IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 24

Valerie Sherwood, Petitioner 

v.

Derrick Sherwood, Respondent and Appellant

No. 20230230

Appeal from the District Court of Grand Forks County, Northeast Central

Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

Derrick R. Sherwood, self-represented, Grand Forks, ND, respondent and 

appellant.

Philip J. Axt, Solicitor General, Bismarck, ND, for amicus curiae State of North 

Dakota.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

FEBRUARY 8, 2024 

STATE OF NORTH DAKOTA
1

Sherwood v. Sherwood

No. 20230230

Bahr, Justice.

[¶1] Derrick Sherwood appeals a district court order denying his motion to 

vacate a domestic violence protection order (“DVPO”) under N.D.R.Civ.P. 60.

We hold the court did not abuse its discretion in denying Derrick Sherwood’s 

request to treat Valerie Sherwood as a hostile witness, in denying Derrick 

Sherwood’s motion to vacate the DVPO, and in awarding Valerie Sherwood 

attorney’s fees. We further hold Derrick Sherwood does not have standing to 

challenge the constitutionality of N.D.C.C. § 14-07.1-02(4)(g). We affirm.

I

[¶2] Valerie Sherwood petitioned for a DVPO against Derrick Sherwood in

May 2022. The district court held a hearing and entered a DVPO restraining

Derrick Sherwood from having contact with Valerie Sherwood and their two 

minor children for two years, and requiring Derrick Sherwood to surrender his 

firearms to law enforcement. Derrick Sherwood petitioned to amend the DVPO 

in October 2022. The court held a hearing and amended the DVPO.

[¶3] In March 2023, Derrick Sherwood moved to dismiss the DVPO. The 

parties stipulated to amend the DVPO. The stipulation stated the parties 

resolved their divorce by stipulation, and agreed in the divorce stipulation, 

“Valerie will not object or prevent Derrick from petitioning the Court to get his 

firearms back in [the DVPO case]. The remaining provisions of the [DVPO]

shall remain the same.” The stipulation further stated, “Valerie raises no 

objection to Derrick having a firearm, and Derrick understands the provisions 

of the [DVPO] which do not involve firearm ownership shall remain 

unchanged.” In May 2023, the district court held a hearing on Derrick 

Sherwood’s motion. Derrick Sherwood called Valerie Sherwood as a witness 

and requested the court certify Valerie Sherwood as a hostile witness. The 

court ruled, “At this time I am not going to certify her as a hostile witness but 

if things proceed where you believe that may need to be renewed, you may 
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proceed to renew that request.” After the hearing, the court amended the 

DVPO to remove the restriction on Derrick Sherwood’s possession of firearms.

[¶4] Derrick Sherwood filed a motion to vacate the DVPO under N.D.R.Civ.P. 

60(b) in June 2023. The district court denied the motion and awarded Valerie 

Sherwood attorney’s fees.

II

[¶5] Derrick Sherwood argues the district court erred by not certifying Valerie 

Sherwood as a hostile witness during the May 2023 hearing.

[¶6] “A district court has broad discretion over the presentation of evidence 

and the conduct of trial, but it must exercise its discretion in a manner that 

best comports with substantial justice.” Asiama v. Asumeng, 2023 ND 114, ¶ 

22, 992 N.W.2d 543 (quoting Jalbert v. Eagle Rigid Spans, Inc., 2017 ND 50, 

¶ 9, 891 N.W.2d 135). “A court abuses its discretion if it acts in an arbitrary, 

unconscionable, or unreasonable manner, if it misinterprets or misapplies the 

law or if its decision is not the product of a rational mental process.” Id. “The 

court should exercise reasonable control over the mode and order of examining 

witnesses and presenting evidence so as to . . . protect witnesses from 

harassment or undue embarrassment.” N.D.R.Ev. 611(a)(3). Rule 611(c), 

N.D.R.Ev., provides, “Leading questions should not be used on direct 

examination except as necessary to develop the witness’s testimony. Ordinarily, 

the court should allow leading questions . . . when a party calls a hostile 

witness, an adverse party, or a witness identified with an adverse party.”

[¶7] Derrick Sherwood called Valerie Sherwood as a witness. Before asking 

Valerie Sherwood a single question, Derrick Sherwood asked the district court 

to certify Valerie Sherwood as a hostile witness. Valerie Sherwood’s attorney 

opposed the request, stating she does not believe that is necessary and she does 

not believe Valerie Sherwood, a victim of domestic violence, should be treated 

as a hostile witness by her abuser. The court ruled, “At this time I am not going 

to certify her as a hostile witness but if things proceed where you believe that 

may need to be renewed, you may proceed to renew that request.” Derrick 
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Sherwood did not renew his request Valerie Sherwood be certified as a hostile 

witness.

[¶8] Valerie Sherwood filed the petition for the DVPO and, thus, was an 

adverse party to Derrick Sherwood. Under Rule 611(c), when a party calls an 

adverse party as a witness, a district court will “ordinarily” allow leading 

questions. However, here the court previously found Valerie Sherwood to be 

the victim of domestic violence by Derrick Sherwood. To protect Valerie 

Sherwood from harassment, the court took a wait and see approach, declining 

to certify Valerie Sherwood as a hostile witness, but permitting Derrick 

Sherwood to renew his request if he felt the circumstances warranted him 

doing so.

[¶9] Under these circumstances, Derrick Sherwood has not shown the district 

court abused its discretion in denying Derrick Sherwood’s initial request to 

certify Valerie Sherwood as a hostile witness.

III

[¶10] Derrick Sherwood argues the district court erred when it did not grant 

his N.D.R.Civ.P. 60(b) motion and vacate the amended DVPO. He argues the 

parties’ stipulation is a contract, that he contracted to receive his firearms 

back, and that the only way to fulfill the contract is for the court to vacate the 

DVPO.

[¶11] “The court may amend its order or agreement at any time upon 

subsequent petition filed by either party.” N.D.C.C. § 14-07.1-02(6). Here, the 

district court amended the DVPO based on Derrick Sherwood’s request and the 

parties’ stipulation. The amended DVPO was not contrary to or inconsistent 

with the stipulation. The stipulation provided, “Valerie will not object or 

prevent Derrick from petitioning the Court to get his firearms back in [the 

DVPO case].” In compliance with the stipulation, Valerie Sherwood did not 

object to Derrick Sherwood getting his firearms back. Moreover, although not 

required by the stipulation, the court entered an amended judgment that 

removed the restriction on Derrick Sherwood’s possession of firearms under 

state law.
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[¶12] The stipulation did not require the district court to vacate the DVPO, as 

requested by Derrick Sherwood in his motion. Rather, the stipulation 

specifically provided the non-firearm “provisions of the [DVPO] shall remain 

the same.” The stipulation also represented that Derrick Sherwood 

“understands the provisions of the [DVPO] which do not involve firearm 

ownership shall remain unchanged.”

[¶13] The district court did not err when it declined to dismiss the amended 

DVPO on the ground it was contrary to the stipulation.

IV

[¶14] Derrick Sherwood argues the district court misapplied the law when it

denied his motion to vacate the judgment. Derrick Sherwood argues the court 

should have vacated the DVPO because, due to intervening facts, Valerie 

Sherwood was no longer in imminent danger of domestic violence.

[¶15] “An appeal from a [district] court’s refusal to vacate an order under Rule 

60(b), N.D.R.Civ.P., does not permit the appellant to attack the underlying 

order from which an appeal could have been, but was not, brought.” Kautzman 

v. Doll, 2018 ND 23, ¶ 5, 905 N.W.2d 744 (quoting Anderson v. Baker, 2015 ND 

269, ¶ 8, 871 N.W.2d 830). Rather, our review is limited to the order which was 

appealed. Matter of Est. of Bartelson, 2019 ND 107, ¶ 12, 925 N.W.2d 416.

[¶16] Derrick Sherwood did not appeal the original or amended DVPO. He 

cannot now do so by appealing the district court’s order denying his Rule 60(b) 

motion to vacate the DVPO. Kautzman, 2018 ND 23, ¶ 5 (appeal of district 

court’s denial of motion to reconsider did not permit appellant to challenge the 

underlying disorderly conduct restraining order); Anderson, 2015 ND 269, ¶ 8 

(appeal of district court’s denial of motion for reconsideration did not permit 

appellant to challenge the underlying order holding appellant in contempt of 

court).

[¶17] Moreover, Derrick Sherwood’s argument a DVPO must be vacated when 

there is no longer an imminent danger of domestic violence lacks merit. This 

Court has held, once a petitioner succeeds in obtaining a domestic violence 
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protection order, “the petitioner is not required to prove actual or imminent 

domestic violence in order to succeed on a motion to extend that order under 

N.D.C.C. § 14-07.1-02(6).” Gaab v. Ochsner, 2001 ND 195, ¶ 5, 636 N.W.2d 669. 

“[I]f the district court issued the original protection order after holding a 

hearing on the merits and finding actual or imminent domestic violence, the 

petitioner is not required to make a second showing to obtain an extension.” 

Odden v. Rath, 2007 ND 51, ¶ 16, 730 N.W.2d 590. If a petitioner is not required 

to prove actual or imminent domestic violence to obtain an extension of a 

DVPO, a petitioner need not prove actual or imminent domestic violence to 

maintain the original DVPO.

[¶18] The district court did not err in denying Derrick Sherwood’s motion to 

vacate the judgment.

V

[¶19] Derrick Sherwood asks this Court to consider a challenge to the 

constitutionality of N.D.C.C. § 14-07.1-02(4)(g). In its amicus brief, the State 

argues Derrick Sherwood does not have standing to challenge the statute.

[¶20] “A party is entitled to have a court decide the merits of a dispute only 

after demonstrating the party has standing to litigate the issues placed before 

the court.” Finstad v. Gord, 2014 ND 72, ¶ 23, 844 N.W.2d 913 (quoting Dakota 

Res. Council v. Stark Cnty. Bd. of Cnty. Comm’rs, 2012 ND 114, ¶ 5, 817 N.W.2d 

373). “Standing is the concept used to determine if a party is sufficiently 

affected so as to insure that a justiciable controversy is presented to the court.” 

Great Plains Royalty Corp. v. Earl Schwartz Co., 2021 ND 62, ¶ 12, 958 N.W.2d 

128 (quoting Schmidt v. City of Minot, 2016 ND 175, ¶ 13, 883 N.W.2d 909).

“Because courts do not render advisory opinions or decide purely abstract 

questions, parties seeking relief from a court must demonstrate they have 

standing by alleging such a personal stake in the outcome of a controversy to 

justify the court’s exercise of remedial powers on their behalf.” Dakota Res. 

Council, at ¶ 5.

[¶21] Section 14-07.1-02(4)(g), N.D.C.C., provides a DVPO may require, under 

certain circumstances, that the respondent “surrender for safekeeping any 
6

firearm or other specified dangerous weapon . . . in the respondent’s immediate 

possession or control or subject to the respondent’s immediate control[.]” Here, 

N.D.C.C. § 14-07.1-02(4)(g) does not prevent Derrick Sherwood from having 

access to his firearms. The district court amended the DVPO to allow Derrick 

Sherwood to possess firearms. Because Derrick Sherwood is not prohibited 

from possessing or controlling firearms under N.D.C.C. § 14-07.1-02(4)(g), he 

does not have a justiciable controversy regarding the constitutionality of 

section 14-07-02(4). See Finstad, 2014 ND 72, ¶ 23.

[¶22] We hold Derrick Sherwood does not have standing to challenge the 

constitutionality of N.D.C.C. § 14-07.1-02(4)(g).

VI

[¶23] Derrick Sherwood argues the district court erred in awarding attorney’s 

fees to Valerie Sherwood under N.D.C.C. § 28-26-01(2).

[¶24] Under N.D.C.C. § 28-26-01(2), a district court has discretion to 

determine whether a claim is frivolous and, if it is, the amount and 

reasonableness of an award of attorney’s fees. Bolinske v. Sandstrom, 2022 ND 

148, ¶ 30, 978 N.W.2d 72. However, if the court finds the claim is frivolous, it 

“must award costs and attorney’s fees[.]” Id. A claim is frivolous “if there is 

such a complete absence of actual facts or law that a reasonable person could 

not have thought a court would render judgment in that person’s favor[.]” 

N.D.C.C. § 28-26-01(2). We will not overturn a court’s discretionary 

determinations under N.D.C.C. § 28-26-01(2) absent an abuse of discretion. 

Sagebrush Res., LLC v. Peterson, 2014 ND 3, ¶ 15, 841 N.W.2d 705. “A district 

court abuses its discretion if it acts in an arbitrary, unreasonable, or 

unconscionable manner, its decision is not the product of a rational mental 

process leading to a reasoned determination, or it misinterprets or misapplies 

the law.” Tillich v. Bruce, 2017 ND 21, ¶ 7, 889 N.W.2d 899.

[¶25] The district court found Derrick Sherwood’s motion to vacate was 

frivolous because it raised issues that had already been determined in the case

and it made baseless accusations. The court awarded Valerie Sherwood 

attorney’s fees of $775. Based on the record, including the substance of Derrick 
7

Sherwood’s N.D.R.Civ.P. 60 motion and the divorce stipulation, we conclude the 

court did not abuse its discretion when it found Derrick Sherwood’s motion to 

dismiss was frivolous and awarded attorney’s fees to Valerie Sherwood.

VII

[¶26] Having considered the parties’ other arguments, we conclude they are 

either unnecessary to the decision or are without merit. We affirm.

[¶27] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr