s family was for the jury, which found in favor of the urologist. Khokha v. Shahin, 2009 ND 110, 767 N.W.2d 159, 2009 N.D. LEXIS 120 (N.D. 2009).

—Not Shown.

Where plaintiff in defamation action offered no evidence to support his proposition that defendants, who made defamatory statements to law enforcement during the investigation of criminal activity, were involved in “a pre-planned hoax” against him, reasonable minds would not conclude that the qualified privilege of defendants for such communications was abused. Richmond v. Nodland, 552 N.W.2d 586, 1996 N.D. LEXIS 194 (N.D. 1996).

Summary judgment was properly granted to the reporter and the newspaper on the candidate’s suit alleging a defamatory statement where the alleged defamatory statement in the reporter’s article enjoyed a qualified privilege which was not abused because the candidate failed to raise a genuine issue of material fact whether the statement was a fair and true report of a judicial proceeding and was made without malice, with reasonable belief in its truthfulness, and was based on a subject matter relevant to the common interest. Riemers v. Grand Forks Herald, 2004 ND 192, 688 N.W.2d 167, 2004 N.D. LEXIS 322 (N.D. 2004).

Child Support Reports.

Although plaintiff claimed that the State filed a false report of child support arrearages, plaintiff did not have a defamation claim against the State; the State’s child support reports were privileged communications under N.D.C.C. § 14-02-05(1). Riemers v. State, 738 N.W.2d 906, 2007 ND App 3, 2007 N.D. App. LEXIS 4 (N.D. Ct. App. 2007).

Communication to Person Interested.

The dictation of a libelous letter to a stenographer and the publication thereof is not a communication of a matter “to a person interested” so as to render the dictation and the subsequent publication privileged. Rickbeil v. Grafton Deaconess Hosp., 74 N.D. 525, 23 N.W.2d 247, 1946 N.D. LEXIS 82 (N.D. 1946).

Defendant manager had a qualified privilege for statements made as part of his duties to his employer about plaintiff driver’s poor maintenance of his truck; when the plaintiff failed to prove that the defendant acted with malice and no evidence showed that the defendant abused the privilege, the defendant was entitled to summary judgment. Fish v. Dockter, 2003 ND 185, 671 N.W.2d 819, 2003 N.D. LEXIS 192 (N.D. 2003).

Communications Concerning Physician.

Generally communications by an employer concerning the conduct of an employee are, when necessary to protect interests of the employer, qualifiedly privileged. That is especially true where the employer is a hospital, because a hospital has a duty to provide the public with competent physicians. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

The existence of a qualified privilege in investigations of physicians embodies the important public policy of protecting the welfare of patients by assuring the free exchange of information. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Disbarment Proceedings.

Bringing to the attention of the Supreme Court, by verified complaint, that any member of the bar of the state is charged with conduct warranting his disbarment is absolutely privileged. McCurdy v. Hughes, 63 N.D. 435, 248 N.W. 512, 1933 N.D. LEXIS 197, 1933 N.D. LEXIS 198 (N.D. 1933).

Insurance Policies.

Letter from insurer to insured explaining the reason for cancellation of a policy was not a “proceeding” within the meaning of subsection 2 so as to qualify for absolute privilege, even though explanation of the reason was required by statute; statement by insurer to insured that policy was canceled because insured’s husband was charged with stealing from mails was irrelevant to the insurance risk and, where made without thorough investigation, was not made in good faith so as to be subject to qualified privilege under subsection 3. Emo v. Milbank Mut. Ins. Co., 183 N.W.2d 508, 1971 N.D. LEXIS 148 (N.D. 1971).

Malice.

Communications made in the proper discharge of an official duty, in any legislative or judicial proceeding, or other proceeding authorized by law are privileged without limitation and are not affected by malice. Stafney v. Standard Oil Co., 71 N.D. 170, 299 N.W. 582, 1941 N.D. LEXIS 150 (N.D. 1941).

Actual malice depends on scienter and requires proof that a statement was made with malice in fact, ill-will, or wrongful motive. If the occasion is one of qualified privilege, actual malice is not inferred from the communication or publication even if statements are slander per se. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Matter of Defense.

Privilege is a matter of defense. McCurdy v. Hughes, 61 N.D. 235, 237 N.W. 748, 1931 N.D. LEXIS 270 (N.D. 1931); Rickbeil v. Grafton Deaconess Hosp., 74 N.D. 525, 23 N.W.2d 247, 1946 N.D. LEXIS 82 (N.D. 1946).

Supervisor’s communications to the employee’s potential employers were privileged and therefore were not subject to liability for defamation, and therefore the trial court did not err by granting defendants summary judgment, because the records of the employers, two counties, were public records, and therefore so was the employee’s personnel file. The supervisor’s fulfillment of open records requests to potential employers of the employee was the exercise of an official duty, and therefore the communications were privileged. Thompson-Widmer v. Larson, 2021 ND 27, 955 N.W.2d 76, 2021 N.D. LEXIS 26 (N.D. 2021).

Parole Board Meetings.

Where letter to chairman of parole board from assistant state’s attorney was pertinent to parole board’s consideration of prisoner’s parole, the letter was absolutely privileged under subsection (2), and summary judgment was properly granted in action for libel and slander by former counsel for prisoner against assistant state’s attorney. Pulkrabek v. Sletten, 557 N.W.2d 225, 1996 N.D. LEXIS 280 (N.D. 1996).

Proceedings Authorized by Law.

Parole board meetings are proceedings “authorized by law” within the meaning of subsection (2). Pulkrabek v. Sletten, 557 N.W.2d 225, 1996 N.D. LEXIS 280 (N.D. 1996).

Under subdivision (2) of this section, a manager testifying at federal administrative proceedings about the condition in which an employee maintained his truck had absolute immunity from liability for slander. Fish v. Dockter, 2003 ND 185, 671 N.W.2d 819, 2003 N.D. LEXIS 192 (N.D. 2003).

Statements a party made to the West Fargo Municipal Court in a vicious dog complaint were absolutely privileged, because they were statements made in a judicial proceeding, and therefore, the party could not be held liable for them under N.D.C.C. § 14-02-05(2); an attorney’s threat against the party to file a lawsuit based on absolutely privileged statements the party made to the West Fargo Municipal Court was impermissible and clearly an error of judgment. State v. Mertz (In re Mertz), 2006 ND 85, 712 N.W.2d 849, 2006 N.D. LEXIS 89 (N.D. 2006).

Where a former employee claimed that she was defamed when the employer’s attorney testified as a witness at the employee’s unemployment compensation hearing, there was no actionable defamation as a matter of law because an unemployment compensation hearing conducted by Job Service North Dakota is a proceeding authorized by law and statements made by an attorney called as a witness at such proceedings are privileged under North Dakota law. Humann v. KEM Elec. Coop., Inc., 450 F. Supp. 2d 1006, 2006 U.S. Dist. LEXIS 63537 (D.N.D. 2006), aff'd, 497 F.3d 810, 2007 U.S. App. LEXIS 19136 (8th Cir. N.D. 2007).

Because plaintiff’s complaint against the State was based on statements made by a state employee at a legislative interim workers’ compensation review committee hearing, which was a legislative proceeding, the state employee’s statements were absolutely privileged under N.D.C.C. § 14-02-05(2); therefore, plaintiff failed to state a claim for which relief could be granted. Voigt v. State, 2008 ND 236, 759 N.W.2d 530, 2008 N.D. LEXIS 237 (N.D. 2008).

Proper Discharge of Official Duty.

Elected state attorney’s claim for defamation was dismissed on summary judgment where defendant was voicing his frustration as a county commissioner to a fellow county commissioner about the representation that the county was receiving from the attorney, as the statement was absolutely privileged as made in a proper discharge of an official duty to direct or oversee behavior or management of elected county officers. Myers v. Richland County, 2004 U.S. Dist. LEXIS 19944 (D.N.D. Sept. 30, 2004), aff'd in part, vacated in part, 429 F.3d 740, 2005 U.S. App. LEXIS 24582 (8th Cir. N.D. 2005).

In a case alleging defamation based on the actions of a city prosecutor in bringing a criminal case, a dismissal was appropriate because, even if the element of falsity could have been established, the statements would have been privileged because they were made in a judicial proceeding during the discharge of an official duty under N.D.C.C. § 14-02-05. Witzke v. City of Bismarck, 2006 ND 160, 718 N.W.2d 586, 2006 N.D. LEXIS 163 (N.D. 2006).

Question of Fact.

Whether a qualified privilege is abused is generally a question of fact. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Generally, actual malice and abuse of a qualified privilege are questions of fact. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Question of Law.

Where the circumstances of the occasion for a communication are not in dispute, the determination of whether there is a qualified privilege is a question of law for the court. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

District court did not err in concluding that there was no basis for instructing the jury that a qualified privilege existed beyond the statements an employer made to law enforcement officers and her employees. The employer did not dispute that she told friends, family members, a former employee’s prospective employers, and the assistant state veterinarian’s office that the employee had broken into her clinic, stolen drugs, and poisoned the employer’s horse. Forster v. W. Dakota Veterinary Clinic, Inc., 2004 ND 207, 689 N.W.2d 366, 2004 N.D. LEXIS 348 (N.D. 2004), abrogated, Minto Grain, LLC v. Tibert, 2009 ND 213, 776 N.W.2d 549, 2009 N.D. LEXIS 224 (N.D. 2009).

Radio Broadcasts of Political Speeches.

Under section 315(a) of the Federal Communications Act of 1934, and regardless of state law, one licensed to operate a radio broadcasting station is not liable for defamatory statements made in a speech broadcast over his station by a candidate for public office. Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525, 79 S. Ct. 1302, 3 L. Ed. 2d 1407, 1959 U.S. LEXIS 660 (U.S. 1959).

Repetition of Statements.

Even if statements made at a school hearing were subject to an absolute privilege, a student was not permitted to then repeat the statements in another forum. Wagner v. Miskin, 2003 ND 69, 660 N.W.2d 593, 2003 N.D. LEXIS 81 (N.D. 2003), cert. denied, 540 U.S. 1154, 124 S. Ct. 1156, 157 L. Ed. 2d 1050, 2004 U.S. LEXIS 749 (U.S. 2004).

Report to Public Official.

A communication made by an employer to the Unemployment Compensation Division of the Workmen’s Compensation Bureau, under the provisions of ch. 232, S.L. 1937, is an absolutely privileged communication when made in the manner and form required by law. Stafney v. Standard Oil Co., 71 N.D. 170, 299 N.W. 582, 1941 N.D. LEXIS 150 (N.D. 1941).

Defamatory statements voluntarily made to law enforcement during the investigation of criminal activity are qualifiedly privileged. Richmond v. Nodland, 552 N.W.2d 586, 1996 N.D. LEXIS 194 (N.D. 1996).

School Board Meetings.

Allegedly defamatory statements, made at a meeting of the school board by school board members about a school district supervisor for transportation and food service, which were made in the course of a discussion about the district’s transportation program following the submission of a transportation budget for the next school year, were absolutely privileged. Rykowsky v. Dickinson Pub. Sch. Dist. #1, 508 N.W.2d 348, 1993 N.D. LEXIS 213 (N.D. 1993).

Taxpayers’ Association.

In action charging taxpayers’ association made libelous statements concerning sheriff, no privilege was established for purposes of demurrer where complaint showed no relationship of association to public giving rise to privilege. Roethke v. North Dakota Taxpayers Ass'n, 72 N.D. 658, 10 N.W.2d 738, 1943 N.D. LEXIS 105 (N.D. 1943).

Testimony in Judicial Proceeding.

Testimony in a judicial proceeding which is pertinent to the issues cannot be made the subject of an action for defamation as the occasion is privileged and the exemption of the witness is absolute. Lauder v. Jones, 13 N.D. 525, 101 N.W. 907, 1904 N.D. LEXIS 79 (N.D. 1904).

Testimony Related to a Proposed or Threatened Judicial Proceeding.

Where a former employee claimed that she was defamed by a letter of termination sent by the employer’s counsel to the employee’s attorney, which was sent after the employee’s attorney had made a settlement demand and threatened litigation, the letter was absolutely privileged because it was a communication made preliminary to and related to a proposed or threatened judicial proceeding; in addition, defendants did not publish the letter to anyone other than the employee’s attorney. Humann v. KEM Elec. Coop., Inc., 450 F. Supp. 2d 1006, 2006 U.S. Dist. LEXIS 63537 (D.N.D. 2006), aff'd, 497 F.3d 810, 2007 U.S. App. LEXIS 19136 (8th Cir. N.D. 2007).

District court properly concluded that a terminated employee’s defamation claim failed as a matter of law because the alleged defamatory statements were made in a letter that was privileged under N.D.C.C. § 14-02-05. The letter was privileged because it was sent by the attorney who represented the employee’s former employer and it responded to statements made by the employee’s lawyer, threatening legal action against the employer. Humann v. KEM Elec. Coop., Inc., 497 F.3d 810, 2007 U.S. App. LEXIS 19136 (8th Cir. N.D. 2007).

Collateral References.

Action for libel or slander resulting from expulsion from professional association as affected by privileged nature of communication, 20 A.L.R.2d 531.

Libel and slander: defamation of one relative to another by person not related to either, as subject to qualified privilege, 25 A.L.R.2d 1388.

Statements or utterances by member of municipal council or of governing body of other political subdivision in course of official proceedings, as privileged, 40 A.L.R.2d 941.

Findings, reports, or the like, of person acting in judicial capacity, as privileged, 42 A.L.R.2d 825.

Privilege applicable to judicial proceedings as extending to administrative proceedings, 45 A.L.R.2d 1296.

Proceedings, presentments, investigations, and reports of grand jury as privileged, 48 A.L.R.2d 716.

Testimony of witness at nonjudicial proceeding as basis of civil action for slander, 54 A.L.R.2d 1298.

Liability of insurance company for libel or slander by its agent or employee as affected by doctrine of privilege, 55 A.L.R.2d 828.

Statements and counsel’s argument to jury as privileged, 61 A.L.R.2d 1300.

Physician, surgeon or nurse, 73 A.L.R.2d 325.

Disbarment: privilege in connection with proceedings to disbar or discipline attorney, 77 A.L.R.2d 493.

“Public official”: who is public official or otherwise within the federal constitutional rule requiring public officials to show actual malice, 44 A.L.R.5th 193.

“Actual malice”: what constitutes actual malice, within federal constitutional rule requiring public officials and figures to show actual malice, 20 A.L.R.3d 988.

Pretrial disposition and discovery procedures, application of privilege attending statements made in course of judicial proceedings to, 23 A.L.R.3d 1172.

Hiring and discharge: public officer’s privilege as to statements made in connection with hiring and discharge, 26 A.L.R.3d 492.

Sedition, subversion, etc.: public officer’s privilege in connection with accusation that another has been guilty of sedition, subversion, espionage, or similar behavior, 33 A.L.R.3d 1330.

Out-of-court communications between attorneys made preparatory to, in the course of, or aftermath of, civil judicial proceedings as privileged, 36 A.L.R.3d 1328.

Pleading, relevancy of matter contained as affecting privilege, 38 A.L.R.3d 272.

Inaccurate credit report, sufficiency of showing of malice or lack of reasonable care to support credit agency’s liability for circulating, 40 A.L.R.3d 1049.

Qualified privilege to reply to defamatory publication, 41 A.L.R.3d 1083.

Secret proceedings or proceedings as to which record is sealed by court, privilege of reporting judicial proceedings as extending to, 43 A.L.R.3d 634.

Employer’s privilege as to communications to news media concerning employees, 52 A.L.R.3d 739.

Collective bargaining agreement, privileged nature of communications made in course of grievance or arbitration procedure provided for by, 60 A.L.R.3d 1041.

Discharge from employment, privileged nature of communication to other employees of reason for plaintiff’s, 60 A.L.R.3d 1080.

School board member’s statements or utterances in course of official proceedings, privileged nature of, 85 A.L.R.3d 1137.

Insurer and insured, privileged nature of communications between insurer and insured, 85 A.L.R.3d 1161.

Defamation: publication by intracorporate communication of employee’s evaluation, 47 A.L.R.4th 674.

Defamation: privilege attaching to news report of criminal activities based on information supplied by public safety officers — modern status, 47 A.L.R.4th 718.

Liability of Newspaper for Libel and Slander - 21st Century Cases. 22 A.L.R.6th 553.

Law Reviews.

Avoiding Claims of Defamation in the Workplace, 72 N.D. L. Rev. 247 (1996).

Constitutionality.

In a civil action for libel, a trial court’s order sustaining a demurrer to a defense of a defendant television station held that this section is unconstitutional and void under sections 9, 11 and 22 of the state constitution of 1889, but the defendant took no exception to the order and therefore the question as to the constitutionality of the section was not before the state supreme court on appeal. Farmers Educ. & Coop. Union v. WDAY, Inc., 89 N.W.2d 102, 1958 N.D. LEXIS 73 (N.D. 1958), aff'd, 360 U.S. 525, 79 S. Ct. 1302, 3 L. Ed. 2d 1407, 1959 U.S. LEXIS 660 (U.S. 1959).

Effect of Federal Law.

Under section 315(a) of the Federal Communications Act of 1934, and regardless of state law, one licensed to operate a radio broadcasting station is not liable for defamatory statements made in a speech broadcast over his station by a candidate for public office. Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525, 79 S. Ct. 1302, 3 L. Ed. 2d 1407, 1959 U.S. LEXIS 660 (U.S. 1959).

Collateral References.

Defamation by radio or television, 50 A.L.R.3d 1311.

Employer’s privilege as to communications to news media concerning employees, 52 A.L.R.3d 739.

Libel and slander: Necessity of expert testimony to establish negligence of media defendant in defamation action by private individual, 37 A.L.R.4th 987.

Criticism or disparagement of character, competence, or conduct of candidate for office as defamation, 37 A.L.R.4th 1088.

Constitutionality.

Neither this act nor amendments made by chapter 141, S.L. 1991 were facially unconstitutional. Fargo Women's Health Org. v. Sinner, 819 F. Supp. 862, 1993 U.S. Dist. LEXIS 8891 (D.N.D. 1993), aff'd, 18 F.3d 526, 1994 U.S. App. LEXIS 2141 (8th Cir. N.D. 1994).

Protest Activities.

In a prosecution for criminal trespass for protest activities at an abortion clinic, the defense of necessity could not be utilized, as the harm sought to be avoided, abortion, remains a constitutionally protected activity, and the harm incurred, trespass, is in violation of the law. State v. Sahr, 470 N.W.2d 185, 1991 N.D. LEXIS 83 (N.D. 1991).

Constitutionality.

The former North Dakota Abortion Law violated the due process clause of the fourteenth amendment to the United States Constitution in that it excepted from criminality only abortions to save the life of the mother, without regard to the stage of pregnancy, and without recognition of the other interests involved. Leigh v. Olson, 385 F. Supp. 255, 1974 U.S. Dist. LEXIS 11881 (D.N.D. 1974).

Standing to Challenge Law.

Although no actual abortion had been performed upon or denied to any pregnant woman, physician had standing to challenge abortion law which interfered with his practice of medicine and his relationship with his patients, and he should not be required to risk becoming a test case in a criminal prosecution. Leigh v. Olson, 385 F. Supp. 255, 1974 U.S. Dist. LEXIS 11881 (D.N.D. 1974).

Viability.

A quick fetus and a viable fetus are not the same, and only after a fetus becomes viable or potentially able to live outside the womb did the state have the right to regulate or proscribe abortion; the question of whether or not the fetus is, in fact, viable should be left to the medical judgment of the physician. Leigh v. Olson, 385 F. Supp. 255, 1974 U.S. Dist. LEXIS 11881 (D.N.D. 1974).

Although the fetus quickens or begins to move in the womb after about sixteen weeks of pregnancy, it is not until the fetus becomes viable, or potentially able to live outside the womb, that the protection of the life of the unborn child becomes a compelling state interest for the regulation of abortion. Leigh v. Olson, 385 F. Supp. 255, 1974 U.S. Dist. LEXIS 11881 (D.N.D. 1974).

Collateral References.

Medical malpractice in performance of legal abortion, 69 A.L.R.4th 875.

“Choice of evils,” necessity, duress, or similar defense to state or local criminal charges based on acts of public protest, 3 A.L.R.5th 521.

Constitutionality.

House Bill 1297, 2011 N.D. Laws 109, was not declared unconstitutional where a sufficient majority of the Supreme Court of North Dakota could not agree that it was unconstitutional under either the North Dakota Constitution or the United States Constitution as required by N.D. Const. art. VI, § 4. MKB Mgmt. Corp. v. Burdick, 2014 ND 197, 855 N.W.2d 31, 2014 N.D. LEXIS 202 (N.D. 2014).

Receipt of Information.

With respect to all of the information the physician or the physician’s agent must provide a woman, there is nothing in this section that requires that she receive this information during a personal visit; language in this section prevents a physician or agent from giving this information over the telephone. Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 1994 U.S. App. LEXIS 2141 (8th Cir. N.D. 1994).

Undue Burden.

—Not Shown.

This section does not constitute an undue burden because it mandates only one personal visit to the clinic; the section authorizes the physician or physician’s agent to give the required information by telephone 24 hours in advance, with a face-to-face appearance only required for the woman to certify that she has been given the required information and execute the consent for the procedure. Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 1994 U.S. App. LEXIS 2141 (8th Cir. N.D. 1994).

Vagueness.

—Not Shown.

The medical emergency definition is not vague when viewed in light of the purpose section of the Act, which states that the purpose of this chapter is to protect unborn human life and maternal health within present constitutional limits and reaffirms the tradition of the state of North Dakota to protect every human life, whether unformed or aged, healthy or sick. Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 1994 U.S. App. LEXIS 2141 (8th Cir. N.D. 1994).

The exercise of clinical judgment saves this section from vagueness, in addition to a scienter requirement. Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 1994 U.S. App. LEXIS 2141 (8th Cir. N.D. 1994).

Definition of abortion does not make this section void for vagueness. Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 1994 U.S. App. LEXIS 2141 (8th Cir. N.D. 1994).

Viability

It violated the Fourteen Amendment to make it a criminal offense to perform an abortion if a heartbeat had been detected, thereby banning most abortions beginning at approximately six weeks of pregnancy, because there was no evidence that a fetus could live outside the womb at six weeks and thus be considered “viable”; the court granted a preliminary injunction against enforcement. MKB Mgmt. Corp. v. Burdick, 954 F. Supp. 2d 900, 2013 U.S. Dist. LEXIS 102620 (D.N.D. 2013), dismissed without prejudice in part, 2013 U.S. Dist. LEXIS 191752 (D.N.D. Sept. 9, 2013).

Constitutionality.

Informed consent provision, former subdivision 4c, that physician must disclose to all patients the “probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed” is an impermissible intrusion by the state into the physician-patient relationship which unduly burdens the woman’s constitutional right to decide in consultation with her physician, free from governmental interference, whether to have an abortion in the first trimester; therefore, former subdivision 4c is unconstitutional. Leigh v. Olson, 497 F. Supp. 1340, 1980 U.S. Dist. LEXIS 13842 (D.N.D. 1980).

Informed consent provision, former subdivision 4d, that physician must disclose to all patients “the immediate and long-term physical dangers of abortion, psychological trauma resulting from abortion, sterility and increases in the incidence of premature births, tubal pregnancies and stillbirths in subsequent pregnancies, as compared to the dangers in carrying the pregnancy to term” is an impermissible intrusion by the state into the physician-patient relationship which unduly burdens the woman’s constitutional right to decide in consultation with her physician, free from governmental interference, whether to have an abortion in the first trimester; therefore, former subdivision 4d was unconstitutional. Leigh v. Olson, 497 F. Supp. 1340, 1980 U.S. Dist. LEXIS 13842 (D.N.D. 1980).

Informed consent provision, former subdivision 4f, that physician must disclose to all patients the “alternatives to abortion such as childbirth and adoption and information concerning public and private agencies that will provide the woman with economic and other assistance and encouragement to carry her child to term including, if the woman so requests, a list of the agencies and the services available from each” does not unduly burden the woman’s constitutional right to obtain an abortion in the first trimester and is not unconstitutionally vague but is a legitimate attempt by the state to encourage childbirth over abortion. Leigh v. Olson, 497 F. Supp. 1340, 1980 U.S. Dist. LEXIS 13842 (D.N.D. 1980).

Constitutionality.

House Bill 1297, 2011 N.D. Laws 109, was not declared unconstitutional where a sufficient majority of the Supreme Court of North Dakota could not agree that it was unconstitutional under either the North Dakota Constitution or the United States Constitution as required by N.D. Const. art. VI, § 4. MKB Mgmt. Corp. v. Burdick, 2014 ND 197, 855 N.W.2d 31, 2014 N.D. LEXIS 202 (N.D. 2014).

Constitutionality.

The mandatory 48-hour waiting period formerly required by this section was a direct and substantial burden on the exercise of the woman’s fundamental constitutional right to terminate her pregnancy and was unconstitutional. Leigh v. Olson, 497 F. Supp. 1340, 1980 U.S. Dist. LEXIS 13842 (D.N.D. 1980).

This section’s former requirement of parental notification in every case where an unemancipated minor sought an abortion, regardless of the maturity of the minor to make her own informed decision on whether or not to have an abortion, was unconstitutional because it violated the privacy rights of the minor and was an undue burden on the exercise of the minor’s right to obtain an abortion. Leigh v. Olson, 497 F. Supp. 1340, 1980 U.S. Dist. LEXIS 13842 (D.N.D. 1980).

House Bill 1297, 2011 N.D. Laws 109, was not declared unconstitutional where a sufficient majority of the Supreme Court of North Dakota could not agree that it was unconstitutional under either the North Dakota Constitution or the United States Constitution as required by N.D. Const. art. VI, § 4. MKB Mgmt. Corp. v. Burdick, 2014 ND 197, 855 N.W.2d 31, 2014 N.D. LEXIS 202 (N.D. 2014).

Collateral References.

Illegal abortion, right of action for injury to or death of woman who consented to, 36 A.L.R.3d 630.

Father of child, woman’s right to have abortion without consent of, or against objections of, 62 A.L.R.3d 1097.

Validity, construction, and application of statutes requiring parental notification of or consent to minor’s abortion, 77 A.L.R.5th 1.

Validity of state “informed consent” statutes by which providers of abortions are required to provide patient seeking abortion with certain information, 119 A.L.R.5th 315.

Law Reviews.

Study of Guardianship in North Dakota, 60 N.D. L. Rev. 45 (1984).

Constitutionality.

It violated the Fourteen Amendment to make it a criminal offense to perform an abortion if a heartbeat had been detected, thereby banning most abortions beginning at approximately six weeks of pregnancy, because there was no evidence that a fetus could live outside the womb at six weeks and thus be considered “viable”; the court granted a preliminary injunction against enforcement. MKB Mgmt. Corp. v. Burdick, 954 F. Supp. 2d 900, 2013 U.S. Dist. LEXIS 102620 (D.N.D. 2013), dismissed without prejudice in part, 2013 U.S. Dist. LEXIS 191752 (D.N.D. Sept. 9, 2013).

House Bill 1297, 2011 N.D. Laws 109, was not declared unconstitutional where a sufficient majority of the Supreme Court of North Dakota could not agree that it was unconstitutional under either the North Dakota Constitution or the United States Constitution as required by N.D. Const. art. VI, § 4. MKB Mgmt. Corp. v. Burdick, 2014 ND 197, 855 N.W.2d 31, 2014 N.D. LEXIS 202 (N.D. 2014).

Constitutionality.

Prohibition on abortions from the time when an unborn child possesses a detectable heartbeat prohibits abortions prior to viability, which states cannot do; the State's declaration that viability occurred at conception was based on a definition of viability that differed from that of the U.S. Supreme Court. MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 2015 U.S. App. LEXIS 12621 (8th Cir. N.D. 2015), cert. denied, 577 U.S. 1119, 136 S. Ct. 981, 194 L. Ed. 2d 4, 2016 U.S. LEXIS 859 (U.S. 2016).

Constitutionality.

The record keeping requirements of subdivision 1a do not unduly burden the woman’s constitutional right to obtain an abortion in the first trimester and are not unconstitutionally vague; subdivision 1a is therefore constitutional. Leigh v. Olson, 497 F. Supp. 1340, 1980 U.S. Dist. LEXIS 13842 (D.N.D. 1980).

House Bill 1297, 2011 N.D. Laws 109, was not declared unconstitutional where a sufficient majority of the Supreme Court of North Dakota could not agree that it was unconstitutional under either the North Dakota Constitution or the United States Constitution as required by N.D. Const. art. VI, § 4. MKB Mgmt. Corp. v. Burdick, 2014 ND 197, 855 N.W.2d 31, 2014 N.D. LEXIS 202 (N.D. 2014).

Constitutionality.

House Bill 1297, 2011 N.D. Laws 109, was not declared unconstitutional where a sufficient majority of the Supreme Court of North Dakota could not agree that it was unconstitutional under either the North Dakota Constitution or the United States Constitution as required by N.D. Const. art. VI, § 4. MKB Mgmt. Corp. v. Burdick, 2014 ND 197, 855 N.W.2d 31, 2014 N.D. LEXIS 202 (N.D. 2014).

Constitutionality.

This section is constitutional on its face; however, it is unconstitutional as applied where the regulation promulgated by the department does not define “humane” or provide for disposal in a reasonable manner but places the burden of deciding the manner of disposal on the woman seeking the abortion and makes her decision a prerequisite to obtaining an abortion. Leigh v. Olson, 497 F. Supp. 1340, 1980 U.S. Dist. LEXIS 13842 (D.N.D. 1980).

House Bill 1297, 2011 N.D. Laws 109, was not declared unconstitutional where a sufficient majority of the Supreme Court of North Dakota could not agree that it was unconstitutional under either the North Dakota Constitution or the United States Constitution as required by N.D. Const. art. VI, § 4. MKB Mgmt. Corp. v. Burdick, 2014 ND 197, 855 N.W.2d 31, 2014 N.D. LEXIS 202 (N.D. 2014).

Collateral References.

Validity, construction, and application of statutes making it a criminal offense to mistreat or wrongfully dispose of a dead body, 81 A.L.R.3d 1071.

Constitutionality.

House Bill 1297, 2011 N.D. Laws 109, was not declared unconstitutional where a sufficient majority of the Supreme Court of North Dakota could not agree that it was unconstitutional under either the North Dakota Constitution or the United States Constitution as required by N.D. Const. art. VI, § 4. MKB Mgmt. Corp. v. Burdick, 2014 ND 197, 855 N.W.2d 31, 2014 N.D. LEXIS 202 (N.D. 2014).

Public Funding.

States which participate in the Medicaid program are not obligated under Title XIX of the Social Security Act to fund those medically necessary abortions for indigents where federal reimbursement for the cost is unavailable under the “Hyde Amendment”; appropriations bill “Hyde Amendment” that prohibited the use of federal funds for reimbursement under the Medicaid program to the states for the cost of abortions performed on indigents, except where the life of the mother would be endangered if fetus carried to term, does not violate due process or equal protection under the Fifth Amendment nor the establishment clause of the First Amendment. Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784, 1980 U.S. LEXIS 145 (U.S. 1980).

Illinois statute that provided for state funding of medically necessary services for indigents generally, but only for medically necessary abortions where the abortion was necessary for the preservation of the life of the woman seeking such treatment, does not violate equal protection under the Fourteenth Amendment. Williams v. Zbaraz, 448 U.S. 358, 100 S. Ct. 2694, 65 L. Ed. 2d 831, 1980 U.S. LEXIS 146 (U.S. 1980).

Collateral References.

Validity of state statutes and regulations limiting or restricting public funding for abortions sought by indigent women, 118 A.L.R.5th 463.

Constitutionality.

This section was held unconstitutional as a violation of the First Amendment insofar as it denied funds to a nonprofit family planning corporation because of the abortion referral services it offered and insofar as it denied funds to persons and organizations who encouraged abortions. Valley Family Planning v. North Dakota, 489 F. Supp. 238, 1980 U.S. Dist. LEXIS 9127 (D.N.D. 1980), aff'd, 661 F.2d 99, 1981 U.S. App. LEXIS 16968 (8th Cir. N.D. 1981).

Conflict with Federal Law.

Plaintiffs made a sufficient showing of probable success on the merits of their claim that this section conflicted with Title X of the Public Health Service Act and Title V of the Social Security Act, insofar as it applied to encouragement and referral of abortions, to entitle them to a preliminary injunction against the enforcement of this section in regards to encouragement and referral of abortions. Valley Family Planning v. North Dakota, 475 F. Supp. 100, 1979 U.S. Dist. LEXIS 10365 (D.N.D. 1979).

The restrictions of this section concerning abortion referrals were held to conflict with Title X of the Public Health Service Act, 42 USCS § 300, et seq.; therefore, this section was held invalid under the supremacy clause of the U.S. Constitution. Valley Family Planning v. North Dakota, 661 F.2d 99, 1981 U.S. App. LEXIS 16968 (8th Cir. N.D. 1981).

Collateral References.

Validity of state statutes and regulations limiting or restricting public funding for abortions sought by indigent women, 118 A.L.R.5th 463.

Constitutionality.

House Bill 1297, 2011 N.D. Laws 109, was not declared unconstitutional where a sufficient majority of the Supreme Court of North Dakota could not agree that it was unconstitutional under either the North Dakota Constitution or the United States Constitution as required by N.D. Const. art. VI, § 4. MKB Mgmt. Corp. v. Burdick, 2014 ND 197, 855 N.W.2d 31, 2014 N.D. LEXIS 202 (N.D. 2014).

Contract.

A contract cannot excuse later unlawful discrimination. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

When an important public policy would be frustrated by a promise, the policy outweighs enforcement of the promise. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

To permit a contractual term to vary the intent of a law against discrimination in commercial and contractual matters would make the law ineffective. If an employer could require waiver of an anti-discrimination law as a condition of employment, it could become a widespread practice, increasing discrimination rather than doing away with it. It would be nearly impossible to enforce anti-discrimination laws in employment. Intrinsically, a law against discrimination outlaws contradictory contracts. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

Failure to Promote.

Disabled former employee failed to present a genuine issue of material fact on her failure-to-promote claim against governmental defendants; the employee never applied for any promotion, did not indicate to her supervisors she was interested in a promotion, and did not identify the person who received the promotion she complained about, let alone whether that person was a member of the protected class. Koehler v. County of Grand Forks, 2003 ND 44, 658 N.W.2d 741, 2003 N.D. LEXIS 54 (N.D. 2003).

Hostile Workplace Sexual Harassment.

—In General.

A prima facie case of a sexually hostile work environment is established by proving five elements: (1) the employee belongs to a protected class; (2) the employee was subject to unwelcome sexual harassment; (3) the sexual harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment. Opp v. Source One Mgmt., Inc., 1999 ND 52, 591 N.W.2d 101, 1999 N.D. LEXIS 56 (N.D. 1999).

—Conditions of Employment.

A hostile work environment claim requires proof that the conduct complained of was sufficiently severe or pervasive to alter the conditions of the victim’s employment and created an abusive working environment. Opp v. Source One Mgmt., Inc., 1999 ND 52, 591 N.W.2d 101, 1999 N.D. LEXIS 56 (N.D. 1999).

Series of notes, cards and e-mails from female supervisor to male employee over a three year period on employee’s birthday and holidays, supervisor’s inquiries into the employee’s personal life and family vacation plans, supervisor’s telling of off-color jokes, and a two-to-ten second back rub supervisor gave employee on a single occasion did not create a sexually hostile work environment. Opp v. Source One Mgmt., Inc., 1999 ND 52, 591 N.W.2d 101, 1999 N.D. LEXIS 56 (N.D. 1999).

Individual Liability.

The North Dakota Human Rights Act, N.D.C.C. ch. 14-02.4, does not impose individual liability. Fish v. Ristvedt, 192 F. Supp. 2d 1024, 2002 U.S. Dist. LEXIS 4669 (D.N.D. 2002).

Overweight.

The mere assertion that one is overweight or obese is not alone adequate to make a claimant one of the class of persons afforded relief for discrimination; something more must be shown. The commonly understood meanings of disability and handicap may comprehend an obese condition which significantly impairs a person’s abilities. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 1987 N.D. LEXIS 435 (N.D. 1987).

Retaliation.

Employer was granted summary judgment on an employee’s age-based retaliation claim, brought pursuant to the Age Discrimination in Employment Act (ADEA) and the North Dakota Human Rights Act, because employee had not engaged in protected activity; the employee’s lawyer who responded to the employer’s offer to accept a non-supervisory position until her pension vested in exchange for waiving her ADEA claims against the employer, was not hired to oppose age discrimination and informing the employer of the 21 day review provision under the Older Workers Benefit Protection Act prior to a waiver of any ADEA claim was not, by itself, an act done to oppose age discrimination. Moreover, the employer had a nondiscriminatory reason for firing the employee, namely, her inability to perform her managerial duties, which she failed to show was pretext for discrimination. Ambers v. Vill. Family Serv. Ctr., Inc., 329 F. Supp. 2d 1046, 2004 U.S. Dist. LEXIS 15688 (D.N.D. 2004).

A sheriff’s deputy’s claim against defendant county for violation of the North Dakota Human Rights Act was dismissed because the employee failed to show he was disabled under N.D.C.C. § 14-02.4-02 where he alleged that Attention Deficit Disorder substantially limited the major life activity of working but failed to offer evidence that proved that his claimed ADD substantially limited his ability to perform either a class of jobs or a broad range of jobs. His conclusory allegation that he was substantially limited in the major life activity of working because he had some difficulties with billing was insufficient to withstand summary judgment. Shape v. Barnes County, 396 F. Supp. 2d 1067, 2005 U.S. Dist. LEXIS 24816 (D.N.D. 2005).

The act of adopting a new constitution while plaintiff was no longer an employee did not satisfy the element of “an adverse employment action” under the statute. Because plaintiff commenced the action more than 300 days after he resigned from defendant organization’s board, plaintiff’s claim under the Human Rights Act, N.D.C.C. ch. 14-02.4, was barred by the applicable statute of limitations. Clausen v. Nat'l Geographic Soc'y, 664 F. Supp. 2d 1038, 2009 U.S. Dist. LEXIS 102722 (D.N.D. 2009), aff'd, 378 Fed. Appx. 595, 2010 U.S. App. LEXIS 11514 (8th Cir. N.D. 2010).

Standard of Review.

District court erred in applying a de novo standard of review in an age-based discrimination case and in ignoring the findings of the Board of Higher Education; the procedure the district court should have used was the standard applicable to appeals from administrative agencies. Ellis v. N.D. State Univ., 2009 ND 59, 764 N.W.2d 192, 2009 N.D. LEXIS 41 (N.D. 2009), dismissed, 2010 ND 114, 783 N.W.2d 825, 2010 N.D. LEXIS 114 (N.D. 2010).

Training and Transfer.

A sheriff cannot unfairly refuse to consider training and transfer for a person while later hiring applicants of another race or sex into the same division for training and transfer. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

Waiver of Prior Discrimination.

A clear subsequent contract may properly waive or settle prior discriminatory conduct. That circumstance must be distinguished, from the proscription against contractual waiver of unlawful discrimination in advance of the conduct. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

Women Prisoners.

The warden of a penitentiary cannot categorically exclude all women from the Missouri River correctional center when the legislature has authorized sentencing judges to place women there. Little v. Graff, 507 N.W.2d 55, 1993 N.D. LEXIS 178 (N.D. 1993).

Collateral References.

Exclusion of one sex from admission to or enjoyment of equal privileges in places of accommodation or entertainment as actionable sex discrimination under state law, 38 A.L.R.4th 339.

Accommodation requirement under state legislation forbidding job discrimination on account of handicap, 76 A.L.R.4th 310.

Judicial construction and application of state legislation prohibiting religious discrimination in employment, 37 A.L.R.5th 349.

Application of state law to age discrimination in employment, 51 A.L.R.5th 1.

Same-sex sexual harassment under state antidiscrimination laws, 73 A.L.R.5th 1.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act, 83 A.L.R.5th 1.

What constitutes private club or association not otherwise open to public that is exempt from state civil rights statute, 83 A.L.R.5th 467.

When is supervisor’s or coemployee’s hostile environment sexual harassment imputable to employer under state law, 94 A.L.R.5th 1.

Discrimination against pregnant employee as violation of state fair employment laws, 99 A.L.R.5th 1.

Law Reviews.

Civil Rights — Employment Discrimination: Modifying Federal Standards to Reflect Principles of State Law: The North Dakota Supreme Court’s Examination of the Hicks Rationale Prompts the Court to Customize Its Own Standard to Review State-Based Employment Discrimination Claims, 70 N.D. L. Rev. 207 (1994).

Employing Alternative Dispute Resolution: Working at Finding Better Ways to Resolve Employer-Employee Strife, 72 N.D. L. Rev. 299 (1996).

Civil Rights — Employment Discrimination: The Standard of Review in State-Based Employment Discrimination Claims: The North Dakota Supreme Court Redefines the Standard of Review in Employment Discrimination Claims, Schuhmacher v. North Dakota Hosp. Ass’n, 528 N.W.2d 374 (N.D. 1995), 72 N.D. L. Rev. 411 (1996).

Chemically Dependent Employees and the ADA in the Medical Profession: Does Patient Safety Exempt Hospital Employers from Compliance Under the Direct Threat and/or the Business Necessity Exceptions?, 80 N.D. L. Rev. 241 (2004).

“Disability.”

A sheriff’s deputy’s claim against defendant county for violation of the North Dakota Human Rights Act was dismissed because the employee failed to show he was disabled under N.D.C.C. § 14-02.4-02 where he alleged that Attention Deficit Disorder substantially limited the major life activity of working but failed to offer evidence that proved that his claimed ADD substantially limited his ability to perform either a class of jobs or a broad range of jobs. His conclusory allegation that he was substantially limited in the major life activity of working because he had some difficulties with billing was insufficient to withstand summary judgment. Shape v. Barnes County, 396 F. Supp. 2d 1067, 2005 U.S. Dist. LEXIS 24816 (D.N.D. 2005).

Employee.

The Human Rights Act does not protect independent contractors. Birchem v. Knights of Columbus, 116 F.3d 310, 1997 U.S. App. LEXIS 12451 (8th Cir. N.D. 1997).

“Otherwise Qualified Person”.

Where a worker unsuccessfully applied four times for a electrical system dispatcher position before his open heart surgery, his employer’s refusal to hire him for the position after the surgery was based on the worker’s lack of training and skill, and thus the worker did not meet his burden of establishing a prima facie case of employment discrimination. Engel v. Montana Dakota Utils., 1999 ND 111, 595 N.W.2d 319, 1999 N.D. LEXIS 97 (N.D. 1999).

Reasonable Accommodations.

While accommodations proposed by the employee might have helped him, there was no evidence that the employee or anyone on his behalf sought the specific recommendations before the employee was discharged or the action was commenced. Thompson v. City of Watford City, 1997 ND 172, 568 N.W.2d 736, 1997 N.D. LEXIS 191 (N.D. 1997).

Collateral References.

Exclusion of one sex from admission to or enjoyment of equal privileges in places of accommodation or entertainment as actionable sex discrimination under state law, 38 A.L.R.4th 339.

Validity, construction, and application of state enactment, order, or regulation expressly prohibiting sexual orientation discrimination, 82 A.L.R.5th 1.

What constitutes private club or association not otherwise open to public that is exempt from state civil rights statute, 83 A.L.R.5th 467.

What constitutes racial harassment in employment violative of state civil rights acts, 17 A.L.R.6th 563.

Law Reviews.

Note: The Domestic Violence Leave Act: The Need For Victim Workplace Leave On A Federal Level And In North Dakota, 87 N.D. L. Rev. 167 (2011).

Age.

—In General.

Where plaintiff offered no proof of any age-conscious statements, writings, policies or discriminatory actions by defendants to or about or with reference to himself or anyone else, offered no statistical evidence from which any inference of age discrimination might be drawn, pointed to no pattern of adverse treatment of older similarly situated employees, and his assertion of a prima facie case rested solely on the notion that he was replaced by a younger man, plaintiff failed to offer any evidentiary showing which would support a jury finding of age discrimination, especially in the face of defendants’ plainly articulated legitimate business explanation that plaintiff was discharged because of his involvement with a questionable real estate transaction. Hillesland v. Federal Land Bank Ass'n, 407 N.W.2d 206, 1987 N.D. LEXIS 318 (N.D. 1987).

Trial court did not err in granting summary judgment dismissing age discrimination claim ruling where the minutes of the board of directors meeting unequivocally showed former employee was not satisfactorily performing duties of his position. Hummel v. Mid Dakota Clinic, P.C., 526 N.W.2d 704, 1995 N.D. LEXIS 1 (N.D. 1995).

Plaintiff failed to establish a prima facie case of age discrimination where he failed to prove that he met his employer’s legitimate expectations when he disseminated confidential company salary information, failed to fully cooperate in the ensuing investigation, and there was evidence that a similarly situated younger employee was also fired for disseminating the confidential salary information. Carlson v. Cooperative Power Ass'n, 230 F.3d 1362, 2000 U.S. App. LEXIS 30479 (8th Cir. N.D. 2000).

When the employee provided sufficient evidence of age-discriminatory comments, discriminatory promotion practices, and the employer’s lack of legitimate business purpose for a company-wide reduction in force, but questions of fact remained regarding the futility of applying for other positions within the company and the method of statistical analysis used to determine the disparate impact of the reduction in force, the employer had established a prima facie case of age discrimination and the employer was therefore denied summary judgment. Krause v. Bobcat Co., 297 F. Supp. 2d 1212, 2003 U.S. Dist. LEXIS 22989 (D.N.D. 2003).

Summary judgment was properly granted in an age discrimination case under N.D.C.C. § 14-02.4-03 because two employees of an insurance company failed to present any evidence other than the fact of their age alone; the evidence showed that termination was due to involvement in a certain project. Jacob v. Nodak Mut. Ins. Co., 2005 ND 56, 693 N.W.2d 604, 2005 N.D. LEXIS 63 (N.D. 2005).

Former employee’s age discrimination claim failed, as the mere fact that the former employee may have been singled out as the only employee to be terminated and all other employees, including those under age 40, retained their jobs, added nothing to the analysis. Spratt v. MDU Res. Group, Inc., 2011 ND 94, 797 N.W.2d 328, 2011 N.D. LEXIS 94 (N.D. 2011).

—Burden of Proof.

A plaintiff seeking to recover damages for loss of employment due to age discrimination must still prove that the discharge was unlawful discrimination. Schuhmacher v. North Dakota Hosp. Ass'n, 528 N.W.2d 374, 1995 N.D. LEXIS 56 (N.D. 1995).

—Discharge of Employee.

This act does not prohibit discharging employees who are over forty years old; it prohibits discharging employees over age forty because of their age. Schuhmacher v. North Dakota Hosp. Ass'n, 528 N.W.2d 374, 1995 N.D. LEXIS 56 (N.D. 1995).

At-Will Termination.

Although in North Dakota, employment without a definite term is presumed to be at will and the employer has the right to terminate the employee with or without cause, there are exceptions to the at-will doctrine; several of those exceptions serve to prohibit an employer from engaging in certain discriminatory practices. Fatland v. Quaker State Corp., 62 F.3d 1070, 1995 U.S. App. LEXIS 21468 (8th Cir. N.D. 1995).

Burden of Proof.

Under this chapter, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination, which creates a presumption that the employer unlawfully discriminated against the plaintiff. If the plaintiff succeeds in establishing the presumption, then, under N.D.R.Ev. 301, the burden of persuasion shifts to the employer to rebut the presumption by proving by a preponderance of the evidence that its action was motivated by one or more legitimate, nondiscriminatory reasons. If the employer fails to persuade the trier of fact that the challenged action was motivated by legitimate, nondiscriminatory reasons, the plaintiff prevails, but if the employer persuades the fact finder that its reasons were nondiscriminatory, the employer prevails. Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 1993 N.D. LEXIS 130 (N.D. 1993).

Once a plaintiff proves by a preponderance of the evidence a prima facie case of employment discrimination, the burden shifts to the defendant to prove by a preponderance of the evidence that the challenged action was motivated by one or more legitimate, nondiscriminatory reasons. Schuhmacher v. North Dakota Hosp. Ass'n, 528 N.W.2d 374, 1995 N.D. LEXIS 56 (N.D. 1995).

Disabled former employee failed to present a genuine issue of material fact of her failure-to-promote claim against governmental defendants; the employee never applied for any promotion, did not indicate to her supervisors she was interested in a promotion, and did not identify the person who received the promotion she complained about, let alone whether that person was a member of the protected class. Koehler v. County of Grand Forks, 2003 ND 44, 658 N.W.2d 741, 2003 N.D. LEXIS 54 (N.D. 2003).

Disabled former employee failed to present evidence raising a genuine issue of material fact on an essential element of her hostile environment claim based upon her disability, where the record showed that any alleged harassing conduct toward the employee began before her alleged disability. Koehler v. County of Grand Forks, 2003 ND 44, 658 N.W.2d 741, 2003 N.D. LEXIS 54 (N.D. 2003).

Employee failed to raise a genuine issue of material fact that his actions in driving a company vehicle with a blood alcohol level above .04 percent did not conflict with the employer’s essential business-related interests; the employee did not show that he was a member of a protected class under the Human Rights Act, N.D.C.C. § 14-02.4-03. Clausnitzer v. Tesoro Ref. & Mktg. Co., 2012 ND 172, 820 N.W.2d 665, 2012 N.D. LEXIS 179 (N.D. 2012).

Contract.

—In General.

A contract cannot excuse later unlawful discrimination. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

When an important public policy would be frustrated by a promise, the policy outweighs enforcement of the promise. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

To permit a contractual term to vary the intent of a law against discrimination in commercial and contractual matters would make the law ineffective. If an employer could require waiver of an anti-discrimination law as a condition of employment, it could become a widespread practice, increasing discrimination rather than doing away with it. It would be nearly impossible to enforce anti-discrimination laws in employment. Intrinsically, a law against discrimination outlaws contradictory contracts. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

—Waiver of Prior Discrimination.

A clear subsequent contract may properly waive or settle prior discriminatory conduct. That circumstance must be distinguished, from the proscription against contractual waiver of unlawful discrimination in advance of the conduct. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

Disability.

Where an employee appealed a district court's entry of summary judgment in favor of defendants in her case alleging violations of the American with Disabilities Act and the North Dakota Human Rights Act, there remained a genuine issue of material fact as to whether she made a request for accommodation sufficient to trigger her employer's duty to engage in the interactive process of identifying a reasonable accommodation. Kowitz v. Trinity Health, 839 F.3d 742, 2016 U.S. App. LEXIS 18559 (8th Cir. N.D. 2016).

Discrimination Not Found.

Evidence that the employee worked slowly, walked off the job without permission, and tried to hit a co-worker supported the trial court’s findings that job-related conduct gave the city legitimate and non-discriminatory reasons for his discharge. Thompson v. City of Watford City, 1997 ND 172, 568 N.W.2d 736, 1997 N.D. LEXIS 191 (N.D. 1997).

Summary judgment was properly granted in favor of a school district in an applicant’s national origin discrimination claim under this Act because there was no showing that the applicant was qualified for two teaching positions; the evidence established that the applicant had no experience teaching or working with children. Ramey v. Twin Butte Sch. Dist., 2003 ND 87, 662 N.W.2d 270, 2003 N.D. LEXIS 95 (N.D. 2003).

Former employee could not prove that alleged false statements made by former employer at the unemployment benefit hearing, which occurred after her termination, constituted a discriminatory practice. Stroklund v. Wal-Mart Stores, Inc., 2003 U.S. Dist. LEXIS 18965 (D.N.D. Oct. 21, 2003).

Independent Contractors.

The Human Rights Act does not protect independent contractors. Birchem v. Knights of Columbus, 116 F.3d 310, 1997 U.S. App. LEXIS 12451 (8th Cir. N.D. 1997).

Overweight.

The mere assertion that one is overweight or obese is not alone adequate to make a claimant one of the class of persons afforded relief for discrimination; something more must be shown. The commonly understood meanings of disability and handicap may comprehend an obese condition which significantly impairs a person’s abilities. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 1987 N.D. LEXIS 435 (N.D. 1987).

Where plaintiff weighed over 300 pounds, but testified that she did not consider her weight to be a disability, and that she was unaware of any specific physical problem underlying her overweight condition, mentioned no other physical consequence of her weight, offered no expert evidence equating it to a disability or showing how it impaired her abilities, she failed to show a material issue of fact about being physically handicapped, and therefore, the trial court did not err in dismissing her discrimination claim. Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 1987 N.D. LEXIS 435 (N.D. 1987).

Physician Suffering from Addiction.

Assuming arguendo that alcoholism and drug addiction are handicaps under this chapter and that the defendants’ actions in requiring physician to take leave and to secure additional patient care training were because of those handicaps, as a matter of law, the physician was not the victim of a discriminatory practice because the defendants’ actions were based on “a bona fide occupational qualification reasonably necessary” for a physician. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Public Policy.

This section does not create a public policy against retaliatory discharge for participating in an internal investigation of other employees’ job performance. Jose v. Norwest Bank ND, N.A., 1999 ND 175, 599 N.W.2d 293, 1999 N.D. LEXIS 195 (N.D. 1999).

Sex Discrimination.

—Disparate Treatment.

Where plaintiff, who alleged a sex-based disparity in severance pay, was not an elected officer, but the men who left defendant company were, the record supported the court’s finding of no sex-based disparity in severance pay; therefore, that finding was not clearly erroneous. Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 1993 N.D. LEXIS 130 (N.D. 1993).

—Elements.

The prima facie elements of a disparate-treatment, sex discrimination case under the North Dakota Human Rights Act are: (1) the plaintiff is a member of a protected class, (2) the plaintiff suffered an adverse employment decision, (3) the plaintiff’s work performance was satisfactory to the employer, and (4) the plaintiff must point to actions by the employer treating him adversely because of his protected status. Miller v. Medcenter One, 1997 ND 231, 571 N.W.2d 358, 1997 N.D. LEXIS 273 (N.D. 1997).

—Manner of Termination.

Where plaintiff and several other women were called into a room, and told that their employment would end ten days later, but others who were terminated were notified individually and received more than ten days notice, the court’s findings, which attributed the manner in which plaintiff was terminated to the insensitivity of the officer who fired her, and not to his “discriminatory animus,” were not clearly erroneous. Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 1993 N.D. LEXIS 130 (N.D. 1993).

Standard of Review.

A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 1993 N.D. LEXIS 130 (N.D. 1993).

A trial court’s decision whether an employer discriminated against an employee is a finding of fact subject to review on appeal under the clearly erroneous standard of N.D.R.Civ.P. 52(a). Zimmerman v. Minot Pub. Sch. Dist. No. 1, 1998 ND 14, 574 N.W.2d 797, 1998 N.D. LEXIS 3 (N.D. 1998).

Training and Transfer.

A sheriff cannot unfairly refuse to consider training and transfer for a person while later hiring applicants of another race or sex into the same division for training and transfer. Moses v. Burleigh County, 438 N.W.2d 186, 1989 N.D. LEXIS 69 (N.D. 1989).

Collateral References.

What constitutes employment discrimination on basis of “marital status” for purposes of state civil rights laws, 44 A.L.R.4th 1044.

Accommodation requirement under state legislation forbidding job discrimination on account of handicap, 76 A.L.R.4th 310.

Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 265.

Discrimination “because of handicap” or “on the basis of handicap” under state statutes prohibiting job discrimination on account of handicap, 81 A.L.R.4th 144.

What constitutes handicap under state legislation forbidding job discrimination on account of handicap, 82 A.L.R.4th 26.

Application of state law to age discrimination in employment, 51 A.L.R.5th 1.

Same-sex sexual harassment under state antidiscrimination laws, 73 A.L.R.5th 1.

When is supervisor’s or coemployee’s hostile environment sexual harassment imputable to employer under state law, 94 A.L.R.5th 1.

Discrimination against pregnant employee as violation of state fair employment laws, 99 A.L.R.5th 1.

What constitutes substantial limitation on major life activity of working for purposes of state civil rights acts, 102 A.L.R.5th 1.

Necessity of, and what constitutes, employer’s reasonable accommodation of employee’s religious preference under state law, 107 A.L.R.5th 623.

What constitutes racial harassment in employment violative of state civil rights acts, 17 A.L.R.6th 563.

Disparate impact claims under Age Discrimination Act of 1967, § 2 et seq., 29 U.S.C.A. § 621 et seq., 186 A.L.R. Fed. 1.

Validity, construction, and application of Americans with Disabilities Act (42 U.S.C. § 12112(b)(5)(A)) and Rehabilitation Act (29 U.S.C. § 791) reasonable accommodation requirements to employee’s request to work from home or to change location of employment, 77 A.L.R. Fed. 2d 187.

Bona Fide Occupational Qualification.

Prohibiting employees from operating off-hours businesses that would benefit from confidential information that the employees’ positions within the company would enable them to secure from competitors, resulting in resentment towards, and termination of business with, the employer is a bona fide occupational qualification that is reasonably and rationally related to a particular employee or group of employees. Fatland v. Quaker State Corp., 62 F.3d 1070, 1995 U.S. App. LEXIS 21468 (8th Cir. N.D. 1995).

Physician Suffering from Addiction.

Assuming arguendo that alcoholism and drug addiction are handicaps under this chapter and that the defendants’ actions in requiring physician to take leave and to secure additional patient care training were because of those handicaps, as a matter of law, the physician was not the victim of a discriminatory practice because the defendants’ actions were based on “a bona fide occupational qualification reasonably necessary” for a physician. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 1991 N.D. LEXIS 21 (N.D. 1991).

Discrimination Not Found.

Employer was entitled to summary judgment on a former employee's claims that the employee's termination constituted age discrimination because the evidence did not raise an inference that the employee was discharged because of the employee's age, but, rather, that the employee was terminated because the employee refused to be available for on-call responsibilities required for employees in the employee's position after the employer restructured the department in which the employee worked. Yahna v. Altru Health Sys., 2015 ND 275, 871 N.W.2d 580, 2015 N.D. LEXIS 287 (N.D. 2015).

Exhaustion of Remedies.

When a terminated employee had exhausted his administrative remedies, the district court erred in applying a de novo standard of review in an age-based discrimination case and in ignoring the findings of the Board of Higher Education; the procedure the district court should have used was the standard applicable to appeals from administrative agencies. Ellis v. N.D. State Univ., 2009 ND 59, 764 N.W.2d 192, 2009 N.D. LEXIS 41 (N.D. 2009), dismissed, 2010 ND 114, 783 N.W.2d 825, 2010 N.D. LEXIS 114 (N.D. 2010).

Negligent Supervision.

Plaintiff’s negligent supervision and retention claims against a school district were not precluded by the North Dakota Human Rights Act. Plaintiff had the option of either filing a complaint with the Labor Department or bringing an action in district court seeking an award of damages. Richard v. Washburn Pub. Sch., 2011 ND 240, 809 N.W.2d 288, 2011 N.D. LEXIS 239 (N.D. 2011).

Time of Alleged Discriminatory Act.

Because the former employee did not prove her former employer’s comments at an unemployment benefits hearing constituted a discriminatory practice or an act of wrongdoing for purposes of employment discrimination, the former employer’s last act of alleged wrongdoing was January 16, 2001 when it terminated the employee, not March 16, 2001 when the unemployment hearing took place, and the employee’s retaliation claim was untimely. Stroklund v. Wal-Mart Stores, Inc., 2003 U.S. Dist. LEXIS 18965 (D.N.D. Oct. 21, 2003).

Trial court erred in awarding summary judgment to an employer and its administrator in an employee’s hostile work environment claim under the North Dakota Human Rights Act because the employee presented information that could establish a relationship between an alleged 2005 sexual assault by the administrator, her altered work conditions, and the administrator’s alleged 2008 conduct treating her differently. Hysjulien v. Hill Top Home of Comfort, Inc., 2013 ND 38, 827 N.W.2d 533, 2013 N.D. LEXIS 37 (N.D. 2013).

Collateral References.

Right to jury trial in action under state civil rights law, 12 A.L.R.5th 508.

Common-Law Marriage.

A common-law marriage is not recognized as valid in this state. Schumacher v. Great N. Ry., 23 N.D. 231, 136 N.W. 85, 1912 N.D. LEXIS 86 (N.D. 1912); Woodward v. Blake, 38 N.D. 38, 164 N.W. 156, 1917 N.D. LEXIS 11 (N.D. 1917).

Prior to the enactment of ch. 91, S.L. 1890, a common-law marriage was recognized expressly in this state. Schumacher v. Great N. Ry., 23 N.D. 231, 136 N.W. 85, 1912 N.D. LEXIS 86 (N.D. 1912); Powers v. Buckey, 49 N.D. 137, 190 N.W. 312, 1922 N.D. LEXIS 26 (N.D. 1922).

North Dakota abrogated common-law marriages shortly after statehood; unless the statutory requirements are met, the fact of cohabitation alone is insufficient to create a legally recognized marriage. Cermak v. Cermak, 1997 ND 187, 569 N.W.2d 280, 1997 N.D. LEXIS 230 (N.D. 1997).

Consent of Parties.

The consent contemplated by the terms of this section is a then present assent, freely, voluntarily and understandingly given, representing a mutual intention of marital relationship by competent contracting parties. Johnson v. Johnson, 104 N.W.2d 8, 1960 N.D. LEXIS 76 (N.D. 1960).

Dissolution.

Because marriage was dissolved by death and not by divorce, the trial court did not err when it held that there was no longer a marriage to be dissolved and, therefore, no issue of property distribution remaining before the court. Thorson v. Thorson, 541 N.W.2d 692, 1996 N.D. LEXIS 2 (N.D. 1996).

Status of Prohibited Marriage.

Although marriage of those persons designated in former N.D.C.C. § 14-03-07 was prohibited, yet a marriage contracted by those persons was rendered merely voidable and not void. Johnson v. Johnson, 104 N.W.2d 8, 1960 N.D. LEXIS 76 (N.D. 1960).

Words Mandatory and Prohibitive.

The words “the marriage relation may be entered into, maintained, annulled, or dissolved only as provided by law” are mandatory and prohibitive. Schumacher v. Great N. Ry., 23 N.D. 231, 136 N.W. 85, 1912 N.D. LEXIS 86 (N.D. 1912).

Collateral References.

Death of party, right to attack validity of marriage of incompetent after, 47 A.L.R.2d 1393.

Mental capacity to marry, 82 A.L.R.2d 1040.

Marriage between persons of the same sex, 81 A.L.R.5th 1.

Marriage between persons of same sex-United States and Canadian cases, 1 A.L.R. Fed. 2d 1.

Law Reviews.

A Study of Guardianship in North Dakota, 60 N.D. L. Rev. 45 (1984).

Article: In Re Tenancy By The Entirety – Married Couples, Common Law Marriages, And Same-Sex Partners: Orth v. Orth, see 85 N.D. L. Rev. 287 (2009).

In General.

A void marriage is completely invalid for every purpose. First Nat'l Bank v. North Dakota Workmen's Compensation Bureau, 68 N.W.2d 661, 1955 N.D. LEXIS 90 (N.D. 1955).

Effect of Annulment.

A decree annulling a marriage upon the ground that either party was of unsound mind has the effect of voiding the marriage from the beginning. First Nat'l Bank v. North Dakota Workmen's Compensation Bureau, 68 N.W.2d 661, 1955 N.D. LEXIS 90 (N.D. 1955).

Collateral References.

Death of party, right to attack validity of incestuous marriage after, 47 A.L.R.2d 1393.

Action to Annul.

An action to annul a marriage which is void because the defendant had contracted a prior marriage which was still in force is not an action to annul a marriage for fraud within meaning of statutes relating to that subject. Mickels v. Fennell, 15 N.D. 188, 107 N.W. 53, 1906 N.D. LEXIS 27 (N.D. 1906).

Insurance Proceeds.

In an interpleader case involving life insurance proceeds, the deceased’s husband’s motion for summary judgment was denied because the deceased’s daughter had raised a genuine issue as to whether the marriage between the deceased and the husband was fraudulent and void; the daughter asserted that the husband had been previously married and had not obtained a divorce, making the marriage to the deceased illegal and void under N.D.C.C. § 14-03-06. Merrill Lynch Life Ins. Co. v. Black, 2004 U.S. Dist. LEXIS 5974 (D.N.D. Apr. 2, 2004).

Collateral References.

Death of party, right to attack after, validity of marriage of divorcee prohibited from remarrying, 47 A.L.R.2d 1393.

Fees for Furnishing Certified Copies.

The furnishing of certified copies of records is not an official act exacted of the county judge by law, and he is entitled to retain fees collected for such services. Sargent County v. Sweetman, 29 N.D. 256, 150 N.W. 876, 1915 N.D. LEXIS 8 (N.D. 1915); Dickey County v. Austin, 61 N.D. 309, 237 N.W. 831, 1931 N.D. LEXIS 276 (N.D. 1931).

Marriage License Fees.

A county judge must pay into the general fund of the county at the end of each month all moneys received and fees collected for the issuance of marriage licenses. Dickey County v. Austin, 61 N.D. 309, 237 N.W. 831, 1931 N.D. LEXIS 276 (N.D. 1931).

Collateral Attack of Voidable Marriage.

Validity of a voidable marriage can be questioned only by a direct attack. Johnson v. Johnson, 104 N.W.2d 8, 1960 N.D. LEXIS 76 (N.D. 1960).

Distinction Between Void and Voidable Marriages Recognized.

Subsection 2 of this section and subsection 2 of N.D.C.C. § 14-04-02 refer to void marriages that can never become valid; all the other subsections refer to marriages which, although void in their inception, may become valid by ratification. Mickels v. Fennell, 15 N.D. 188, 107 N.W. 53, 1906 N.D. LEXIS 27 (N.D. 1906).

Effect of Annulment.

An action for annulment is predicated upon some ground existing at the time the marriage was entered into, and the decree therein in effect declares that a valid marriage never existed. Kawabata v. Kawabata, 48 N.D. 1160, 189 N.W. 237, 1922 N.D. LEXIS 156 (N.D. 1922); First Nat'l Bank v. North Dakota Workmen's Compensation Bureau, 68 N.W.2d 661, 1955 N.D. LEXIS 90 (N.D. 1955).

Fraud.

An action to annul a marriage which is void because defendant had contracted a prior marriage which was still in force is not an action to annul a marriage for fraud within meaning of statutes relating to that subject. Mickels v. Fennell, 15 N.D. 188, 107 N.W. 53, 1906 N.D. LEXIS 27 (N.D. 1906).

A marriage may be annulled where consent thereto has been obtained by fraud, but the fraud relied on must be clearly shown. Strom v. Strom, 75 N.W.2d 750, 1956 N.D. LEXIS 105 (N.D. 1956).

An action to annul a marriage on the ground of fraud can only be brought by the defrauded spouse while both parties to the marriage are living. Gibbons v. Blair, 376 N.W.2d 22, 1985 N.D. LEXIS 419 (N.D. 1985).

Marriage Following Divorce.

A marriage contracted by a divorced person less than three months after the decree was rendered is not void, and may not be assailed collaterally upon probate of such person’s estate. Woodward v. Blake, 38 N.D. 38, 164 N.W. 156, 1917 N.D. LEXIS 11 (N.D. 1917).

Sufficiency of Complaint.

To state a cause of action for the annulment of a marriage for fraud, the complaint must set forth the facts showing such fraud as is contemplated by the statute, the time and place where the marriage was celebrated, and the date of the discovery of the alleged fraud. Kawabata v. Kawabata, 48 N.D. 1160, 189 N.W. 237, 1922 N.D. LEXIS 156 (N.D. 1922).

Unsound Mind.

There is no precise definition of the term “unsound mind” as employed by this section. Johnson v. Johnson, 104 N.W.2d 8, 1960 N.D. LEXIS 76 (N.D. 1960).

Collateral References.

Avoidance of procreation of children as ground for annulment, 4 A.L.R.2d 227.

Validity of marriage as affected by intention of the parties that it should be only a matter of form or jest, 14 A.L.R.2d 624.

What constitutes duress sufficient to warrant annulment of marriage, 16 A.L.R.2d 1430.

Racial, religious, or political differences as ground for annulment, 25 A.L.R.2d 928.

Refusal of sexual intercourse as ground for annulment, 28 A.L.R.2d 499.

Ceremonial defects as ground for attack on validity of marriage after death of party thereto, 47 A.L.R.2d 1393.

Right to allowance of permanent alimony in connection with decree of annulment, 54 A.L.R.2d 1410.

What constitutes intoxication sufficient to warrant annulment of marriage, 57 A.L.R.2d 1250.

Concealed premarital unchastity or parenthood as ground for annulment, 64 A.L.R.2d 742.

Collaboration of plaintiff’s testimony concerning ground for annulment of marriage, necessity and sufficiency of, 71 A.L.R.2d 620.

Mental incompetency of defendant at time of action as precluding annulment of marriage, 97 A.L.R.2d 483.

Concealment of or misrepresentation as to prior marital status as ground for annulment of marriage, 15 A.L.R.3d 759.

Concealment or misrepresentation relating to religion as ground for annulment, 44 A.L.R.3d 972.

Identity of one of parties, what constitutes mistake in, to warrant annulment, 50 A.L.R.3d 1295.

Sexual incapacity as ground for annulment, 52 A.L.R.3d 589.

Financial matters, spouse’s secret intention not to abide by written antenuptial agreement relative to, as ground for annulment, 66 A.L.R.3d 1282.

Homosexuality, transvestism, and similar sexual practices as grounds for annulment of marriage, 68 A.L.R.4th 1069.

Law Reviews.

A Study of Guardianship in North Dakota, 60 N.D. L. Rev. 45 (1984).

Distinction Between Void and Voidable Marriages Recognized.

Subsection 2 of this section and subsection 2 of N.D.C.C. § 14-04-01 refer to void marriages that can never become valid; all the other subsections refer to marriages which, although void in their inception, may become valid by ratification. Mickels v. Fennell, 15 N.D. 188, 107 N.W. 53, 1906 N.D. LEXIS 27 (N.D. 1906).

Fraud.

An action to annul a marriage on the ground of fraud can only be brought by the defrauded spouse while both parties to the marriage are living. Gibbons v. Blair, 376 N.W.2d 22, 1985 N.D. LEXIS 419 (N.D. 1985).

Collateral References.

Limitation of actions for annulment of marriage, 52 A.L.R.2d 1163.

Fraud.

An action to annul a marriage which is void because the defendant had contracted a prior marriage which was still in force is not an action to annul a marriage for fraud within meaning of the statute. Mickels v. Fennell, 15 N.D. 188, 107 N.W. 53, 1906 N.D. LEXIS 27 (N.D. 1906).

This statute applies only in actions for the annulment of a voidable marriage in which fraud or force are essential facts to be proved in order to establish the cause of action. Mickels v. Fennell, 15 N.D. 188, 107 N.W. 53, 1906 N.D. LEXIS 27 (N.D. 1906).

Collateral References.

Court’s power as to custody and visitation of children in marriage annulment proceedings, 63 A.L.R.2d 1008.

Support and maintenance of children, court’s power as to, in marriage annulment proceedings, 63 A.L.R.2d 1029.

Power of court which denied divorce, legal separation, or annulment, to award custody or make provisions for support of child, 7 A.L.R.3d 1096.

Effect, in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody order made incidental thereto, 78 A.L.R.3d 846.

Mental health of contesting parent as factor in award of child custody, 53 A.L.R.5th 375.

Consideration of obligor’s personal-injury recovery or settlement in fixing alimony or child support, 59 A.L.R.5th 489.

Constitutionality.

Assumption of jurisdiction by state court in a divorce action did not infringe upon party’s religious freedom contrary to the first amendment of the United States Constitution or Art. I, § 3 of the state constitution. Martian v. Martian, 328 N.W.2d 844, 1983 N.D. LEXIS 226 (N.D. 1983).

Appearance at Divorce Hearing.

The holding of a divorce hearing without the convict-husband being personally present because of his imprisonment did not constitute an abuse of the trial court’s discretion or violate any of convict-husband’s civil rights where his ability to give testimony by deposition and to be represented by counsel was unimpaired by the trial court, and no convincing reasons for a personal appearance were brought forth. Shulze v. Shulze, 322 N.W.2d 250, 1982 N.D. LEXIS 321 (N.D. 1982).

Death.

Because marriage was dissolved by death and not by divorce, the trial court did not err when it held that there was no longer a marriage to be dissolved and, therefore, no issue of property distribution remaining before the court. Thorson v. Thorson, 541 N.W.2d 692, 1996 N.D. LEXIS 2 (N.D. 1996).

Husband’s death, after an order for judgment was entered but before the judgment and decree of divorce was entered, abated the divorce action and N.D.R.Civ.P. 25(a)(3) did not create an exception to the general rule that the death of a party to a divorce action, prior to the entry of a final decree, abated the action and left nothing for the district court to decide. Jochim v. Jochim, 2006 ND 186, 721 N.W.2d 25, 2006 N.D. LEXIS 189 (N.D. 2006).

It was error to enter a divorce judgment distributing marital property because the wife's death before entry of a final judgment abated the divorce action, as a party's death destroyed the court's jurisdiction, since there was no marriage upon which the decree could work, as the object of dissolving the marital relationship had been accomplished. Albrecht v. Albrecht, 2014 ND 221, 856 N.W.2d 755, 2014 N.D. LEXIS 221 (N.D. 2014).

Divorce and Annulment Distinguished.

An action for annulment is predicated upon some ground existing at the time the marriage was entered into; an action for divorce is predicated upon grounds arising after the marriage, and the decree therein, in effect, declares the marriage valid and dissolves it. Kawabata v. Kawabata, 48 N.D. 1160, 189 N.W. 237, 1922 N.D. LEXIS 156 (N.D. 1922).

Jurisdiction.

The legislature has created the general subject matter for judicial divorce, and in this sense it is correct to say that jurisdiction in matters relating to divorce is wholly statutory; with relation to the statutory causes for divorce, such reference to “jurisdiction” has reference only to the granting of divorces, and not to the matter of the jurisdiction of the district courts to “hear and determine” such causes of action. Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W.2d 106, 1948 N.D. LEXIS 93 (N.D. 1948).

Jury Trial.

A party has no right to a jury trial in a divorce proceeding. Martian v. Martian, 328 N.W.2d 844, 1983 N.D. LEXIS 226 (N.D. 1983).

Collateral References.

Enforceability of premarital agreement governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms — modern status, 53 A.L.R.4th 161.

Separation agreements: enforceability of provision affecting property rights upon death of one party prior to final judgment of divorce, 67 A.L.R.4th 237.

Divorce and Separation: Consideration of Tax Consequences in Distribution of Marital Property, 9 A.L.R.5th 568.

Marriage Subsequent to Divorce.

A marriage which was contracted by a divorced person less than three months after the decree is not void, and cannot be assailed collaterally upon the probate of the estate of such person. Woodward v. Blake, 38 N.D. 38, 164 N.W. 156, 1917 N.D. LEXIS 11 (N.D. 1917).

Restoration of Maiden Surname.

While a decree of divorce does not automatically restore to the wife her maiden surname, such relief may be requested and granted in divorce proceedings. Meadows v. Meadows, 312 N.W.2d 464, 1981 N.D. LEXIS 417 (N.D. 1981).

Standards for Review.

In divorce action, “clearly erroneous” test of N.D.R.Civ.P. 52(a) is appropriate for review of findings of fact, not the abuse of discretion test. Grant v. Grant, 226 N.W.2d 358, 1975 N.D. LEXIS 204 (N.D. 1975); De Forest v. De Forest, 228 N.W.2d 919, 1975 N.D. LEXIS 184 (N.D. 1975).

Collateral References.

Devise or bequest to “husband”, “wife”, or “widow”, as affected by divorce, or separation, 75 A.L.R.2d 1413.

Retrospective effect of statute prescribing grounds of divorce, 23 A.L.R.3d 626.

Child born after divorce, annulment, or separation, presumption of legitimacy of, 46 A.L.R.3d 158.

Permanent alimony provisions in final divorce decree, effect of remarriage of spouses to each other on, 52 A.L.R.3d 1334.

Divorce or annulment as affecting will previously executed by husband or wife, 71 A.L.R.3d 1297.

Vacating or setting aside divorce decree after remarriage of party, 17 A.L.R.4th 1153.

Alimony as affected by recipient spouse’s remarriage in absence of controlling specific statute, 47 A.L.R.5th 129.

Constitutionality.

This section and N.D.C.C. § 14-05-09.1 are not unconstitutional delegations of legislative power to the judiciary; the term “irreconcilable differences”, when considered within context and policy of this chapter, is a reasonably clear guideline and sufficiently definite standard to pass constitutional muster. Lawrence v. Lawrence, 432 N.W.2d 897, 1988 N.D. LEXIS 231 (N.D. 1988).

Adultery.

District court did not err in granting the wife a divorce on the grounds of adultery because the district court heard testimony about the husband’s affairs with other women, including one of lengthy duration and involving expensive gifts and out-of-state travels; therefore, the evidence supported an adultery finding. Datz v. Dosch, 2013 ND 148, 836 N.W.2d 598, 2013 N.D. LEXIS 141 (N.D. 2013).

Desertion.

Desertion is the willful, voluntary separation of one of the married parties from the other with the intent to desert. Mann v. Mann, 120 N.W.2d 390, 1963 N.D. LEXIS 74, 1963 N.D. LEXIS 75 (N.D. 1963).

Evidence.

The marriage relation will be dissolved only where its purpose has been defeated by grave and serious misconduct, and such misconduct must be established by evidence of a clear and satisfactory character. Rindlaub v. Rindlaub, 19 N.D. 352, 125 N.W. 479, 1910 N.D. LEXIS 26 (N.D. 1910).

Extreme Cruelty.

Conduct on the part of either spouse which is unjustifiable, and which grievously wounds the mental feelings of the other so as to impair the other’s bodily health, or to cause destruction of the ends of marriage, constitutes extreme cruelty. Thompson v. Thompson, 32 N.D. 530, 156 N.W. 492, 1916 N.D. LEXIS 134 (N.D. 1916); Fleck v. Fleck, 79 N.D. 561, 58 N.W.2d 765, 1953 N.D. LEXIS 63 (N.D. 1953).

In action for divorce on ground of extreme cruelty, where the evidence shows that defendant has been too submissive and the plaintiff guilty of willful desertion and neglect, no divorce may be granted to plaintiff. Wolf v. Wolf, 41 N.D. 109, 169 N.W. 577, 1918 N.D. LEXIS 123 (N.D. 1918).

A complaint alleging adultery as a ground for divorce, condonation of the same, revocation of the condonation, and subsequent ill treatment by defendant sets forth a cause of action on the ground of extreme cruelty. King v. King, 54 N.D. 475, 209 N.W. 959, 1926 N.D. LEXIS 46 (N.D. 1926).

A divorce may be granted upon the ground of extreme cruelty because of infliction by one party of grievous mental suffering upon the other although such suffering was neither the result of nor produced bodily injury. Raszler v. Raszler, 64 N.W.2d 358, 1954 N.D. LEXIS 75 (N.D. 1954).

Where separation from bed and board is sought on ground of extreme cruelty the question of whether one party to the marriage has inflicted grievous mental suffering upon the other is one of fact to be determined from all the other circumstances of the case. The sensibilities of the litigants, their intelligence, viewpoints, sentiments and health should be considered. Bourrett v. Bourrett, 99 N.W.2d 325, 1959 N.D. LEXIS 116 (N.D. 1959).

Findings of Trial Court.

Upon trial anew of an action for separation from bed and board in the supreme court, appreciable weight is given to the findings of the trial court. Bourrett v. Bourrett, 99 N.W.2d 325, 1959 N.D. LEXIS 116 (N.D. 1959).

The determination of fault grounds in a divorce is a finding of fact. Routledge v. Routledge, 377 N.W.2d 542, 1985 N.D. LEXIS 426 (N.D. 1985).

Irreconcilable Differences.

Where divorce is based on irreconcilable differences court need only find that irreconcilable differences exist and is not required to make findings as to the conduct or fault of the parties. Rummel v. Rummel, 265 N.W.2d 230, 1978 N.D. LEXIS 242 (N.D. 1978).

No Discretion to Deny Divorce.

The court has no discretion to deny a divorce where a case therefor is made and there is no showing of any of the causes for denial enumerated in section 14-05-10. Brandt v. Brandt, 76 N.D. 99, 33 N.W.2d 620, 1948 N.D. LEXIS 62 (N.D. 1948).

No Distinction Among Causes.

The statutes make no distinction as among the causes of divorce; all of them may be condoned and any of them may be pleaded by the defendant in bar of the plaintiff’s case. Brandt v. Brandt, 76 N.D. 99, 33 N.W.2d 620, 1948 N.D. LEXIS 62 (N.D. 1948).

Separation.

Separation from bed and board is not a cause for divorce. Novak v. Novak, 74 N.D. 572, 24 N.W.2d 20, 1946 N.D. LEXIS 85 (N.D. 1946).

Single Ground for Divorce Sufficient.

If the evidence establishes one of the grounds for divorce, it is not necessary for the court to make findings on other available grounds. Thus, trial court properly granted divorce on grounds of irreconcilable differences even though the wife had admitted to adultery. Dufner v. Dufner, 2002 ND 47, 640 N.W.2d 694, 2002 N.D. LEXIS 41 (N.D. 2002).

Collateral References.

Avoidance of procreation of children as ground for divorce or annulment of marriage, 4 A.L.R.2d 227.

Insanity as affecting right to divorce or separation on other grounds, 19 A.L.R.2d 144.

Insanity as substantive ground of divorce or separation, 24 A.L.R.2d 873.

Homosexuality as ground for divorce, 78 A.L.R.2d 807.

Acts occurring after commencement of suit for divorce as grounds for decree under original complaint, 98 A.L.R.2d 1264.

Mutual fault, court’s power to grant absolute divorce to both spouses upon showing of, 13 A.L.R.3d 1364.

Retrospective effect of statute prescribing grounds for divorce, 23 A.L.R.3d 626.

Refusal of sexual intercourse as justifying divorce or separation, 82 A.L.R.3d 660.

Transvestism or transsexualism of spouse as justifying divorce, 82 A.L.R.3d 725.

Divorce, propriety of property distribution leaving both parties with substantial ownership interest in same business, 56 A.L.R.4th 862.

Divorce, right to jury trial in state court divorce proceedings, 56 A.L.R.4th 955.

Insanity as defense to divorce or separation suit — post-1950 cases, 67 A.L.R.4th 277.

Homosexuality as ground for divorce, 96 A.L.R.5th 83.

Evidence.

In an action for an absolute divorce on the grounds of extreme cruelty, the trial court is without power to decree a separation from bed and board or to make a division of property where the evidence is insufficient to establish grounds for divorce. Mattson v. Mattson, 79 N.D. 381, 56 N.W.2d 764, 1953 N.D. LEXIS 46 (N.D. 1953).

Extreme Cruelty.

In an action for separation from bed and board, where plaintiff alleged extreme cruelty, the question of whether one party to the marriage has inflicted grievous mental suffering upon the other is one of fact to be determined from all the other circumstances of the case. The sensibilities of the litigants, their intelligence, viewpoints, sentiments and health should be considered. Bourrett v. Bourrett, 99 N.W.2d 325, 1959 N.D. LEXIS 116 (N.D. 1959).

Final Division of Property.

Because the parties are to be treated as unmarried, and may dispose of their property as they wish, when a trial court issues a decree of separation forever, it is permissible that a final division of property be made at that time, in accord with the policy in this State which encourages finality in regard to property divisions. Fedora v. Fedora, 403 N.W.2d 10, 1987 N.D. LEXIS 280 (N.D. 1987).

Findings of Trial Court.

Upon trial anew of an action for separation from bed and board in the supreme court, appreciable weight is given to the findings of the trial court. Bourrett v. Bourrett, 99 N.W.2d 325, 1959 N.D. LEXIS 116 (N.D. 1959).

Collateral References.

Power of court to award absolute divorce in favor of party who desires only limited decree, or vice versa, 14 A.L.R.3d 703.

Voluntary contributions to child’s education expenses as factor justifying modification of spousal support award, 63 A.L.R.4th 436.

Divorce and Separation: Consideration of Tax Consequences in Distribution of Marital Property, 9 A.L.R.5th 568.

Charges of Infidelity.

False charges by a wife of a husband’s marital infidelity are not ground for divorce if the husband’s conduct gave the wife reason to believe that the charges were true. McAllister v. McAllister, 7 N.D. 324, 75 N.W. 256, 1898 N.D. LEXIS 68 (N.D. 1898); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107, 1952 N.D. LEXIS 76 (N.D. 1952); Beaton v. Beaton, 99 N.W.2d 92, 1959 N.D. LEXIS 112 (N.D. 1959).

Discretion of the Court.

In divorce case where the evidence is conflicting and corroboration scarce, judicial discretion of the trial court, in its determination of whether grievous mental suffering has been inflicted by one party on the other, is entitled to great weight because of presence of the parties before such court; and such exercise of discretion will not be disturbed in the absence of clear abuse. Azar v. Azar, 146 N.W.2d 148, 1966 N.D. LEXIS 127 (N.D. 1966).

Extreme Cruelty.

Considering the physical violence perpetrated against the wife by the husband and his illicit extramarital affairs, there was substantial evidence to support the trial court’s conclusion that extreme cruelty, consisting of both grievous bodily injury and grievous mental suffering, was inflicted by the husband upon the wife during their marriage; the trial court’s underlying findings of extramarital conduct and physical abuse were supported by the evidence and were not clearly erroneous. Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197, 2002 N.D. LEXIS 96 (N.D. 2002), cert. denied, 537 U.S. 1195, 123 S. Ct. 1252, 154 L. Ed. 2d 1031, 2003 U.S. LEXIS 1209 (U.S. 2003).

Mental Suffering.

A decree of divorce may be granted in this state by reason of the infliction of grievous mental suffering although such suffering produced no bodily injury. Mahnken v. Mahnken, 9 N.D. 188, 82 N.W. 870, 1900 N.D. LEXIS 218 (N.D. 1900); De Roche v. De Roche, 12 N.D. 17, 94 N.W. 767, 1903 N.D. LEXIS 8 (N.D. 1903); Rindlaub v. Rindlaub, 19 N.D. 352, 125 N.W. 479, 1910 N.D. LEXIS 26 (N.D. 1910); Raszler v. Raszler, 64 N.W.2d 358, 1954 N.D. LEXIS 75 (N.D. 1954).

Whether the acts complained of have inflicted grievous mental suffering upon the complaining party is a question of fact to be determined from all the circumstances of the case. Mahnken v. Mahnken, 9 N.D. 188, 82 N.W. 870, 1900 N.D. LEXIS 218 (N.D. 1900); Rindlaub v. Rindlaub, 19 N.D. 352, 125 N.W. 479, 1910 N.D. LEXIS 26 (N.D. 1910); Swanson v. Swanson, 75 N.D. 332, 28 N.W.2d 73, 1947 N.D. LEXIS 71 (N.D. 1947); Raszler v. Raszler, 64 N.W.2d 358, 1954 N.D. LEXIS 75 (N.D. 1954).

Conduct on the part of either spouse which is unjustifiable, and which grievously wounded the mental feelings of the other so as to impair the other’s bodily health, or to cause destruction of the ends of marriage, constitutes extreme cruelty. Thompson v. Thompson, 32 N.D. 530, 156 N.W. 492, 1916 N.D. LEXIS 134 (N.D. 1916); Fleck v. Fleck, 79 N.D. 561, 58 N.W.2d 765, 1953 N.D. LEXIS 63 (N.D. 1953).

Where plaintiff testified that the conduct of the defendant caused her “mental anguish”, it was the equivalent of claiming grievous mental suffering. Hodous v. Hodous, 76 N.D. 387, 36 N.W.2d 552, 1949 N.D. LEXIS 62 (N.D. 1949).

Extreme cruelty as a ground for divorce entails grievous bodily injury or grievous mental suffering. Strobel v. Strobel, 102 N.W.2d 4, 1960 N.D. LEXIS 58 (N.D. 1960).

A divorce may be granted on grounds of grievous mental suffering, even though such suffering produces no bodily injury. Kucera v. Kucera, 117 N.W.2d 810, 1962 N.D. LEXIS 95 (N.D. 1962).

Defendant, who counterclaimed for divorce, proved a cause of action on the ground of extreme cruelty where the evidence showed that the defendant had married the plaintiff knowing that she had had previous relations with another man and that she was pregnant and with child by such other man at the time of the marriage of defendant and plaintiff and thereafter defendant discovered that, for more than six months, the plaintiff was visited by the same other man in the home of defendant and plaintiff. Kucera v. Kucera, 117 N.W.2d 810, 1962 N.D. LEXIS 95 (N.D. 1962).

Physical Abuse.

Physical abuse by the husband causing grievous injury to the wife, accompanied by conduct indicating that the husband had lost all interest in the wife and reasonably causing the wife to believe that the husband was being unfaithful, constituted extreme cruelty and furnished ground for divorce. Beaton v. Beaton, 99 N.W.2d 92, 1959 N.D. LEXIS 112 (N.D. 1959).

Sufficiency of Evidence.

Evidence which at best was an assertion that certain unspecified acts of husband had made wife unhappy and nervous were insufficient to establish extreme cruelty as a ground for divorce. Orwick v. Orwick, 153 N.W.2d 795, 1967 N.D. LEXIS 121 (N.D. 1967).

Collateral References.

Avoidance of procreation of children as ground for divorce or separation on grounds of cruelty, indignities, etc., 4 A.L.R.2d 227.

Racial or political differences as constituting cruelty, indignities, or the like, sufficient for divorce or separation, 25 A.L.R.2d 928.

Criminal misconduct: charging spouse with criminal misconduct as cruelty constituting ground for divorce, 72 A.L.R.2d 1197.

Drunkenness, habitual intemperance, or use of drugs as constituting cruelty as a ground for divorce, 76 A.L.R.2d 419.

Mistreatment of children as ground for divorce, 82 A.L.R.2d 1361.

Threats or attempts to commit suicide as cruelty or indignity constituting a ground for divorce, 86 A.L.R.2d 422.

Sex relations: insistence on sex relations as cruelty or indignity constituting ground for divorce, 88 A.L.R.2d 553.

Single act as basis of divorce or separation on ground of cruelty, 7 A.L.R.3d 761.

Refusal of sexual intercourse as justifying divorce or separation, 82 A.L.R.3d 660.

What constitutes “incompatibility” within statute specifying it as substantive ground for divorce, 97 A.L.R.3d 989.

Choice of Place to Live.

A husband’s demand that a wife live with him in a place selected must be without unreasonable conditions. Druey v. Druey, 63 N.D. 786, 249 N.W. 782, 1933 N.D. LEXIS 239 (N.D. 1933).

Establishment of Grounds.

Where defendant, willfully and without legal grounds left the plaintiff and for one year or more refused to resume cohabitation with plaintiff, defendant was guilty of desertion and plaintiff was entitled to a decree of divorce. Darkenwald v. Darkenwald, 66 N.W.2d 57, 1954 N.D. LEXIS 101 (N.D. 1954).

Intent to Desert.

Absence or separation in itself does not become desertion until the intent to desert is fixed during such absence or separation. Mann v. Mann, 120 N.W.2d 390, 1963 N.D. LEXIS 74, 1963 N.D. LEXIS 75 (N.D. 1963).

Refusal of Intercourse.

Although defendant alleged only extreme cruelty and adultery as grounds for divorce in his counterclaim, evidence that defendant and plaintiff had had no sexual relations for over two years before the commencement of the action for divorce, and that plaintiff could not stand to have sexual relations with defendant and admitted that her refusal was not due to physical or health reasons, established a cause of action in favor of defendant on grounds of desertion. Kucera v. Kucera, 117 N.W.2d 810, 1962 N.D. LEXIS 95 (N.D. 1962).

Collateral References.

Acts or omissions of spouse causing other spouse to leave home as desertion by former, 19 A.L.R.2d 1428.

Divorce or separation on ground of abandonment or desertion due to racial, religious, or political differences, 25 A.L.R.2d 928.

Wife’s failure to follow husband to new domicile as constituting desertion or abandonment as ground for divorce, 29 A.L.R.2d 474.

Separation agreement as bar to divorce on grounds of desertion, 34 A.L.R.2d 954.

Pleading: sufficiency of allegations of desertion, abandonment or living apart as grounds for divorce, separation, or alimony, 57 A.L.R.2d 468.

Time of pendency of former suit for divorce, annulment, alimony, or maintenance as included in periods of desertion, 80 A.L.R.2d 855.

Fault of spouse as affecting right to divorce under statute making separation a substantive ground of divorce, 14 A.L.R.3d 502.

Separation within statute making separation a substantive ground for divorce, 35 A.L.R.3d 1238.

Refusal of sexual intercourse as desertion, 82 A.L.R.3d 660.

Delay in Commencing Action.

Delay in commencing an action for divorce on the ground of desertion may be considered in determining whether there was collusion or condonation or acquiescence, although desertion is a continuing offense. Hayhurst v. Hayhurst, 65 N.D. 25, 256 N.W. 413, 1934 N.D. LEXIS 172 (N.D. 1934).

Desertion.

If desertion continues for the statutory period before the insanity of a defendant intervenes, then the cause of action for a divorce on the ground of desertion is complete, and the subsequent insanity of defendant will not be a defense to an action for divorce on the ground of desertion. Harrison v. Harrison, 76 N.W.2d 906, 1956 N.D. LEXIS 123 (N.D. 1956).

Constitutionality.

N.D.C.C. § 14-05-03(8) (now N.D.C.C § 14-05-03(7)) and this section are not unconstitutional delegations of legislative power to the judiciary; the term “irreconcilable differences”, when considered within context and policy of this chapter, is a reasonably clear guideline and sufficiently definite standard to pass constitutional muster. Lawrence v. Lawrence, 432 N.W.2d 897, 1988 N.D. LEXIS 231 (N.D. 1988).

Findings by Court.

Where divorce is based on irreconcilable differences court need only find that irreconcilable differences exist and is not required to make findings as to the conduct or fault of the parties. Rummel v. Rummel, 265 N.W.2d 230, 1978 N.D. LEXIS 242 (N.D. 1978).

Sufficiency of Evidence.

Where both parties sought divorce, differences between parties were real and had existed for considerable length of time, and attempts at reconciliation had not been successful, finding of existence of irreconcilable differences was not clearly erroneous. Larson v. Larson, 234 N.W.2d 861, 1975 N.D. LEXIS 132 (N.D. 1975).

Collateral References.

Validity, construction, and effect of “no-fault” divorce statute providing for dissolution of marriage upon finding that relationship is no longer viable, 55 A.L.R.3d 581.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no-fault divorce, 86 A.L.R.3d 1116.

Condonation.

—In General.

Condonation of spouse’s adultery is an affirmative defense in a divorce action. Gregg v. Gregg, 1998 ND 204, 586 N.W.2d 312, 1998 N.D. LEXIS 209 (N.D. 1998).

—Child Custody.

Condonation has no legal significance to the issue of child custody. Gregg v. Gregg, 1998 ND 204, 586 N.W.2d 312, 1998 N.D. LEXIS 209 (N.D. 1998).

Discretion of Court.

Pursuant to N.D.C.C. § 14-05-03, the court has no discretion to deny a divorce where a case therefor is made and there is no showing of any of the causes for denial enumerated in this section. Brandt v. Brandt, 76 N.D. 99, 33 N.W.2d 620, 1948 N.D. LEXIS 62 (N.D. 1948).

Divorce Granted to Both Parties.

Elimination of defense of recrimination permits granting of divorce to either party or both parties. Doll v. Doll, 162 N.W.2d 691, 1968 N.D. LEXIS 74 (N.D. 1968).

Spousal Support.

Spouse’s alleged condonation of spousal abuse could not be used to prevent relevant evidence regarding violent behavior of other spouse from being admitted for purposes of determining spousal support. Ratajczak v. Ratajczak, 1997 ND 122, 565 N.W.2d 491, 1997 N.D. LEXIS 124 (N.D. 1997), aff'd, 1999 ND 65, 592 N.W.2d 527, 1999 N.D. LEXIS 71 (N.D. 1999).

All Causes May Be Condoned.

N.D.C.C. § 14-05-03 makes no distinction among the causes of divorce which it defines, and all of them may be condoned. Brandt v. Brandt, 76 N.D. 99, 33 N.W.2d 620, 1948 N.D. LEXIS 62 (N.D. 1948).

Cruelty.

Cruelty is not condoned by subsequent cohabitation without an express agreement to condone. Taylor v. Taylor, 5 N.D. 58, 63 N.W. 893, 1895 N.D. LEXIS 12 (N.D. 1895); Fleck v. Fleck, 79 N.D. 561, 58 N.W.2d 765, 1953 N.D. LEXIS 63 (N.D. 1953).

Spousal Support.

Spouse’s alleged condonation of spousal abuse could not be used to prevent relevant evidence regarding violent behavior of other spouse from being admitted for purposes of determining spousal support. Ratajczak v. Ratajczak, 1997 ND 122, 565 N.W.2d 491, 1997 N.D. LEXIS 124 (N.D. 1997), aff'd, 1999 ND 65, 592 N.W.2d 527, 1999 N.D. LEXIS 71 (N.D. 1999).

Collateral References.

Antenuptial knowledge relating to alleged grounds of divorce as barring right to divorce, 15 A.L.R.2d 670.

Condonation of cruel treatment as defense to action for divorce or separation, 32 A.L.R.2d 107.

Written separation agreement as bar to divorce on ground of desertion, 34 A.L.R.2d 954.

Conjugal Kindness.

Where the condonation of an offense which is cause for divorce is not followed by conjugal kindness the condonation is ineffectual for any purpose. Gardner v. Gardner, 9 N.D. 192, 82 N.W. 872, 1900 N.D. LEXIS 219 (N.D. 1900); King v. King, 54 N.D. 475, 209 N.W. 959, 1926 N.D. LEXIS 46 (N.D. 1926).

Subsequent Cruelty.

In an action for divorce on the ground of cruelty, an express agreement to condone is revoked and the original cause of action for divorce is renewed by a subsequent act of cruelty on the part of the condonee toward the condonor. Taylor v. Taylor, 5 N.D. 58, 63 N.W. 893, 1895 N.D. LEXIS 12 (N.D. 1895).

Collateral References.

Revival of condoned adultery, 16 A.L.R.2d 585.

Revival of condoned cruelty or indignities for purpose of divorce or separation, 32 A.L.R.2d 107.

Divisible Divorce.

A court need not have personal jurisdiction over both spouses to validly terminate the marital status if procedural due process has been met, and as long as the plaintiff satisfies the six-month residency requirement under this section, a court has jurisdiction to change the parties’ marital status no matter where the defendant spouse resides. However, meeting the jurisdictional requirements to sever the marital status itself does not necessarily grant the court the authority to adjudicate the related incidences of the marriage. Before adjudicating the incidences of the parties’ marriage, a trial court is required to obtain in personam jurisdiction over both spouses. Thus, a court must have personal jurisdiction over a non-resident spouse in order to validly adjudicate matters of alimony or spousal support, the distribution or division of property and the award of child support. Smith v. Smith, 459 N.W.2d 785, 1990 N.D. LEXIS 162 (N.D. 1990).

Fraud.

A divorce secured by a husband in this state pending suit for divorce by his wife in his matrimonial domicile was invalid where the facts in evidence warranted the finding that the husband had no bona fide domicile in North Dakota. Streitwolf v. Streitwolf, 181 U.S. 179, 21 S. Ct. 553, 45 L. Ed. 807, 1901 U.S. LEXIS 1355 (U.S. 1901).

In Rem Jurisdiction.

The dissolution of marriage is an in rem proceeding and, if process has been properly effectuated, a court has jurisdiction to change the marital status of the parties even when only one party to the marriage is a resident of the state in which the court is located. Smith v. Smith, 459 N.W.2d 785, 1990 N.D. LEXIS 162 (N.D. 1990).

Intent As to Residency.

Legal residence is a question of fact to be determined by the fact finder and to be reviewed according to the clearly erroneous standard of N.D.R.Civ.P. 52(a). Habberstad v. Habberstad, 444 N.W.2d 703, 1989 N.D. LEXIS 170 (N.D. 1989).

A resident of another state cannot acquire a domicile in this state simply by coming within the state and remaining therein physically for the requisite statutory period. To his bodily presence within the state there must be added the present bona fide purpose of abiding therein indefinitely as a home. Graham v. Graham, 9 N.D. 88, 81 N.W. 44, 1899 N.D. LEXIS 132 (N.D. 1899).

Wife’s intent as to residency in this state was not negated by her employment in Nebraska, her Nebraska driver’s license and her Nebraska vehicle registration. Habberstad v. Habberstad, 444 N.W.2d 703, 1989 N.D. LEXIS 170 (N.D. 1989).

Jurisdictional Nature of Statute.

The requirement in this section as to residence is not a jurisdictional prerequisite in the strict sense that it limits or restricts the jurisdiction of the district court to hear the case and determine all the issues in the action, including the question of plaintiff’s residence. Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W.2d 106, 1948 N.D. LEXIS 93 (N.D. 1948).

This provision is not jurisdictional in strict sense that it limits jurisdiction of court to hear case and determine issues, including question of plaintiff’s residence; where trial court had divorce jurisdiction, and husband initiated action and wife appeared generally by counsel, it had jurisdiction to try and determine action notwithstanding that husband might not have resided in state for twelve months next preceding commencement of action. Klaudt v. Klaudt, 156 N.W.2d 72, 1968 N.D. LEXIS 115 (N.D. 1968).

A court need not have personal jurisdiction over both spouses to validly terminate the marital status so long as the requirements of procedural due process are met; as long as the plaintiff satisfies the six-month residency requirement under this section, prior to the entry of the decree, a court has subject matter jurisdiction to grant the divorce “no matter where” the defendant spouse resides. Byzewski v. Byzewski, 429 N.W.2d 394, 1988 N.D. LEXIS 247 (N.D. 1988).

A non-Indian divorce plaintiff’s compliance with the six-month residency requirement of this section, is not necessarily determinative of a district court’s subject matter jurisdiction over such matters as child custody and support where the custodial domicile has at all pertinent times been on the reservation. Byzewski v. Byzewski, 429 N.W.2d 394, 1988 N.D. LEXIS 247 (N.D. 1988).

Where the parties were married and lived together on the reservation with the children up until the time of separation, the district court’s exercise of jurisdiction over child custody and support in the non-Indian spouse’s divorce action infringed on the right of reservation Indians to make their own laws and be ruled by them. Byzewski v. Byzewski, 429 N.W.2d 394, 1988 N.D. LEXIS 247 (N.D. 1988).

Lack of Minimum Contacts.

Where wife, a resident of Pennsylvania, had no connection to North Dakota other than the fact that her husband moved to and became a resident of North Dakota, her contacts with North Dakota were insufficient to justify exercise of jurisdiction to adjudicate incidences of marriage. North Dakota court had jurisdiction only to dissolve marriage, not to adjudicate alimony, child support, division of marital property or child custody. Smith v. Smith, 459 N.W.2d 785, 1990 N.D. LEXIS 162 (N.D. 1990).

Question of Fact.

The question of length or duration of plaintiff’s domicile is one of fact to be determined from the evidence in the case. Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W.2d 106, 1948 N.D. LEXIS 93 (N.D. 1948).

Residence Continues.

A residence once established continues until a new residence is acquired. Summers v. Summers, 74 N.D. 741, 24 N.W.2d 688, 1946 N.D. LEXIS 96 (N.D. 1946).

Residence Same As Domicile.

“Residence” means the same as “domicile” and it must be acquired in good faith. Smith v. Smith, 7 N.D. 404, 75 N.W. 783, 1898 N.D. LEXIS 83 (N.D. 1898); Smith v. Smith, 10 N.D. 219, 86 N.W. 721, 1901 N.D. LEXIS 27 (N.D. 1901).

Residency Requirements Satisfied.

Where wife satisfied the residency requirements of this section, trial court had jurisdiction to grant her a divorce no matter where her husband resided. Shulze v. Shulze, 322 N.W.2d 250, 1982 N.D. LEXIS 321 (N.D. 1982).

The record supported the trial court’s finding that wife was a North Dakota resident at the appropriate times where she moved to North Dakota in May 1990, obtained a license to practice medicine in North Dakota, purchased a home, and obtained employment in North Dakota; although she lived in the United Arab Emirates (UAE) with husband for some time, there was evidence she took a leave of absence from her employment and lived with husband only in an effort to bring child back to North Dakota. McComb v. Aboelessad, 535 N.W.2d 744, 1995 N.D. LEXIS 139 (N.D. 1995).

Trial court erred in concluding that it lacked subject matter jurisdiction over the incidents of a marriage after granting the husband a divorce because there were numerous factors supporting the trial court’s authority to exercise concurrent jurisdiction with a tribal court; the parties owned substantial property, including a home, off of the reservation. Kelly v. Kelly, 2009 ND 20, 759 N.W.2d 721, 2009 N.D. LEXIS 18 (N.D. 2009).

Collateral References.

Length or duration of domicile, as distinguished, from fact of domicile, as a jurisdictional matter in divorce action, 2 A.L.R.2d 291.

False allegation of plaintiff’s domicile or residence in the state as ground for vacation of default decree of divorce, 6 A.L.R.2d 596.

Change of residence pendente lite, jurisdiction as affected by, 7 A.L.R.2d 1414.

Armed forces, person in, 21 A.L.R.2d 1163.

Business: nature and location of one’s business or calling as element in determining domicile in divorce cases, 36 A.L.R.2d 756.

Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, as affecting matrimonial action, 54 A.L.R.2d 390.

Pleadings, lack or insufficiency of allegations of plaintiff’s residence or domicile in suit for divorce as ground for vacation of, or collateral attack on, divorce decree, 55 A.L.R.2d 1263.

What constitutes residence or domicile within state by citizen of another country for purpose of jurisdiction in divorce, 51 A.L.R.3d 223.

Validity of statute imposing durational residency requirements for divorce applicants, 57 A.L.R.3d 221.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen, 73 A.L.R.3d 431.

Law Reviews.

North Dakota Supreme Court Review, (Kelly v. Kelly, 2009 ND 20, 759 N.W.2d 721 (2009)), see 85 N. Dak. L. Rev. 503 (2009).

Allocation of Costs.

The trial court did not abuse its discretion in assessing a large portion of the costs and fees to the father, considering the financial circumstances of the parties and the court’s finding that the father was responsible for unreasonably increasing the litigation expenses. Berg v. Berg, 2000 ND 36, 606 N.W.2d 895, 2000 N.D. LEXIS 36 (N.D. 2000).

District court went beyond the scope of a former wife’s contempt motions in amending a divorce judgment because its modification of the judgment as a part of its contempt order failed to comport with due process; although neither party moved to amend the divorce judgment, the district court amended, rather than clarified, the judgment, and the hearing notice and hearing itself involved the parties’ competing motions for contempt sanctions. Rath v. Rath, 2014 ND 171, 852 N.W.2d 377, 2014 N.D. LEXIS 176 (N.D. 2014).

Appellate Review.

—In General.

Custody determinations, property divisions and awards of spousal support are all questions of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a). Bader v. Bader, 448 N.W.2d 187, 1989 N.D. LEXIS 223 (N.D. 1989).

A trial court’s determination of custody is a finding of fact which will not be disturbed on appeal unless it is clearly erroneous. Heggen v. Heggen, 452 N.W.2d 96, 1990 N.D. LEXIS 52 (N.D. 1990).

A finding of fact is determined to be clearly erroneous only when the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Schestler v. Schestler, 486 N.W.2d 509, 1992 N.D. LEXIS 151 (N.D. 1992).

On appeal, the trial court’s determination on a motion for change of child custody will not be set aside unless it is clearly erroneous. Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662, 1986 N.D. LEXIS 262 (N.D. 1986).

—Error Not Shown.

District court judgment restricting father’s visitation with his two minor children to one supervised 30-minute visitation with the children each month, providing, however, that the supervising social worker could enlarge the visitation in duration and frequency if it was in the children’s best interests to do so, would be affirmed where father failed to submit a transcript, and thus did not meet his burden of demonstrating that the trial court’s findings of fact were clearly erroneous or that the trial court otherwise committed reversible error. Lithun v. Du Paul, 447 N.W.2d 297, 1989 N.D. LEXIS 194 (N.D. 1989).

Viewing the evidence in the light most favorable to the trial court’s findings and giving due regard to the trial court’s superior opportunity to judge the credibility of the witnesses, the wife failed to overcome the presumption of correctness the appellate court accorded to the trial court’s findings of fact, such that the trial court’s visitation determination was not clearly erroneous. Oldham v. Oldham, 2004 ND 62, 677 N.W.2d 196, 2004 N.D. LEXIS 75 (N.D. 2004).

Where the father had moved out of state, and where the child was approximately six years old, the trial court’s award to the father of up to seven consecutive days of visitation with the child in the fall and spring of each school year, restricted to the city where the mother resided or at the place of the father’s residence, and visitation for the father once each month in the city of the mother’s residence, was not clearly erroneous where the trial court set forth its written explanation that it was in the best interest of the child to be very specific about visitation because of the poor communication between the parents. T.E.J. v. T.S., 2004 ND 120, 681 N.W.2d 444, 2004 N.D. LEXIS 218 (N.D. 2004).

Order modifying visitation was affirmed because a district court’s finding of a material change in circumstances based on a mother’s scheduling problems together with the child’s recent behavior and other findings of fact were not clearly erroneous. Young v. Young, 2008 ND 55, 746 N.W.2d 153, 2008 N.D. LEXIS 53 (N.D. 2008).

Application.

The trial court did not err in denying a father compensatory visitation with his child; this section did not authorize the award of compensatory visitation when the father had been denied four years of visitation with the child. Eberhardt v. Eberhardt, 2003 ND 199, 672 N.W.2d 659, 2003 N.D. LEXIS 213 (N.D. 2003).

Attorney Fees.

Where there was evidence both parties had debt and were struggling financially, the trial court specifically found requiring either party in this case to pay attorney fees for the other would cause an undue hardship on the obligated party, and the court ordered each party to pay for his or her own attorney fees. Smith v. Smith, 534 N.W.2d 6, 1995 N.D. LEXIS 118 (N.D. 1995).

Change in Circumstances.

—In General.

District court did not err in finding there was no material change in circumstances and in denying the father’s motion to modify parenting time; the child’s increased age and development were anticipated by the district court when the prior judgment was entered, and the the child’s current age and developmental needs were not a material change in circumstances, plus any argument about the possibility of future changes to the father’s employment negatively impacting parenting time was speculative. Konkel v. Amb, 2020 ND 17, 937 N.W.2d 540, 2020 N.D. LEXIS 10 (N.D. 2020).

Mother’s motion to modify the parenting plan was denied as a material change in circumstances had not occurred since the matter was remanded to the district court because the fact that the children were aging was not something new that had occurred since entry of either the original or amended parenting plan; the district court contemplated the children reaching school age and how the amended parenting plan would impact their school attendance and participation in extracurricular activities; and, in its order denying the parties’ motions for reconsideration, the district court stated that the complicating factor of school time would be an issue the parties would have to work through going forward. Rustad v. Baumgartner, 2020 ND 126, 943 N.W.2d 786, 2020 N.D. LEXIS 121 (N.D. 2020).

Change of Circumstances.

—In General.

The trial court’s consideration of a request to modify a custody award requires a determination of whether or not there has been a significant change of circumstances since the original custody award which warrants a change of custody in the best interest of the children. Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662, 1986 N.D. LEXIS 262 (N.D. 1986).

District court judgment modifying an original custody decree by changing custody of the parties’ minor daughter from mother to father would be reversed, and remanded where the trial court failed to address the issue of whether there had been a significant change of circumstances since the original custody decree was entered. However, pending a new hearing and redetermination by the trial court, custody would remain with father. Anderson v. Anderson, 448 N.W.2d 181, 1989 N.D. LEXIS 210 (N.D. 1989).

Finding of the district court that the high level of conflict between the parties was a change in circumstances, along with the father’s having presented no evidence that visitation upon request would be in the best interest of the children, demonstrated that the district court was not clearly erroneous in denying visitation upon request. Hanson v. Hanson, 2005 ND 82, 695 N.W.2d 205, 2005 N.D. LEXIS 86 (N.D. 2005).

Trial court had erred as a matter of law when it held that a husband’s long period of unsupervised child visitation and the wife’s recent decision to deny unsupervised visitation, had not constituted a material change in circumstances since the original decree, necessitating the trial court to conduct a best interest analysis. Simburger v. Simburger, 2005 ND 139, 701 N.W.2d 880, 2005 N.D. LEXIS 177 (N.D. 2005).

District court properly modified parenting time based on a material change in circumstances because both parties had remarried, the mother had moved, the original parenting provisions were not working in the children's best interests, and there was no evidence that the father consumed alcohol to excess or was violent with the children while exercising his parenting time. Schurmann v. Schurmann, 2016 ND 69, 877 N.W.2d 20, 2016 N.D. LEXIS 63 (N.D. 2016).

District court properly denied a father’s motion to amend the parties’ parenting time schedule because the limited amount of unsupervised parenting time exercised by the father was insufficient to support a finding that the best interests of the children would be met if the modification were granted. Rath v. Rath, 2018 ND 98, 909 N.W.2d 666, 2018 N.D. LEXIS 97 (N.D. 2018).

District court’s finding of a material change sufficient to support modification of parenting time was supported by the record and not clearly erroneous; the district court found that the mother had frustrated the father’s visitation and attempted to hinder his relationship with the child. Green v. Swiers, 2018 ND 258, 920 N.W.2d 471, 2018 N.D. LEXIS 261 (N.D. 2018).

Where there is domestic violence leading up to an order, a new act of domestic violence following the order arguably would not be a material “change” in circumstances; the new act might be considered a continuation of the same circumstance that led to the original order. O'Hara v. Schneider, 2017 ND 53, 890 N.W.2d 831, 2017 N.D. LEXIS 53 (N.D. 2017).

Where the initial order included consideration of domestic violence, a new domestic violence act by the same parent satisfies the “material change” prong as a matter of law; in such an instance, the district court must consider all relevant evidence of domestic violence, regardless of whether the original order was based on a stipulated agreement. O'Hara v. Schneider, 2017 ND 53, 890 N.W.2d 831, 2017 N.D. LEXIS 53 (N.D. 2017).

When a district court issues its original order establishing residential responsibility or parenting time, the order necessarily implies that the parenting plan was tailored to end the domestic violence; the order does not erase prior domestic violence acts by prohibiting a district court from considering those acts, and further domestic violence after the initial order is always a material change in circumstances. O'Hara v. Schneider, 2017 ND 53, 890 N.W.2d 831, 2017 N.D. LEXIS 53 (N.D. 2017).

—Burden of Proof.

The burden of showing a change of circumstances which affects the best interests of the child and requires a change in custody is on the party seeking modification. Koller v. Koller, 377 N.W.2d 130, 1985 N.D. LEXIS 434 (N.D. 1985); Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662, 1986 N.D. LEXIS 262 (N.D. 1986).

—Frustration of Visitation.

Frustration of visitation does not alone constitute a sufficient change in circumstances to warrant a change in custody. Before visitation problems justify changing custody, there must be a finding that the visitation problems had worked against the child’s best interests. Blotske v. Leidholm, 487 N.W.2d 607, 1992 N.D. LEXIS 167 (N.D. 1992).

—Increase in Income of Support Recipient.

Increase in means of divorced wife who was not making child support payments could not be totally ignored in determining whether or not a material change in circumstances had occurred; district court could reasonably have concluded that substantial increase in ex-wife’s income justified its reduction in amount of support paid by ex-husband. Corbin v. Corbin, 288 N.W.2d 61, 1980 N.D. LEXIS 182 (N.D. 1980).

Child Support In Equal Custody Situations.

In situations where the court order provides for equal physical custody, the court order controls the child support, regardless of the actual custodial arrangement exercised by the parties. Boumont v. Boumont, 2005 ND 20, 691 N.W.2d 278, 2005 N.D. LEXIS 6 (N.D. 2005).

Continuing Jurisdiction.

—In General.

Regardless of any contract of the parties to the contrary, the court retains control of the decree of divorce insofar as the rights of the children are concerned. Sinkler v. Sinkler, 49 N.D. 1144, 194 N.W. 817, 1923 N.D. LEXIS 56 (N.D. 1923); Eisenbarth v. Eisenbarth, 91 N.W.2d 186, 1958 N.D. LEXIS 82 (N.D. 1958).

Trial court has continuing jurisdiction in divorce cases over matters of custody, care and education of the children of the marriage. Voskuil v. Voskuil, 256 N.W.2d 526, 1977 N.D. LEXIS 157 (N.D. 1977).

District court which issued original divorce and child custody decree to Indian parties did not have jurisdiction to modify the child custody decree where the mother and the child had become residents and were residing within an Indian reservation, over which the state of North Dakota had not obtained civil jurisdiction in actions involving Indians occurring within Indian country, at the time the modification was sought. Malaterre v. Malaterre, 293 N.W.2d 139, 1980 N.D. LEXIS 240 (N.D. 1980).

District court does not have continuing jurisdiction to amend divorce judgment where the amendment deals only with the distribution of property and does not involve alimony, spousal support, custody, or care and education of the parties’ children. Boschee v. Boschee, 340 N.W.2d 685, 1983 N.D. LEXIS 428 (N.D. 1983).

The definition of a pending action found in N.D.C.C. § 28-05-10 is consistent with the use of that term in N.D.R.Civ.P. 26(b), and both are applicable to divorce actions, so that once a final determination has been made and the time for appeal has passed, a divorce decree is not “pending” until jurisdiction of the court is reinvoked by motion of a party. Fichter v. Kadrmas, 507 N.W.2d 72, 1993 N.D. LEXIS 189 (N.D. 1993).

Trial court has long had continuing power to modify a child support order. Eklund v. Eklund, 538 N.W.2d 182, 1995 N.D. LEXIS 172 (N.D. 1995).

Trial courts have continuing jurisdiction over child support matters; continuing jurisdiction, however, is neither permanent nor constant. Cordie v. Tank, 538 N.W.2d 214, 1995 N.D. LEXIS 169 (N.D. 1995).

—Federal Law.

Although the requirements for personal jurisdiction may vary, a state court must nevertheless have subject matter jurisdiction to adjudicate the child custody and support matters that often arise in a divorce action; this state furnishes subject matter jurisdiction of child custody and maintenance and child support to state district courts, but that authority may be circumscribed by federal law under the Supremacy Clause. Byzewski v. Byzewski, 429 N.W.2d 394, 1988 N.D. LEXIS 247 (N.D. 1988).

—Parental Kidnapping Prevention Act.

While it is true that a court retains jurisdiction to modify a custody determination, that does not necessarily mean that the court retains jurisdiction in all situations. To maintain jurisdiction, the court must determine whether or not the requirements of the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction Act have been met. Dahlen v. Dahlen, 393 N.W.2d 765, 1986 N.D. LEXIS 416 (N.D. 1986).

Although this section generally gives a trial court continuing power to modify a prior custody determination, the court must determine whether or not the requirements of the Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction Act have been met in order to maintain jurisdiction of an interstate custody dispute. Larson v. Dunn, 474 N.W.2d 34, 1991 N.D. LEXIS 143 (N.D. 1991).

Custodial Parent Living with Member of Opposite Sex.

Fact that a father, who had divided custody of his daughter on a six-month alternating basis, was living with a woman to whom he was engaged but not married while the daughter was in his custody, did not warrant modification of the custody arrangement to terminate his custody rights and give sole custody to the mother; alone, circumstance of custodial parent “living together” with member of opposite sex does not mandate a transfer of custody. Lapp v. Lapp, 336 N.W.2d 350, 1983 N.D. LEXIS 319 (N.D. 1983).

Decision Making Authority.

Shared decision making authority can be successful only when parties have demonstrated an ability and willingness to cooperate in children’s best interests, and was reversed where it would only continue animosity and conflict between parties. Zuger v. Zuger, 1997 ND 97, 563 N.W.2d 804, 1997 N.D. LEXIS 98 (N.D. 1997).

Due Process.

Father’s arguments about the constitutionality of the statutes were raised for the first time on appeal and were not considered; moreover, the United States Supreme Court had indicated the best interests of the child was an appropriate standard to use in determining custody issues between parents and did not violate due process. Konkel v. Amb, 2020 ND 17, 937 N.W.2d 540, 2020 N.D. LEXIS 10 (N.D. 2020).

Enforcement of Duty of Maintenance.

The duty of maintenance enjoined in a decree of divorce in favor of either party, or of children, cannot be enforced by execution but may be compelled through contempt proceedings. Gross v. Gross, 53 N.D. 480, 206 N.W. 793, 1925 N.D. LEXIS 9 (N.D. 1925).

Evidence of domestic violence.

—Acts of Prejudgment Domestic Violence

District court abused its discretion in excluding testimony related to a father's pre-judgment domestic violence acts and behavior since the acts were not litigated during the proceeding establishing primary residential responsibility; by refusing to consider relevant evidence showing a pattern of domestic violence prior to an existing order, the district court blinds itself to the full scope and extent of a serious and ongoing problem. O'Hara v. Schneider, 2017 ND 53, 890 N.W.2d 831, 2017 N.D. LEXIS 53 (N.D. 2017).

District court misapplied the law by refusing to consider relevant pre-judgment conduct of the parties because the record did not reflect and neither party argued that the father's domestic violence acts were litigated during the earlier proceeding establishing primary residential responsibility. O'Hara v. Schneider, 2017 ND 53, 890 N.W.2d 831, 2017 N.D. LEXIS 53 (N.D. 2017).

Evidentiary Hearing

Court erred in ruling the mother was not entitled to an evidentiary hearing for failing to establish a prima facie case for modification, because the mother did not move to modify primary residential responsibility, but rather, she moved to modify parenting time, and a parent moving for modification of parenting time under N.D.C.C. § 14-05-22 was not required to establish a prima facie case justifying modification. State v. Leverington, 2012 ND 25, 812 N.W.2d 460, 2012 N.D. LEXIS 32 (N.D. 2012).

Expert Testimony.

The trial court’s exclusion of wife’s psychologist’s testimony on the ground that she was not an expert because she was not licensed as a psychologist in North Dakota was an abuse of discretion, and because wife’s psychologist’s excluded testimony related to the major issue in divorce case, the judgment awarding primary physical custody to husband was reversed, and the case remanded. Oberlander v. Oberlander, 460 N.W.2d 400, 1990 N.D. LEXIS 192 (N.D. 1990).

Extrajudicial Reduction of Payments.

Absent a court-ordered modification, divorced husband had no authority to take matters into his own hands and arbitrarily reduce his child support payments when the parties’ oldest child reached age of majority. Corbin v. Corbin, 288 N.W.2d 61, 1980 N.D. LEXIS 182 (N.D. 1980).

Habeas Corpus.

The objectives and procedures used in a writ of habeas corpus, unless substantially modified, are unrealistic and inappropriate for determining the custody of a child, especially because of changed circumstances where the best interests of the child are involved; the better procedure for litigant seeking custody of a child because of changed circumstances is to initiate an action or proceeding stating the facts and the nature of the matter and the remedial relief sought, or by a motion if the parties are the same as those in the divorce decree or judgment, and requesting an evidentiary hearing whenever the evidence is in dispute. Mansukhani v. Pailing, 300 N.W.2d 847, 1980 N.D. LEXIS 321 (N.D. 1980), cert. denied, 454 U.S. 818, 102 S. Ct. 98, 70 L. Ed. 2d 88, 1981 U.S. LEXIS 3139 (U.S. 1981).

Where divorced father to whom custody of the children had been granted was killed, trial court order, awarding divorced mother custody of the children in a habeas corpus proceeding without an evidentiary hearing, was vacated and remanded for an evidentiary hearing as to the best interests and welfare of the children where the writ of habeas corpus was not used to free the children unlawfully detained of their liberty or to enforce a decree or judgment, but was used in an effort to obtain custody of the children because of changed circumstances, and the grandparents, who were as also wanting custody, made an adequate request before the trial court to convert the habeas corpus proceeding into an evidentiary hearing. Mansukhani v. Pailing, 300 N.W.2d 847, 1980 N.D. LEXIS 321 (N.D. 1980), cert. denied, 454 U.S. 818, 102 S. Ct. 98, 70 L. Ed. 2d 88, 1981 U.S. LEXIS 3139 (U.S. 1981).

Homosexuality of Parent.

Although the parties’ children were found to be upset and confused about the mother’s homosexuality, it was questionable whether this state of mind arose to the level of endangerment to the children’s physical or emotional health so as to justify termination of visitation. Johnson v. Schlotman, 502 N.W.2d 831, 1993 N.D. LEXIS 141 (N.D. 1993).

Illegitimate Child.

Husband is not liable for the support of a child born to wife after the marriage of the parties, but admittedly not the child of the husband. Kucera v. Kucera, 117 N.W.2d 810, 1962 N.D. LEXIS 95 (N.D. 1962).

The presumption under N.D.C.C. § 14-09-01 of legitimacy of a child born in wedlock is a rebuttable presumption and where all parties agree that such child is not the child of the husband, the presumption had been overcome. Kucera v. Kucera, 117 N.W.2d 810, 1962 N.D. LEXIS 95 (N.D. 1962).

Indians.

District court which issued original divorce and child custody decree to Indian parties did not have jurisdiction to modify the child custody decree where the mother and child had become residents and were residing within an Indian reservation, over which the state of North Dakota had not obtained civil jurisdiction in actions involving Indians occurring within Indian country, at the time the modification was sought. Malaterre v. Malaterre, 293 N.W.2d 139, 1980 N.D. LEXIS 240 (N.D. 1980).

Limitations on Court Order.

Where the child is awarded to a mother, she may not be forbidden to permit the association of the child with a person of good repute. Thorp v. Thorp, 46 N.D. 113, 180 N.W. 26, 1920 N.D. LEXIS 57 (N.D. 1920).

The modification of an order by the court rests largely in the sound discretion of the court and will be interfered with only in case of clear abuse of discretion. Sjol v. Sjol, 76 N.D. 336, 35 N.W.2d 797, 1949 N.D. LEXIS 59 (N.D. 1949).

While the welfare of the children is the chief concern of the court, such order must be reasonable and consistent with the rights of the parents. Olson v. Olson, 77 N.D. 444, 43 N.W.2d 689, 1950 N.D. LEXIS 141 (N.D. 1950).

Lump Sum Child Support.

Where provision for child support payments is for a lump sum, the better rule is that, absent modification by the trial court, the lump sum remains payable until the youngest child reaches the age of majority. Corbin v. Corbin, 288 N.W.2d 61, 1980 N.D. LEXIS 182 (N.D. 1980).

Modification of Order.

In divorce proceedings, direction of trial court for the custody, care, and education of the children of the parties may be modified at any time by a proper showing of changed conditions. Kucera v. Kucera, 117 N.W.2d 810, 1962 N.D. LEXIS 95 (N.D. 1962).

Modification by the court of a five-year-old divorce decree so as to provide that six-year-old and ten-year-old daughters of the parties were henceforth to spend the summer vacation months with the husband, with definite arrangements made for the custody of the children en route from the home of one parent to the home of the other, did not constitute an abuse of discretion by the court. Blanton v. Blanton, 142 N.W.2d 608, 1966 N.D. LEXIS 169 (N.D. 1966).

Husband was not entitled to modification of decree reducing support of children from $ 100 to $ 50 per month where his salary had increased five percent since his divorce and his changed conditions were those which he had voluntarily assumed by buying an expensive outboard motor, by buying his former wife’s equity in the homestead, and by remarriage. Foster v. Nelson, 206 N.W.2d 649, 1973 N.D. LEXIS 178 (N.D. 1973).

Trial court did not abuse its discretion in modifying original custody order which provided that mother and father were each to have custody of one child, where mother of child had had a successful marriage since her divorce, there was no indication that she had not been a good mother to the younger child who was already in her custody, and mother’s husband testified that he was desirous of having the other daughter come into their home, which home according to evidence would provide a good stable environment for the child, and where daughter in question, during period of father’s custody, had been living principally with her paternal grandparents. Goff v. Goff, 211 N.W.2d 850, 1973 N.D. LEXIS 114 (N.D. 1973).

Trial court did not err by denying mother’s petition for custody of child who was in the custody of her father where it was determined that father had taken the initiative in taking daughter in his home, that she was with her father and paternal grandparents for some time and formed a strong relationship with them, that the mother’s petition was filed long after such filing was possible, and that a change would detrimentally affect the daughter. Silseth v. Levang, 214 N.W.2d 361, 1974 N.D. LEXIS 253 (N.D. 1974).

A motel incident, standing alone, would not be sufficient reason for changing custody, but when considered along with other facts the change of custody was within the discretion of the court. Jordana v. Corley, 220 N.W.2d 515, 1974 N.D. LEXIS 220 (N.D. 1974).

Although father was $ 5,000 in arrears on child support payments, his motion for modification of custody was properly considered by the court where the mother had withheld her address and had made it impossible for him to exercise his visiting rights. Jordana v. Corley, 220 N.W.2d 515, 1974 N.D. LEXIS 220 (N.D. 1974).

Child support payments may be modified by the district court at any time the circumstances render such a change proper, but the modification operates prospectively only. Corbin v. Corbin, 288 N.W.2d 61, 1980 N.D. LEXIS 182 (N.D. 1980).

Death of the father to whom custody of the children had been granted in a divorce decree constituted a change in circumstances in regards to modification of the custody award in the decree even though physical and actual custody of the children was with the grandparents rather than the father of the children. Mansukhani v. Pailing, 300 N.W.2d 847, 1980 N.D. LEXIS 321 (N.D. 1980), cert. denied, 454 U.S. 818, 102 S. Ct. 98, 70 L. Ed. 2d 88, 1981 U.S. LEXIS 3139 (U.S. 1981).

Although not mentioned in the guidelines of N.D.C.C. §§ 14-09-06.1 and 14-09-06.2 for awarding child custody, supreme court still requires a showing of changed conditions before a reconsideration of an award of child custody in a divorce case. Voth v. Voth, 305 N.W.2d 656, 1981 N.D. LEXIS 301 (N.D. 1981).

Custodial parent’s frustration of noncustodial parent’s visitation privileges in and of itself does not constitute a sufficient change of circumstances to warrant a change in custody; the frustration of visitation privileges must weigh against the child’s best interests before a change of custody is justified on such grounds. Muraskin v. Muraskin, 283 N.W.2d 140, 1979 N.D. LEXIS 282 (N.D. 1979); Miller v. Miller, 305 N.W.2d 666, 1981 N.D. LEXIS 300 (N.D. 1981).

The party seeking modification of the original custody award has the burden of showing a change of circumstances which affects the best interests of the child and requires a change in custody. Miller v. Miller, 305 N.W.2d 666, 1981 N.D. LEXIS 300 (N.D. 1981).

In proceeding to modify custody order, mother’s remarriage and move to Dubai, one of the United Arab Emirates, did not warrant modification of the custody award to allow the mother to remove the child from the United States, especially since the child wished to remain in the United States; under such circumstances, trial court’s decision to limit mother’s custody and visitation to the United States was not clearly erroneous. Bergstrom v. Bergstrom, 320 N.W.2d 119, 1982 N.D. LEXIS 304 (N.D. 1982).

Amendment of divorce decree to increase the amount of child support ordered requires trial court to make findings of fact setting forth the grounds for the court’s decision to amend the decree. Skoglund v. Skoglund, 333 N.W.2d 795, 1983 N.D. LEXIS 290 (N.D. 1983).

Fact that children were getting older, more mature, and becoming more interested in their heritage did not constitute justifiable grounds to modify visitation rights established in divorce judgment. Muraskin v. Muraskin, 336 N.W.2d 332, 1983 N.D. LEXIS 311 (N.D. 1983).

Mother’s increased financial status and her remarriage and her opportunity to provide special attention to the children constituted such a significant change in circumstances since the original divorce decree to support trial court’s change in custody of the children from the father to the mother. Ebertz v. Ebertz, 338 N.W.2d 651, 1983 N.D. LEXIS 349 (N.D. 1983).

The burden of showing a change of circumstances which affects the best interests of the child and requires a change in custody is on the party seeking modification. Koller v. Koller, 377 N.W.2d 130, 1985 N.D. LEXIS 434 (N.D. 1985).

When the trial court is making an original award of custody between parents in a divorce proceeding, it must determine the single issue of what is in the child’s best interest. However, when the trial court considers a request to modify an original custody award, it must determine two issues: (1) whether or not there has been a significant change of circumstances since the original divorce decree and custody award; and, if so, (2) whether the changed circumstances are such that the best interest of the child would be served by a custody modification. Anderson v. Anderson, 448 N.W.2d 181, 1989 N.D. LEXIS 210 (N.D. 1989).

The mother’s suicide attempts, her drug abuse, and her inappropriate physical discipline, improper care, and inadequate supervision of the children constituted a significant change of circumstances. Wright v. Wright, 463 N.W.2d 654, 1990 N.D. LEXIS 245 (N.D. 1990).

Pursuant to N.D.C.C. § 14-05-22(2) the father established a material change in circumstances based on the mother’s move to a different town, the father’s medical condition and required treatments, and their impact on the child’s two weekend per month minimum right to visitation with her father. Ibach v. Zacher, 2006 ND 244, 724 N.W.2d 165, 2006 N.D. LEXIS 242 (N.D. 2006).

District court did not err in denying the incarcerated father’s motion for modification of his parenting time because the father had not established that a material change of circumstances had occurred since the prior visitation order issued a few months earlier as the mother was exercising her discretion regarding the father’s in-person parenting time at the prison with the child rather than frustrating the father’s visitation or attempting to alienate the child’s affections for him. Bredeson v. Mackey, 2014 ND 25, 842 N.W.2d 860, 2014 N.D. LEXIS 28 (N.D. 2014).

Trial court did not clearly err in denying the ex-wife's motion to modify parenting time, as the evidence supported the trial court's finding that she interfered with the ex-husband's parenting time and the trial court's decision permitting the husband to submit a plan and the parenting coordinator to ensure compliance with the court's order did not improperly expand the authority of the parenting coordinator. Hoverson v. Hoverson, 2015 ND 38, 859 N.W.2d 390, 2015 N.D. LEXIS 34 (N.D. 2015).

Modifying a Maryland child custody order was error as neither parent sought modification, the mother requested in a contempt motion that the father be advised that failure to abide by the order could be grounds for modification, and in response, the order was modified to remove a restriction regarding communication. Upton v. Nolan, 2018 ND 243, 919 N.W.2d 181, 2018 N.D. LEXIS 249 (N.D. 2018).

Modifying Equal Custody As Basis for Modifying Child Support.

If a trial court did not modify the parties’ equal custody arrangement, child support had to be calculated under the offset procedure set out in N.D. Admin. Code § 75-02-04.1-08.2, but if the trial court found a significant change in circumstances such that the equal custody provision had to be amended, child support had to be calculated under N.D. Admin. Code § 75-02-04.1-02. Boumont v. Boumont, 2005 ND 20, 691 N.W.2d 278, 2005 N.D. LEXIS 6 (N.D. 2005).

Original Jurisdiction.

District court erred in refusing to address the issue of child support because it had original jurisdiction to enter a child support order in conjunction with the divorce proceeding, superseding the temporary order entered in another district court while the divorce was pending and the parties were still married; by its terms, the temporary child support judgment did not divest the divorce court of jurisdiction to award child support as part of the divorce judgment. Wanttaja v. Wanttaja, 2016 ND 14, 873 N.W.2d 911, 2016 N.D. LEXIS 13 (N.D. 2016).

While a married person may maintain a child support action against a spouse, that judgment may be modified or vacated “at any time” after a hearing. as such, N.D.C.C. §§ 14-05-22 and 14-05-23 operate to provide the district court in divorce proceedings with original jurisdiction to award appropriate child support under the guidelines for the parties' children as part of a final divorce judgment. Wanttaja v. Wanttaja, 2016 ND 14, 873 N.W.2d 911, 2016 N.D. LEXIS 13 (N.D. 2016).

Parental Rights.

Parents have a right to the custody and companionship of their child superior to that of any other person, and an award of custody to the child’s grandparents or some other third party rather than to one of the parents is clearly erroneous unless exceptional circumstances require that such a custody disposition be made in the best interests of the child. Patzer v. Glaser, 368 N.W.2d 561, 1985 N.D. LEXIS 328 (N.D. 1985).

Proper Custodian.

—Father.

Decision based on best interests of children and giving custody of two sons (ages two and four) to father because he could provide more stable home atmosphere and had more stable record of employment than mother was not clearly erroneous. Matson v. Matson, 226 N.W.2d 659, 1975 N.D. LEXIS 198 (N.D. 1975).

Trial court in divorce proceeding properly assigned custody of children to father upon findings that by so doing they were less likely to become charges on the public, that it would have an adverse impact upon the children for them to be reared in a home which their mother shared with a man not her husband, and that if given to the father their grandmother would be available to aid in caring for them, since such considerations bore a legitimate relationship to the best interests of the children. Bohnenkamp v. Bohnenkamp, 253 N.W.2d 439, 1977 N.D. LEXIS 270 (N.D. 1977).

Father was natural parent of the child, had a more stable lifestyle than mother, and facilities and resources, such as a home, motor vehicle, and employment suitable for providing care for the child; therefore, court’s determined that it would be in child’s best interest to be placed in father’s custody was not clearly erroneous and placement of child in father’s custody was not disturbed. Worden v. Worden, 434 N.W.2d 341, 1989 N.D. LEXIS 5 (N.D. 1989).

—Grandparents.

Grandparents may be awarded custody of children, either alone or jointly with a parent, if the best interests of the children so require. Odegard v. Odegard, 259 N.W.2d 484, 1977 N.D. LEXIS 213 (N.D. 1977).

An award of custody to the grandparents rather than to one or both of the child’s natural parents is clearly erroneous unless the court makes findings of fact that there exist exceptional circumstances which require such a custody disposition to be made in the best interests of the child. Hust v. Hust, 295 N.W.2d 316, 1980 N.D. LEXIS 266 (N.D. 1980).

—Mother.

Where child had spent her entire life, with minor exceptions, in mother’s custody and care and there was no evidence that child had formed a psychological parent relationship with stepfather or any other third party, trial court’s finding of exceptional circumstances to place child in stepfather’s custody rather than with mother’s was clearly erroneous. Worden v. Worden, 434 N.W.2d 341, 1989 N.D. LEXIS 5 (N.D. 1989).

—Nonparents.

The rationale for awarding custody to grandparents is the existence of exceptional circumstances which will further the best interests of the child. It is appropriate to extend the application of that same rationale to the award of visitation to a nonparent, the paramount concern in awarding visitation to a nonparent being the best interests of the child. Quirk v. Swanson, 368 N.W.2d 557, 1985 N.D. LEXIS 327 (N.D. 1985).

N.D.C.C. § 14-17-14 does not enlarge the basic provision of this section to extend visitation to anyone. The authority for awarding visitation to a non-parent emanates from the North Dakota supreme court’s previous decisions concerning child custody and visitation. Quirk v. Swanson, 368 N.W.2d 557, 1985 N.D. LEXIS 327 (N.D. 1985).

Questions for Court.

Where the fact issues about what son’s education expenses were, and how much of those expenses his parents each had the ability to pay, directly related to interpreting and implementing the divorce decree, they were equitable in nature, and were for the court, not a jury, to decide. Botner v. Botner, 545 N.W.2d 188, 1996 N.D. LEXIS 73 (N.D. 1996).

Remand for Further Evidence.

Where the record lacked substantial evidence regarding six-year old child’s relationship with his twenty-one-year old biological mother and with his paternal grandparents, who had cared for him since he was six months old, order of the district court awarding custody to his natural mother would be reversed, and remanded to the district court with directions to hold a new hearing to receive additional evidence upon which the court could make a redetermination of the custody issue. Patzer v. Glaser, 368 N.W.2d 561, 1985 N.D. LEXIS 328 (N.D. 1985).

Remarriage of Parties to Each Other.

Generally, when parties to a divorce remarry each other, the child custody provisions of the prior decree are nullified. Byzewski v. Byzewski, 429 N.W.2d 394, 1988 N.D. LEXIS 247 (N.D. 1988).

Residence of Child.

Where custodial parent desires to change residence of child to another state and non-custodial parent has been given and has exercised visitation rights, custodial parent has burden of securing a court order for change by demonstrating that such a change is in child’s best interests; there is no presumption that a custodial parent’s decision to change a child’s residence to another state is in child’s best interests. Olson v. Olson, 361 N.W.2d 249, 1985 N.D. LEXIS 249 (N.D. 1985).

Stipulations.

Stipulations concerning property division and child custody entered into by parties to a divorce action are governed by the law of contracts, which requires that the parties have capacity to contract; party was entitled to have portion of default divorce judgment which incorporated stipulations concerning property division and child custody vacated where, due to alcoholism, there were many doubts as to the party’s capacity to contract at the time the stipulations were executed. Galloway v. Galloway, 281 N.W.2d 804, 1979 N.D. LEXIS 279 (N.D. 1979).

Where trial court accepted parties’ stipulation as to the amount of child support in a proceeding to modify the child support obligation, it was error for trial court to add to the stipulation by increasing the amount of support without first giving notice to the parties. Aaker v. Aaker, 338 N.W.2d 645, 1983 N.D. LEXIS 348 (N.D. 1983).

Plaintiff misled the court into conducting a contract analysis, instead of simply construing and applying the divorce decree. When a stipulation is incorporated into a divorce judgment, the court is concerned only with interpretation and enforcement of the judgment, not with the underlying contract. Botner v. Botner, 545 N.W.2d 188, 1996 N.D. LEXIS 73 (N.D. 1996).

Test for Custody Awards.

The test for awarding custody is the best interest of the child, and not fitness of the parents, or fairness to the parents. Odegard v. Odegard, 259 N.W.2d 484, 1977 N.D. LEXIS 213 (N.D. 1977); Larson v. Larson, 294 N.W.2d 616, 1980 N.D. LEXIS 250 (N.D. 1980).

Child custody determination in original divorce proceeding resolves solely around the concept of the child’s best interest; where a modification of the original custody award is sought, trial court’s determination must focus on whether or not there has been a significant change of circumstances since the original divorce decree and custody award and, if so, whether or not those changed circumstances are such that the best interests of the child would be served by a change in custody. Miller v. Miller, 305 N.W.2d 666, 1981 N.D. LEXIS 300 (N.D. 1981).

Visitation.

—-Restriction or Revocation.

Where a 17-year-old boy did not want to have visitation with his father and where the district court considered the testimony of therapist with whom the boy treated, the district court did not err in concluding that the enforcement of the original visitation decree was not in the child’s best interests. The district court’s decision was not clearly erroneous because the record showed that the father and son failed to resolve the issues in their relationship through counseling. Krueger v. Krueger, 2011 ND 134, 800 N.W.2d 296, 2011 N.D. LEXIS 142 (N.D. 2011).

In a modification of parenting time, the district court did not err in suspending visitation of the older child with the father, who was incarcerated, because the father was utilizing visitation with his children to discuss his relationship with their mother and other inappropriate topics; and the older child was impacted in such a way that required hospitalization, based on his mental health, after a visit with the father. Curtiss v. Curtiss, 2017 ND 60, 891 N.W.2d 358, 2017 N.D. LEXIS 60 (N.D. 2017).

Visitation Rights.

—In General

Any visitation rights of noncustodial parent were not infringed by court order allowing custodial parent to change residence of the children to a different state than the non-custodial parent’s state of residence. Evidence indicated that permitting removal of the children was in the best interest of the children. Burich v. Burich, 314 N.W.2d 82, 1981 N.D. LEXIS 354 (N.D. 1981).

In a paternity action brought by mother and her present husband against her former husband, to determine the paternity of four-year old child born prior to divorce of mother and defendant, wherein present husband was found to be the child’s biological father, trial court did not err in awarding defendant one year of visitation, with visitation to continue further by agreement of the parties. Quirk v. Swanson, 368 N.W.2d 557, 1985 N.D. LEXIS 327 (N.D. 1985).

The right of visitation was long acknowledged as a matter of public policy before its codification in this section. Healy v. Healy, 397 N.W.2d 71, 1986 N.D. LEXIS 460 (N.D. 1986).

A trial court’s determination on visitation will not be overturned on appeal unless it is clearly erroneous. Hanson v. Hanson, 404 N.W.2d 460, 1987 N.D. LEXIS 298 (N.D. 1987).

Where the mother received more than the statutory minimal visitation time, and was afforded an opportunity to exercise visitation amounting to nearly one-third of the total time available, the trial court afforded the mother visitation that would enable her and the father to maintain a parent-child relationship that would be beneficial to the minor child and the visitation determination was not clearly erroneous. Schmidt v. Schmidt, 2003 ND 55, 660 N.W.2d 196, 2003 N.D. LEXIS 72 (N.D. 2003).

Referee properly refused to hold the mother in contempt for failing to fully comply with the visitation provisions of the divorce judgment because the referee found that the claims regarding the mother’s interference with visitation were not supported by the affidavits of the children, the father did not allot time to the children during visits and as a result, the children did not want to visit as often. Montgomery v. Montgomery, 2003 ND 135, 667 N.W.2d 611, 2003 N.D. LEXIS 140 (N.D. 2003).

Court erred in its child visitation decision because there was no finding that visitations between the mother and her son would necessarily endanger the child’s physical or emotional health. Consequently, the trial court impermissibly delegated its authority, under the circumstances, by allowing an expert to set the visitation schedule, carte blanche. Paulson v. Paulson, 2005 ND 72, 694 N.W.2d 681, 2005 N.D. LEXIS 80 (N.D. 2005).

Evidence supported the trial court’s determination that the father willfully and deliberately interfered with the mother’s visitation rights through his delay tactics, failure to cooperate, and refusal to in any way facilitate visitation between his children and their mother because (1) the trial court did not find credible the father’s assertion that his failure to facilitate visitation between the children and the mother was due to his reliance on the language of the divorce decree; (2) during the course of what the parties had agreed would be a 10-day visit, the mother ended up receiving only about 24 total hours with the children, and the father claimed at the hearing that this was not his responsibility; and (3) the father’s profession of his concern for his children’s welfare was tarnished by his statement at the church that the mother could take the children by force if she wanted to. Also, the trial court’s finding that visitation was not likely to endanger the children’s physical or emotional health was not clearly erroneous; therefore, the trial court did not err in modifying the child custody and visitation award. Sisk v. Sisk, 2006 ND 55, 711 N.W.2d 203, 2006 N.D. LEXIS 64 (N.D. 2006).

In a case where there was no contact or support from a father for 22 months while he was residing in another state, his motion for visitation under N.D.C.C. § 14-05-22(2) was improperly denied where a district court failed to make sufficient findings regarding how the father’s past alcohol and domestic abuse problems would have resulted in physical or emotional harm to the child; there were no evaluations from independent professionals regarding the harm, and the termination of visitation was merely based on surmise and conjecture. Wilson v. Ibarra, 2006 ND 151, 718 N.W.2d 568, 2006 N.D. LEXIS 158 (N.D. 2006).

Father failed to show that the visitation schedule did not provide him sufficient time to maintain a close relationship with his children because, other than weekdays during which the children were in school, the father and mother had nearly evenly split time with the children; further, having already made sufficient findings to award the mother primary residential responsibility, the district court was not required to make separate findings to justify its liberal parenting-time award to the father. Schlieve v. Schlieve, 2014 ND 107, 846 N.W.2d 733, 2014 N.D. LEXIS 107 (N.D. 2014).

—Extended Summer Visitation.

It is customary practice to provide extended summer visitation when children are old enough; therefore, where parent requested such visitation it was error for the trial court, without explanation, to deny the request when it determined visitation. Dschaak v. Dschaak, 479 N.W.2d 484, 1992 N.D. LEXIS 5 (N.D. 1992).

Trial court did not err in granting the father extended summer visitation, finding that the father’s former behavior of prescription drug abuse posed no threat to the well being of the children, he had not abandoned his children, that the mother’s allegations of domestic violence were insufficient as a matter of law, and that oversees travel to visit the father would be educational and safe for the children. Schiff v. Schiff, 2000 ND 113, 611 N.W.2d 191, 2000 N.D. LEXIS 121 (N.D. 2000).

Trial court’s seven week set summer visitation schedule with non-custodial father in North Dakota was not clearly erroneous given that the children lived with their mother in Georgia, the schedule permitted father time to form relationships with his children, and the set dates decreased the chance that parties would disagree over the visit. Georgia. Tibor v. Tibor, 2001 ND 43, 623 N.W.2d 12, 2001 N.D. LEXIS 51 (N.D. 2001).

—Modification.

Although district court mistakenly applied N.D.C.C. § 14-09-06.6, rather than N.D.C.C. § 14-05-22, in denying mother’s motion for a new hearing and motion to amend judgment with respect to the court’s mandate of two years’ supervised visitation, the court did not clearly err in finding no material change of circumstances warranting modification of the visitation order where the record showed that the mother received counseling treatment but nothing more and she alleged her children were lying to their professional counselors, but did not call either counselor as a witness. Helfenstein v. Schutt, 2007 ND 106, 735 N.W.2d 410, 2007 N.D. LEXIS 105 (N.D. 2007).

District court did not make specific findings regarding the child’s best interests, but its findings were sufficient to show its basis for amending the parenting plan; the court’s amendment on extended summer visitation was not clearly erroneous. Horsted v. Horsted, 2012 ND 24, 812 N.W.2d 448, 2012 N.D. LEXIS 29 (N.D. 2012).

It was error to modify a father's parenting time because (1) due process required adequate notice and a fair opportunity to be heard, (2) the only matter before the trial court was the father's contempt motion, (3) no party moved to amend the divorce judgment or parenting time, (4) the court did not clarify a prior judgment, and (5) the court could not solely rely on the children's wishes. Votava v. Votava, 2015 ND 171, 865 N.W.2d 821, 2015 N.D. LEXIS 194 (N.D. 2015).

District court did not err in denying a father's motion to modify parenting time because the father did not submit the necessary evidence to the district court; the district court's finding that the father's word was not legally sufficient went to his credibility and was consistent with the district court's previous findings. Rath v. Rath, 2016 ND 46, 876 N.W.2d 474, 2016 N.D. LEXIS 46 (N.D. 2016).

District court erred in entering a third amended judgment modifying the father's parenting time while he was incarcerated as the district court failed to make sufficient findings of fact in the third amended judgment because the district court made no findings as to whether a material change in circumstances occurred, whether suspended visitation was necessary as visitation was likely to endanger the children, and whether modification of the second amended judgment was necessary to serve the best interests of the children; and the district court failed to make findings stating why supervised parenting time by a professional was necessary to protect the children's physical or emotional health. Curtiss v. Curtiss, 2016 ND 197, 886 N.W.2d 565, 2016 N.D. LEXIS 196 (N.D. 2016).

District court did not err in denying the father's petition to modify his parenting time from supervised visitation to unsupervised as he failed to show a material change in circumstances had occurred since the previous order establishing his parenting time because, while the father's new employment benefitted him personally, it did not constitute a material change in circumstances in the context of whether he endangered his child's physical or emotional health; there was a protection order still in place; and the father did not present admissible evidence that he was working with any specific counselor to address any remaining anger issues. Schaffner v. Schaffner, 2017 ND 170, 898 N.W.2d 428, 2017 N.D. LEXIS 174 (N.D. 2017).

—Purpose.

The primary purpose of visitation is to promote the best interests of the children, not the wishes or desires of the parent. Reinecke v. Griffeth, 533 N.W.2d 695, 1995 N.D. LEXIS 113 (N.D. 1995).

—Religious Restrictions.

Absent a showing of emotional or physical harm to the children, court will not impose upon the noncustodial parent the affirmative obligation of policing during visitation periods the religious instructions of the custodial parent; to justify the placement of religious restrictions on visitation rights, the physical or emotional harm to the child resulting from the conflicting religious instructions or practices cannot be simply assumed or surmised, but must be demonstrated in detail. Hanson v. Hanson, 404 N.W.2d 460, 1987 N.D. LEXIS 298 (N.D. 1987).

Where the evidence fell short of the clear and affirmative showing of physical or emotional harm to the children required to justify religious restrictions, the trial court’s order prohibiting the noncustodial father from taking the children during visitation periods to any church other than the Catholic Church was clearly erroneous. Hanson v. Hanson, 404 N.W.2d 460, 1987 N.D. LEXIS 298 (N.D. 1987).

—Restriction or Revocation.

Denying or severely restricting the right to visitation upon a mere showing of probable cause (except, perhaps, temporarily prior to a hearing) would not comport with the traditional function of a probable cause determination. Curtailing visitation on such a slight showing would be detrimental to the interests affected because of the increased risk of error and the long-term consequences. Accordingly, the argument that probable cause is the appropriate standard of proof to adjudicate restrictions on visitation is rejected. Healy v. Healy, 397 N.W.2d 71, 1986 N.D. LEXIS 460 (N.D. 1986).

A showing by a preponderance of the evidence, rather than by probable cause, authorizes the finding that “visitation is likely to endanger the child’s physical or emotional health”, which justifies curtailment of visitation. Healy v. Healy, 397 N.W.2d 71, 1986 N.D. LEXIS 460 (N.D. 1986).

Trial court’s visitation order was not clearly erroneous because it reduced father’s weekly visitation with children during the school term; in addition to reducing his weekly visitation, the trial court granted father an extended summer visitation of four weeks and left in place his two weekday-evening visits per week when the children were not in school. The actual difference in father’s yearly visitation time under the amended judgment was negligible and not a “restriction.” Reinecke v. Griffeth, 533 N.W.2d 695, 1995 N.D. LEXIS 113 (N.D. 1995).

Subsection (2) does not apply to a modification proceeding where the order modifying visitation does not revoke or restrict visitation. Reinecke v. Griffeth, 533 N.W.2d 695, 1995 N.D. LEXIS 113 (N.D. 1995).

Sufficient evidence supported a trial court’s decision to suspend a father’s visitation under subsection (2) of this section, based on a finding that visitation would be harmful to the child’s physical and emotional health, where the father engaged in sexual behavior in the child’s presence, made inappropriate comments about the child’s body, and pressured the child to recant her statements about his conduct. Litoff v. Pinter, 2003 ND 172, 670 N.W.2d 860, 2003 N.D. LEXIS 185 (N.D. 2003).

Court properly restricted a father’s child visitation because he testified that his methamphetamine use placed his children in danger and harmed his relationship with them, and the father tested positive for methamphetamine use at the close of trial. Wigginton v. Wigginton, 2005 ND 31, 692 N.W.2d 108, 2005 N.D. LEXIS 27 (N.D. 2005).

—Supervised Visitation.

Where parent did not seek supervised visitation in trial court nor challenge on appeal unsupervised visitation, she effectively conceded unsupervised visitation would not endanger children’s physical or emotional health, and therefore supervised visitation was not required. Zuger v. Zuger, 1997 ND 97, 563 N.W.2d 804, 1997 N.D. LEXIS 98 (N.D. 1997).

Because a district court failed to make specific findings regarding whether a mother demonstrated a willingness to foster the parent-child relationship between a father and three children, the court erred when it gave the mother broad discretion over the father’s supervised visitation under N.D.C.C. § 14-05-22(2). Marquette v. Marquette, 2006 ND 154, 719 N.W.2d 321, 2006 N.D. LEXIS 156 (N.D. 2006).

District court clearly erred in awarding ex-husband parenting time subject to supervision based on findings of uncertainty regarding his citizenship status and alleged risk of flight without sufficient evidence in the record and based on insufficiently detailed findings demonstrating the physical or emotional harm to the child likely to result from visitation. Further, the district court erred in eliminating the ex-wife’s duty to inform him of any changes in residential phone number and address “due to the risks associated with his having such information in regard to his potential flight with the minor from the United States.” Keita v. Keita, 2012 ND 234, 823 N.W.2d 726, 2012 N.D. LEXIS 245 (N.D. 2012).

For purposes of N.D.C.C. § 14-05-22(2), the trial court found the minor children believable about abuse by the father’s fiancee’s daughter, and although the trial court found the father was not involved in the improper activities, there was evidence of the conduct of a person in his home and the father’s failure to protect the children, plus he did not believe them, which had an adverse impact on the children, plus the trial court found that the children suffered harm by the inappropriate photographs and touching by the daughter, and the father’s denial of the conduct compounded that harm; there was evidence to support these findings, which were sufficiently specific to understand the basis for the decision to order supervised visitation outside of the presence of the fiancee and daughter, and thus the order was not clearly erroneous. Jensen v. Deaver, 2013 ND 47, 828 N.W.2d 533, 2013 N.D. LEXIS 57 (N.D. 2013).

In a modification of parenting time, the district court erred in finding that it was not in the younger child's best interest to visit the father in the prison setting as the younger child was ambivalent about the visits with her father; and, although those visits sometimes upset her, continuing supervised visitation at the penitentiary was not likely to endanger the younger child's physical or emotional health; however, a counselor or therapist or other neutral individual should facilitate any such visitation. Curtiss v. Curtiss, 2017 ND 60, 891 N.W.2d 358, 2017 N.D. LEXIS 60 (N.D. 2017).

—Test for Rights.

A showing by a preponderance of the evidence, rather than by probable cause, authorized the finding that “visitation is likely to endanger the child’s physical or emotional health,” which justifies curtailment of visitation. Healy v. Healy, 397 N.W.2d 71, 1986 N.D. LEXIS 460 (N.D. 1986).

Denying or severely restricting the right to visitation upon a mere showing of probable cause (except, perhaps, temporarily prior to a hearing) would not comport with the traditional function of a probable cause determination. Curtailing visitation on such a slight showing would be detrimental to the interests affected because of the increased risk of error and the long-term consequences. Accordingly, the argument that probable cause is the appropriate standard of proof to adjudicate restrictions on visitation is rejected. Healy v. Healy, 397 N.W.2d 71, 1986 N.D. LEXIS 460 (N.D. 1986).

—Unsupervised Visitation.

Court did not err in granting a father unsupervised child visitation where the court was unpersuaded by a psychologist’s testimony because her interview of the child took place several years after the father’s alleged indecent exposure incident involving the then three-year-old child and because the psychologist had indicated that three-year-olds had difficulty separating reality from fantasy. Furthermore, there were unresolved questions as to the validity, setting, and circumstances as to both the statement and drawings produced by the child regarding the alleged incident and testimony by the mother regarding the child’s repetition of the story was unpersuasive. Fast v. Mayer, 2005 ND 37, 692 N.W.2d 138, 2005 N.D. LEXIS 34 (N.D. 2005).

—With Non-Custodial Parent.

Visitation with the non-custodial parent is presumed to be in the best interests of the children. Reinecke v. Griffeth, 533 N.W.2d 695, 1995 N.D. LEXIS 113 (N.D. 1995).

District court’s order granting non-custodial father visitation one weekend each month, alternating holidays and school vacation days, and three weeks each summer was not clearly erroneous. Ackerman v. Ackerman, 1999 ND 135, 596 N.W.2d 332, 1999 N.D. LEXIS 155 (N.D. 1999).

Trial court’s visitation schedule was reversed as overly restrictive and unsupported by the evidence where it limited father’s visits to two days at a time, only in the Stanley/Minot areas and eliminated extended visits outside of North Dakota to father’s home in Minnesota until the child was three years old. K.L.G. v. S.L.N., 2001 ND 33, 622 N.W.2d 232, 2001 N.D. LEXIS 35 (N.D. 2001).

District court’s decision to award a mother minimal visitation was not clearly erroneous where the evidence showed that six weeks in the summer and every other Christmas accommodated her intended college schedule. The mother was also granted e-mail and telephone contact, to which the children were accustomed due to her military service. Eifert v. Eifert, 2006 ND 240, 724 N.W.2d 109, 2006 N.D. LEXIS 250 (N.D. 2006).

District court’s order regarding parenting time was clearly erroneous because the record revealed no evidence that giving the father more parenting time would physically or emotionally harm the children, and the court’s highly restrictive weekend visitation was compounded by its failure to grant extended summer visitation, which it left to the mother’s discretion. Rustad v. Baumgartner, 2018 ND 268, 920 N.W.2d 465, 2018 N.D. LEXIS 279 (N.D. 2018).

Welfare of Children.

The welfare of the children of divorced parents is a determining consideration of the court in giving directions for the custody of the children. King v. King, 61 N.D. 422, 237 N.W. 854, 1931 N.D. LEXIS 289 (N.D. 1931); Rufer v. Rufer, 67 N.D. 67, 269 N.W. 741, 1936 N.D. LEXIS 152 (N.D. 1936); Kucera v. Kucera, 117 N.W.2d 810, 1962 N.D. LEXIS 95 (N.D. 1962).

Trial court acted within its authority in awarding custody of infant of two years of age to the mother of the child. Kucera v. Kucera, 117 N.W.2d 810, 1962 N.D. LEXIS 95 (N.D. 1962).

Because welfare of children is of paramount importance in matters of custody, two-year-old who enjoys close and natural relationship to seven-year-old sister may be given to mother after grant of absolute divorce to both parties, even where mother has been guilty of adultery but is otherwise good mother to children and has ability to support children, as against blind, university student father, who did not seek custody of older girl and who had been guilty of extreme mental cruelty toward wife. Noakes v. Noakes, 185 N.W.2d 486, 1971 N.D. LEXIS 168 (N.D. 1971).

Visitation between a child and the noncustodial parent is legally recognized to be in the best interests of the child. Healy v. Healy, 397 N.W.2d 71, 1986 N.D. LEXIS 460 (N.D. 1986).

—Definition.

The definition of domestic violence contained in N.D.C.C. § 14-07.1-01 should be applied to this section. Lawrence v. Delkamp, 2000 ND 214, 620 N.W.2d 151, 2000 N.D. LEXIS 258 (N.D. 2000).

—Legislative Intent.

The available legislative history indicates an intent that the trial judge not only consider domestic violence but make written findings regarding the effect of such abuse upon custody or visitation. Schestler v. Schestler, 486 N.W.2d 509, 1992 N.D. LEXIS 151 (N.D. 1992).

—Overcoming Rebuttable Presumption.

Where finding that defendant’s violence had created a rebuttable presumption that it would not be in children’s best interest to place them in defendants custody, the trial court did not err in finding that the statutory presumption was rebutted after determining that defendant had never directed violence toward the minor children, that defendant had a “more stable home environment,” and that there was more love and affection between defendant and the children than existed between them and plaintiff. Schestler v. Schestler, 486 N.W.2d 509, 1992 N.D. LEXIS 151 (N.D. 1992).

Former subsection (3) effectively creates a presumption that unsupervised visitation would be harmful to child’s physical or emotional health, and allows unsupervised visitation only if the offending parent proves by clear and convincing evidence that it will not be harmful to child. Kluck v. Kluck, 1997 ND 41, 561 N.W.2d 263, 1997 N.D. LEXIS 62 (N.D. 1997).

In determining whether the domestic violence presumption in N.D.C.C. § 14-09-06.2(1)(j) had been rebutted, the trial court failed to set out specific, detailed findings of fact to show that the unsupervised visitation best protected the child. Berg v. Berg, 2000 ND 36, 606 N.W.2d 895, 2000 N.D. LEXIS 36 (N.D. 2000).

Father’s threats to mother that he would have his girlfriend “beat” her up if she pursued child support, that he could “eliminate” the child in a boating accident, and that he would not return the child after a visitation unless she agreed to a specific tax exemption favoring him were threats of future conduct and did not denote immediacy so as to place the mother in fear of harm occurring without delay. Thus, such threats did not constitute domestic violence requiring visitation restrictions. Lawrence v. Delkamp, 2000 ND 214, 620 N.W.2d 151, 2000 N.D. LEXIS 258 (N.D. 2000).

—Rebuttable Presumption.

The court’s finding of “violence” by defendant created a rebuttable presumption that it would not be in the minor children’s best interests to place them in defendant’s custody. Under N.D.R.Ev. 301(a), that presumption continues until the trier of fact finds from credible evidence that the fact presumed does not exist. Schestler v. Schestler, 486 N.W.2d 509, 1992 N.D. LEXIS 151 (N.D. 1992).

—Unsupervised Visitation.

Court did not err in awarding father unsupervised visitation with children where, although father’s striking of the children was clearly wrong, the evidence supported the trial court’s finding that the abuse was “not of great or significant degree,” recognizing his actions were wrong and harmful, sought treatment to deal with his anger and abusive behavior; father successfully completed counseling and treatment for his abusive actions and had a good prognosis for being able to deal in an appropriate manner with the children if, in the future, the children were in his custody or visiting him. Smith v. Smith, 534 N.W.2d 6, 1995 N.D. LEXIS 118 (N.D. 1995).

Where a couple with two children divorced, and the father appealed the trial court’s order allowing the mother, who had a history of domestic violence, to have unsupervised visitation of the children, the trial court’s findings of fact were not clearly erroneous and supported the order for unsupervised visitation. Berg v. Berg, 2002 ND 69, 642 N.W.2d 899, 2002 N.D. LEXIS 84 (N.D. 2002).

Collateral References.

Jurisdiction to award custody of child having legal domicile in another state, 4 A.L.R.2d 7.

Jurisdiction of court to award custody of child domiciled in state but physically outside of it, 9 A.L.R.2d 434.

Right to punish for contempt for failure to obey custody order either beyond power or jurisdiction of court or merely erroneous, 12 A.L.R.2d 1059.

Nonresidence as affecting one’s right to custody of child, 15 A.L.R.2d 432.

Power of court, on its own motion, to modify provisions of divorce decree as to custody of children, upon application for other relief, 16 A.L.R.2d 664.

Alienation of child’s affections as affecting custody award, 32 A.L.R.2d 1005.

Consideration of investigation by welfare agency or the like in making award as between parents of custody of children, 35 A.L.R.2d 629.

Right to custody of child as affected by death of custodian appointed by divorce decree, 39 A.L.R.2d 258.

Remarriage of parent as ground for modification of divorce decree as to custody of child, 43 A.L.R.2d 363.

Habeas corpus: child custody provisions of divorce or separation decree as subject to modification on habeas corpus, 4 A.L.R.3d 1277.

Child’s wishes as factor in awarding custody, 4 A.L.R.3d 1396.

Award of custody of child to parent against whom divorce is decreed, 23 A.L.R.3d 6.

Grandparents, award of custody of child where contest is between child’s father and a grandparent, 25 A.L.R.3d 7.

Grandparents, award of custody of child where contest is between child’s mother and a grandparent, 29 A.L.R.3d 366.

Grandparents, award of custody of child where contest is between child’s grandparent and one other than child’s parent, 30 A.L.R.3d 290.

Grandparents, award of custody of child where contest is between child’s parent and grandparents, 31 A.L.R.3d 1187.

Extraterritorial effect of valid award of custody of child of divorced parents, in absence of substantial change in circumstances, 35 A.L.R.3d 520.

Putative father’s right to custody of illegitimate child, 45 A.L.R.3d 216.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision, 59 A.L.R.3d 1337.

Modern status of maternal preference rule or presumption in child custody cases, 70 A.L.R.3d 262.

Parent’s physical disability or handicap as factor in custody award or proceedings, 3 A.L.R.4th 1044.

Race as factor in custody award or proceedings, 10 A.L.R.4th 796.

What constitutes “extraordinary” or similar medical or dental expenses for purposes of divorce decree requiring one parent to pay such expenses for child in custody of other parent, 39 A.L.R.4th 502.

Propriety of provision of custody or visitation order designed to insulate child from parent’s extramarital sexual relationships, 40 A.L.R.4th 812.

Primary caretaker role of respective parents as factors in awarding custody of child, 41 A.L.R.4th 1129.

Parent’s transsexuality as factor in award of custody of children, visitation rights, or termination of parental rights, 59 A.L.R.4th 1170.

Prejudgment interest awards in divorce cases, 62 A.L.R.4th 156.

Mother’s status as “working mother” as factor in awarding child custody, 62 A.L.R.4th 259.

Child custody: separating children by custody awards to different parents — post-1975 cases, 67 A.L.R.4th 354.

Divorce and separation: attributing undisclosed income to parent or spouse for purposes of making child or spousal support award, 70 A.L.R.4th 173.

What types of proceedings or determinations are governed by the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA),Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 78 A.L.R.4th 1028.

Continuity of residence as factor in contest between parent and nonparent for custody of child who has been residing with nonparent — modern status, 15 A.L.R.5th 692.

Validity and construction of provisions for arbitration of disputes as to alimony or support payments or child visitation or custody matters, 38 A.L.R.5th 69.

Rights and remedies of parents inter se with respect to the names off their children, 40 A.L.R.5th 697.

Construction and effect of statutes mandating consideration of, or creating presumptions regarding, domestic violence in awarding custody of children, 51 A.L.R.5th 241.

Mental health of contesting parent as factor in award of child custody, 53 A.L.R.5th 375.

Right of putative father to visitation with child born out of wedlock, 58 A.L.R.5th 669.

Initial award or denial of child custody to homosexual or lesbian parent, 62 A.L.R.5th 591.

Custodial parent’s homosexual or lesbian relationship with third person as justifying modification of child custody order, 65 A.L.R.5th 591.

Admissibility of expert testimony regarding questions of domestic law, 66 A.L.R.5th 135.

Custodial parent’s relocation as grounds for change of custody, 70 A.L.R.5th 377.

Construction and application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. § 1901 et seq.) upon child custody determinations, 89 A.L.R.5th 195.

Religion as factor in visitation cases, 95 A.L.R.5th 533.

Restrictions on parent’s child visitation rights based on parent’s sexual conduct, 99 A.L.R.5th 475.

Effect of Parent’s Military Service Upon Child Custody. 21 A.L.R.6th 577.

Parents’ Work Schedules and Associated Dependent Care Issues as Factors in Child Custody Determinations. 26 A.L.R.6th 331.

Law Reviews.

North Dakota Supreme Court Review, 78 N.D. L. Rev. 579 (2002).

Ability and Need.

If the wife has ample means of her own to present her cause of action or defense to the court, it would be an abuse of discretion to require the husband to make an allowance. Bailey v. Bailey, 22 N.D. 553, 134 N.W. 747, 1912 N.D. LEXIS 45 (N.D. 1912).

Where husband is in possession of the property of the parties, he should be required to pay temporary alimony, suit money, and attorneys’ fees, notwithstanding that the wife might be able to raise money by mortgaging her property. Matthiesen v. Matthiesen, 55 N.D. 471, 214 N.W. 460, 1927 N.D. LEXIS 63 (N.D. 1927).

A debt incurred by the wife for medical expenses cannot be made the basis of a payment required to be made as temporary alimony where the debt was incurred several months prior to her application and its payment is not necessary for her support. Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 1949 N.D. LEXIS 63 (N.D. 1949).

The main considerations in making an allowance for support money are the needs of one party and the ability of the other to pay. Heller v. Heller, 81 N.W.2d 124, 1957 N.D. LEXIS 101 (N.D. 1957); Pearson v. Pearson, 2000 ND 20, 606 N.W.2d 128, 2000 N.D. LEXIS 32 (N.D. 2000).

The party seeking an allowance for attorney fees for a divorce action need not be completely destitute to prove eligibility. Fischer v. Fischer, 139 N.W.2d 845, 1966 N.D. LEXIS 198 (N.D. 1966).

The necessity of suit money is usually ascertained as of the time of the commencement of the action, and not as of the time of the appeal from a judgment, lest the party with few assets be denied representation at the most critical stages of the suit. Fischer v. Fischer, 139 N.W.2d 845, 1966 N.D. LEXIS 198 (N.D. 1966); Halla v. Halla, 200 N.W.2d 271, 1972 N.D. LEXIS 130 (N.D. 1972).

In determining what portion of attorney fees should be paid by the opposing party, trial court should consider the property owned by each party as a result of the property division; their relative incomes; whether the property is in liquid or fixed assets; and whether or not the actions of the parties unreasonably increased the time spent on the case. Nastrom v. Nastrom, 284 N.W.2d 576, 1979 N.D. LEXIS 304 (N.D. 1979).

Under this section, the principal standards for an award of attorney fees are one parent’s need and the other parent’s ability. Pozarnsky v. Pozarnsky, 494 N.W.2d 148, 1992 N.D. LEXIS 259 (N.D. 1992).

Where the trial court found that the wife had business debts of $ 65,000 with annual gross income of $ 26,000, and her financial situation was more precarious at the time of trial than it had been when the parties divorced two years earlier, that her business was struggling, she had assumed the burden of paying off the business debt, she worked for little or no pay, and she was no longer receiving spousal support, the trial court’s findings properly indicated that she had a need for attorney fees under N.D.C.C. § 14-05-23. Lee v. Lee, 2005 ND 129, 699 N.W.2d 842, 2005 N.D. LEXIS 161 (N.D. 2005).

Trial court abused its discretion in partially vacating the parties’ original divorce judgment by suspending child support payments, awarding the wife temporary rehabilitative child support, and failing to provide an explanation or findings to support its award of attorney’s fees. Nieuwenhuis v. Nieuwenhuis, 2014 ND 145, 851 N.W.2d 130, 2014 N.D. LEXIS 152 (N.D. 2014).

Allowance by Supreme Court.

The supreme court has jurisdiction to consider an application for temporary alimony, counsel fees, and suit money after the district court has lost jurisdiction but the application should be made in district court if there is reasonable opportunity to do so before appeal. Mosher v. Mosher, 16 N.D. 269, 113 N.W. 99, 1907 N.D. LEXIS 54 (N.D. 1907).

Although the supreme court and the trial court have concurrent jurisdiction to award attorney’s fees on appeal, the trial court is in the better position to rule on a motion for attorney’s fees on appeal. Heller v. Heller, 367 N.W.2d 179, 1985 N.D. LEXIS 314 (N.D. 1985).

Although the supreme court and the trial court have concurrent jurisdiction to award attorney fees on appeal, the supreme court prefers that the initial determination be made by the trial court. Wolfe v. Wolfe, 391 N.W.2d 617, 1986 N.D. LEXIS 375 (N.D. 1986).

Although the trial court and the Supreme Court have concurrent jurisdiction to award attorney’s fees on appeal it is preferable that the trial court determine the amount of attorney’s fees for a spouse on a divorce appeal. Roen v. Roen, 438 N.W.2d 170, 1989 N.D. LEXIS 64 (N.D. 1989).

While the trial court and the Supreme Court have concurrent jurisdiction to award attorney’s fees for an appeal in a divorce, the supreme court prefers that the trial court determine the amount of attorney’s fees for a spouse on a divorce appeal, and would therefore remand case to the trial court for an award of attorney’s fees to wife for appeal. Martin v. Martin, 450 N.W.2d 768, 1990 N.D. LEXIS 28 (N.D. 1990).

Although Supreme Court generally prefers trial court to make the initial determination of attorney fees because it is not an evidence gathering body, Supreme Court will grant where party requested minimal fees, and given the need for conserving judicial resources as well as those of the litigants. Fenske v. Fenske, 542 N.W.2d 98, 1996 N.D. LEXIS 20 (N.D. 1996).

Although the appeals court has concurrent jurisdiction to award attorney fees, the trial court should determine whether to award attorney fees because the trial court is in a better position to assess relevant factors. Shaver v. Kopp, 545 N.W.2d 170, 1996 N.D. LEXIS 71 (N.D. 1996).

Alteration of Temporary Support Order.

Usually the parties’ financial situations will remain unchanged until after the appeal is decided. Accordingly, a spouse in need of temporary support before trial will in all likelihood be in need of temporary support during pendency of an appeal. If extraordinary circumstances exist which indicate that the parties’ financial situations have changed, the trial court can make provisions in the judgment or in a post-judgment order altering or terminating the temporary support order. Ness v. Ness, 467 N.W.2d 716, 1991 N.D. LEXIS 57 (N.D. 1991).

Amount of Support.

Amount and duration of spousal support was proper where monthly award did not exceed wife’s monthly expenses, the amount was well within husband’s ability to pay, and wife had limited potential for future employment. Orgaard v. Orgaard, 1997 ND 34, 559 N.W.2d 546, 1997 N.D. LEXIS 35 (N.D. 1997).

Where, in a marriage of long duration there was a significant disparity in the parties’ earning abilities, there was not enough total present or anticipated income for each spouse to maintain separately the standard of living that they enjoyed together, while the amount of spousal support awarded may, perhaps, have been generous in light of the parties’ needs and ability to pay, it was not clearly erroneous. LaVoi v. LaVoi, 505 N.W.2d 384, 1993 N.D. LEXIS 162 (N.D. 1993).

Applicability.

In a child custody action, mother’s reliance on N.D.C.C. § 14-05-23 was misplaced as the proceeding was not a divorce proceeding and mother did not cite to any legal authority entitling her to attorney fees in the case; thus, the district court did not err in declining to award the mother attorney fees. Jelsing v. Peterson, 2007 ND 41, 729 N.W.2d 157, 2007 N.D. LEXIS 44 (N.D. 2007).

Award Denied.

District court did not err in denying the wife's request for attorney's fees where the actions of both parties contributed to the incurred fee amount, the husband did not have the current means to pay spousal support, and the district court had specifically awarded the wife a greater share of the marital assets so that she could pay her attorney's fees. Jacobs-Raak v. Raak, 2016 ND 240, 888 N.W.2d 770, 2016 N.D. LEXIS 241 (N.D. 2016).

—Award Upheld.

District court was not obligated to award the wife all of the fees requested, and the award was not an abuse of discretion. Degnan v. Degnan, 2016 ND 61, 877 N.W.2d 38, 2016 N.D. LEXIS 58 (N.D. 2016).

District court did not abuse its discretion in awarding attorney's fees to the ex-wife because, based upon the ex-husband's much higher income, the court found that the husband was capable of paying the fees, even after he assumed much of the marital debt. Stock v. Stock, 2016 ND 1, 873 N.W.2d 38, 2016 N.D. LEXIS 1 (N.D. 2016).

—In General.

In determining the amount of attorney fees to be paid by the opposing party, the trial court should consider the property owned by each party as a result of the property division, the relative incomes, whether the property is liquid or of fixed assets, and whether or not the actions of the parties unreasonably increased the time spent on the case. The case was remanded for a determination of reasonable attorney’s fees in accordance with all applicable criteria. Nastrom v. Nastrom, 284 N.W.2d 576, 1979 N.D. LEXIS 304 (N.D. 1979).

The trial court is in the better position to consider the special factors relevant to an award of attorney’s fees under this section, relating to the financial status of the parties and the need for and ability to pay attorney’s fees; thus, the Supreme Court remanded for re-determination of the amount of attorney’s fees to be awarded the wife for services rendered through trial, as well as for consideration of her request for attorney’s fees on appeal. McIntee v. McIntee, 413 N.W.2d 366, 1987 N.D. LEXIS 403 (N.D. 1987).

Where the financial circumstances of the parties were significantly changed by the results on appeal, the Supreme Court remanded to the trial court for a determination of a reasonable award of attorney fees. Sullivan v. Quist, 506 N.W.2d 394, 1993 N.D. LEXIS 170 (N.D. 1993).

A preliminary award of attorney fees involves some speculation, but it need not be, indeed, cannot be, rank speculation; there must be sufficient evidence to allow the trial court to make an educated guess and to permit court to determine on appeal whether the amount awarded is reasonable under the circumstances. Rudh v. Rudh, 517 N.W.2d 632, 1994 N.D. LEXIS 128 (N.D. 1994).

—Abuse of Discretion.

District court’s failure to award attorney fees to the wife was an abuse of discretion because the husband’s concealment of marital assets in the divorce proceeding not only unreasonably increased the time and financial expenditure on the case, but was also the sole reason for the litigation. Walstad v. Walstad, 2013 ND 176, 837 N.W.2d 911, 2013 N.D. LEXIS 179 (N.D. 2013).

—Appeal Expenses.

Where record was devoid of information relating to plaintiff-wife’s financial condition at the time of trial and prior thereto, the supreme court had insufficient information from which it could determine whether plaintiff was in need of money to defend appeal. Zundel v. Zundel, 146 N.W.2d 903, 1966 N.D. LEXIS 144 (N.D. 1966).

The burden of showing that an allowance of attorney fees is necessary to defend an appeal in a divorce action is upon the party seeking the allowance. Zundel v. Zundel, 146 N.W.2d 903, 1966 N.D. LEXIS 144 (N.D. 1966); Halla v. Halla, 200 N.W.2d 271, 1972 N.D. LEXIS 130 (N.D. 1972).

Award of $ 350 attorney’s fees and $ 150 costs for appeal was not abuse of discretion under circumstances. Doll v. Doll, 162 N.W.2d 691, 1968 N.D. LEXIS 74 (N.D. 1968).

The trial court has authority in a divorce case to award attorney fees for proceedings in the trial court and upon appeal. Quamme v. Bellino, 540 N.W.2d 142, 1995 N.D. LEXIS 210 (N.D. 1995).

Where decree was affirmed with only a slight modification, plaintiff was awarded attorney fees under N.D.R.App.P. 39. Hendrickson v. Hendrickson, 553 N.W.2d 215, 1996 N.D. LEXIS 215 (N.D. 1996).

Attorney fees for appeal were not appropriate, where marriage was of short duration and there was no obvious disparity in property division or parties’ earning capacities. Lovin v. Lovin, 1997 ND 55, 561 N.W.2d 612, 1997 N.D. LEXIS 47 (N.D. 1997).

Supreme court would not grant attorney fees for frivolous appeal where appeal was not frivolous considering deficiency of the findings of fact, but party could request district court to consider award based on need and equity. Ratajczak v. Ratajczak, 1997 ND 122, 565 N.W.2d 491, 1997 N.D. LEXIS 124 (N.D. 1997), aff'd, 1999 ND 65, 592 N.W.2d 527, 1999 N.D. LEXIS 71 (N.D. 1999).

Ex-wife who failed to demonstrate a disparity in the parties’ earning capacities was not entitled to attorney fees on appeal. Schmalle v. Schmalle, 1998 ND 201, 586 N.W.2d 677, 1998 N.D. LEXIS 212 (N.D. 1998).

Divorce judgment requiring each party to bear his or her own attorney fees “incurred herein” did not bar award of attorney fees to ex-wife for fees incurred during subsequent appeal proceedings. Jorgenson v. Ratajczak, 1999 ND 65, 592 N.W.2d 527, 1999 N.D. LEXIS 71 (N.D. 1999).

District court declined to award attorney fees to a mother, under N.D.R.App.P. 38, because a father’s appeal was not flagrantly groundless, devoid of merit, and did not demonstrate persistence in the course of the custody modification proceeding which could be seen as evidence of bad faith; attorney fees might be appropriate, under N.D.C.C. § 14-05-23, after consideration by the district court on remand of the parties’ financial status and the mother’s need. Siewert v. Siewert, 2008 ND 221, 758 N.W.2d 691, 2008 N.D. LEXIS 212 (N.D. 2008).

—Attorney Accepting Fee.

Upon appeal from a final decree denying a divorce to appellant but allowing her counsel fees, the acceptance by her attorneys of such counsel fees, pending the appeal was a waiver of the appeal. Boyle v. Boyle, 19 N.D. 522, 126 N.W. 229, 1910 N.D. LEXIS 52 (N.D. 1910).

—Award Denied.

Where the parties’ abilities to pay attorney fees were relatively equal, wife’s request for payment of fees was denied. LaVoi v. LaVoi, 505 N.W.2d 384, 1993 N.D. LEXIS 162 (N.D. 1993).

In request by wife for attorney fees, husband’s larger pension income was offset by the small amount of other assets he received under the judgment and the time he spent responding to issues that wife should have raised in her post-trial motion; wife also received nearly $ 10,000 more than husband in bank accounts and therefore, each party should pay their own attorney fees. Steckler v. Steckler, 519 N.W.2d 23, 1994 N.D. LEXIS 150 (N.D. 1994).

Trial court did not abuse its discretion in ordering parties in divorce action to pay their own attorney’s fees. Wilhelm v. Wilhelm, 1998 ND 140, 582 N.W.2d 6, 1998 N.D. LEXIS 151 (N.D. 1998).

Given the disparity in the property distribution which greatly favored the wife, the wife’s needs, and the husband’s ability to pay, in light of the husband’s needs and the husband’s child support and spousal support obligations, the trial court did not abuse its discretion in failing to award the wife attorney fees. Reineke v. Reineke, 2003 ND 167, 670 N.W.2d 841, 2003 N.D. LEXIS 179 (N.D. 2003).

Attorneys fees for post-divorce judgment proceedings were properly denied given the parties’ conduct in extending the proceedings and the attorneys’ contributions to drawing out the matter. Eberhardt v. Eberhardt, 2003 ND 199, 672 N.W.2d 659, 2003 N.D. LEXIS 213 (N.D. 2003).

Trial court did not abuse its discretion in failing to order the husband to pay the wife’s attorney’s fees and costs; the principle factors for consideration in awarding attorney’s fees in a divorce action were the parties’ needs and abilities to pay. Oldham v. Oldham, 2004 ND 62, 677 N.W.2d 196, 2004 N.D. LEXIS 75 (N.D. 2004).

In an action in which the former husband appealed from an order denying his motion to modify his stipulated spousal support obligation under a divorce judgment and the former wife cross-appealed from that part of the order denying her request for an award of attorney fees and costs incurred in resisting the motion, the trial court did not abuse its discretion in denying the wife’s request for attorney fees and costs where (1) the wife’s gross monthly revenues of $ 8,730 until October 1, 2006, when it would drop to a monthly gross income of $ 7,880, nicely covered her ample monthly expenses of $ 6,758; and (2) the husband’s gross income was found to be sufficient to pay child support and spousal support to the wife and to cover his ample monthly expenses, but it was not so much in excess of his expenses that he could afford to pay the wife’s attorney fees. Rothberg v. Rothberg, 2007 ND 24, 727 N.W.2d 771, 2007 N.D. LEXIS 23 (N.D. 2007).

Court misapplied the law in deciding not to award wife attorney’s fees because the court failed to balance the parties’ needs and abilities to pay, instead noting that wife had commenced the divorce action merely because the parties “just didn’t get along any more.” Wagner v. Wagner, 2007 ND 101, 733 N.W.2d 593, 2007 N.D. LEXIS 94 (N.D. 2007).

Wife’s request for attorney’s fees in a case seeking modification of the husband’s spousal support obligation was denied where she had not shown a need for attorney’s fees, nor had she shown that the husband’s appeal of the modified spousal support obligation was frivolous. Lee v. Lee, 2007 ND 147, 738 N.W.2d 479, 2007 N.D. LEXIS 148 (N.D. 2007).

District court properly ordered the parties to pay their own attorney fees because both parties were at fault through their conduct for the high fees, the wife was awarded more liquid assets and a cash distribution, and the husband could not afford to pay her attorney fees in view of his other obligations under the divorce judgment. Evenson v. Evenson, 2007 ND 194, 742 N.W.2d 829, 2007 N.D. LEXIS 202 (N.D. 2007).

Court did not abuse its discretion in denying wife in a divorce proceeding award of attorney’s fees where wife failed to provide evidence as to what work her attorney had done, and she only stated how much she owed her attorney. Waldie v. Waldie, 2008 ND 97, 748 N.W.2d 683, 2008 N.D. LEXIS 84 (N.D. 2008).

Because the trial court ordered the wife to receive liquid assets and spousal support, it appeared that she had the ability to pay the attorney fees and therefore, the trial court did not abuse its discretion in ordering that both the husband and the wife each pay their own attorney fees. Solem v. Solem, 2008 ND 211, 757 N.W.2d 748, 2008 N.D. LEXIS 234 (N.D. 2008).

In a divorce case, attorney’s fees were not appropriate as both parties had ample resources and neither showed that the actions of the other warranted an award of attorney’s fees. Ulsaker v. C. True Bright White, 2009 ND 18, 760 N.W.2d 82, 2009 N.D. LEXIS 2 (N.D. 2009).

District court did not abuse its discretion in denying the wife’s motion for attorney’s fees where the wife’s need did not justify an award of attorney’s fees. Eberle v. Eberle, 2009 ND 107, 766 N.W.2d 477, 2009 N.D. LEXIS 103 (N.D. 2009).

Court erred in denying attorney fees, because the mother testified she did not have the ability to pay her attorney fees, the court found the father had the ability to pay his attorney fees, and the court provided no explanation for the denial, leaving the reviewing court to speculate whether factors were properly considered and the law was properly applied. Deyle v. Deyle, 2012 ND 248, 825 N.W.2d 245, 2012 N.D. LEXIS 257 (N.D. 2012).

—Award Upheld.

Although seemingly inadequate for three days of trial and time spent in preparation, award of three hundred dollars for attorney fees was not so grossly inadequate as to constitute an abuse of discretion. Halla v. Halla, 200 N.W.2d 271, 1972 N.D. LEXIS 130 (N.D. 1972).

Trial court did not abuse its discretion in allowing wife attorney’s fees in the amount of $ 150 for trial and $ 450 for appeal where husband’s appeal was unsuccessful and where, under trial court order, husband’s income after divorce was to exceed wife’s by only $ 50 a month and neither of their incomes could reasonably be expected to exceed $ 400 per month. Johnson v. Johnson, 211 N.W.2d 759, 1973 N.D. LEXIS 115 (N.D. 1973).

There was no abuse of discretion by trial court in awarding attorney fees to wife where wife had limited earning power and, in the property division, the husband received income-producing property while the wife received virtually all fixed assets. Gooselaw v. Gooselaw, 320 N.W.2d 490, 1982 N.D. LEXIS 269 (N.D. 1982).

Where husband’s attorney’s fees were paid in a divorce action to an unknown extent from earnings of husband’s professional corporation, this reduced the value of the corporation for purposes of the property division. The trial court thus correctly determined that wife indirectly paid for part of husband’s attorney’s fees, and demonstrated a proper exercise of its discretion in awarding wife a portion of her attorney’s and expert witness’ fees. Bagan v. Bagan, 382 N.W.2d 645, 1986 N.D. LEXIS 266 (N.D. 1986).

Where husband earned approximately four times more on average than wife did in gross monthly income at a job he had maintained for almost 30 years, the trial court did not abuse its discretion in ordering him to pay one-half of her attorney fees. Bakes v. Bakes, 532 N.W.2d 666, 1995 N.D. LEXIS 91 (N.D. 1995).

In light of the financial circumstances of the parties, the trial court did not abuse its discretion in awarding partial attorney’s fees. Quamme v. Bellino, 540 N.W.2d 142, 1995 N.D. LEXIS 210 (N.D. 1995).

Considering great disparity in respective incomes of parties, trial court did not abuse its discretion in awarding attorney fees. Zuger v. Zuger, 1997 ND 97, 563 N.W.2d 804, 1997 N.D. LEXIS 98 (N.D. 1997).

Trial court did not err in requiring spouse to pay part of other spouse’s attorney’s fees in divorce action; trial court found there was considerable disparity in incomes. Donarski v. Donarski, 1998 ND 128, 581 N.W.2d 130, 1998 N.D. LEXIS 140 (N.D. 1998).

Attorney fee award to ex-wife for expenses incurred in opposing ex-husband’s appeal of divorce judgment was upheld; ex-husband’s average yearly earnings were ten times that of ex-wife. Jorgenson v. Ratajczak, 1999 ND 65, 592 N.W.2d 527, 1999 N.D. LEXIS 71 (N.D. 1999).

In a divorce action, because the father’s income was considerably higher than the wife’s, the trial court did not abuse its discretion by awarding attorney fees to the wife. McDowell v. McDowell, 2003 ND 174, 670 N.W.2d 876, 2003 N.D. LEXIS 180 (N.D. 2003).

In a case modifying child custody, a trial court did not err by awarding attorney fees to a former wife where the evidence showed that the former husband had caused the litigation by interfering with visitation rights; moreover, his earnings were almost twice that of the wife. Bladow v. Bladow, 2005 ND 142, 701 N.W.2d 903, 2005 N.D. LEXIS 172 (N.D. 2005).

Under N.D.C.C. § 14-05-23, the record supported the trial court’s award of $ 5,000 in attorney fees to the wife in a divorce case where (1) the trial court’s decision contained numerous findings relating to the disparity in the parties’ earning capacities, the ex-husband’s ability to pay attorney fees, and the ex-wife’s needs and lessened ability to pay attorney fees; (2) during the trial, the wife testified that her attorney fees for the divorce were between $ 5,000 and $ 6,000; and (3) wife submitted, without objection, a detailed billing report from her attorney. Christian v. Christian, 2007 ND 196, 742 N.W.2d 819, 2007 N.D. LEXIS 194 (N.D. 2007).

District court did not abuse its discretion in awarding attorney fees to a wife in a divorce proceeding under N.D.C.C. § 14-05-23 as the district court’s findings were based on the record. However, since the matter was remanded for further consideration on another issue, the district court could reconsider the amount of the award in accordance with the husband’s properly calculated income. Entzie v. Entzie, 2010 ND 194, 789 N.W.2d 550, 2010 N.D. LEXIS 202 (N.D. 2010).

District court did not abuse its discretion in awarding attorney fees to a wife in divorce proceedings in consideration of the parties’ unequal incomes and earning capacities as well as the equitable distribution of their net estate. Heinle v. Heinle, 2010 ND 5, 777 N.W.2d 590, 2010 N.D. LEXIS 5 (N.D. 2010).

Trial court’s award of attorney fees to a wife was not unconscionable, unreasonable, or arbitrary and was not an abuse of discretion, even though the wife contended the trial court should have awarded her a much larger amount. Stephenson v. Stephenson, 2011 ND 57, 795 N.W.2d 357, 2011 N.D. LEXIS 42 (N.D. 2011).

In a dissolution of marriage case, the court properly ordered the husband to pay $15,000 of the wife’s attorney fees because the court found he delayed providing information necessary for trial, and his failure to fully respond to discovery caused a continuance that required the wife to incur attorney expenses which would not have been necessary had he simply provided requested information in a timely and organized manner. Kosobud v. Kosobud, 2012 ND 122, 817 N.W.2d 384, 2012 N.D. LEXIS 124 (N.D. 2012).

District court did not abuse its discretion in its award of attorney fees where: (i) it found that an award of $3,000 to the ex-wife for attorney fees was appropriate, (ii) it considered the parties’ financial situations, finding that any award of attorney fees would be a burden to both, (iii) it also considered the parties’ respective fault in escalating fees to justify its award based on additional proceedings necessitated by the ex-husband, including the ex-wife’s motion for entry of a judgment by default, the ex-husband’s initial challenge to the court’s jurisdiction, in addition to the proceedings for the prior restraining order and a motion to compel discovery, and (iv) it found that the $3,000 amount did not represent all of the ex-wife’s increased costs but the court was mindful of the ex-husband’s ability to pay. Keita v. Keita, 2012 ND 234, 823 N.W.2d 726, 2012 N.D. LEXIS 245 (N.D. 2012).

District court did not abuse its discretion in awarding a wife attorney’s fees, in light of a property distribution favoring the husband and his greater income. Hoverson v. Hoverson, 2013 ND 48, 828 N.W.2d 510, 2013 N.D. LEXIS 48 (N.D. 2013).

District court did not err in ordering the father to reimburse the mother for attorney’s fees because it had factored into its decision the actions taken by the father that significantly increased the cost of the litigation. Conzemius v. Conzemius, 2014 ND 5, 841 N.W.2d 716, 2014 N.D. LEXIS 7 (N.D. 2014).

—Concurrent Jurisdiction of Supreme Court and District Court.

Where mother was granted her motion to relocate children in a custody dispute and the father’s motion to change custody was denied and mother subsequently sought attorney’s fees under N.D.C.C. § 14-05-23, the supreme court indicated its preference, since the supreme court has concurrent original jurisdiction with the district court to award attorney fees on appeal, that the district court initially decide the issue of attorney fees and thus, remanded the case to the district court for the limited purpose of determining whether attorney fees should be awarded to the mother on appeal and, if so, in what amount. Frieze v. Frieze, 2005 ND 53, 692 N.W.2d 912, 2005 N.D. LEXIS 58 (N.D. 2005).

Although a district court and an appellate court have concurrent jurisdiction to award attorney fees for an appeal in a divorce, it is preferable that the district court rule on a request for attorney fees under N.D.C.C. § 14-05-23. Dvorak v. Dvorak, 2006 ND 171, 719 N.W.2d 362, 2006 N.D. LEXIS 174 (N.D. 2006).

—Criteria to be Considered.

Where on its face, the trial court’s explanation for its decision not to award attorney’s fees rested exclusively on the availability of unencumbered assets, and where the significant disparity in the parties’ incomes and the modesty of their marital estate indicated a likelihood that it did not consider all applicable criteria, the case would be reversed, and remanded for a determination of whether or not to award attorney’s fees. Heller v. Heller, 367 N.W.2d 179, 1985 N.D. LEXIS 314 (N.D. 1985).

In determining the amount of attorney’s fees to be paid by the opposing party, the trial court should consider the property owned by each party as a result of the property division, the relative income, whether the property is liquid or of fixed assets, and whether or not the actions of the parties unreasonably increased the time spent on the case. The case was remanded for a determination of reasonable attorney’s fees in accordance with all applicable criteria. Hedin v. Hedin, 370 N.W.2d 544, 1985 N.D. LEXIS 344 (N.D. 1985).

In determining the attorney’s and expert witness’ fees to be paid by the opposing party, the trial court should consider, inter alia, the property owned by each party as the result of the property division, the parties’ relative income and whether the property is liquid or of fixed assets. Bagan v. Bagan, 382 N.W.2d 645, 1986 N.D. LEXIS 266 (N.D. 1986).

The principal factors for consideration in awarding attorney’s fees in a divorce action are the parties’ needs and abilities to pay. Oldham v. Oldham, 2004 ND 62, 677 N.W.2d 196, 2004 N.D. LEXIS 75 (N.D. 2004).

Where the district court began and ended its analysis of the mother’s request for attorney’s fees under N.D.C.C. § 14-05-23 with the father’s good faith in opposing her motion to change residency, while he might not have unreasonably escalated the fees in the instant case, that factor was not necessarily dispositive, and the matter was remanded for reconsideration of the mother’s request. Bertsch v. Bertsch, 2006 ND 31, 710 N.W.2d 113, 2006 N.D. LEXIS 36 (N.D. 2006).

Trial court erred in denying appellant former wife’s request for attorney’s fees in a divorce action under N.D.C.C. § 14-05-23 because the wife claimed she had no funds to pay her attorney’s fees. The trial court made no findings explaining its decision, nor did the court engage in an analysis of the criteria under N.D.C.C. § 14-05-23. Schulte v. Kramer, 2012 ND 163, 820 N.W.2d 318, 2012 N.D. LEXIS 176 (N.D. 2012).

After denying a father’s motion to vacate an award to a mother of primary residential responsibility, it was error to award the mother attorney’s fees under N.D.C.C. § 14-05-23 because the court found the father’s ability to pay without balancing the mother’s need. Datz v. Dosch, 2014 ND 102, 846 N.W.2d 724, 2014 N.D. LEXIS 104 (N.D. 2014).

District court did not err in awarding attorney fees to the wife on the basis of the husband's conduct during the marriage and the parties' financial needs and ability to pay. Williams v. Williams, 2015 ND 129, 863 N.W.2d 508, 2015 N.D. LEXIS 122 (N.D. 2015).

District court abused its discretion in denying a wife's request for attorney fees because it misapplied the law in its analysis when it considered whether the wife had attempted to retain a local attorney or “legal aid” attorney as apparently unreasonably escalating her attorney fees or establishing her need; there was evidence that the wife incurred attorney fees and that she had definite needs, which had to be balanced against the husband's ability to pay. Wanttaja v. Wanttaja, 2016 ND 14, 873 N.W.2d 911, 2016 N.D. LEXIS 13 (N.D. 2016).

—Improper Award.

In a hearing on a former husband’s motion to modify a spousal support award, the district court abused its discretion in awarding the former wife attorney fees when no affidavit was submitted documenting the work performed or her need; while her wage income was not substantial, she was the joint owner of a profitable commercial property. Gibb v. Sepe, 2004 ND 227, 690 N.W.2d 230, 2004 N.D. LEXIS 374 (N.D. 2004).

Trial court abused its discretion in awarding wife attorney’s fees of only $ 1,000 where husband paid his attorney $ 3,000 from borrowed money subtracted from the value of the estate; wife was entitled to additional $ 2,000 award in attorney’s fees. Lucy v. Lucy, 456 N.W.2d 539, 1990 N.D. LEXIS 127 (N.D. 1990).

Mother argued her award of attorney fees was inadequate, taking into account each party’s financial situation at the time of her request, and the father argued any award was improper because the mother was in a financially superior position; the record did not allow the review of those positions because the district court erred by failing to make specific findings in its award. Therefore, the supreme court remanded for a reevaluation of the evidence on the record and ordered the attorney fee award, if any, be supported by specific findings. Lautt v. Lautt, 2006 ND 161, 718 N.W.2d 563, 2006 N.D. LEXIS 159 (N.D. 2006).

—Marital Fault.

Trial court’s failure to explicitly address the issue of an award of attorney’s fees to wife to the extent that husband’s actions unreasonably increased the time and effort spent on the litigation was an abuse of discretion. Kautzman v. Kautzman, 1998 ND 192, 585 N.W.2d 561, 1998 N.D. LEXIS 195 (N.D. 1998).

—Time for Filing Motion.

Ex-wife’s motion for attorney fees incurred during appeal proceeding filed three months after entry of judgment was timely; the Supreme Court had previously stated that ex-wife was entitled to ask the trial court for attorney fees under this section, and thus the fifteen-day limit on attorney fees motions imposed by N.D.R.Civ.P. 54(e)(2) was inapplicable. Jorgenson v. Ratajczak, 1999 ND 65, 592 N.W.2d 527, 1999 N.D. LEXIS 71 (N.D. 1999).

Attorney’s Fees.

Although a district court misstated the law to require that a party prevail before attorney fees are awarded, its denial of the mother's motion for attorney fees was affirmed where the amount request was for both her motion to relocate and the father's motion for a change in primary residential responsibility, the specific amount of attorney fees incurred for the mother's motion for relocation was unknown, there was no evidence the father unreasonably increased time spent on the mother's motion, and the father's request for a later hearing date on the mother's motion was not unreasonable. Larson v. Larson, 2016 ND 76, 878 N.W.2d 54, 2016 N.D. LEXIS 76 (N.D. 2016).

District court erred in awarding attorney's fees and costs because the court did not separate the attorney's fees and costs for the contempt from the attorney's fees and costs for the modification of parenting time; and the court found that the ex-husband had the ability to pay the ex-wife's costs and fees, but did not make any findings about the ex-wife's need. Harvey v. Harvey, 2016 ND 251, 888 N.W.2d 543, 2016 N.D. LEXIS 249 (N.D. 2016).

District court's recognition of the parties' income disparity and the wife's fault in unreasonably escalating fees did not match its conclusion to order payment of only one-fourth of the husband's attorney fees; the remaining fees would almost completely deplete his award of temporary spousal support, and the district court misapplied the law by considering his self-limitation in his earnings in determining whether to award attorney fees. Lizakowski v. Lizakowski, 2017 ND 91, 893 N.W.2d 508, 2017 N.D. LEXIS 94 (N.D. 2017).

District court did not abuse its discretion in refusing to award the wife attorney fees under N.D.C.C. § 14-05-23 where the court found the wife and her attorney were the persons who unnecessarily increased attorney fees and costs. Allmon v. Allmon, 2017 ND 122, 894 N.W.2d 869, 2017 N.D. LEXIS 117 (N.D. 2017).

District court’s award of attorney’s fees to a wife was not an abuse of discretion because the district court made specific findings on the parties’ income disparities, the wife’s needs, and the husband’s ability to pay. Friesner v. Friesner, 2019 ND 30, 921 N.W.2d 898, 2019 N.D. LEXIS 28 (N.D. 2019).

District court did not abuse its discretion in denying a wife’s motion to reopen the record and for other relief and did not abuse its discretion in awarding the husband attorney’s fees because it found that the wife’s motion was merely an inappropriate attempt to continue the trial; the district court explained its decision and awarded the husband’s attorney’s fees, which it deducted from the wife’s property distribution because her motion was inappropriate, unfounded and without merit. Rhodenbaugh v. Rhodenbaugh, 2019 ND 109, 925 N.W.2d 742, 2019 N.D. LEXIS 104 (N.D. 2019).

District court distributed the parties’ property because it was not unreasonable to consider untitled recreational vehicles and the dock at the marital home as contents of the household, the parties abandoned or were not strictly following certain provisions of the prenuptial agreement, and they had sufficient financial means to bear their own attorney fees. Tschider v. Tschider, 2019 ND 112, 926 N.W.2d 126, 2019 N.D. LEXIS 115 (N.D. 2019).

Wife’s attorney’s fees award did not err because a husband was properly sanctioned for unnecessarily increasing time spent on the case by obstructing discovery, moving to vacate and amend findings without new evidence, and moving to amend an order appointing a parenting investigator, although the award could be reconsidered given reversal of a property distribution. Lizakowski v. Lizakowski, 2019 ND 177, 930 N.W.2d 609, 2019 N.D. LEXIS 180 (N.D. 2019).

Because the district court did not adequately explain its decision denying a wife’s request for attorney’s fees, the supreme court was unable to determine whether the district court properly considered the factors and whether it properly applied the law; thus, the supreme court remanded for reconsideration and for the district court to make adequate findings explaining its decision. Willprecht v. Willprecht, 2020 ND 77, 941 N.W.2d 556, 2020 N.D. LEXIS 76 (N.D. 2020).

Contempt.

Where the court entered an order requiring payment of allowances of three different amounts, and the order was erroneous with respect to one of the amounts but valid and proper as to the other two, the defendant was guilty of civil contempt by his failure to comply with any portion of the order. Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 1949 N.D. LEXIS 63 (N.D. 1949).

Punishment for inexcusable failure to pay allowances ordered to be paid in divorce actions came under subsection 3 of former section 27-10-03. Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 1949 N.D. LEXIS 63 (N.D. 1949); Raszler v. Raszler, 80 N.W.2d 535, 1956 N.D. LEXIS 169 (N.D. 1956).

Discretion of Court.

Whether or not the trial court awards attorney’s fees in an action for divorce is within its discretion. The trial court’s decision will not be disturbed on appeal unless the party appealing affirmatively establishes that the trial court abused its discretion. Heller v. Heller, 367 N.W.2d 179, 1985 N.D. LEXIS 314 (N.D. 1985).

The trial court’s discretion in awarding attorney’s and expert witness’ fees in a divorce action will not be disturbed on appeal unless the party appealing affirmatively establishes that the trial court abused its discretion. Bagan v. Bagan, 382 N.W.2d 645, 1986 N.D. LEXIS 266 (N.D. 1986).

District court had the authority to award past due child support, though obligee parent failed to use the statutory remedy for support during the pendency of an action under this section. Linrud v. Linrud, 552 N.W.2d 342, 1996 N.D. LEXIS 181 (N.D. 1996).

Where the mother received partial attorney fees in the amount of $ 2,000 paid by the father in the parties’ divorce action, wife did not demonstrate a need for an additional attorney fee award under this section. Schmidt v. Schmidt, 2003 ND 55, 660 N.W.2d 196, 2003 N.D. LEXIS 72 (N.D. 2003).

Because the district court balanced the ex-wife's needs against the ex-husband's ability to pay and considered the parties' property awards, relative incomes, and whether the action of either party unreasonably increased the time spent on the case, the district court did not abuse its discretion in failing to award the ex-wife's attorney fees. Feist v. Feist, 2015 ND 98, 862 N.W.2d 817, 2015 N.D. LEXIS 99 (N.D. 2015).

Fees Paid from Marital Assets.

For a case discussing wife’s assertion that she should be awarded the amount that she contributed towards husband’s attorney’s fees because husband paid his attorney’s fees from marital assets, which were later divided in the divorce action, see Kitzmann v. Kitzmann, 459 N.W.2d 789, 1990 N.D. LEXIS 158 (N.D. 1990).

Final Division of Property.

Although a final division of property in a separation judgment is binding on any subsequent divorce action, this does not mean that an award of support or custody in that same separation judgment may not be modified upon a later showing of changed circumstances. Fedora v. Fedora, 403 N.W.2d 10, 1987 N.D. LEXIS 280 (N.D. 1987).

Jurisdiction.

District court erred in refusing to address the issue of child support because it had original jurisdiction to enter a child support order in conjunction with the divorce proceeding, superseding the temporary order entered in another district court while the divorce was pending and the parties were still married; by its terms, the temporary child support judgment did not divest the divorce court of jurisdiction to award child support as part of the divorce judgment. Wanttaja v. Wanttaja, 2016 ND 14, 873 N.W.2d 911, 2016 N.D. LEXIS 13 (N.D. 2016).

While a married person may maintain a child support action against a spouse, that judgment may be modified or vacated “at any time” after a hearing. as such, N.D.C.C. §§ 14-05-22 and 14-05-23 operate to provide the district court in divorce proceedings with original jurisdiction to award appropriate child support under the guidelines for the parties' children as part of a final divorce judgment. Wanttaja v. Wanttaja, 2016 ND 14, 873 N.W.2d 911, 2016 N.D. LEXIS 13 (N.D. 2016).

Marital Fault.

Fault is a consideration in awarding attorney fees only to the extent that one party has escalated the fees unreasonably. Foreng v. Foreng, 509 N.W.2d 38, 1993 N.D. LEXIS 222 (N.D. 1993).

Where the trial court took into account each party’s resources and costs it did not abuse its discretion in awarding attorney fees to former wife, regardless of her infidelity. Foreng v. Foreng, 509 N.W.2d 38, 1993 N.D. LEXIS 222 (N.D. 1993).

Modification Proceedings.

Attorney fees can be awarded in the discretion of the trial court, under this section, to a party in modification proceedings. Pitsenbarger v. Pitsenbarger, 382 N.W.2d 662, 1986 N.D. LEXIS 262 (N.D. 1986).

Where a trial court failed to make specific findings of fact concerning a motion to modify spousal support under N.D.C.C. § 14-05-24.1 and a motion for attorney fees under N.D.C.C. § 14-05-23, a remand was necessary for compliance with N.D.R.Civ.P. 52(a) to allow for sufficient judicial review. Rothberg v. Rothberg, 2006 ND 65, 711 N.W.2d 219, 2006 N.D. LEXIS 69 (N.D. 2006).

District court had jurisdiction under N.D.C.C. § 14-05-23 to hear a mother’s motion to modify child support while an appeal on unrelated issues was pending. Siewert v. Siewert, 2008 ND 221, 758 N.W.2d 691, 2008 N.D. LEXIS 212 (N.D. 2008).

Notice.

The allowance should be made only upon due notice to the husband, giving him a reasonable opportunity to resist the application therefor. Bailey v. Bailey, 22 N.D. 553, 134 N.W. 747, 1912 N.D. LEXIS 45 (N.D. 1912).

Payable During Pendency of Appeal.

Liability for the payment of alimony pendente lite continues during the pendency of an appeal even though no order has been made to that effect. Raszler v. Raszler, 80 N.W.2d 535, 1956 N.D. LEXIS 169 (N.D. 1956).

Where divorce judgment was silent as to an interim order requiring payment of temporary support, such order continued in effect during appeal of the judgment. Rudel v. Rudel, 279 N.W.2d 651, 1979 N.D. LEXIS 252 (N.D. 1979).

Right of Action of Husband.

A separate and equitable action will lie in favor of the husband to compel the wife to support and maintain him, when amply able to do so, if the wife has not been deserted or abandoned by him and if, because of age and infirmity, he is unable to make his own livelihood. Hagert v. Hagert, 22 N.D. 290, 133 N.W. 1035, 1911 N.D. LEXIS 61 (N.D. 1911).

Section Is Exclusive.

This section was intended to be exclusive and to embrace the entire subject matter of the allowance of alimony, counsel fees, and suit money pendente lite. State ex rel. Hagert v. Templeton, 18 N.D. 525, 123 N.W. 283, 25 L.R.A. (n.s.) 234 (1909) decided prior to the enactment of N.D.C.C. § 14-05-24; Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 1949 N.D. LEXIS 63 (N.D. 1949).

This section is intended to be the exclusive statutory authority for the awarding of attorney’s fees during the pendency of a divorce action or at any time a family court has jurisdiction, and an action under section 14-07-10 to recover such fees was properly dismissed. Johnson & Maxwell, Ltd. v. Lind, 288 N.W.2d 763, 1980 N.D. LEXIS 177 (N.D. 1980).

Support of Minor Children.

Where trial court order required husband to make monthly lump sum temporary child support payments to his wife, fact that one of the minor children moved from the home of the wife into the husband’s home subsequent to such temporary support order did not entitle the husband, in the absence of modification of such order by the trial court, to independently on his own reduce the amount of temporary child support paid to his wife. Klitzke v. Klitzke, 308 N.W.2d 385, 1981 N.D. LEXIS 335 (N.D. 1981).

Term of Spousal Support.

The lack of a term for spousal support was not erroneous where the trial court noted in a post-judgment hearing that spousal support could be discontinued as soon as the wife was rehabilitated. Behm v. Behm, 427 N.W.2d 332, 1988 N.D. LEXIS 161 (N.D. 1988).

The trial court may award temporary support “[d]uring any time in which an action for divorce is pending,” and unless challenged within five days of service, an order awarding temporary support “shall be final and nonappealable pending a final determination of the issues raised by the pleadings or until further order of the court.” Ness v. Ness, 467 N.W.2d 716, 1991 N.D. LEXIS 57 (N.D. 1991).

To Whom Payable.

Suit money allowed in a divorce action should be payable to the applicant and not to the attorney. Bailey v. Bailey, 22 N.D. 553, 134 N.W. 747, 1912 N.D. LEXIS 45 (N.D. 1912).

An order making the sums awarded payable to the plaintiff or her attorney in the alternative does not render the order void. Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 1949 N.D. LEXIS 63 (N.D. 1949).

Collateral References.

Misconduct or fault of wife as affecting right to temporary alimony, 2 A.L.R.2d 307.

Dismissal of divorce suit as affecting prior order for payment of attorney’s fees, 11 A.L.R.2d 1407.

Jurisdiction as to alimony or maintenance pending appeal of matrimonial action, 19 A.L.R.2d 703.

Pension of husband as resource which court may consider in determining amount of alimony, 22 A.L.R.2d 1421.

Husband’s right to maintenance, suit money or attorney’s fees, 66 A.L.R.2d 880.

Right of wife to allowance for expense money and attorneys’ fees in action by or against husband, without divorce, for child custody, 82 A.L.R.2d 1088.

Credit for payments on temporary alimony pending appeal, against liability for permanent alimony, 86 A.L.R.2d 696.

Notice: necessity and sufficiency of notice and hearing as to allowance of suit money or counsel fees in divorce or other marital action, 10 A.L.R.3d 280.

Notice: necessity of notice of application for temporary custody of child, 31 A.L.R.3d 1378.

Adverse judgment: wife’s right to award of counsel fees in final divorce judgment of trial or appellate court as affected by the fact that judgment was rendered against her, 32 A.L.R.3d 1227.

Wife’s possession of independent means as affecting her right to alimony pendente lite, 60 A.L.R.3d 728.

Wife’s possession of independent means as affecting her right to child support pendente lite, 60 A.L.R.3d 832.

Excessiveness or adequacy of money awarded as temporary alimony, 26 A.L.R.4th 1218.

Court’s authority to award temporary alimony or suit money in action for divorce, separate maintenance, or alimony where the existence of a valid marriage is contested, 34 A.L.R.4th 814.

Reconciliation as affecting decree for limited divorce, separation, alimony, separate maintenance, or spousal support, 36 A.L.R.4th 502.

Right to attorney’s fees in proceeding, after absolute divorce, for modification of child custody or support order, 57 A.L.R.4th 710.

Power to modify spousal support award for limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent, 62 A.L.R.4th 180.

Voluntary contributions to child’s education expenses as factor justifying modification of spousal support award, 63 A.L.R.4th 436.

Withholding visitation rights for failure to make alimony or support payments, 65 A.L.R.4th 1155.

Spouse’s right to set off debt owed by other spouse against accrued spousal or child support payments, 11 A.L.R.5th 259.

Excessiveness or adequacy of attorneys’ fees in domestic relations cases, 17 A.L.R.5th 366.

Divorce and separation: attorney’s contingent fee contracts as marital property subject to distribution, 44 A.L.R.5th 671.

Religion as factor in child custody cases, 124 A.L.R.5th 203.

Law Reviews.

North Dakota Supreme Court Review, (Solem v. Solem, 2008 ND 211, 757 N.W.2d 748 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

In General.

The statute authorizes a division of property between the parties only if a divorce is granted. Hoellinger v. Hoellinger, 38 N.D. 636, 166 N.W. 519, 1918 N.D. LEXIS 3 (N.D. 1918); Orwick v. Orwick, 153 N.W.2d 795, 1967 N.D. LEXIS 121 (N.D. 1967).

The power of a court to decree a property settlement is derived from the statute and not from written agreement and stipulation of the parties. Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 697, 1947 N.D. LEXIS 70 (N.D. 1947); Harchenko v. Harchenko, 77 N.D. 289, 43 N.W.2d 200, 1950 N.D. LEXIS 129 (N.D. 1950).

Because marriage was dissolved by death and not by divorce, the trial court did not err when it held that there was no longer a marriage to be dissolved and, therefore, no issue of property distribution remaining before the court. Thorson v. Thorson, 541 N.W.2d 692, 1996 N.D. LEXIS 2 (N.D. 1996).

Alimony Distinguished from Property.

In discerning whether an amount paid by one spouse to the other is a property division or spousal support, several factors must be considered. Factors which may indicate that the payments are distributions of property include: payments that do not terminate after the obligee dies payments that continue even after obligee remarries excluding the payments in controversy, a large disparity in the property divided which is otherwise unexplained, payments that do not terminate on the obligor’s death. In addition, security for payment may tend to indicate property distribution since deferred-property payments are dischargeable in bankruptcy, unlike spousal-support payments. Redlin v. Redlin, 436 N.W.2d 5, 1989 N.D. LEXIS 32 (N.D. 1989).

Factors which may indicate the amount paid by one spouse to the other is spousal support include: payments are monthly and payments terminate upon the obligee’s death or remarriage. Redlin v. Redlin, 436 N.W.2d 5, 1989 N.D. LEXIS 32 (N.D. 1989).

Appeal.

—Acceptance of Benefits.

Where wife appealed divorce decree and husband moved for dismissal of appeal on ground that wife had accepted substantial benefits under judgment, court held that wife’s acceptance of property which had been given with husband’s consent and acceptance of child support payments did not preclude her from bringing the appeal. Piper v. Piper, 234 N.W.2d 621, 1975 N.D. LEXIS 124 (N.D. 1975).

Payments made pursuant to court order by husband on real estate mortgage on the home occupied by the wife did not constitute a voluntary acceptance of benefits by the wife under the divorce judgment so as to preclude her right to appeal that judgment, nor did the sale by the wife of a small portion of personal property, including property awarded her under the judgment as well as other property of which the ownership was in dispute, estop her from appealing. Nastrom v. Nastrom, 276 N.W.2d 130, 1979 N.D. LEXIS 225 (N.D. 1979).

Acceptance of benefits awarded by a divorce decree is not a waiver of the right to appeal from such decree where the accepting party is entitled to such benefits without the decree. Hoge v. Hoge, 281 N.W.2d 557, 1979 N.D. LEXIS 188, 1979 N.D. LEXIS 246 (N.D. 1979).

Party who objects to an appeal of alimony or property division issues on the basis of waiver of right to appeal due to acceptance of benefits under the decree has the burden of proving that the accepting party was not entitled to the accepted benefits except by the decree. Hoge v. Hoge, 281 N.W.2d 557, 1979 N.D. LEXIS 188, 1979 N.D. LEXIS 246 (N.D. 1979).

Wife accepted substantial benefits under the divorce judgment and, therefore, waived her right to appeal the property division where the only property awarded to her by the divorce decree which was not her separate property was a mobile home which was held jointly by wife and husband; wife took affirmative steps to transfer title of the mobile home to her name pending the appeal; there was nothing to indicate that wife would not have been able to live in the mobile home pending appeal without having title transferred to her name; and wife would not, in view of the parties’ circumstances and agreements, have been entitled to the mobile home but for the divorce decree. Geier v. Geier, 332 N.W.2d 261, 1983 N.D. LEXIS 274 (N.D. 1983).

Party to a divorce action who accepts substantial benefits pursuant to divorce judgment thereby waives right to appeal from judgment. White v. White, 434 N.W.2d 361, 1989 N.D. LEXIS 11 (N.D. 1989).

Where wife transferred title to homestead to her name, transferred rights to bar and liquor license, and divided remaining items of property of substantial value, wife accepted substantial benefits under divorce judgment; therefore, wife waived her right to appeal. White v. White, 434 N.W.2d 361, 1989 N.D. LEXIS 11 (N.D. 1989).

Because of the unique status of a divorce judgment which divides property that is often jointly owned or at least has been jointly enjoyed during the marriage, joint or individual possession of an asset during the pendency of a divorce action does not constitute acceptance of a benefit. Spooner v. Spooner, 471 N.W.2d 487, 1991 N.D. LEXIS 102 (N.D. 1991).

Husband’s motion to dismiss an appeal from a property distribution and spousal support award was denied because the husband did not clearly establish that the wife waived the right to appeal by accepting the benefits of the divorce judgment; the husband did not argue that the wife was entitled to less property or support. Sommers v. Sommers, 2003 ND 77, 660 N.W.2d 586, 2003 N.D. LEXIS 86 (N.D. 2003).

—Jurisdiction of Trial Court.

Trial court lacked jurisdiction to enter an order amending the divorce judgment after an appeal therefrom had been filed since jurisdiction of the supreme court attached upon the filing. Harwood v. Harwood, 283 N.W.2d 144, 1979 N.D. LEXIS 287 (N.D. 1979).

—Standard of Review.

The findings of fact upon which the court’s determination of alimony and property division in a divorce action are based will not be overturned on appeal unless they are clearly erroneous. Haugeberg v. Haugeberg, 258 N.W.2d 657, 1977 N.D. LEXIS 201 (N.D. 1977); Haberstroh v. Haberstroh, 258 N.W.2d 669, 1977 N.D. LEXIS 168 (N.D. 1977).

The equitableness of a property division in a divorce case is treated as a finding of fact and will not be reversed on appeal unless clearly erroneous. Schmidt v. Schmidt, 325 N.W.2d 230, 1982 N.D. LEXIS 350 (N.D. 1982).

Trial court’s determinations on matters of property division are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous. Heller v. Heller, 367 N.W.2d 179, 1985 N.D. LEXIS 314 (N.D. 1985); Hedin v. Hedin, 370 N.W.2d 544, 1985 N.D. LEXIS 344 (N.D. 1985); Blowers v. Blowers, 377 N.W.2d 127, 1985 N.D. LEXIS 433 (N.D. 1985).

The trial court’s determinations on matters of property division are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a), or are induced by an erroneous conception of the law. Anderson v. Anderson, 368 N.W.2d 566, 1985 N.D. LEXIS 329 (N.D. 1985).

The supreme court’s standard of review of a trial court’s disposition of a motion to modify the provisions in a divorce decree is governed by N.D.R.Civ.P. 52(a). Tiokasin v. Haas, 370 N.W.2d 559, 1985 N.D. LEXIS 347 (N.D. 1985).

A property division will not be set aside on appeal because of the trial court’s failure to show the basis for it, if that basis is reasonably discernible by deduction or inference. Blowers v. Blowers, 377 N.W.2d 127, 1985 N.D. LEXIS 433 (N.D. 1985).

The trial court’s determinations on matters of property division in divorce cases are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous. The fact that the reviewing court might have viewed the facts differently if they had been presented to it initially as the trier of fact does not entitle it to reverse the lower court. Routledge v. Routledge, 377 N.W.2d 542, 1985 N.D. LEXIS 426 (N.D. 1985).

The trial court’s determinations on property division or spousal support will not be set aside for failure to explicitly state the basis for such findings, if that basis is reasonably discernible by deduction or inference. Routledge v. Routledge, 377 N.W.2d 542, 1985 N.D. LEXIS 426 (N.D. 1985).

Custody determinations, property divisions and awards of spousal support are all questions of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a). Bader v. Bader, 448 N.W.2d 187, 1989 N.D. LEXIS 223 (N.D. 1989).

A trial court’s determination on matters of property division are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Hecker v. Hecker, 448 N.W.2d 207, 1989 N.D. LEXIS 219 (N.D. 1989).

The trial court’s determination on a motion to modify a divorce decree will not be set aside on appeal unless it is clearly erroneous. Schaff v. Schaff, 449 N.W.2d 570, 1989 N.D. LEXIS 247 (N.D. 1989).

Generally, if evidence supports the trial court’s division of property, it is not clearly erroneous under N.D.R.Civ.P., Rule 52(a). Martin v. Martin, 450 N.W.2d 768, 1990 N.D. LEXIS 28 (N.D. 1990).

A division of marital property is viewed as a finding of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a). Heggen v. Heggen, 452 N.W.2d 96, 1990 N.D. LEXIS 52 (N.D. 1990).

A trial court’s determinations on matters of property division are treated as findings of fact subject to the “clearly erroneous” standard of N.D.R.Civ.P. 52(a). Freed v. Freed, 454 N.W.2d 516, 1990 N.D. LEXIS 94 (N.D. 1990).

Parties failed to establish that a trial court’s findings regarding a marital property distribution were clearly erroneous under N.D.C.C. § 14-05-24(1); the trial court awarded the husband $ 2 million of the net marital assets and awarded the wife $ 2 million of the net marital assets. Martiré v. Martiré, 2012 ND 197, 822 N.W.2d 450, 2012 N.D. LEXIS 205 (N.D. 2012).

Application.

Trial court did not apply this section where the parties were not married; the trial court specifically noted in its decision that the action was not a dissolution proceeding. McKechnie v. Berg, 2003 ND 136, 667 N.W.2d 628, 2003 N.D. LEXIS 149 (N.D. 2003).

Attorney’s Fees and Costs.

The taxing of costs is discretionary with the trial court in a divorce case; fact that trial court grants mutual divorces does not preclude the taxation of costs against one of the parties. Klitzke v. Klitzke, 308 N.W.2d 385, 1981 N.D. LEXIS 335 (N.D. 1981).

In an equitable distribution suit, the trial court has discretion to award costs as well as attorney’s fees. Pfliger v. Pfliger, 461 N.W.2d 432, 1990 N.D. LEXIS 203 (N.D. 1990).

The trial court divided the parties’ largest assets equally, there was no substantial disparity in the property distribution, and the trial court did not err in failing to add the husband’s trial attorney fees to his debts. Heinz v. Heinz, 2001 ND 147, 632 N.W.2d 443, 2001 N.D. LEXIS 161 (N.D. 2001).

Clarification of Judgment.

Where, at the time of divorce, husband was awarded a significant portion of the income-producing property, while wife was to receive the residence free and clear of the mortgage, and the judgment did not prohibit wife from selling the residence nor provide for release of husband’s obligation, in the event of sale, the court’s action on wife’s petition in ordering the continuation of payments of principal and interest (but not taxes and insurance) following wife’s sale of the property and payment of the mortgage with the proceeds did not amount to a modification of the original judgment, but was a clarification only. As such, it was permissible. Wastvedt v. Wastvedt, 371 N.W.2d 142, 1985 N.D. LEXIS 357 (N.D. 1985).

Continuing Jurisdiction.

Phrase “upon request of the other parent” in N.D.C.C. § 14-05-22(2) does not limit the district court’s continuing jurisdiction, nor does that phrase limit either parent’s ability to invoke the court’s continuing jurisdiction to address issues relating to “parenting rights and responsibilities” under § 14-05-22(1). Section 14-05-22 permits a motion to modify parenting time by the parent with primary residential responsibility. Prchal v. Prchal, 2011 ND 62, 795 N.W.2d 693, 2011 N.D. LEXIS 54 (N.D. 2011).

Delayed Payment.

Where the trial court was aware that it could not make an immediate distribution of cash to wife because no such cash existed, and also based its decision to delay payment on its understanding that to require husband to liquidate assets so that he might be able to pay wife an immediate sum of cash would in effect reduce his ability to successfully operate his realty business, under the circumstances the trial court could properly delay for five years the payment of a one hundred sixteen thousand, five hundred dollar award. Linn v. Linn, 370 N.W.2d 536, 1985 N.D. LEXIS 343 (N.D. 1985).

Although immediate payment by husband of total monetary award for wife’s share of marital property was an abuse of discretion, 25 years in which to make full payments was equally erroneous; a period of 15 years to pay the obligation was held to be sufficient and fair to both parties. Heggen v. Heggen, 541 N.W.2d 463, 1996 N.D. LEXIS 9 (N.D. 1996).

Discretion of Trial Court.

The trial court has discretion in making a determination of a just award, and such award depends upon the facts and circumstances of each case. Linn v. Linn, 370 N.W.2d 536, 1985 N.D. LEXIS 343 (N.D. 1985).

A determination of what constitutes an equitable distribution of property in a divorce action lies within the discretion of the trial court and will be dependent upon the facts and circumstances of each case. Volk v. Volk, 376 N.W.2d 16, 1985 N.D. LEXIS 417 (N.D. 1985).

When the enforcement of the money judgment awarded greatly depresses the value of the marital property, the trial court has abused its discretion. Heggen v. Heggen, 488 N.W.2d 627, 1992 N.D. LEXIS 182 (N.D. 1992).

Disparity.

Where land accumulated through the joint efforts of husband and wife over thirty years of marriage was divided so that the wife received four hundred acres including the homestead and husband received four hundred and forty acres including farm buildings, the division was equitable under the circumstances, even though it was contended that the allocation to the husband was of less value, and even though part of the land allocated to the husband was separated from the rest by a distance of nine miles. Fischer v. Fischer, 139 N.W.2d 845, 1966 N.D. LEXIS 198 (N.D. 1966).

Where the only explanation given by the trial court for the substantial disparity in property division between the parties was that it credited gifts from the wife’s family, the award was clearly erroneous. Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 1994 N.D. LEXIS 30 (N.D. 1994).

Although the trial court did not make an exact equal division of the property, the court adequately explained why it awarded husband about $ 4,500 more property than wife; the marriage was of relatively short duration, and the court found husband brought considerably more property into the marriage than wife; at the time of the hearing wife was earning more than husband, furthermore, husband was 43 years old while wife was only 27 years old, so wife had both greater income and presumably more years to accumulate an estate. Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 1995 N.D. LEXIS 45 (N.D. 1995).

The district court did not adequately explain its reasoning for the substantial disparity in the distribution of assets by noting that the proportional incomes made by each of the parties in the last four years of the marriage were the percentages used in dividing the property. Linrud v. Linrud, 552 N.W.2d 342, 1996 N.D. LEXIS 181 (N.D. 1996).

Where marriage was of relatively short duration, and husband brought considerable assets into the marriage while wife began the marriage with a negative net worth, the trial court’s property division awarding wife only fourteen percent of the marital estate was not clearly erroneous. Wetzel v. Wetzel, 1999 ND 29, 589 N.W.2d 889, 1999 N.D. LEXIS 31 (N.D. 1999).

Property division was not clearly erroneous where trial court awarded wife a greater percentage of the property in order to correct a disparity between the parties and where the Ruff-Fischer guidelines and the trial court’s explanation were adequate to understand the basis for the property distribution. Corbett v. Corbett, 2001 ND 113, 628 N.W.2d 312, 2001 N.D. LEXIS 126 (N.D. 2001).

District court’s properly distribution was not clearly erroneous because the district court considered the source of the property and the Ruff-Fischer guidelines and allocated most of the farmland and all of the parties’ debt to the husband and also ordered him to pay to the wife an equalization payment; the district court adequately explained the disparity in the distribution. Willprecht v. Willprecht, 2020 ND 77, 941 N.W.2d 556, 2020 N.D. LEXIS 76 (N.D. 2020).

Division of Property.

—Debt.

The trial court erroneously excluded from calculation of the marital estate the pre-marital portion of debt owed to the husband’s parents from loans made to him before and during the marriage; the total amount of the debt was the joint liability of the parties and should be equitably divided in dividing the overall marital estate. Neidviecky v. Neidviecky, 2003 ND 29, 657 N.W.2d 255, 2003 N.D. LEXIS 33 (N.D. 2003).

In a divorce case, a trial court erred by dividing the marital property under N.D.C.C. § 14-05-24(1) when it failed to include business debts accumulated by a husband during the marriage. Brandner v. Brandner, 2005 ND 111, 698 N.W.2d 259, 2005 N.D. LEXIS 127 (N.D. 2005).

Former wife was jointly and severally liable for the debt incurred by her former husband for necessary medical care while they were married and living together. The divorce judgment between the husband and wife which provided for an equitable distribution of their property and debts under N.D.C.C. § 14-05-24 did not affect the collection company’s statutory right to recover the debt under N.D.C.C. §§ 14-07-08(3), 14-07-10; res judicata did not apply because there was no identity of parties, subject matter, or cause of action between the divorce proceeding and the collection proceeding. Recovery Res., LLC v. Cupido, 2012 ND 143, 818 N.W.2d 787, 2012 N.D. LEXIS 142 (N.D. 2012).

Wife did not meet her burden of showing that the district court erred in allocating the mortgage, but because the court was remanding anyway, the district court could reconsider this on remand. Rebel v. Rebel, 2013 ND 116, 833 N.W.2d 442, 2013 N.D. LEXIS 117 (N.D. 2013).

In parties’ divorce action, the trial court erred by not including a tax debt in the marital estate for purposes of equitable distribution because by excluding the debt from the marital estate, the court on appeal was unable to determine whether the trial court would have reached the same result in its allocation of the assets and debts. Holte v. Holte, 2013 ND 174, 837 N.W.2d 894, 2013 N.D. LEXIS 177 (N.D. 2013).

Husband's farm debt was not marital debt where the evidence showed that the debt was not legitimate. Weigel v. Weigel, 2015 ND 270, 871 N.W.2d 810, 2015 N.D. LEXIS 286 (N.D. 2015).

District court did not abuse its discretion in denying a wife's new trial motion regarding the amount of medical debt because it specifically explained that the wife had not presented sufficient evidence at trial to find more than the $ 3,000 in medical debt agreed upon by the husband; the district court accepted the husband's value of the medical debut in his property and debt listing, and its finding was based on the evidence presented at trial and was within the range of evidence presented. Wanttaja v. Wanttaja, 2016 ND 14, 873 N.W.2d 911, 2016 N.D. LEXIS 13 (N.D. 2016).

—Upheld.

Divorce settlement awarding wife $ 23,000 and husband, who had custody of two minor sons, 726-acre family farm, all farm machinery, livestock, tools, and other personal property was equitable under circumstances, both parties having been entitled to divorce. Doll v. Doll, 162 N.W.2d 691, 1968 N.D. LEXIS 74 (N.D. 1968).

Distribution of property under this section was equitable where father had child support obligation and where wife was awarded over one half of net value of assets of parties, as determined by experienced appraisers, to be paid in installments by husband and secured by lien on real property. Wiedrich v. Wiedrich, 179 N.W.2d 728, 1970 N.D. LEXIS 131 (N.D. 1970).

Division of property and alimony award was reasonable under which wife’s income, consisting of social security payments, rent, and alimony, amounted to $ 342 per month and husband’s income after taxes minus alimony amounted to $ 395 per month and under which the parties each received a tenancy in common in the family home subject to the wife’s life estate. Johnson v. Johnson, 211 N.W.2d 759, 1973 N.D. LEXIS 115 (N.D. 1973).

Trial court did not abuse its discretion by awarding plaintiff-wife a quarter section of land subject to a ten-year lease to defendant-husband at a specified rental amount, subject to husband’s option to buy at a specified price at any time during the ten-year period, and subject to restriction that if husband declined to buy and wife sold land on the open market such sale would be subject to husband’s lease during the period. Fries v. Fries, 288 N.W.2d 77, 1980 N.D. LEXIS 184 (N.D. 1980).

Property division which essentially gave each party the property they brought into the marriage and repaid wife for the expenditures of her inheritance during the parties’ marriage was not clearly erroneous. Blowers v. Blowers, 377 N.W.2d 127, 1985 N.D. LEXIS 433 (N.D. 1985).

Where the husband worked two full-time jobs, bore many management responsibilities for the home and children, accumulated property and made investments, and the wife was responsible for the separation, distribution of greater portion of the marital estate to the husband could be equitable. Volk v. Volk, 404 N.W.2d 495, 1987 N.D. LEXIS 290 (N.D. 1987).

Where the trial court found marital misconduct, physical abuse and financial misconduct on the part of the husband, equal division of inherited property between husband and wife was not clearly erroneous. Behm v. Behm, 427 N.W.2d 332, 1988 N.D. LEXIS 161 (N.D. 1988).

Where husband complained that the property distribution was unfair because five bank and savings accounts totalling $ 23,755 were divided equally, thus exploiting those which he considered his separate property because they had been accumulated from his farm income and from family gifts, and where property worth over $ 100,000 was set aside to each, and where husband complained that, not counting her social security, wife received $ 6,000 more than he did, neither the source of ownership nor the title to property dictated distribution of an item of property to the spouse who acquired it during the marriage. The disparity in the value of property distributed was not so great that the division of all bank accounts equally was inequitable or unexplainable. Olson v. Olson, 445 N.W.2d 1, 1989 N.D. LEXIS 139 (N.D. 1989).

Award of property valued at $ 268,024 to 68-year-old wife, undergoing cancer treatment, and of $ 188,234 to 80-year-old husband in relatively good health, was not clearly erroneous where: the parties came to their marriage self-supporting and so continued throughout their 29 years of marriage; wife provided a substantial majority of the parties’ income throughout the marriage; and failure of the marriage was attributable in large part to husband’s attitude and behavior toward wife and her daughter from her first marriage. Hecker v. Hecker, 448 N.W.2d 207, 1989 N.D. LEXIS 219 (N.D. 1989).

Trial court’s property division was not erroneous where: wife received numerous pieces of personal property with a net value slightly exceeding fifteen thousand dollars; husband received the real property and remaining personal property of the marital estate with a net value slightly exceeding $ 118,000; and husband was ordered to pay wife forty five thousand dollars over a ten-year period. The order resulted in a final property award to wife of approximately $ 60,000, and a final property award to husband of approximately $ 73,000. Freed v. Freed, 454 N.W.2d 516, 1990 N.D. LEXIS 94 (N.D. 1990).

Husband’s contention that the trial court unfairly allocated a large portion of the marital debt to him was without merit where most of the debt in controversy was debt which husband agreed to assume because it related to his business, or was related to the real property acquired by husband in the property division. Freed v. Freed, 454 N.W.2d 516, 1990 N.D. LEXIS 94 (N.D. 1990).

Award to former wife of all real-estate, quarter-section of inherited land and 3.3 acre lot while former husband received most income-producing property (sheep, farm equipment, and 1988 farming proceeds) and mobile home was equitable where court found husband had greater earning power and court attributed marital fault to husband. Pfliger v. Pfliger, 461 N.W.2d 432, 1990 N.D. LEXIS 203 (N.D. 1990).

A defendant’s dissipation of most of a marital estate, primarily through his flight from justice, justifies an award of the remaining assets to the plaintiff. Bell v. Bell, 540 N.W.2d 602, 1995 N.D. LEXIS 228 (N.D. 1995).

Trial court did not err in valuing marital estate by taking into account debts for stepchildren’s college expenses, and by satisfactorily explaining why it made an unequal division. Schwartz v. Schwartz, 1997 ND 91, 563 N.W.2d 391, 1997 N.D. LEXIS 88 (N.D. 1997).

Award to wife of debt and property resulting in a negative net distribution to her of $ 14,670.76 and award to husband of debt and property to husband resulting in a positive net distribution of $ 7,824.82 was not clearly erroneous; trial court found that wife, who had earned a masters degree during the marriage, had a substantially higher annual income than husband, who only had a high school diploma. Schmaltz v. Schmaltz, 1998 ND 212, 586 N.W.2d 852, 1998 N.D. LEXIS 239 (N.D. 1998).

Where the husband brought a substantial amount of real estate to the marriage, but the wife made substantial direct and indirect contributions to the husband’s real estate investment and management activities, a nearly equal division of the real property was not an abuse of discretion. Peterson v. Peterson, 1999 ND 191, 600 N.W.2d 851, 1999 N.D. LEXIS 215 (N.D. 1999).

Former husband was unable to appeal a divorce judgment that divided the marital property by adopting the findings of a prior separation judgment because there was nothing to indicate that the award, which awarded the wife 50 percent of a retirement account and valued the marital property, was temporary. Cannaday v. Cannaday, 2003 ND 58, 659 N.W.2d 363, 2003 N.D. LEXIS 71 (N.D. 2003).

District court did not err by setting the value of a residence at $ 175,000 where the evidence showed that the house was listed for sale at that price, but later reduced slightly, and a realtor testified that the house could have sold for between $ 160,000 and $ 170,000. Moreover, the district court did not err by finding that payments made by one spouse’s parent were a gift, rather than a loan, and retirement benefits were subject to division. Marquette v. Marquette, 2006 ND 154, 719 N.W.2d 321, 2006 N.D. LEXIS 156 (N.D. 2006).

In a divorce case, there was no error relating to the division of marital property under N.D.C.C. § 14-05-24(1) because the valuation of a business was within the range given by two experts where a business had the potential to earn more than $ 200,000 per year; moreover, the husband’s outrageous conduct was taken into account. Wold v. Wold, 2008 ND 14, 744 N.W.2d 541, 2008 N.D. LEXIS 14 (N.D. 2008).

Trial court’s property distribution was not clearly erroneous, because the husband received a net property award of $ 333,957.59 and the wife received a net property award of $ 318,346.09. Krueger v. Krueger, 2008 ND 90, 748 N.W.2d 671, 2008 N.D. LEXIS 99 (N.D. 2008).

Property valuation was not clearly erroneous and the trial court did not err as a matter of law in deciding the husband was entitled to a greater share of the marital estate, because the district court was presented with conflicting evidence that gave a range for the property valuations, and after calculating the entire marital estate, the district court, in considering the Ruff-Fischer factor regarding the origin of property found the husband entered the marriage with nearly twice as much in assets as the wife. Hitz v. Hitz, 2008 ND 58, 746 N.W.2d 732, 2008 N.D. LEXIS 57 (N.D. 2008).

In a divorce case, the district court’s property distribution of the marital estate was not clearly erroneous because the evidence supported the district court’s findings that the long-term duration of the parties’ marriage and the husband’s dissipation of marital assets favored an equal division of the marital estate. Ulsaker v. C. True Bright White, 2009 ND 18, 760 N.W.2d 82, 2009 N.D. LEXIS 2 (N.D. 2009).

Finding against the husband was appropriate under N.D.C.C. §§ 14-05-24(1) and 9-09-02(1) because the husband was competent and understood the settlement agreement when he signed it; he also failed to show that the agreement was unconscionable. The wife testified that the husband had not consumed any alcohol for three days and he was coherent and not impaired when he signed the agreement. Vann v. Vann, 2009 ND 118, 767 N.W.2d 855, 2009 N.D. LEXIS 136 (N.D. 2009).

Court properly awarded a wife less than 50 percent of the marital estate because, although the parties were separated for more than 17 years, the court found the “marriage was a long-term marriage” and the court considered the wife’s retention of the proceeds from the sale of the home and the husband’s depletion of marital assets. Kosobud v. Kosobud, 2012 ND 122, 817 N.W.2d 384, 2012 N.D. LEXIS 124 (N.D. 2012).

District court awarded the ex-wife $2,000, representing one-half of the ex-husband’s retirement account, to equalize the parties’ assets and debt distribution. The district court’s findings were sufficient to enable the court to understand the district court’s decision to grant tax exemptions and a cash property distribution to the ex-wife; there was evidence to support the district court’s findings, and the court was not left with a definite and firm conviction the district court made a mistake. Keita v. Keita, 2012 ND 234, 823 N.W.2d 726, 2012 N.D. LEXIS 245 (N.D. 2012).

Divorce judgment awarding a wife about 20 percent of the parties’ marital estate was supported by adequate findings and was not clearly erroneous under N.D.C.C. § 14-05-24(1) where the husband brought substantial assets into the marriage, the wife was not involved in the husband’s business, and the marriage was short-term. Hoverson v. Hoverson, 2013 ND 48, 828 N.W.2d 510, 2013 N.D. LEXIS 48 (N.D. 2013).

Trial court’s disposition of marital property was not erroneous under N.D.C.C. § 14-05-24(1); although the court did not recite the Ruff-Fischer guidelines, it referenced throughout its decision the parties’ earning abilities, their conduct during the marriage, property accumulated before and during the marriage, and emphasized the “very short” duration of the marriage. Dieterle v. Dieterle, 2013 ND 71, 830 N.W.2d 571, 2013 N.D. LEXIS 77 (N.D. 2013).

In parties’ divorce action, the trial court properly divided the parties’ property except for two small items that were to be remanded for correction, because it provided findings after consideration of the Ruff-Fischer factors that supported its reasoning, and credibility and valuation determinations were more properly within its province than within the court’s review on appeal. Holte v. Holte, 2013 ND 174, 837 N.W.2d 894, 2013 N.D. LEXIS 177 (N.D. 2013).

District court considered the speculative and potentially volatile value of an inherited remainder interest in farmland as well as the parties' lack of liquidity in reaching its decision not to equally divide the interest between the parties; although a substantial disparity existed between the property awarded, the district court sufficiently explained its reasoning for distributing the property as it did, including the fact that the value of the land could change over time, and the distribution was not clearly erroneous. McCarthy v. McCarthy, 2014 ND 234, 856 N.W.2d 762, 2014 N.D. LEXIS 220 (N.D. 2014).

District court made findings related to the parties' incomes, expenses and assets, and because the marriage was approximately five years long and the wife brought few assets to the marriage, the court's property division was not clearly erroneous. Degnan v. Degnan, 2016 ND 61, 877 N.W.2d 38, 2016 N.D. LEXIS 58 (N.D. 2016).

District court's equitable distribution of the marital property and debts was not clearly erroneous where the Ruff-Fischer guidelines were considered and the difference in debt allocation was explained Brouillet v. Brouillet, 2016 ND 40, 875 N.W.2d 485, 2016 N.D. LEXIS 24 (N.D. 2016).

District court's property division was not clearly erroneous because, while the wife received a lesser percentage of the parties' farm property and equipment in the distribution than the husband, the wife was awarded all of the parties' current income-producing rental property, zero debt, and a substantial majority of their liquid assets. Furthermore, the district court sufficiently explained its reasoning for distributing the property as it did. Langwald v. Langwald, 2016 ND 81, 878 N.W.2d 71, 2016 N.D. LEXIS 81 (N.D. 2016).

District court's distribution was not clearly erroneous because the district court adequately explained its disparity in distributing the parties' marital property, and there was evidence in the record to support its findings; in its analysis, the district court essentially provided alternate rationales for deciding that the unequal distribution of assets was in fact equitable. Rebel v. Rebel, 2016 ND 144, 882 N.W.2d 256, 2016 N.D. LEXIS 145 (N.D. 2016).

District court did not err in its distribution of marital property, as the property division resulted in a nearly equal net distribution between the parties; the concerns the district court expressed about the husband’s limitations on his earning capability related more to his contributions to the marriage than to the type of work he was doing, and the rationale for the district court's decision could be determined based on the findings and the record. Lizakowski v. Lizakowski, 2017 ND 91, 893 N.W.2d 508, 2017 N.D. LEXIS 94 (N.D. 2017).

Distribution of marital property and debt was not clearly erroneous where the marital estate had a negative net worth, and the court made detailed findings about each Ruff-Fischer factor and attempted to return each party to their premarital state by reimbursing the wife for medical expenses incurred on behalf of the couple's child. Allmon v. Allmon, 2017 ND 122, 894 N.W.2d 869, 2017 N.D. LEXIS 117 (N.D. 2017).

District court's distribution of marital property was affirmed where the pretrial conference transcript was not included in the record, making it impossible to determine whether the district court relied on an improper presumption in distributing farmland, and the district court had explained its unequal distribution at great length and considered the relevant Ruff-Fischer factors in making its determination. Brew v. Brew, 2017 ND 242, 903 N.W.2d 72, 2017 N.D. LEXIS 251 (N.D. 2017).

District court properly divided the parties’ marital estate and awarded the wife spousal support because the district court determined the value of the marital estate and made specific findings based on the required factors and explained the reason for the disparity in the property division and, while the court did not explicitly quantify the wife’s need for spousal support or the husband’s ability to pay, it considered their monthly expenses and the property division amounts, he was awarded more of the marital property, had a higher earning ability, and he was not left in an impossible financial situation. Berg v. Berg, 2018 ND 79, 908 N.W.2d 705, 2018 N.D. LEXIS 87 (N.D. 2018).

District court did not err in equally distributing the marital property where the parties had lived like a married couple for several years, with an intervening separation for a relatively short time. Innis-Smith v. Smith, 2018 ND 34, 905 N.W.2d 914, 2018 N.D. LEXIS 35 (N.D. 2018).

Property distribution was not clearly erroneous because the district court explained its distribution and found the distribution was equitable as the district court did not include the value of the college savings accounts in evaluating whether the distribution was equitable as the children were the beneficiaries of those accounts; and the remaining property was almost equally distributed. Lessard v. Johnson, 2019 ND 301, 936 N.W.2d 528, 2019 N.D. LEXIS 307 (N.D. 2019).

District court did not err by failing to include crops in the property distribution because the crop did not exist at the time of the separation. Willprecht v. Willprecht, 2020 ND 77, 941 N.W.2d 556, 2020 N.D. LEXIS 76 (N.D. 2020).

Factors to Be Considered.

Although the wife argued that the district court erred in not relying on her domestic violence protection order against the husband, case law did not establish how heavily the district court was to weigh the order in fault determinations under the guidelines, and in this case, the court was not left with a definite and firm conviction a mistake was made by the district court in its distribution of the marital estate. Swanson v. Swanson, 2019 ND 25, 921 N.W.2d 666, 2019 N.D. LEXIS 4 (N.D. 2019).

It was no error not to include certain livestock in a marital estate because the livestock was acquired after marital property was valued as of the date of separation, after which both parties acquired property not included. Wald v. Wald, 2020 ND 174, 947 N.W.2d 359, 2020 N.D. LEXIS 174 (N.D. 2020).

Misconduct.

Nothing in the record suggested the district court erred in finding that the wife owned the parcels of land that she had transferred to her sons in an attempt to transfer money out of the marital estate. Swanson v. Swanson, 2019 ND 25, 921 N.W.2d 666, 2019 N.D. LEXIS 4 (N.D. 2019).

Wife did not provide structured argument or case law to support her contention that a criminal conviction resulted in the destruction, squandering or waste of assets, and the district court did not err in refusing to find that the husband committed economic fault based solely on his prior conviction. Swanson v. Swanson, 2019 ND 25, 921 N.W.2d 666, 2019 N.D. LEXIS 4 (N.D. 2019).

Premarital Acquisition.

District court’s property distribution erred because the court wrongly found the parties’ marriage was short-term by excluding the parties’ pre-marital cohabitation, and, on that basis, wrongly excluded a wife’s premarital asset, which was presumptively included in the marital estate. Lizakowski v. Lizakowski, 2019 ND 177, 930 N.W.2d 609, 2019 N.D. LEXIS 180 (N.D. 2019).

Property Subject to Division.

—Inheritance.

District court did not err in considering the property’s origin as a factor in deciding to award the farmland and its corresponding debt to the husband; he had inherited the farmland from his mother during the marriage, and the wife was not capable of servicing the farm’s debt. Swanson v. Swanson, 2019 ND 25, 921 N.W.2d 666, 2019 N.D. LEXIS 4 (N.D. 2019).

“Equitable Division” of Property.

This section does not require that there be an equal division of property, but that there be an equitable division of property. Haugeberg v. Haugeberg, 258 N.W.2d 657, 1977 N.D. LEXIS 201 (N.D. 1977); Haberstroh v. Haberstroh, 258 N.W.2d 669, 1977 N.D. LEXIS 168 (N.D. 1977).

The objective of a property division is to make an equitable distribution of the parties’ property. Wastvedt v. Wastvedt, 371 N.W.2d 142, 1985 N.D. LEXIS 357 (N.D. 1985).

There is no requirement that the property distribution in a divorce case be equal in order to be equitable. However, a particular case may present circumstances wherein an equal division of the marital property may be proper. Volk v. Volk, 376 N.W.2d 16, 1985 N.D. LEXIS 417 (N.D. 1985).

The ultimate objective of this section is to make an equitable division of the property. There are no set rules for the distribution of the marital estate, and what is equitable depends upon the circumstances of the particular case. Blowers v. Blowers, 377 N.W.2d 127, 1985 N.D. LEXIS 433 (N.D. 1985).

It is within the discretion of the trial court, after hearing the testimony and applying the Ruff-Fischer guidelines, to determine an equitable distribution of the property in each individual case. A property division need not be equal to be equitable. Similarly, there is no rule that the trial court equally divide any increase in the net worth of the parties which occurred during the marriage. Routledge v. Routledge, 377 N.W.2d 542, 1985 N.D. LEXIS 426 (N.D. 1985).

An equitable distribution of the real and personal property of the parties need not be equal to be equitable; the determination of what constitutes an equitable distribution lies within the discretion of the district court and is dependent upon the facts and circumstances of each case; however, when a substantial inequality in the property division exists, that disparity must be explained. Volk v. Volk, 404 N.W.2d 495, 1987 N.D. LEXIS 290 (N.D. 1987).

While the trial court is required to make an equitable distribution of property, there is no requirement that the property distribution must be equal in order to be equitable. Fleck v. Fleck, 427 N.W.2d 355, 1988 N.D. LEXIS 192 (N.D. 1988).

There is no requirement that property be divided equally in order to be divided equitably, but when a substantial inequality in the property division exists, that disparity must be explained. Bader v. Bader, 448 N.W.2d 187, 1989 N.D. LEXIS 223 (N.D. 1989).

A property division need not be equal to be equitable, but a substantial disparity should be explained. Heggen v. Heggen, 452 N.W.2d 96, 1990 N.D. LEXIS 52 (N.D. 1990).

The trial court is required to make an equitable distribution of the parties’ real and personal property; there are not fixed rules by which a trial court must equitably divide the marital estate, and the determination of what is an equitable division is left within the discretion of the trial court, which is in a much better position to ascertain the true facts by listening to and observing the demeanor of the witnesses. Culver v. Culver, 497 N.W.2d 431, 1993 N.D. App. LEXIS 3 (N.D. Ct. App. 1993).

The trial court’s division of property does not have to be equal in order to be equitable. Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 1995 N.D. LEXIS 45 (N.D. 1995).

In reviewing a property division on appeal, the court starts with the view that marital property should be equally divided and, while the division need not be exactly equal to be equitable, the trial court must explain any substantial disparity. Therefore, nearly equal property division was not clearly erroneous. Gregg v. Gregg, 1998 ND 204, 586 N.W.2d 312, 1998 N.D. LEXIS 209 (N.D. 1998).

District court did not err in dividing the parties’ marital property in half where it was not an inequitable distribution; under the guidelines, a substantially disparate asset and debt allocation in the wife’s favor was not justified or equitable and the wife’s personal injury settlement proceeds received during the marriage were part of the marital estate. Bladow v. Bladow, 2003 ND 123, 665 N.W.2d 724, 2003 N.D. LEXIS 136 (N.D. 2003).

Court’s property distribution was inequitable because, by awarding the property to who “brought it along,” a substantial disparity of approximately four million dollars was created that was not adequately explained; that large financial disparity was aggravated by the court’s failure to make a finding as to the total value of the marital estate. Ulsaker v. White, 2006 ND 133, 717 N.W.2d 567, 2006 N.D. LEXIS 131 (N.D. 2006).

There was no error in distributing marital property under N.D.C.C. § 14-05-24(1) because findings were made on each of the applicable factors when a husband was awarded substantially more than a wife where the court found that a substantial amount of the marital estate was acquired before the marriage, and an equal distribution would have been inequitable because it would have destroyed the husband’s ability to earn a living on a farm. Dvorak v. Dvorak, 2006 ND 171, 719 N.W.2d 362, 2006 N.D. LEXIS 174 (N.D. 2006).

District court did not adequately articulate reasons that justified a greater disparity in favor of the husband, and the wife received property that worth less than the value ascribed to it, and thus the court could not determine if the distribution was equitable and the court remanded. Rebel v. Rebel, 2013 ND 116, 833 N.W.2d 442, 2013 N.D. LEXIS 117 (N.D. 2013).

District court’s property distribution was clearly erroneous because the ex-wife received a net property award of approximately $163,500 and the ex-husband received the remainder of the property and debt, for a net award of approximately $1,422,500, which resulted in an award to the husband of approximately 90% of the marital estate, including all the parties’ real property and all the assets related to the farming operation; and, although the importance of preserving the viability of a family farming operation had been recognized, it should not result in a windfall for one spouse. Further, the district court could not retain jurisdiction to modify a final property distribution even to ensure the distribution remained equitable. Gerving v. Gerving, 2020 ND 116, 943 N.W.2d 797, 2020 N.D. LEXIS 124 (N.D. 2020).

Factors to Be Considered.

The distribution to be made depends upon the facts and circumstances and, among the “circumstances” which are logically relevant and material upon the issue of “equitable distribution”, are those concerning the condition, needs, and conduct of the parties, and the amount of property owned by them, its nature, and the time and manner of its acquisition. Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 697, 1947 N.D. LEXIS 70 (N.D. 1947).

In determining division of property between parties in divorce action, court, in exercising discretion, will consider respective ages of parties, their earning ability, duration of marriage, conduct of each during marriage, their station in life, circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by property owned at the time, its value at that time, its income-producing capacity, if any, and whether accumulated or acquired before or after the marriage, and such other matters as may be material; this rule does not require that division be equal in order to be equitable; awarding three quarter-sections of property acquired by parties during marriage, as well as one-half of personal property, to husband was not an abuse of discretion even though divorce was awarded to wife under circumstances, including husband’s poor health and questionable earnings potential. Rohde v. Rohde, 154 N.W.2d 385, 1967 N.D. LEXIS 111 (N.D. 1967).

Conduct of the parties was proper factor for consideration in determining division of property in divorce proceeding based on irreconcilable differences. Novlesky v. Novlesky, 206 N.W.2d 865, 1973 N.D. LEXIS 180 (N.D. 1973).

Earning power is not a property asset subject to consideration on a division of property but is an interest that may be considered in award of alimony or support. Nastrom v. Nastrom, 262 N.W.2d 487, 1978 N.D. LEXIS 199 (N.D. 1978); Nastrom v. Nastrom, 284 N.W.2d 576, 1979 N.D. LEXIS 304 (N.D. 1979).

Manner in which husband performed his obligation to support his wife was a relevant consideration to an equitable distribution of the parties’ property. Hultberg v. Hultberg, 281 N.W.2d 569, 1979 N.D. LEXIS 274 (N.D. 1979).

Factors to be considered in making a division of property are the respective ages of the parties; their earning ability; the duration of and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances as shown by the property owned at the time, its value at that time, its income-producing capacity, and whether accumulated before or after marriage; and such other matters as may be material. Hultberg v. Hultberg, 281 N.W.2d 569, 1979 N.D. LEXIS 274 (N.D. 1979).

A determination of what is an equitable distribution of property depends upon the facts and circumstances of each case. Midboe v. Midboe, 303 N.W.2d 548, 1981 N.D. LEXIS 274 (N.D. 1981).

Conduct of the parties is only one factor among a number of others to be considered by the trial court when dividing property in a divorce action; conduct is not necessarily the sole or controlling factor and the guidelines for making a property division do not require the division be based on the conduct of the parties, but require the trial court to consider conduct in making the property division. Rust v. Rust, 321 N.W.2d 504, 1982 N.D. LEXIS 294 (N.D. 1982).

Wife’s role as a homemaker and in raising eight children during the 31 years of marriage was a significant contribution to the marriage and entitled to consideration in determining an equitable division of property in a divorce proceeding. Briese v. Briese, 325 N.W.2d 245, 1982 N.D. LEXIS 354 (N.D. 1982).

The trial court has sufficient flexibility to consider the source of the property as one factor in arriving at an equitable distribution. However, separate property, whether inherited or otherwise, must initially be included in the marital estate and is subject to distribution as may be necessary to achieve an equitable distribution. Anderson v. Anderson, 368 N.W.2d 566, 1985 N.D. LEXIS 329 (N.D. 1985).

In arriving at an equitable property distribution in a divorce case, the trial court may consider the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances, as shown by the property owned at the time; the property’s value and its income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material. Volk v. Volk, 376 N.W.2d 16, 1985 N.D. LEXIS 417 (N.D. 1985).

Consideration of the divorcing parties’ earning abilities is one of the guidelines which are utilized when considering either the equitable distribution of property or the award of spousal support. Opoien v. Opoien, 425 N.W.2d 373, 1988 N.D. LEXIS 140 (N.D. 1988).

A homemaker’s contribution deserves equivalent recognition in a property distribution upon dissolution of a marriage. Behm v. Behm, 427 N.W.2d 332, 1988 N.D. LEXIS 161 (N.D. 1988).

Circumstances of inheritance, gift, or premarital acquisition are factors to be considered, but are not rules of law which prevent equitable distribution of marital property. Fleck v. Fleck, 427 N.W.2d 355, 1988 N.D. LEXIS 192 (N.D. 1988).

Fault may be a relevant factor in property division. No distinction need be drawn between economic fault and noneconomic fault. Bader v. Bader, 448 N.W.2d 187, 1989 N.D. LEXIS 223 (N.D. 1989); Davis v. Davis, 458 N.W.2d 309, 1990 N.D. LEXIS 140 (N.D. 1990).

Without a determination of serious marital misconduct or economic waste by one spouse, the court cannot direct substitution of an unbalanced division to the other spouse of property acquired during a long-term marriage. Martin v. Martin, 450 N.W.2d 768, 1990 N.D. LEXIS 28 (N.D. 1990).

While alimony may sometimes be used as part of a property division, periodic cash payments without interest awarded as part of a property distribution must be discounted to present value in determining whether or not the distribution is equitable. Lucy v. Lucy, 456 N.W.2d 539, 1990 N.D. LEXIS 127 (N.D. 1990).

The trial court may properly consider the source of the property in arriving at an equitable distribution. Pfliger v. Pfliger, 461 N.W.2d 432, 1990 N.D. LEXIS 203 (N.D. 1990).

Where court granted a money judgment to be paid to husband as a part of the equitable distribution of marital property, allowing wife eight years to pay $ 9,000 was no error, considering wife’s income and her expenses for maintaining a home and raising four children. Hendrickson v. Hendrickson, 553 N.W.2d 215, 1996 N.D. LEXIS 215 (N.D. 1996).

Trial court’s distribution of marital assets upheld where trial court clearly followed guidelines set forth in Ruff-Fischer; specifically, the court considered husband’s economic and noneconomic misconduct and husband’s greater earning potential, and properly granted wife property in lieu of spousal support. Mellum v. Mellum, 2000 ND 47, 607 N.W.2d 580, 2000 N.D. LEXIS 52 (N.D. 2000).

Trial court did not err in its division of the marital property where the court appropriately considered the abuse of the husband towards the wife, and correctly applied a pre-marital agreement which excluded most property from the marriage including the husband’s retirement account but correctly recognized that the increase in the value of the account should be included in the marital estate given that it was largely due to the wife’s paying the majority of the household expenses that the husband was able to make significant contributions to his retirement account. Reiser v. Reiser, 2001 ND 6, 621 N.W.2d 348, 2001 N.D. LEXIS 3 (N.D. 2001).

Despite only a three-year marriage, a trial court did not err by awarding a wife periodic payments from a husband in order to have a more equal division of marital property; the wife was not awarded spousal support, the wife was disadvantaged by the marriage because of an inability to find similar employment, the wife had health problems, and the husband attempted to convey marital assets in order to reduce the marital estate. Horner v. Horner, 2004 ND 165, 686 N.W.2d 131, 2004 N.D. LEXIS 294 (N.D. 2004).

Equal division of the parties’ property in a divorce action was upheld where the trial court properly considered the ages of the parties, their earning ability, the conduct of the parties during the marriage, and their station in life. Although the wife asserted that the court needed to place greater emphasis on her needs arising out of her medical condition, her history, and her poor outlook for the future, the court evaluated the wife’s needs with regard to those issues, the record reflected that the wife had an educational background in business management and work experience in bookkeeping and the court also found that while she was presently receiving social security disability income, there was no evidence of a permanent award. Donlin v. Donlin, 2007 ND 5, 725 N.W.2d 905, 2007 N.D. LEXIS 3 (N.D. 2007).

Property distribution fashioned by a trial court in a divorce action was not clearly erroneous where the trial court properly applied the Ruff-Fischer guidelines, resulting in a roughly equal distribution of the marital property, as required by N.D.C.C. § 14-05-24(1); the trial court carefully explained that the award was not exactly equal due to the husband’s noncompliance with discovery. Holden v. Holden, 2007 ND 29, 728 N.W.2d 312, 2007 N.D. LEXIS 27 (N.D. 2007).

Trial court’s division of marital property in a divorce action was not clearly erroneous under N.D.C.C. § 14-05-24(1) because the trial court did not base its property distribution solely on the wife’s premarital ownership of the property; the trial court made specific findings under the Ruff-Fischer guidelines and found that three of them favored an unequal division of property in favor of the wife. Overland v. Overland, 2008 ND 6, 744 N.W.2d 67, 2008 N.D. LEXIS 8 (N.D. 2008).

Where the parties were married for approximately 17 years and, during their marriage, had three children and shared their marital assets, the record supported the trial court’s decision to distribute one-half of the marital assets to each spouse. Dronen v. Dronen, 2009 ND 70, 764 N.W.2d 675, 2009 N.D. LEXIS 83 (N.D. 2009).

In a divorce case, a district court's property distribution under this statute was not clearly erroneous because the guidelines were considered; a former wife was compensated for household chores done after she quit her job, she was able to find other employment, her conduct caused the demise of the marriage, and the marriage was short in duration. Fugere v. Fugere, 2015 ND 174, 865 N.W.2d 407, 2015 N.D. LEXIS 183 (N.D. 2015).

Findings by Court.

—In General.

Where trial court did not consider or fully evaluate all the property of the parties in making a property division, the evidence in support of the property division was insufficient and the parties were entitled to a new trial on that issue. Hoge v. Hoge, 281 N.W.2d 557, 1979 N.D. LEXIS 188, 1979 N.D. LEXIS 246 (N.D. 1979).

Trial court’s findings were clearly erroneous concerning the value to be assigned to the parties’ property in making a property division where there was no evidence to support the trial court’s findings of value. Gooselaw v. Gooselaw, 320 N.W.2d 490, 1982 N.D. LEXIS 269 (N.D. 1982).

Property division and alimony award were set aside on appeal where trial court made no finding of net worth of the marital assets and it could not be determined if the amount of alimony awarded the wife was in the nature of spousal support or part of the property division. Urlaub v. Urlaub, 325 N.W.2d 234, 1982 N.D. LEXIS 351 (N.D. 1982).

Portion of divorce judgment concerning distribution of property was reversed, where the trial court did not determine the net value of some of the property and did not specify the rationale for its distribution so as to enable a determination of the basis of distribution by deduction or reasonable inference. Graves v. Graves, 340 N.W.2d 903, 1983 N.D. LEXIS 422 (N.D. 1983).

Trial court’s second amended judgment in divorce case would be remanded for a more specific indication of the factual basis for the district court’s conclusion that there was no other way to divide farm property, short of ordering that the property be sold, in light of supreme court’s expressed preference that courts should avoid a property distribution which will destroy or damage the ability of one of the parties to earn a livelihood, and the district court’s finding that farming was the only trade that husband knew. Pankow v. Pankow, 371 N.W.2d 153, 1985 N.D. LEXIS 360 (N.D. 1985).

To determine whether or not a property division is clearly erroneous, the reviewing court needs to understand the trial court’s rationale for its decision. Although the trial court need not make an express finding as to each of the guidelines in Fischer v. Fischer, 139 N.W.2d 845 (N.D. 1966), and Ruff v. Ruff (1952) 78 N.D. 775, 52 N.W.2d 107, appellate review is significantly aided when findings of fact are prepared which clearly disclose the basis of the trial court’s decision. Blowers v. Blowers, 377 N.W.2d 127, 1985 N.D. LEXIS 433 (N.D. 1985).

Where there is a great inconsistency between two separate property divisions in the same case on remand, the district court should set forth some reasonable basis for its latter decision. Volk v. Volk, 404 N.W.2d 495, 1987 N.D. LEXIS 290 (N.D. 1987).

Where the supreme court did not see the reasons for allocating to former husband debts for property apportioned to former wife, the case was remanded for the trial court to reconsider its allocation. Pfliger v. Pfliger, 461 N.W.2d 432, 1990 N.D. LEXIS 203 (N.D. 1990).

The findings in making an equitable distribution need not value each item of property. Pfliger v. Pfliger, 461 N.W.2d 432, 1990 N.D. LEXIS 203 (N.D. 1990).

—Determination of Net Worth.

There is no absolute requirement upon trial court to set forth in its findings the value of each individual item making up the net worth of the parties; to the extent the record reflects the trial court heard evidence as to the value of each asset and liability, and applied the accounting equation of assets minus liabilities equals total equity in determining the parties’ net worth, the division of property will not be overturned unless clearly erroneous. Nastrom v. Nastrom, 284 N.W.2d 576, 1979 N.D. LEXIS 304 (N.D. 1979).

Where evidence has been admitted from which the trial court can determine the net worth of the parties’ real and personal property, the court must make such determination before making an equitable distribution of the property; failure to make such determination is an abuse of discretion. Williams v. Williams, 302 N.W.2d 754, 1981 N.D. LEXIS 232 (N.D. 1981).

While there is no requirement that court place a value upon individual items making up net worth of parties in fashioning a property division, when court does act to set such value, there should be evidence in record supporting value placed upon property. Svetenko v. Svetenko, 306 N.W.2d 607, 1981 N.D. LEXIS 291 (N.D. 1981).

Trial court erred in failing to find the net worth of certain real property before making the property division where the parties had presented conflicting evidence as to the value of the property. Van Rosendale v. Van Rosendale, 333 N.W.2d 790, 1983 N.D. LEXIS 328 (N.D. 1983).

Unless circumstances make it unnecessary, the trial court in making an equitable distribution should determine the net worth of the spouses. Pfliger v. Pfliger, 461 N.W.2d 432, 1990 N.D. LEXIS 203 (N.D. 1990).

Income Equalization.

Equalizing of post-divorce incomes was justified where there was substantial disparity between the parting spouses’ incomes that could not be readily adjusted by property division or rehabilitative support. Glander v. Glander, 1997 ND 192, 569 N.W.2d 262, 1997 N.D. LEXIS 238 (N.D. 1997).

District court’s properly distribution was not clearly erroneous because it did not abuse its discretion in deciding the starting date of the equalization payments because Willprecht v. Willprecht, 2020 ND 77, 2020 N.D. LEXIS 76 (April 6, 2020).

Joint Tenancy.

Property settlement agreement included in a divorce decree providing for the sale of property held in joint tenancy and a division of the proceeds severs the joint tenancy, and the former husband and wife hold the property as tenants in common until the property is sold. Renz v. Renz, 256 N.W.2d 883, 1977 N.D. LEXIS 166 (N.D. 1977).

Where the parties’ premarital agreement provided that the wife’s ranch and the husband’s real property would remain their separate property, the parties later placed the ranch and the real property in joint tenancy; upon divorce, the properties had to be included in an equitable division of the marital estate under N.D.C.C. § 14-05-24. Tweeten v. Tweeten, 2009 ND 164, 772 N.W.2d 595, 2009 N.D. LEXIS 174 (N.D. 2009).

Jurisdiction of District Court.

District courts in matters pertaining to the granting of divorces and the payment of alimony do not have general equitable powers. Their jurisdiction in this respect is limited to that conferred by statute. Stoutland v. Estate of Stoutland, 103 N.W.2d 286, 1960 N.D. LEXIS 72 (N.D. 1960).

Where the court gave an order for the final determination of personal property rights between the parties but also provided that the final determination of real property rights and support payments were subject to the further discretion of the court, the unsettled interests were in real property, the division of personal property at the time of the decree was final, and the court did not retain power to divide stock shares granted to the defendant. Cosgriff v. Cosgriff, 126 N.W.2d 131, 1964 N.D. LEXIS 79 (N.D. 1964).

District court has jurisdiction to interpret and enforce, as distinguished, from modify, a divorce decree issued by a different district court. Zent v. Zent, 281 N.W.2d 41, 1979 N.D. LEXIS 262 (N.D. 1979).

The definition of a pending action found in N.D.C.C. § 28-05-10 is consistent with the use of that term in N.D.R.Civ.P. 26(b), and both are applicable to divorce actions, so that once a final determination has been made and the time for appeal has passed, a divorce decree is not “pending” until jurisdiction of the court is reinvoked by motion of a party. Fichter v. Kadrmas, 507 N.W.2d 72, 1993 N.D. LEXIS 189 (N.D. 1993).

Maintenance of Living Standard.

Fact that a division of property and award of alimony does not allow a person to maintain the same standard of living after the marriage is ended, as that person enjoyed during the marriage, does not necessitate a conclusion that the trial court’s findings in regard to the property division and the alimony award are clearly erroneous. Svetenko v. Svetenko, 306 N.W.2d 607, 1981 N.D. LEXIS 291 (N.D. 1981).

Misconduct.

Where the trial court found wife engaged in reprehensible conduct involving “economic fault” whereby she absconded with marital assets, expended marital assets to purchase gifts for her boyfriend while husband was undergoing cancer treatment and cancelled husband’s health insurance provided by her employer in an “effort to create financial havoc” since his medical condition would make it impossible for him to get new insurance, wife was awarded property worth approximately $ 9,500 and all of the parties’ debts for a net award of approximately a negative $ 5,000, leaving husband with a property distribution of approximately $ 47,000. Theis v. Theis, 534 N.W.2d 26, 1995 N.D. LEXIS 108 (N.D. 1995).

Unequal division of a divorced couple’s retirement accounts was supported by evidence of the parties’ relationship and compelling evidence of the wife’s misconduct, and was an equitable distribution under N.D.C.C. § 14-05-24(1); the wife had been convicted of arson after setting fire to the husband’s mobile home, the nine-year marriage was sporadic, the parties each maintained separate residences, and they both were unfaithful. Hunt v. Hunt, 2010 ND 231, 791 N.W.2d 164, 2010 N.D. LEXIS 228 (N.D. 2010).

District court did not abuse its discretion in denying the wife’s motion to amend her complaint where the district court had equitable authority in an independent action in equity to enjoin enforcement or otherwise grant relief from the parties’ earlier divorce judgment on the bases of economic misconduct or fault in proceeding, but could not award punitive damages in the context of granting relief from a prior divorce judgment. Walstad v. Walstad, 2012 ND 204, 821 N.W.2d 770, 2012 N.D. LEXIS 212 (N.D. 2012).

District court’s property distribution on remand, which reaffirmed its previous distribution, was clearly erroneous because the district court did not follow the state supreme court’s mandate and failed to give any weight to the husband’s admitted economic fault or misconduct of hiding the marital assets in the divorce proceeding. Walstad v. Walstad, 2013 ND 176, 837 N.W.2d 911, 2013 N.D. LEXIS 179 (N.D. 2013).

Trial court's conclusion that the wife did not commit economic fraud was affirmed where the evidence showed that she used the building sale proceeds to retire business debt and obligations and purchase another building. Weigel v. Weigel, 2015 ND 270, 871 N.W.2d 810, 2015 N.D. LEXIS 286 (N.D. 2015).

Modification of Award.

Equitable redistribution of marital property to consider a wife's inheritance was no clear error or abuse of discretion because the court (1) applied the Ruff-Fischer guidelines and made supporting findings under each statutory factor when awarding the wife the inheritance, (2) properly considered a husband's contributions to the husband's own financial problems, and (3) found the husband's post-decree acts caused a loss of marital and trust property. Lewis v. Smart, 2017 ND 214, 900 N.W.2d 812, 2017 N.D. LEXIS 206 (N.D. 2017).

—In General.

A decree distributing property, awarding support, and providing for the children of the marriage is something more than a decree for alimony in its proper legal signification and, where a decree was intended to be a final adjustment of the property rights of the parties, the court was without power to amend the decree and to wipe out the monthly payment stipulated to the wife and substitute a gross sum therefor. Sinkler v. Sinkler, 49 N.D. 1144, 194 N.W. 817 (1923), distinguished, Karteus v. Karteus, 67 N.D. 297, 272 N.W. 185 (1937), and Nugent v. Nugent, 152 N.W.2d 323, 1967 N.D. LEXIS 79 (N.D. 1967).

This section does not authorize the modification of a divorce decree with respect to distribution of property unless a change in conditions or circumstances of the parties since the original adjudication appears. Smith v. Smith, 71 N.D. 110, 299 N.W. 693, 1941 N.D. LEXIS 141 (N.D. 1941).

Where parties in divorce action executed contract for property settlement and “to arrange for the payment of alimony and support money”, trial court had power to modify terms of agreement. Kack v. Kack, 169 N.W.2d 111, 1969 N.D. LEXIS 63 (N.D. 1969).

Distribution in divorce action of realty to husband was not final and thus was subject to modification where husband had been restrained from alienating property in order to secure payment of support and trial court had stated in its amended findings and conclusions that distribution was not intended to be final; subsequent award of one-third of property to wife was unjustified since care and custody of minor children was now husband’s responsibility; however, in lieu of distribution of portion of property to wife, husband was ordered to pay her $ 3,000 in annual installments of $ 750 with 7% interest. Sabot v. Sabot, 187 N.W.2d 59, 1971 N.D. LEXIS 167 (N.D. 1971).

Trial court properly refused to modify divorce decree to set off liability on tax judgment covering years during which husband and wife were married but incurred by husband after entrance of stipulated divorce decree which provided for alimony and property settlement. Bosch v. Bosch, 197 N.W.2d 673, 1972 N.D. LEXIS 150 (N.D. 1972).

While a final distribution of property is not subject to modification by a trial court, it is subject to attack in same manner and on same grounds as other judgments. Wikstrom v. Wikstrom, 359 N.W.2d 821, 1984 N.D. LEXIS 434 (N.D. 1984).

The final distribution of property which has been decreed by a court is not modifiable other than in the same manner and on the same grounds as other judgments. Wastvedt v. Wastvedt, 371 N.W.2d 142, 1985 N.D. LEXIS 357 (N.D. 1985).

Because the original divorce decree did not specify how distribution was to be structured or who would be liable for the resulting taxes, the decree was ambiguous and clarification was appropriate. Kostelecky v. Kostelecky, 537 N.W.2d 551, 1995 N.D. LEXIS 167 (N.D. 1995).

District court did not abuse its discretion by revisiting its own divorce judgment to address the ownership of certain omitted mineral interests under N.D.R.Civ.P. 60(b). The mineral interests owned by a husband prior to the original divorce were part of the marital estate and were subject to equitable distribution. Murphy v. Rossow, 2010 ND 162, 787 N.W.2d 746, 2010 N.D. LEXIS 166 (N.D. 2010).

—Change of Circumstances.

In determining whether there has been a material change in circumstances to warrant modification of a spousal support obligation, the court must examine the extent to which the changes were contemplated at the time of the original decree. Schaff v. Schaff, 449 N.W.2d 570, 1989 N.D. LEXIS 247 (N.D. 1989).

Court properly modified a husband’s parenting time because evidence established a material change in circumstances based on the alienation of the oldest child, on the concerns for the younger child, and on the changes in the parent-child relationship. Prchal v. Prchal, 2011 ND 62, 795 N.W.2d 693, 2011 N.D. LEXIS 54 (N.D. 2011).

Premarital Acquisition.

The fact that property of one spouse was acquired prior to marriage is a consideration weighing in favor of granting it to such spouse at a division of property upon divorce, but it does not prevent the court from awarding the property to the other spouse if necessary to an equitable distribution. Fine v. Fine, 248 N.W.2d 838, 1976 N.D. LEXIS 176 (N.D. 1976).

Court erred in making distribution of marital property where court excluded premarital assets from property that was divided between the parties. Young v. Young, 1998 ND 83, 578 N.W.2d 111, 1998 N.D. LEXIS 96 (N.D. 1998).

Property Subject to Division.

—In General.

In making equitable division of property, court shall consider all of property of parties, both jointly and individually owned, taking into account whether property was acquired before or after marriage. Bellon v. Bellon, 237 N.W.2d 163, 1975 N.D. LEXIS 156 (N.D. 1975).

Property acquired by one party while separated from his or her spouse is subject to a property division when the parties are granted a divorce. Keig v. Keig, 270 N.W.2d 558, 1978 N.D. LEXIS 148 (N.D. 1978).

Fact that wife may not have held legal title to the property deeded by her husband to a corporation, nor any interest in the corporation, did not preclude trial court from awarding husband’s stock in the corporation, or a cash payment in lieu thereof, to the wife as part of the property division in a divorce proceeding. Klitzke v. Klitzke, 308 N.W.2d 385, 1981 N.D. LEXIS 335 (N.D. 1981).

Husband’s interest in a private profit-sharing trust established by husband’s employer for the benefit of employees should have, as a matter of law, been considered as a part of the marital estate for purposes of a property division in a divorce proceeding. Herrick v. Herrick, 316 N.W.2d 72, 1982 N.D. LEXIS 216 (N.D. 1982).

This section contemplates that the trial courts, in making an equitable distribution of property in a divorce case, will consider all of the real and personal property of both parties, regardless of the source; circumstances of inheritance, gift, or premarital acquisition are factors to be considered, but are not rules of law which prevent equitable distribution of marital assets. Schmidt v. Schmidt, 325 N.W.2d 230, 1982 N.D. LEXIS 350 (N.D. 1982).

Under this section the trial court must consider all of the real and personal property accumulated by the parties as part of their marital estate, regardless of the source. However, the trial court may or may not award the separate property of one spouse to the other spouse, depending upon whether or not an equitable distribution so requires. Anderson v. Anderson, 368 N.W.2d 566, 1985 N.D. LEXIS 329 (N.D. 1985); Blowers v. Blowers, 377 N.W.2d 127, 1985 N.D. LEXIS 433 (N.D. 1985).

Under this section, the court is required to consider all of the property accumulated by the parties, both jointly and individually owned. Linn v. Linn, 370 N.W.2d 536, 1985 N.D. LEXIS 343 (N.D. 1985).

In North Dakota all property owned by the marital parties, jointly or separately, is subject to distribution upon divorce under this section. The trial court may or may not award the separate property of one spouse to the other, depending upon whether an equitable distribution so requires. In employing the Ruff-Fischer guidelines, the trial court may consider the source of the property in arriving at an equitable distribution. Routledge v. Routledge, 377 N.W.2d 542, 1985 N.D. LEXIS 426 (N.D. 1985).

The trial court is required to make an equitable distribution of the parties’ real and personal property; in making an equitable distribution of property in a divorce case, trial courts consider all of the real and personal property of both parties, regardless of the source. Fleck v. Fleck, 427 N.W.2d 355, 1988 N.D. LEXIS 192 (N.D. 1988).

In dividing marital property, separate property, whether inherited or otherwise, must initially be included in the marital estate. Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 1994 N.D. LEXIS 30 (N.D. 1994).

Contingent fee earned by attorney in case acquired and settled while he was separated from his spouse was a marital asset, properly included in marital estate. Zuger v. Zuger, 1997 ND 97, 563 N.W.2d 804, 1997 N.D. LEXIS 98 (N.D. 1997).

The trial court must consider all property accumulated by the parties, whether jointly or individually owned. Property brought into the marriage by one party, and separate property acquired by gift, inheritance, or otherwise, must be included in the marital estate and is subject to distribution and after all assets are included in the marital estate, under the Ruff-Fischer guidelines the source of the property can be considered in making the equitable distribution. Dufner v. Dufner, 2002 ND 47, 640 N.W.2d 694, 2002 N.D. LEXIS 41 (N.D. 2002).

Under this section the trial court has jurisdiction to consider both joint and individual property owned by the parties in reaching an equitable division of property in a divorce action. Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197, 2002 N.D. LEXIS 96 (N.D. 2002), cert. denied, 537 U.S. 1195, 123 S. Ct. 1252, 154 L. Ed. 2d 1031, 2003 U.S. LEXIS 1209 (U.S. 2003).

In divorce action, court erred in failing to include all the marital debts and assets in calculating the total marital estate before analyzing the Ruff-Fischer guidelines to divide the marital estate; the failure to consider a student loan debt, along with a vehicle as an asset in the marital estate created a situation in which the supreme court could not be sure that the district court would have reached the same result had it included both the debt and asset. Lynnes v. Lynnes, 2008 ND 71, 747 N.W.2d 93, 2008 N.D. LEXIS 67 (N.D. 2008).

In parties’ divorce action, the trial court properly required the husband to provide a monthly accounting of money received from a trust because it was part of the division of the parties’ property and without such an accounting, it could not be determined if the husband was complying with his obligations. Holte v. Holte, 2013 ND 174, 837 N.W.2d 894, 2013 N.D. LEXIS 177 (N.D. 2013).

—Back Wages.

If unpaid retirement benefits can be considered as marital property, an ascertainable claim for back wages should not be treated any differently. Hofsommer v. Hofsommer Excavating, 488 N.W.2d 380, 1992 N.D. LEXIS 146 (N.D. 1992).

—Business Assets.

Hail insurance commissions and real estate commissions owed to husband by his father-in-law were properly categorized as marital assets subject to a property division notwithstanding husband’s claim that he may have difficulty in collecting the commissions. Jondahl v. Jondahl, 344 N.W.2d 63, 1984 N.D. LEXIS 232 (N.D. 1984).

Distribution of farms or other business assets to one spouse with an offsetting monetary award to the other spouse alleviates reducing the farmer or business person’s ability to successfully operate the enterprise as an economic unit, which would effectively work a disadvantage to both spouses, and avoids conflict; that the trial court did not err in not awarding wife immediate title to one-half of the real property owned by the parties. Heley v. Heley, 506 N.W.2d 715, 1993 N.D. LEXIS 176 (N.D. 1993).

Where the marital estate involved ongoing business activities in which marital assets were regularly converted into other marital assets or to a reduction of marital debt, the mere fact that an asset had been in some way converted to another form did not necessarily mean the asset had been wasted or the net marital estate had been reduced. Linrud v. Linrud, 552 N.W.2d 342, 1996 N.D. LEXIS 181 (N.D. 1996).

Finding that party’s interest in professional corporation had no value was clearly erroneous, where valuation of his share of company was based upon financial report that did not reflect true market value of company, and trial court ignored evidence of guaranteed buy-out agreement. Kluck v. Kluck, 1997 ND 41, 561 N.W.2d 263, 1997 N.D. LEXIS 62 (N.D. 1997).

The trial court erred in keeping former spouses together in a business relationship; the parties amply demonstrated they could not work together, and each sought a complete separation from any continuing business relationship. Fisher v. Fisher, 1997 ND 176, 568 N.W.2d 728, 1997 N.D. LEXIS 195 (N.D. 1997).

Trial court should have used the fair market value of a husband’s orthodontic practice during equitable distribution instead of the liquidation value because there was no evidence that a liquidation was imminent or necessary under the circumstances. Sommers v. Sommers, 2003 ND 77, 660 N.W.2d 586, 2003 N.D. LEXIS 86 (N.D. 2003).

—Children’s College Fund.

Where wife held three certificates of deposit, each jointly with an individual child, trial court was correct to set aside these certificates as the “children’s college fund”. Although not all parents are able to afford to plan ahead for their children’s college educations, where they have done so, courts should foster it not frustrate it. Olson v. Olson, 445 N.W.2d 1, 1989 N.D. LEXIS 139 (N.D. 1989).

—Corporation.

Corporation, owned solely by husband, was marital property subject to distribution. It is the net worth of a corporation that determines its value to a marital estate. Hofsommer v. Hofsommer Excavating, 488 N.W.2d 380, 1992 N.D. LEXIS 146 (N.D. 1992).

—Disability Benefits.

Trial court erroneously included husband’s future disability benefit payments in the couple’s marital property; disability payments resemble social security payments, which are not marital property subject to equitable distribution. Fox v. Fox, 1999 ND 68, 592 N.W.2d 541, 1999 N.D. LEXIS 68 (N.D. 1999).

Where the Supreme Court of North Dakota found that a husband’s California Public Employees Retirement System (CalPERS) benefits were disability benefits and thus, were solely his property, the trial court erred in finding that the primary purpose of those monthly benefits was that of an early retirement program payment and that the payments were divisible marital property. Striefel v. Striefel, 2004 ND 210, 689 N.W.2d 415, 2004 N.D. LEXIS 357 (N.D. 2004).

—Farm Assets.

Although preserving the viability of business operations, such as farms, is an important consideration, the goal of preserving a business does not call for a windfall for one spouse; rather, the district court may structure the property division to allow for relative equality in the value of the division without the risks of co-ownership of assets. Linrud v. Linrud, 552 N.W.2d 342, 1996 N.D. LEXIS 181 (N.D. 1996).

Distribution of farm assets to one spouse with an offsetting monetary award to the other generally allows successful operation of the farming enterprise as an economic unit without working a disadvantage to either spouse and avoids the conflict likely to arise if the divorced spouses continue to share ownership of the farm; liquidation of an ongoing farming operation or business is ordinarily a last resort. Gibbon v. Gibbon, 1997 ND 210, 569 N.W.2d 707, 1997 N.D. LEXIS 268 (N.D. 1997).

The evidence in the record supported the trial court’s decision to award a farming and ranching operation to the husband with an offsetting monetary award to the wife. Gibbon v. Gibbon, 1997 ND 210, 569 N.W.2d 707, 1997 N.D. LEXIS 268 (N.D. 1997).

A property division in which one spouse receives farm assets while the other spouse receives an offsetting monetary award may be affirmed as an equitable division. Linrud v. Linrud, 1998 ND 55, 574 N.W.2d 875, 1998 N.D. LEXIS 48 (N.D. 1998).

In distributing marital property, courts have recognized the importance of preserving the viability of a business operation like a family farm, and the potential for economic hardship if those entities are divided. Linrud v. Linrud, 1998 ND 55, 574 N.W.2d 875, 1998 N.D. LEXIS 48 (N.D. 1998).

Equal division of marital assets, including the ordered sale of the couple’s unprofitable farm and the equal division of the proceeds of the sale was not clearly erroneous. Schoenwald v. Schoenwald, 1999 ND 93, 593 N.W.2d 350, 1999 N.D. LEXIS 118 (N.D. 1999).

In divorce action, where husband brought land into the marriage, the trial court did not err in including the land in the net marital estate and dividing the estate equally with a cash settlement for the wife and the farm land and farm assets going to the husband. Dufner v. Dufner, 2002 ND 47, 640 N.W.2d 694, 2002 N.D. LEXIS 41 (N.D. 2002).

Court’s property distribution to a wife of $ 12,000 out of a net marital estate of $ 332,500 had to be reconsidered under N.D.C.C. § 14-05-24(1) because it was error to fail to consider liquidation of the husband’s farm property; although liquidation of an ongoing farming operation was a last resort in dividing marital assets, in the case at hand there was no such ongoing operation, but instead the primary use of the farmland was as rental property. Wagner v. Wagner, 2007 ND 101, 733 N.W.2d 593, 2007 N.D. LEXIS 94 (N.D. 2007).

District court's findings explained its computation regarding depreciation, and the district court did not clearly err regarding the amount of the parties' farm machinery and equipment. Rebel v. Rebel, 2016 ND 144, 882 N.W.2d 256, 2016 N.D. LEXIS 145 (N.D. 2016).

—Gifts.

Fact that property is inherited or received as a gift does not mandate that it be excluded from the marital estate subject to the property division; origin of property is only one factor to consider in making the property division. Winter v. Winter, 338 N.W.2d 819, 1983 N.D. LEXIS 353 (N.D. 1983).

Trial court found some adjustment from a 50-50 division was warranteed based on numerous gifts given to husband by relatives where the gifts could be viewed not only as gifts but also as part of the arrangement between the parties and husband’s father in taking over and operating his farm and to a certain extent earned by the parties for their services; the trial court, in exercising its discretion under the guidelines, found wife should share 25 percent of all of the gifts throughout the marriage regardless of when each gift was received. Van Oosting v. Van Oosting, 521 N.W.2d 93, 1994 N.D. LEXIS 198 (N.D. 1994).

Because property gifted by husband’s parents was part of the marital estate, the husband was not entitled to a larger share. Zimmerman v. Zimmerman, 1997 ND 182, 569 N.W.2d 277, 1997 N.D. LEXIS 236 (N.D. 1997).

Car that was given to the husband by his mother during the course of the husband’s marriage was properly included in the marital estate. Shaw v. Shaw, 2002 ND 114, 646 N.W.2d 693, 2002 N.D. LEXIS 142 (N.D. 2002).

Trial court did not clearly err in awarding a former husband 30 percent of the property received by the former wife in gifts and bequests from her parents without first establishing a definitive value for the property; at the time of trial, the value of the property was not available to calculate and was too speculative for the trial court to determine a definite value. Hogan v. Hogan, 2003 ND 105, 665 N.W.2d 672, 2003 N.D. LEXIS 108 (N.D. 2003).

District court did not clearly err in determining that payments from the wife's parents were gifts rather than loans where the father testified the loan agreement was verbal, no written loan contract was prepared, and he had not demanded repayment. Jacobs-Raak v. Raak, 2016 ND 240, 888 N.W.2d 770, 2016 N.D. LEXIS 241 (N.D. 2016).

—Income Tax Dependency Exemption.

While the trial court has authority to order the custodial parent to execute consent forms assigning the income tax dependency exemption to the noncustodial parent, the judge’s decision to allow the custodial parent to retain the income tax dependency exemption was not in error. Fleck v. Fleck, 427 N.W.2d 355, 1988 N.D. LEXIS 192 (N.D. 1988).

—Inheritance.

The trial court did not err in equally dividing both of the parties’ investment accounts, notwithstanding that one of the accounts represented funds inherited from the husband’s mother; all of the assets accumulated from the efforts of both parties, each party had received some inheritance, and some of the inheritances were used for family purposes. Glander v. Glander, 1997 ND 192, 569 N.W.2d 262, 1997 N.D. LEXIS 238 (N.D. 1997).

District court's division of mineral interests the wife shared with her siblings was reversed as the court had not adequately explained the award, and the award was contrary to the parties' agreement to an equal division of the mineral interests. Jacobs-Raak v. Raak, 2016 ND 240, 888 N.W.2d 770, 2016 N.D. LEXIS 241 (N.D. 2016).

—Marital Home.

The record provided sufficient evidence to support the trial court’s decision to award husband the marital home, where the home belonged to him at the time of the couple’s second marriage to each other, and his equity in the home was substantial; husband’s personal financial status played an important role in maintaining preferred financing arrangements, so that it was important for him to keep ownership of the home; and the home and adjacent country club were important for use in furthering business contacts with his sales personnel. Linn v. Linn, 370 N.W.2d 536, 1985 N.D. LEXIS 343 (N.D. 1985).

Trial court did not abuse its discretion in not ordering immediate sale of the marital home; the husband would not be deprived of any benefit in the property in that he would receive monthly credits to his support obligation while his former wife lived there. Glander v. Glander, 1997 ND 192, 569 N.W.2d 262, 1997 N.D. LEXIS 238 (N.D. 1997).

Where husband provided money for the mortgage payments on the parties’ home until the mortgage was satisfied from flood insurance proceeds, and took a second mortgage on the home to construct improvements, it was not inequitable for the trial court to give the husband an encumbrance on the home while the wife lived there and an interest in the proceeds of its sale if it was sold during the husband’s lifetime. Walker v. Walker, 2002 ND 187, 653 N.W.2d 722, 2002 N.D. LEXIS 241 (N.D. 2002).

—Military Pensions.

In dividing husband’s future military nondisability retirement pension as part of property division, trial court did not abuse its discretion in determining wife’s share by a formula whereby number of years of marriage is divided by number of years husband puts in military and then multiplying that ratio times one-half of husband’s retirement benefit when he retires. Bullock v. Bullock, 354 N.W.2d 904, 1984 N.D. LEXIS 372 (N.D. 1984).

Nonvested military pension is properly considered an asset for purposes of a property division in a divorce. Delorey v. Delorey, 357 N.W.2d 488, 1984 N.D. LEXIS 426 (N.D. 1984).

District court did not err in refusing to divide the parties’ military pensions under the Bullock formula because Bullock did not apply to a situation where both parties had their own military pensions, and the district court’s property distribution under the provisions of this section, was not clearly erroneous. Johnson v. Johnson, 2002 ND 151, 652 N.W.2d 315, 2002 N.D. LEXIS 196 (N.D. 2002).

Because there was no evidence of the present values of the husband’s military pensions and the district court did not award the wife a percentage of the pension benefits and because there was a substantial disparity in the property division without an explanation for the disparity, the district court’s property distribution was clearly erroneous. Stephenson v. Stephenson, 2011 ND 57, 795 N.W.2d 357, 2011 N.D. LEXIS 42 (N.D. 2011).

—Mineral Interests.

Where the trial court did not include farmland and mineral interests inherited by husband as part of the marital estate, the case would be reversed, and remanded for a redetermination of the property division, taking into consideration that the farmland and mineral interests were part of the marital estate. Anderson v. Anderson, 368 N.W.2d 566, 1985 N.D. LEXIS 329 (N.D. 1985).

When a district court awarded certain business properties to a wife, it was not clear error not to apply an eight percent discount to the properties' values because (1) the evidence supported a discount recommended by a court-appointed neutral appraiser, which was adopted, and (2) the court's valuations were within the range of the evidence presented. Adams v. Adams, 2015 ND 112, 863 N.W.2d 232, 2015 N.D. LEXIS 112 (N.D. 2015).

—Pending Personal Injury Claim.

A pending personal injury claim (as opposed to an adjudicated or settled award) was far too speculative to include in property division of a marital estate. Fries v. Fries, 288 N.W.2d 77, 1980 N.D. LEXIS 184 (N.D. 1980).

—Personal Injury Award.

The court’s award to wife of the entire personal injury settlement of $ 17,000 was not clearly erroneous. Gronland v. Gronland, 527 N.W.2d 250, 1995 N.D. LEXIS 17 (N.D. 1995).

—Premarital Property.

The Supreme Court has never decreed that the property brought into a marriage by a party be irrevocably set aside to that party. Rather, premarital acquisition is only one of several factors to be considered. Freed v. Freed, 454 N.W.2d 516, 1990 N.D. LEXIS 94 (N.D. 1990).

The trial court must consider all of the real and personal property accumulated by the parties as part of the marital estate, regardless of the source. Freed v. Freed, 454 N.W.2d 516, 1990 N.D. LEXIS 94 (N.D. 1990).

The idea that property acquired prior to the marriage by one spouse should be irrevocably set aside to that spouse was particularly inappropriate where the “pre-marital assets” had been commingled over a 17-year marriage, and no longer had any separate identity, and the trial court should not have excluded pre-marital property from the value of the distributable marital estate. Heley v. Heley, 506 N.W.2d 715, 1993 N.D. LEXIS 176 (N.D. 1993).

When spouses live together for a time, have children together, and then marry, the trial court may properly consider all of their time together, and is not confined to dividing only the specific values saved during the marriage. Braun v. Braun, 532 N.W.2d 367, 1995 N.D. LEXIS 96 (N.D. 1995).

Trial court’s distribution of marital property was not clearly erroneous where the husband believed his bringing $30,000.00 into the marriage should be credited to his share, the court observed that the money had been completely spent on necessities and the law does not require that such money be set aside for the spouse. Severson v. Severson, 583 N.W.2d 120, 1998 ND App 6, 1998 N.D. App. LEXIS 6 (N.D. Ct. App. 1998).

—Retirement Benefits.

In making a division of property, trial court had authority to award wife a portion of husband’s federal government retirement annuity on basis of a fixed percentage of monthly benefits received by husband and subject to an annual adjustment in connection with a cost-of-living adjustment built into benefit formula. Lentz v. Lentz, 353 N.W.2d 742, 1984 N.D. LEXIS 330 (N.D. 1984).

Where husband and wife testified during the trial as to the existence and approximate values of their retirement plans, and where although their testimony concerning the value of their individual retirement plans was not as specific as the trial court may have desired, there was enough evidence presented for the trial court to observe the great disparity in values between the two plans, the finding that the plans were offsetting was clearly erroneous, and as a result the trial court may have failed to make an equitable distribution of the property as required by this section. Kraft v. Kraft, 366 N.W.2d 450, 1985 N.D. LEXIS 292 (N.D. 1985).

Where wife’s social security was not treated as marital property, and where husband argued his retirement fund should not have been treated as marital property because it was in lieu of social security, trial court’s treatment of husband’s highway patrol retirement fund as marital property was correct; husband’s retirement fund had no conditions or uncertainties unlike wife’s social security, and since husband’s retirement fund was earned during the marriage, it was equitable for the trial court to take it into account in dispersing marital property. Olson v. Olson, 445 N.W.2d 1, 1989 N.D. LEXIS 139 (N.D. 1989).

The trial court has an affirmative duty to determine the value of the marital estate and distribute the property of the parties equitably, but where evidence was presented as to the value of the husband’s retirement and the wife’s method of valuing the military retirement as questionable, but the trial court found the credibility of much of the husband’s testimony doubtful, under these circumstances, where the trial court was faced with choosing between husband’s incredible testimony as to value and wife’s method of valuing the retirement, the trial court’s valuation of husband’s retirement based upon wife’s valuation did not constitute reversible error. Anderson v. Anderson, 504 N.W.2d 569, 1993 N.D. LEXIS 150 (N.D. 1993).

—Social Security Benefits.

Social security cannot be distributed or used as an offset in division of marital property; to do so would conflict with the federal plan and would violate the Supremacy Clause of the United States Constitution. Olson v. Olson, 445 N.W.2d 1, 1989 N.D. LEXIS 139 (N.D. 1989).

Trial court’s finding that party’s social security funds were marital property and must be counted as part of marital estate were erroneous, because 42 USCS § 407(a) expressly sheltered these funds. Kluck v. Kluck, 1997 ND 41, 561 N.W.2d 263, 1997 N.D. LEXIS 62 (N.D. 1997).

—Title.

Trial court’s finding, in effect, that recording deed to husband and wife from wife’s father in the Register of Deeds [now Recorder] Office constituted delivery of the deed sufficient to transfer the title of land described therein was not clearly erroneous. Thus, it was proper for the trial court to consider the land described therein as property within marital estate and subject to distribution in divorce even though the wife claimed the parties did not own the land because there was no delivery of the deed. Dinius v. Dinius, 448 N.W.2d 210, 1989 N.D. LEXIS 220 (N.D. 1989).

—Vested Interest in Trust.

A credit trust is a property interest subject to division and the express or implied wishes of the grantor are not barriers to equitable distribution; a court, in a divorce action, has the power to award the separate property of one spouse to the other when an equitable distribution so requires. Van Oosting v. Van Oosting, 521 N.W.2d 93, 1994 N.D. LEXIS 198 (N.D. 1994).

Where husband’s interest in trust was not a future inheritance, but a current vested interest, trial court did not invade his inheritance, entitling him to share of wife’s future inheritance. Zuger v. Zuger, 1997 ND 97, 563 N.W.2d 804, 1997 N.D. LEXIS 98 (N.D. 1997).

In parties’ divorce action, the trial court properly awarded the wife a percentage of future payments in the husband’s irrevocable trust because he had a present vested interest in income from the trust and the present value of the interest was speculative. Holte v. Holte, 2013 ND 174, 837 N.W.2d 894, 2013 N.D. LEXIS 177 (N.D. 2013).

Receiver, Trustee or Conservator.

Court has implied authority to appoint a receiver, trustee or conservator for the purpose of selling property and taking care of other matters in winding up the marriage dissolution. Rummel v. Rummel, 265 N.W.2d 230, 1978 N.D. LEXIS 242 (N.D. 1978).

Redistribution of Property.

Trial court abused its discretion when it denied a wife’s motion to redistribute property because husband experienced windfall when he failed to make mortgage payments, resulting in the transfer of the property to the wife’s parents to avoid foreclosure. Waldie v. Waldie, 2008 ND 97, 748 N.W.2d 683, 2008 N.D. LEXIS 84 (N.D. 2008).

Order denying a party’s post-judgment motion to redistribute property under N.D.C.C. § 14-05-24(3) effectively concludes the “postjudgment proceeding” contemplated by the statute and is therefore a final appealable order under N.D.C.C. § 28-27-02. Jacobs-Raak v. Raak, 2020 ND 107, 942 N.W.2d 879, 2020 N.D. LEXIS 98 (N.D. 2020).

Wife was not entitled to redistribution of a marital estate when the wife did not receive hay bales the wife was awarded because the wife did not satisfy notice requirements for receiving the hay bales. Wald v. Wald, 2020 ND 174, 947 N.W.2d 359, 2020 N.D. LEXIS 174 (N.D. 2020).

District court’s order denying a former husband’s motion to redistribute property and request for hearing was final in that it was a complete denial and contemplated no further proceedings on the motion; the husband’s appeal from the order denying his motion to redistribute property and request for hearing was untimely because it was not filed within 60 days of the notice of entry of the order, and thus, the supreme court did not have jurisdiction to review the order and dismissed his appeal. Jacobs-Raak v. Raak, 2020 ND 107, 942 N.W.2d 879, 2020 N.D. LEXIS 98 (N.D. 2020).

District court’s order denying a former husband’s motion to redistribute property and request for hearing was final in that it was a complete denial and contemplated no further proceedings on the motion; because no other claim for relief or party was involved in the husband’s post-judgment motion to redistribute property, N.C. R. Civ. P. 54(b) did not apply. Jacobs-Raak v. Raak, 2020 ND 107, 942 N.W.2d 879, 2020 N.D. LEXIS 98 (N.D. 2020).

Rehabilitative Spousal Support.

—Disadvantaged Spouse.

Spouse, though self-supporting, was disadvantaged by divorce and in need of rehabilitative support, where marriage was of a long term, during most of which she deferred pursuit of her career and cared for parties’ children and home, and other spouse admitted to adultery and the record evidenced his drinking and physical abuse. Van Klootwyk v. Van Klootwyk, 1997 ND 88, 563 N.W.2d 377, 1997 N.D. LEXIS 91 (N.D. 1997).

Where husband entered marriage with a college degree in animal science and wife had only a high school diploma and one year of business college, wife did not receive additional education during the marriage, and wife spent a considerable period of time being a homemaker and caring for the parties’ child, trial court’s finding that wife was disadvantaged by the divorce and in need of rehabilitative alimony was not clearly erroneous. Wetzel v. Wetzel, 1999 ND 29, 589 N.W.2d 889, 1999 N.D. LEXIS 31 (N.D. 1999).

Trial court erred in failing to order spousal support where wife was no longer able to work the family farm in order to receive a return on her 37 year investment in the farm and marriage; though she had accumulated some job skills, she was still a disadvantaged spouse given that she was left with little or no work experience outside of farming with which to earn income, had to find a new place to live, and had to forge a new life. Marschner v. Marschner, 2001 ND 4, 621 N.W.2d 339, 2001 N.D. LEXIS 7 (N.D. 2001).

A spouse who remains at home, out of the workforce, in order to maintain a marital residence and act as a homemaker, has foregone opportunities and has lost advantages that accrue from work experience and employment history, and is therefore a disadvantaged spouse entitled to spousal support. Hoverson v. Hoverson, 2001 ND 124, 629 N.W.2d 573, 2001 N.D. LEXIS 135 (N.D. 2001).

Trial court did not err when it found wife was a disadvantaged spouse entitled to spousal support where the wife maintained the parties’ home and cared for their children, contributing to the husband’s increased earning capacity, remaining out of the workforce, foregoing the opportunities and advantages that paid work generated, losing the increased earning capacity that work experience provided, and losing the opportunity to create a right to lifetime retirement benefits. Striefel v. Striefel, 2004 ND 210, 689 N.W.2d 415, 2004 N.D. LEXIS 357 (N.D. 2004).

Remarriage of Parties to Each Other.

Where parties’ first marriage lasted 24 years and they resumed living together three months after their first divorce and eventually remarried, the trial court should have considered the totality of the parties’ relationship in making an equitable division of property. Nelson v. Nelson, 1998 ND 176, 584 N.W.2d 527, 1998 N.D. LEXIS 189 (N.D. 1998).

Restraints on Marriage.

Amended divorce judgment which required former wife, who had been awarded possession of the marital home, to pay former husband his share in the equity of the marital home upon the remarriage of the former wife, did not violate the prohibition of restraints on marriage of section 47-02-25. Suko v. Suko, 304 N.W.2d 690, 1981 N.D. LEXIS 271 (N.D. 1981).

Separation Agreement.

—Agreement Enforceable.

District court did not err in finding that a settlement agreement was not unconscionable because, inter alia, the agreement was a fair and reasonable disposition of the property of the parties, there was no evidence that the husband had entered the agreement by mistake, or that his signature was obtained by fraud, duress, menace, or undue influence, and, although the parties’ agreement mentioned reconciliation, the plain language of the agreement contemplated it would govern if the parties decided to pursue a divorce. Kramer v. Kramer, 2006 ND 64, 711 N.W.2d 164, 2006 N.D. LEXIS 61 (N.D. 2006).

District court did not err in finding that a settlement agreement was not unconscionable merely because the husband was not represented by counsel when he signed the written agreement dividing their marital property; this was not, by itself, sufficient justification for relief from a judgment. Furthermore, there was some evidence that the husband had contacted an attorney about the agreement and was pleased that the wife’s attorney could prepare the agreement for half of what the other attorney had quoted. Kramer v. Kramer, 2006 ND 64, 711 N.W.2d 164, 2006 N.D. LEXIS 61 (N.D. 2006).

Under N.D.C.C. § 14-05-24, the property settlement agreement in a divorce case could not be considered unconscionable under N.D.C.C. § 9-09-02(1) either when adopted by the trial court or when the ex-wife’s remainder interest and the new appraised property values were considered in the property distribution because (1) the parties were represented by counsel throughout those proceedings, and negotiations over the settlement agreement spanned 18 months, (2) the wife presented evidence that the value of one-half of her remainder interest in the property under Internal Revenue Service rules, using property tax values the ex-husband originally used in the settlement agreement, would be $ 43,290, and (3) even if the full fee simple value of $ 250,000 were added and the husband earned six percent interest on his financial accounts from the time the values of those accounts were listed in the settlement agreement, she would have received 54% and he would have received 46% of the marital property, which was not inequitable; thus, the trial court did not err in denying the husband’s motion for a new trial. Christian v. Christian, 2007 ND 196, 742 N.W.2d 819, 2007 N.D. LEXIS 194 (N.D. 2007).

—Bar to Other Suits.

Husband and wife’s property settlement agreement incorporated in their divorce judgment barred, under principles of res judicata and collateral estoppel, wife’s present claim against corporation, owned solely by husband, for back wages. Hofsommer v. Hofsommer Excavating, 488 N.W.2d 380, 1992 N.D. LEXIS 146 (N.D. 1992).

—Modification.

The equitable powers of trial court to make a just and proper distribution of properties during a divorce proceeding do not give the court authority, absent statutory grounds for rescission of contract, to modify, ignore or rewrite a validly written separation agreement executed prior to the divorce proceeding where the parties intended the agreement to be a final and binding division of their properties; however, this does not imply that the alimony and support provisions of such an agreement may not be changed by a court when warranted by extraordinary circumstances. Peterson v. Peterson, 313 N.W.2d 743, 1981 N.D. LEXIS 349 (N.D. 1981).

Spousal Support.

Property distribution and spousal support are often intertwined and need to be considered together. Heggen v. Heggen, 488 N.W.2d 627, 1992 N.D. LEXIS 182 (N.D. 1992).

Stipulations.

Stipulations concerning property division and child custody entered into by parties to a divorce action are governed by the law of contracts, which requires that the parties have capacity to contract; party was entitled to have portion of default divorce judgment which incorporated stipulations concerning property division and child custody vacated where, due to alcoholism, there were many doubts as to the party’s capacity to contract at the time the stipulations were executed. Galloway v. Galloway, 281 N.W.2d 804, 1979 N.D. LEXIS 279 (N.D. 1979).

To the extent that competent parties have voluntarily stipulated to a particular disposition of their marital property, a court ordinarily should not decree a distribution of property that is inconsistent with the parties’ contract. Wolfe v. Wolfe, 391 N.W.2d 617, 1986 N.D. LEXIS 375 (N.D. 1986).

Where the trial court found that husband understood the terms of divorce agreement, that no undue influence was exerted upon him, and that he signed the agreement of his own free will, the trial court did not err in accepting the settlement agreement and incorporating it into the divorce judgment, and had no duty to conduct a further investigation of the terms of the agreement and other circumstances to determine if the agreement was objectively fair and equitable. Wolfe v. Wolfe, 391 N.W.2d 617, 1986 N.D. LEXIS 375 (N.D. 1986).

The district court’s duty to make a just and proper distribution of property under this section includes the authority to rewrite a property settlement agreement for mistake, duress, menace, fraud or undue influence under N.D.C.C. § 9-09-2(1). Weber v. Weber, 1999 ND 11, 589 N.W.2d 358, 1999 N.D. LEXIS 5 (N.D. 1999).

Property settlement agreement in which husband, who brought nearly 100% of the marital estate to the 27-day marriage and who was not represented by counsel when he signed agreement giving wife nearly 27% of his assets, was unconscionable. Weber v. Weber, 1999 ND 11, 589 N.W.2d 358, 1999 N.D. LEXIS 5 (N.D. 1999).

Valuation of Estate.

Wife's ownership interest in three businesses was properly valued where she used the proceeds from a sale of an office building to pay off business debts and tax liabilities, and purchase another office building for the businesses, and accepting the husband's evaluation would have required a reweighing of the evidence and reassessment of the witnesses' credibility. Weigel v. Weigel, 2015 ND 270, 871 N.W.2d 810, 2015 N.D. LEXIS 286 (N.D. 2015).

District court's valuation of the husband's accounting business was upheld where a lower amount for lost client revenue was deducted based on a lack of credibility for the husband and the testimony of the accountant who sold the business to him. Jacobs-Raak v. Raak, 2016 ND 240, 888 N.W.2d 770, 2016 N.D. LEXIS 241 (N.D. 2016).

District court's valuation of a motorcycle was not clearly erroneous given the husband's testimony and evidence of custom work performed on it. Jacobs-Raak v. Raak, 2016 ND 240, 888 N.W.2d 770, 2016 N.D. LEXIS 241 (N.D. 2016).

—Date of Valuation.

District court did not misapply the statute because the parties agreed to the same valuations for most of the assets in the marital estate, and for the assets the parties were unable to agree on, the district court determined the value of the property as of the date of separation, which was the default under the statute. Willprecht v. Willprecht, 2020 ND 77, 941 N.W.2d 556, 2020 N.D. LEXIS 76 (N.D. 2020).

Statute does not preclude an agreement to different valuation dates for different items of property; if the parties agree to a valuation date only for some property and not for other property, the statutory default will supply the date for valuing the other property. Willprecht v. Willprecht, 2020 ND 77, 941 N.W.2d 556, 2020 N.D. LEXIS 76 (N.D. 2020).

—In General.

In valuing a husband’s tax business for purposes of making a property division, the trial court erred in failing to distinguish the entrepreneurial skill or potential future earnings of the husband, which is not a property interest subject to division, from the goodwill of the business, which is a property interest subject to division. Jondahl v. Jondahl, 344 N.W.2d 63, 1984 N.D. LEXIS 232 (N.D. 1984).

Where court awarded wife $ 575 in monthly payments for the next 25 years as her share of the property division, court erred by failing to place a present-day value on the payments awarded the wife in determining an equitable division of the property. Pankow v. Pankow, 347 N.W.2d 566, 1984 N.D. LEXIS 295 (N.D. 1984).

Trial court’s valuation of parties’ real property was clearly erroneous where valuation was higher than any testified to at trial, and property division was reversed, and remanded on appeal since it was based in part on erroneous valuation of parties’ major asset. Lippert v. Lippert, 353 N.W.2d 333, 1984 N.D. LEXIS 371 (N.D. 1984).

To include the net corporate value in the calculation of the marital estate and then offset it with corporate debt, thereby reducing the net marital estate further, is clear error. Heggen v. Heggen, 452 N.W.2d 96, 1990 N.D. LEXIS 52 (N.D. 1990).

It was not clearly erroneous for the trial court, in making a property division, to give greater weight to wife’s valuation of assets and to husband’s valuation of debts. Freed v. Freed, 454 N.W.2d 516, 1990 N.D. LEXIS 94 (N.D. 1990).

Where trial court awarded home to wife, ordered husband to make remaining mortgage payments, and added husband’s total payments, including interest payments, to arrive at value of wife’s total final property award, valuation of wife’s share was erroneous. Interest payments improperly inflated value of basic distribution. Kitzmann v. Kitzmann, 459 N.W.2d 789, 1990 N.D. LEXIS 158 (N.D. 1990).

Trial court erroneously valued mortgage payments by using a simple interest calculation rather than amortizing the loan. Kitzmann v. Kitzmann, 459 N.W.2d 789, 1990 N.D. LEXIS 158 (N.D. 1990).

Where trial court intended to award wife “nearly one-half” of the net marital estate, apparently demonstrating its belief that the property division should be nearly equal in order to be equitable, but wife’s final share of the marital property was substantially less due to inclusion of interest and erroneous mortgage calculation, case was remanded to the trial court for further findings. Kitzmann v. Kitzmann, 459 N.W.2d 789, 1990 N.D. LEXIS 158 (N.D. 1990).

While interest may be used to avoid discounting deferred payments to present value, it cannot be used to increase the amount of the basic distribution to determine if that distribution is equitable at the outset. Kitzmann v. Kitzmann, 459 N.W.2d 789, 1990 N.D. LEXIS 158 (N.D. 1990).

Supreme court will not recognize that interest, required to be paid in order to avoid the inequitable distribution that would arise from a present-value distribution to one spouse and deferred distribution to the other spouse, may be considered as part of the basic distribution to determine whether or not that distribution is equitable. To do so is to disadvantage the payee, i.e., the interest would be considered not only for the purpose of compensation for delay in receipt of the share of the marital estate, but also to increase the amount of the basic distribution to determine whether or not that distribution is equitable in the first instance. Kitzmann v. Kitzmann, 459 N.W.2d 789, 1990 N.D. LEXIS 158 (N.D. 1990).

A trial court’s valuation of marital property is treated as a finding of fact. Findings of fact are presumptively correct. Heggen v. Heggen, 488 N.W.2d 627, 1992 N.D. LEXIS 182 (N.D. 1992).

When interest is awarded on a cash property distribution by periodic payments, the dollar value of the interest paid should not be included when calculating the value of the property distributed to each spouse. Sateren v. Sateren, 488 N.W.2d 631, 1992 N.D. LEXIS 176 (N.D. 1992).

The trial court’s failure to provide for interest on periodic payments, and failure to discount the payments to present value when calculating the property distribution was reversible error. Sateren v. Sateren, 488 N.W.2d 631, 1992 N.D. LEXIS 176 (N.D. 1992).

When one party receives property which is clearly worth less than the value ascribed to it by the trial court, a reviewing court cannot determine whether the resulting property distribution is equitable. Therefore, it is necessary to discount periodic payments to present value. Sateren v. Sateren, 488 N.W.2d 631, 1992 N.D. LEXIS 176 (N.D. 1992).

It is not usually wrong for a trial court to accept the valuations submitted by one spouse over the other’s, or to weigh one spouse’s value testimony more heavily. Braun v. Braun, 532 N.W.2d 367, 1995 N.D. LEXIS 96 (N.D. 1995).

Trial court’s valuation of each parties’ interest in farmstead was clearly erroneous, where, in dividing the marital estate, the trial court awarded each party an undivided one half interest in farmstead, as tenants in common, and assigned equal values to their interests, but gave the wife the right to receive all rents and profits from it unless and until she decided to live off of the farmstead or not to operate the farm; the trial court carved out a significant part of husband’s tenancy interest, without making any corresponding adjustment in the value of that interest. Volson v. Volson, 542 N.W.2d 754, 1996 N.D. LEXIS 38 (N.D. 1996).

Valuation of shares of stock in closely held corporation using an adjusted book value method was not clearly erroneous, where the trial court’s valuation of the stock was within the range of evidence. Wald v. Wald, 556 N.W.2d 291, 1996 N.D. LEXIS 269 (N.D. 1996).

Without evidence spouse would receive taxable gain on sale of property, or if so, the amount of gain, court’s refusal to reduce value of property because party claimed they would incur adverse tax consequences when it was sold was not clearly erroneous. Wald v. Wald, 556 N.W.2d 291, 1996 N.D. LEXIS 269 (N.D. 1996).

In allocating marital estate, trial court erred by including as marital debt speculative future liability of party for uncertain changes in his health, foreshadowed by suspension of future workers compensation benefits. Kluck v. Kluck, 1997 ND 41, 561 N.W.2d 263, 1997 N.D. LEXIS 62 (N.D. 1997).

Trial court’s valuation of parties’ construction company which failed to take into account the company’s retained earnings up to the end of the trial, value of work in progress, prepaid expenses, and receivables not available to the court-appointed special master was clearly erroneous. Kautzman v. Kautzman, 1998 ND 192, 585 N.W.2d 561, 1998 N.D. LEXIS 195 (N.D. 1998).

Trial court erroneously ordered a former husband to pay real estate taxes for the current year on property that was distributed under the judgment to the former wife because such property taxes were not due until January 1 of the following year and were not a debt, payment, or liability before June 1 of the following year. Peters-Riemers v. Riemers, 2003 ND 96, 663 N.W.2d 657, 2003 N.D. LEXIS 107 (N.D. 2003).

When a district court awarded certain business properties to a wife, it was not clear error not to apply an eight percent discount to the properties' values because (1) the evidence supported a discount recommended by a court-appointed neutral appraiser, which was adopted, and (2) the court's valuations were within the range of the evidence presented. Adams v. Adams, 2015 ND 112, 863 N.W.2d 232, 2015 N.D. LEXIS 112 (N.D. 2015).

District court's valuation of the marital property was not clearly erroneous because the court's findings on the value of the real estate were within the range of the evidence presented by the parties. Moreover, the court, which had to decide between the parties' competing real estate valuation experts, gave the testimony of the husband's expert more weight. Langwald v. Langwald, 2016 ND 81, 878 N.W.2d 71, 2016 N.D. LEXIS 81 (N.D. 2016).

—Date of Valuation.

Marital property should be valued as of the date of trial, rather than the date of distribution, and the parties should not be permitted to file further evidence of a change in value after trial where there is no opportunity for cross-examination. Grinaker v. Grinaker, 553 N.W.2d 204, 1996 N.D. LEXIS 207 (N.D. 1996).

Collateral References.

Divorce decree as res judicata in independent action involving property settlement agreement, 32 A.L.R.2d 1145.

Remarriage pending appeal as precluding party from attacking property settlement of divorce decree, 55 A.L.R.3d 1299.

Third persons’ property claims in divorce litigation, propriety of consideration of, and disposition as to, 63 A.L.R.3d 373.

Divorce decree purporting to award life insurance to husband as terminating wife-beneficiary’s rights notwithstanding failure to formally change beneficiary, 70 A.L.R.3d 348.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no-fault divorce. Murphy v. Murphy, 116 N.H. 672, 366 A.2d 479, 1976 N.H. LEXIS 445 (N.H. 1976).

Divorce: equitable distribution doctrine, 41 A.L.R.4th 481.

Divorce and separation: treatment of stock options for purposes of dividing marital property, 46 A.L.R.4th 640.

Valuation of stock options for purposes of divorce court’s property distribution, 46 A.L.R.4th 689.

Necessity that divorce court value property before distributing it, 51 A.L.R.4th 11.

Modern status of views as to validity of premarital agreements contemplating divorce or separation, 53 A.L.R.4th 22.

Enforceability of premarital agreements governing support or property rights upon divorce as affected by circumstances surrounding execution — modern status, 53 A.L.R.4th 85.

Enforceability of premarital agreement governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms — modern status, 53 A.L.R.4th 161.

Divorce and separation: method of valuation of life insurance policies in connection with trial court’s division of property, 54 A.L.R.4th 1203.

Excessiveness or adequacy of combined property division and spousal support awards, 55 A.L.R.4th 14.

Divorce: excessiveness or adequacy of trial court’s property award — modern cases, 56 A.L.R.4th 12.

Divorce: order requiring that party not compete with former marital business, 59 A.L.R.4th 1075.

Divorce property distribution: real estate or trust property in which interest vested before marriage and was realized during marriage, 60 A.L.R.4th 217.

Power to modify spousal support award for limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent, 62 A.L.R.4th 180.

Lis pendens as applicable to suit for separation or dissolution of marriage, 65 A.L.R.4th 522.

Separation agreements: enforceability of provision affecting property rights upon death of one party prior to final judgment of divorce, 67 A.L.R.4th 237.

Divorce: propriety of using contempt proceeding to enforce property settlement award or order, 72 A.L.R.4th 298.

Divorce and separation: goodwill in medical or dental practice as property subject to distribution on dissolution of marriage, 76 A.L.R.4th 1025.

Valuation of goodwill in accounting practice for purposes of divorce court’s property distribution, 77 A.L.R.4th 609.

Divorce and separation: goodwill in accounting practice as property subject to distribution on dissolution of marriage, 77 A.L.R.4th 645.

Valuation of goodwill in law practice for purposes of divorce court’s property distribution, 77 A.L.R.4th 683.

Valuation of goodwill in medical or dental practice for purposes of divorce court’s property distribution, 78 A.L.R.4th 853.

Accrued vacation, holiday time, and sick leave as marital or separate property, 78 A.L.R.4th 1107.

Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage, 79 A.L.R.4th 171.

Spouse’s right to set off debt owed by other spouse against accrued spousal or child support payments, 11 A.L.R.5th 259.

Copyright, patent, or other intellectual property as marital property for purposes of alimony, support, or divorce settlement, 80 A.L.R.5th 487.

Divorce decree or settlement agreement as affecting divorced spouse’s right to recover as named beneficiary on former spouse’s individual retirement account, 99 A.L.R.5th 637.

Divorce and separation: Determination of whether proceeds from personal injury settlement or recovery constitute marital property, 109 A.L.R.5th 1.

Division of lottery proceeds in divorce proceedings, 124 A.L.R.5th 537.

Right to credit on child support for health insurance, medical, dental, and orthodontic expenses paid for child’s benefit while child is not living with obligor parent, 1 A.L.R.6th 493.

Right to credit on child support for contributions to educational expenses of child while child is not living with obligor parent, 2 A.L.R.6th 439.

Spouse’s professional degree or license as marital property for purposes of alimony, support, or property settlement, 3 A.L.R.6th 447.

Right to credit on child support for contributions to travel expenses of child while child is not living with obligor parent, 3 A.L.R.6th 641.

Right to credit on child support for continued payments to custodial parent for child who has reached majority or otherwise become emancipated, 4 A.L.R.6th 531.

Retirement of Husband as Change of Circumstances Warranting Modification of Divorce Decree — Early Retirement. 36 A.L.R.6th 1.

Inherited Property as Marital or Separate Property in Divorce Action. 38 A.L.R.6th 313.

Law Reviews.

Identification and Valuation of Assets Subject to Equitable Distribution, 56 N.D. L. Rev. 201 (1980).

Business-Divorce Distribution: The North Dakota Supreme Court Affirms Disentanglement of a Jointly Owned Close Corporation Involved in a Divorce Action, Fisher v. Fisher, 1997 ND 176, 568 N.W.2d 728 (1997), 75 N.D. L. Rev. 871 (1999).

North Dakota Supreme Court Review, 78 N.D. L. Rev. 579 (2002).

Divorce–Spousal Support: By Abolishing the Disadvantaged Spouse Doctrine, the North Dakota Supreme Court Reconstructs the Requirements for Rehabilitative Spousal Support (Sack v. Sack, 2006 ND 57, 711 N.W.2D 157), 83 N.D. L. Rev. 1413 (2007).

Article: All’s Fair In Love and War: But What About In Divorce? The Fairness of Property Division in American and English Big Money Divorce Cases, see 86 N.D. L. Rev. 115 (2010).

In General.

Whenever the term “alimony” is used to mean spousal support, use of the term “spousal support” is more descriptive and should be given preference. Jochim v. Jochim, 306 N.W.2d 196, 1981 N.D. LEXIS 295 (N.D. 1981).

Trial court’s determination as to spousal support is treated as a finding of fact. Oviatt v. Oviatt, 355 N.W.2d 825, 1984 N.D. LEXIS 405 (N.D. 1984).

Spousal support.

—Factors to be considered.

Without any analysis and given the large amount of debt husband assumed relative to his yet to be determined income, the court was unable to decipher the district court’s rationale for determining that he had an ability to pay spousal support; remand was required. Quamme v. Quamme, 2021 ND 208, 2021 N.D. LEXIS 213 (N.D. 2021).

Constitutionality.

An award of alimony upon divorce is a method of rehabilitating the party disadvantaged by the divorce, not a continuation of the right of one spouse to be supported by the other during marriage; therefore, the constitutionality of this section does not depend upon the constitutionality of statutes defining the obligation of support, and though they may be unconstitutional because discriminatory on the basis of sex, this section, which makes no distinction on that basis, is not. Bingert v. Bingert, 247 N.W.2d 464, 1976 N.D. LEXIS 158 (N.D. 1976).

Alimony Based on Percent of Income.

Alimony award that requires a spouse to pay a percentage of income, rather than a specified amount, is not erroneous. Carr v. Carr, 300 N.W.2d 40, 1980 N.D. LEXIS 328 (N.D. 1980).

Change in circumstances.

Trial court properly reduced a former husband’s spousal support obligation because (1) the court found the husband’s income had been significantly reduced, causing the husband to be unable to provide support in the amount previously ordered, after considering the husband’s past and current income and earning ability, each party’s circumstances and necessities, and the former wife’s health and physical condition, and (2) the former wife did not show she could not work to support herself. Varty v. Varty, 2019 ND 49, 923 N.W.2d 131, 2019 N.D. LEXIS 40 (N.D. 2019).

Cohabitation.

It was no error to terminate a husband’s spousal support obligation based on a wife’s cohabitation because (1) the parties’ spousal support agreement after the statute’s amendment did not explicitly state support would not terminate upon the wife’s cohabitation, and (2) nothing showed the support was rehabilitative. Markegard v. Willoughby, 2019 ND 170, 930 N.W.2d 108, 2019 N.D. LEXIS 174 (N.D. 2019).

It was not an abuse of discretion not to terminate spousal support as of the filing of a husband’s motion to terminate because support was statutorily terminated “upon an order of the court” finding a wife’s habitual cohabitation for at least one year. Markegard v. Willoughby, 2019 ND 170, 930 N.W.2d 108, 2019 N.D. LEXIS 174 (N.D. 2019).

Because the parties did not expressly agree that spousal support would continue upon the ex-wife’s cohabitation, the trial court did not err in determining the parties had not “otherwise agreed” under this section. O'Keeffe v. O'Keeffe, 2020 ND 201, 948 N.W.2d 848, 2020 N.D. LEXIS 202 (N.D. 2020).

Factors to be Considered.

District court properly divided the parties’ marital estate and awarded the wife spousal support because the district court determined the value of the marital estate and made specific findings based on the required factors and explained the reason for the disparity in the property division and, while the court did not explicitly quantify the wife’s need for spousal support or the husband’s ability to pay, it considered their monthly expenses and the property division amounts, he was awarded more of the marital property, had a higher earning ability, and he was not left in an impossible financial situation. Berg v. Berg, 2018 ND 79, 908 N.W.2d 705, 2018 N.D. LEXIS 87 (N.D. 2018).

District court’s award of spousal support was reversed where although it made findings on the parties’ ages, health, occupations, and incomes, as well as the long-term nature of the marriage, it did not make findings on the parties’ financial circumstances, including the wife’s need for, and the husband’s ability to pay, spousal support. Instead, the court appeared to have simply combined the amount of support proposed by the husband with the duration suggested by the wife. Tarver v. Tarver, 2019 ND 189, 931 N.W.2d 187, 2019 N.D. LEXIS 191 (N.D. 2019).

Permanent Support.

District court erred in ordering the ex-husband to pay spousal support to the ex-wife until her death or remarriage because its award of spousal support was for an unlimited period of time; and the phrase “a limited period of time” in the spousal support required a set duration. Kaspari v. Kaspari, 2021 ND 63, 958 N.W.2d 139, 2021 N.D. LEXIS 62 (N.D. 2021).

Rehabilitative Spousal Support.

District court properly awarded rehabilitative spousal support to the wife for 10 years because the parties had a long-term marriage, the wife was in need of spousal support, the husband had the ability to pay, and the award would allow the wife sufficient time to pursue a career and/or additional schooling to better her station in life and her ability to support herself. Zuo v. Wang, 2019 ND 211, 932 N.W.2d 360, 2019 N.D. LEXIS 216 (N.D. 2019).

Trial court erred by denying the ex-husband’s motion to terminate spousal support because it incorrectly concluded the spousal support provision was rehabilitative, as the award addressed a substantial income disparity by directly transferring income rather than addressing a disparity in earning capacity and it found spousal support necessary so that the ex-wife would not have to consumer her property settlement to supplement her income. O'Keeffe v. O'Keeffe, 2020 ND 201, 948 N.W.2d 848, 2020 N.D. LEXIS 202 (N.D. 2020).

Award of rehabilitative spousal support pursuant to N.D.C.C. § 14-05-24.1 was not clearly erroneous where it articulated specific considerations that explained the wife's need for support, and based on the findings as to the husband's monthly net income, living expenses, and child support obligations, as well as the earning abilities of the parties, the husband's ability to pay was implicitly considered. Thompson v. Thompson, 2018 ND 21, 905 N.W.2d 772, 2018 N.D. LEXIS 5 (N.D. 2018).

District court's award of monthly temporary spousal support to a wife for a period of years was not clearly erroneous because the wife requested rehabilitative spousal support to assist in obtaining teaching credentials, the wife was to earn less than the husband, and the husband had the ability to pay. Tuhy v. Tuhy, 2018 ND 53, 907 N.W.2d 351, 2018 N.D. LEXIS 46 (N.D. 2018).

—In General.

Trial court did not err in denying the wife’s request for rehabilitative spousal support after finding that the husband did not have the ability to pay and the wife did not have a need for spousal support, and that the wife’s failure to disclose her sexual orientation prior to the marriage and her extra-marital affair were contributing factors to the deterioration of the marriage. Knudson v. Knudson, 2018 ND 199, 916 N.W.2d 793, 2018 N.D. LEXIS 207 (N.D. 2018).

Spousal Support.

—Denied.

District court did not err by failing to award the ex-wife spousal support as it found that neither party needed spousal support because the wife alleged $6,100 in monthly living expenses and had a monthly income of $5,487.82 but it would be higher if she worked full time, and she would be able to fully cover her monthly expenses if she worked full time; and the ex-husband’s monthly income after the divorce would be $7,618.46 and his expenses will be approximately $4,775. Sims v. Sims, 2020 ND 110, 943 N.W.2d 804, 2020 N.D. LEXIS 125 (N.D. 2020).

—Upheld.

District court did not clearly err in awarding a wife spousal support because the evidence supported its findings that the wife’s disability prevented her from obtaining meaningful employment, and her disability income was not enough to satisfy her monthly expenses. Friesner v. Friesner, 2019 ND 30, 921 N.W.2d 898, 2019 N.D. LEXIS 28 (N.D. 2019).

—Factors to be Considered.

Evidence supported the district court’s findings, which were not clearly erroneous, because in refusing to award spousal support and dividing the property, the district court made findings under the Ruff-Fischer guidelines and found that the wife was capable of earning as much or more than the husband; the district court specifically found that both parties were young, both were in good health, the husband did not have the ability to pay temporary spousal support, and the wife was underemployed. Rhodenbaugh v. Rhodenbaugh, 2019 ND 109, 925 N.W.2d 742, 2019 N.D. LEXIS 104 (N.D. 2019).

—Upheld.

District court did not abuse its discretion in setting the child support commencement date and did not clearly err in its findings because its findings and conclusions and final divorce judgment sufficiently addressed spousal support and the parties’ financial issues. Rhodenbaugh v. Rhodenbaugh, 2019 ND 109, 925 N.W.2d 742, 2019 N.D. LEXIS 104 (N.D. 2019).

“Alimony” Defined.

The term “alimony” as used in North Dakota statutes and case law means any payment to be made to the other spouse for any purpose, including payment as a part of a property division, spousal support, or child support or a combination of any of them. Redlin v. Redlin, 436 N.W.2d 5, 1989 N.D. LEXIS 32 (N.D. 1989).

The finding that “alimony” provided for in stipulation included in divorce decree was not intended as part of property division was supported by sufficient evidence and was not clearly erroneous. Ramsdell v. Ramsdell, 454 N.W.2d 522, 1990 N.D. LEXIS 105 (N.D. 1990).

Trial court did not clearly err in denying the ex-wife's motion to modify spousal support after determining that she failed to make a good faith effort to obtain employment and the ex-wife failed to show a material change in circumstances warranting modification. Hoverson v. Hoverson, 2015 ND 38, 859 N.W.2d 390, 2015 N.D. LEXIS 34 (N.D. 2015).

Alimony in Gross Amount.

Under this section the court may, in its discretion, grant alimony in a gross amount in lieu of an allowance payable at stated periods. De Roche v. De Roche, 12 N.D. 17, 94 N.W. 767, 1903 N.D. LEXIS 8 (N.D. 1903).

Appeal.

—Acceptance of Benefits.

Party who objects to an appeal of alimony or property division issues on the basis of waiver of right to appeal due to acceptance of benefits under the decree has the burden of proving that the accepting party was not entitled to the accepted benefits except by the decree. Hoge v. Hoge, 281 N.W.2d 557, 1979 N.D. LEXIS 188, 1979 N.D. LEXIS 246 (N.D. 1979).

Husband’s motion to dismiss an appeal from a property distribution and spousal support award was denied because the husband did not clearly establish that the wife waived the right to appeal by accepting the benefits of the divorce judgment; the husband did not argue that the wife was entitled to less property or support. Sommers v. Sommers, 2003 ND 77, 660 N.W.2d 586, 2003 N.D. LEXIS 86 (N.D. 2003).

—Standard of Review.

The findings of fact upon which the court’s determination of alimony and property division in a divorce action are based will not be overturned on appeal unless they are clearly erroneous. Haugeberg v. Haugeberg, 258 N.W.2d 657, 1977 N.D. LEXIS 201 (N.D. 1977); Haberstroh v. Haberstroh, 258 N.W.2d 669, 1977 N.D. LEXIS 168 (N.D. 1977).

Trial court’s determinations on matters of alimony are treated as findings of fact and will not be set aside on appeal unless clearly erroneous. Martin v. Martin, 307 N.W.2d 541, 1981 N.D. LEXIS 314 (N.D. 1981).

A trial court’s determinations on matters of spousal support are treated as findings of fact which will not be set aside on appeal unless clearly erroneous. A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Weir v. Weir, 374 N.W.2d 858, 1985 N.D. LEXIS 385 (N.D. 1985).

The trial court’s determinations on matters of spousal support are treated as findings of fact which will not be set aside on appeal unless clearly erroneous. Routledge v. Routledge, 377 N.W.2d 542, 1985 N.D. LEXIS 426 (N.D. 1985).

The trial court’s determinations on property division or spousal support will not be set aside for failure to explicitly state the basis for such findings, if that basis is reasonably discernible by deduction or inference. Routledge v. Routledge, 377 N.W.2d 542, 1985 N.D. LEXIS 426 (N.D. 1985).

The trial court’s determinations on matters of spousal and child support are treated as findings of fact which will not be set aside unless clearly erroneous. A finding of fact is clearly erroneous if there is no evidence supporting it. Bagan v. Bagan, 382 N.W.2d 645, 1986 N.D. LEXIS 266 (N.D. 1986).

Custody determinations, property divisions and awards of spousal support are all questions of fact subject to the clearly erroneous standard of N.D.R.Civ.P. 52(a). Bader v. Bader, 448 N.W.2d 187, 1989 N.D. LEXIS 223 (N.D. 1989).

Change in Circumstances.

—In General.

The time for determining whether a material change in circumstances has occurred is from the original decree, or any actual modification. Rueckert v. Rueckert, 499 N.W.2d 863, 1993 N.D. LEXIS 85 (N.D. 1993).

Because the trial court determined child support and spousal support were interrelated under the terms of the parties’ divorce stipulation, and because the appellate court was remanding for reconsideration of the wife’s child support obligation, which could, under the interpretation of the judgment, have constituted a change in circumstances for the interrelated spousal support, the trial court could also reconsider the husband’s spousal support obligation. Lee v. Lee, 2005 ND 129, 699 N.W.2d 842, 2005 N.D. LEXIS 161 (N.D. 2005).

Court did not err in finding that the failure of a property to sell, the exhaustion of the home equity loan proceeds used to meet the husband’s spousal support obligation, and the reduction in the wife’s living expenses, were all material changes of circumstances and in reducing the husband’s spousal support obligation from $ 2,400 per month to $ 1,000 per month until August 2006, and thereafter to $ 700 per month if the property had not sold. Lucier v. Lucier, 2007 ND 3, 725 N.W.2d 899, 2007 N.D. LEXIS 5 (N.D. 2007).

Where the divorce judgment incorporated an agreement requiring the husband to pay his wife $500 per month in spousal support, a significant reduction in the husband’s annual income from $60,000 to $30,000 constituted a material change in circumstances under N.D.C.C. § 14-05-24.1 that was not contemplated at the time of the divorce judgment. Schulte v. Kramer, 2012 ND 163, 820 N.W.2d 318, 2012 N.D. LEXIS 176 (N.D. 2012).

—Change in Employment.

There is no legal requirement that a support obligor obtain prior court approval before changing employment; because a change in employment does not necessarily result in a change in financial circumstances, the proper time for a court to determine whether a change has occurred, whether the change is permanent or temporary, and whether it was made in good faith, is after the fact. Mahoney v. Mahoney, 516 N.W.2d 656, 1994 N.D. App. LEXIS 6 (N.D. Ct. App. 1994).

—Self-Induced Decline in Income.

Absent a substantial showing of good faith or cause, a self-induced decline in income does not constitute such an exceptional change in circumstances as to afford the required basis for modifying a child support or spousal support award. Mahoney v. Mahoney, 516 N.W.2d 656, 1994 N.D. App. LEXIS 6 (N.D. Ct. App. 1994).

Disparity in the parties’ relative incomes caused by one party’s voluntary reduction in income is not a material change in circumstances warranting modification of spousal support. Wheeler v. Wheeler, 548 N.W.2d 27, 1996 N.D. LEXIS 136 (N.D. 1996).

Trial court erred by modifying a spousal support order under N.D.C.C. § 14-05-24.1, because the husband suffered a reduction in income when he was terminated for removing property against company policy; the trial court erred by concluding that his reduction in income was not self-induced. As the husband’s earning capacity was not diminished and he retained $500 a month in surplus income, the trial court erred by eliminating his $500 per month spousal support obligation. Schulte v. Kramer, 2012 ND 163, 820 N.W.2d 318, 2012 N.D. LEXIS 176 (N.D. 2012).

—Spouse's Discharge in Bankruptcy.

Where wife was awarded possession of the marital home in a divorce action and was required to satisfy the first mortgage on the home and the parties were to split the payments for the second mortgage on the home, but the husband discharged his debt on the second mortgage in bankruptcy and left the wife responsible for the entire amount of the second mortgage, the court did not reach the issue of whether an indemnity agreement between the parties that held each party harmless as to the other’s obligation under the second mortgage was in the nature of property division and, thus, dischargeable in bankruptcy, or whether it was in the nature of spousal support and maintenance and not dischargeable; however, regardless of the status of the parties’ indemnification agreement, and, although the bankruptcy court considered the husband’s obligation under the second mortgage as a dischargeable pro