IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 129

Ryan Fleck, Plaintiff and Appellant

v.

Dana Fleck, Defendant and Appellee

and

State of North Dakota, Statutory Real Party in Interest

No. 20230011

Appeal from the District Court of Oliver County, South Central Judicial 

District, the Honorable James S. Hill, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by McEvers, Justice.

Emily J. Rouse, Fargo, ND, for plaintiff and appellant.

Jennifer M. Gooss, Beulah, ND, for defendant and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 19, 2023 

STATE OF NORTH DAKOTA
1

Fleck v. Fleck, et al.

No. 20230011

McEvers, Justice.

[¶1] Ryan Fleck appeals from an order denying his motion to amend a 

parenting plan. He argues the district court erred in allowing Dana Fleck to 

testify, and he makes various challenges to the court’s findings. We hold the 

court did not err in allowing Dana Fleck to testify. We further hold the court 

applied an erroneous standard for determining whether a material change in 

circumstances has occurred for purposes of modifying parenting time. We 

affirm in part, reverse in part, and remand for further proceedings. 

I

[¶2] The parties married in 2015 and have two minor children. In 2019, when 

Ryan Fleck sued for divorce, the children were living with Dana Fleck in 

Oklahoma. Ryan Fleck remained in North Dakota. The parties stipulated to a 

marital termination agreement, which included a parenting plan. They agreed

Dana Fleck would have primary residential responsibility of the children. The 

parenting plan does not specify a schedule for Ryan Fleck’s parenting time. It 

allows him “regular parenting time” in Oklahoma provided he gives 

“reasonable notice.” The plan also provides Ryan Fleck parenting time in North 

Dakota for a minimum of one week in the summer and one week during winter 

break. The plan gives Dana Fleck final decision-making authority in the event 

of a dispute. The parties’ stipulated agreement was incorporated into the 

divorce judgment, which neither party appealed.

[¶3] In 2022, Ryan Fleck filed a motion requesting the district court hold 

Dana Fleck in contempt alleging she violated the terms of the parenting plan

by failing to communicate and depriving him of time with the children. He also

requested the court modify the parenting plan to set a summer and holiday 

schedule, to allow the children to spend the majority of the summer with him 

in North Dakota, and to remove the provision allowing Dana Fleck to make the 

final decision in the event of a dispute. He asserted the current plan was too 

unstructured and not in the best interests of the children.
2

[¶4] The district court entered an order for an evidentiary hearing

determining Ryan Fleck established a prima facie case there had been a 

material change in circumstances adversely affecting the children. At the 

outset of the hearing, Ryan Fleck objected to Dana Fleck offering evidence. He 

argued she failed to comply with N.D.R.Ct. 3.2, which governs motion practice,

because she did not provide notice that she intended to present evidence at the 

hearing. He claimed her testimony would amount to unfair surprise. The court 

overruled his objection. Both parties testified. Ryan Fleck testified he is no 

longer a truck driver. He argued this constituted a material change in 

circumstances because, as a truck driver, “he was making frequent trips to 

Oklahoma” and “this is now no longer the case.” 

[¶5] The district court denied Ryan Fleck’s motion. The court held he failed 

to prove the existence of a material change in circumstances and either a 

general decline in the condition of the children or that the change has adversely 

affected the children. The court also held the evidence did not support a finding 

that modification of the parenting plan would be in the best interest of the 

children, noting: “Ryan Fleck did not submit a ‘best interest analysis’ upon 

which the Court could make that determination.” Ryan Fleck appeals.

II

[¶6] Ryan Fleck argues the district court erred when it overruled his objection 

and allowed Dana Fleck to testify. He also asserts the court applied an 

erroneous standard to his motion to modify parenting time, the court made 

insufficient findings concerning the best interests of the children, and the 

current parenting plan constitutes an improper restriction on his right to 

parent.

A

[¶7] Rule 3.2(a)(2), N.D.R.Ct., sets deadlines for when a moving party and 

responding party may file their briefs and “other supporting papers.” Ryan 

Fleck argues the term “other supporting papers” encompasses “declarations 

and exhibits,” and consequently evidence may not be presented at a motion 

hearing unless notice of the evidence is included with briefing in accordance 
3

with the Rule 3.2(a)(2) deadlines. He argues the district court erred by 

considering the evidence offered by Dana Fleck because it was not presented 

in a timely “declaration in support of her response.” 

[¶8] We apply principles of statutory construction when interpreting court 

rules. Interest of A.P., 2023 ND 39, ¶ 10, 987 N.W.2d 345. We attempt to 

ascertain intent by first looking to the language of the rule, and we construe 

the rule’s words based on their plain, ordinary, and commonly understood 

meaning. Id.; see also Olsrud v. Bismarck-Mandan Orchestral Ass’n, 2007 ND 

91, ¶ 12, 733 N.W.2d 256. When possible, we construe the rule as a whole to 

give meaning to each word and phrase. Olsrud, at ¶ 12. “‘The interpretation of 

a court rule, like the interpretation of a statute, is a question of law.’” Desert 

Partners IV, L.P. v. Benson, 2014 ND 192, ¶ 9, 855 N.W.2d 608 (quoting State 

v. Ebertz, 2010 ND 79, ¶ 8, 782 N.W.2d 350).

[¶9] We reject Ryan Fleck’s reading of the briefing deadlines in N.D.R.Ct. 

3.2(a) as governing the presentation of evidence at a motion hearing. Rule 

3.2(b) instead refers to motion hearings. It allows the district court to set a 

hearing on any motion and states: “the court may require oral argument and 

may allow or require evidence on a motion.” Rule 3.2(b) does not contain any 

notice or timing requirements. Rule 3.2(b) is consistent with N.D.R.Civ.P. 43(b), 

which applies to the presentation of evidence on a motion and provides: “When 

a motion relies on facts outside the record, the court may hear the matter on 

declarations or may hear it wholly or partly on oral testimony or on 

depositions.” See Ibach v. Zacher, 2006 ND 244, ¶ 5, 724 N.W.2d 165. The word 

“may”—used in both N.D.R.Ct. 3.2(b) and N.D.R.Civ.P. 43(b)—operates to 

confer discretion. E.R.J. v. T.L.B., 2023 ND 85, ¶ 25, 990 N.W.2d 570. Whether 

to allow evidence on a motion, and what type of evidence to allow, is

consequently within the sound discretion of the district court. Ibach, at ¶¶ 5–

6; see also State v. Krous, 2004 ND 136, ¶¶ 10–11, 681 N.W.2d 822 (holding the 

district court did not abuse its discretion when it allowed the State to present 

evidence at a suppression hearing despite the State’s failure to file any 

briefing). 
4

[¶10] Ryan Fleck also argues the district court’s decision to allow Dana Fleck 

to testify at the evidentiary hearing amounted to unfair surprise and “a trial 

by ambush.” It is unclear why Ryan Fleck, who moved to hold Dana Fleck in 

contempt and to modify their parenting plan, would be surprised by her 

decision to testify at the evidentiary hearing set for his motion. In any event, 

the remedy for unfair surprise is a continuance, which he did not request. See 

Sollin v. Klein, 2021 ND 75, ¶ 11, 958 N.W.2d 144 (failure to request a 

continuance constituted waiver of claim for unfair surprise). We conclude the 

district court did not abuse its discretion when it allowed Dana Fleck to present 

evidence at the motion hearing. 

B

[¶11] Ryan Fleck argues the district court improperly applied the standard for 

modifying primary residential responsibility to his motion to modify parenting 

time.

[¶12] Section 14-09-30, N.D.C.C., sets out the required content for parenting 

plans. The district court has continuing jurisdiction to modify parenting time

under N.D.C.C. § 14-05-22. Green v. Swiers, 2018 ND 258, ¶ 12, 920 N.W.2d 

471. Section 14-05-22(2) states:

After making an award of primary residential responsibility, the

court, upon request of the other parent, shall grant such rights of 

parenting time as will enable the child to maintain a parent-child 

relationship that will be beneficial to the child, unless the court 

finds, after a hearing, that such rights of parenting time are likely 

to endanger the child’s physical or emotional health.

The standard for modifying parenting time under § 14-05-22(2) is governed by 

our case law. Simburger v. Simburger, 2005 ND 139, ¶ 13, 701 N.W.2d 880. “A 

party moving to modify parenting time must show that a material change in 

circumstances has occurred since entry of the prior parenting time order and 

that the modification is in the child’s best interests.” Konkel v. Amb, 2020 ND 

17, ¶ 7, 937 N.W.2d 540. For purposes of modifying parenting time, we have 

defined a material change in circumstances as “important new facts that were 

unknown at the time” of the initial parenting time order. Wolt v. Wolt, 2011 ND 
5

170, ¶ 19, 803 N.W.2d 534 (quoting Helfenstein v. Schutt, 2007 ND 106, ¶ 18, 

735 N.W.2d 410).

[¶13] A district court’s decision on whether to modify parenting time is a 

finding of fact reviewed under the clearly erroneous standard of review. Prchal 

v. Prchal, 2011 ND 62, ¶ 11, 795 N.W.2d 693. “A finding of fact is clearly 

erroneous if it is induced by an erroneous view of the law, there is no evidence 

to support it, or if on the entire evidence we are left with a definite and firm 

conviction a mistake has been made.” Id. (cleaned up) (quoting Dufner v. 

Trottier, 2010 ND 31, ¶ 6, 778 N.W.2d 586). 

[¶14] The standard for modifying parenting time is similar to, but distinct 

from, the standard for modifying primary residential responsibility, which is 

governed by N.D.C.C. § 14-09-06.6(6). Simburger, 2005 ND 139, ¶ 13. Both 

standards require a showing of a material change in circumstances and that 

modification is in the best interest of the child. Ritter v. Ritter, 2016 ND 16, 

¶ 8, 873 N.W.2d 899. However, unlike a party requesting a modification of

primary residential responsibility, a movant requesting changed parenting 

time is not required to establish a prima facie case to obtain an evidentiary 

hearing. Id.; see also State ex rel. Seibold v. Leverington, 2012 ND 25, ¶ 15, 812 

N.W.2d 460. That requirement, as well as other limitations on modifying 

primary residential responsibility set out by § 14-09-06.6, are the result of the 

Legislature’s intent “to dissuade dissatisfied or disgruntled parents from 

continuously using motions to change child custody as a means to disrupt the 

life of the child and custodial parent.” Simburger, at ¶ 13. Section 14-05-22(2), 

however, does not contain these limitations. 

[¶15] Modification of primary residential responsibility also requires a 

showing that the materially changed circumstances “adversely affect the child 

or result in a general decline in the child’s condition.” Anderson v. Spitzer, 2022 

ND 110, ¶ 7, 974 N.W.2d 695; see also Kunz v. Slappy, 2021 ND 186, ¶ 28 , 965 

N.W.2d 408 (holding the district court erred by modifying primary residential 

responsibility without an adverse effect or general decline finding).

Dissimilarly, our standard for determining whether a material change in

circumstances has occurred for purposes of modifying parenting time does not 
6

require an adverse effect on the child or a resulting decline in the child’s 

condition. We have recognized materially changed circumstances warranting 

modification of parenting time that do not necessarily implicate the child’s 

welfare. For example, a material change in circumstances warranting 

modification of parenting time may occur when there have been significant 

changes to a parent’s work schedule or a parent has remarried, see Konkel, 

2020 ND 17, ¶ 7, or when a parent has experienced a serious health condition 

requiring treatment and associated scheduling changes, see Ibach, 2006 ND 

244, ¶ 10. We have also recognized modification may be warranted based on a 

parent moving or based on conflict between parents concerning parenting time. 

Schurmann v. Schurmann, 2016 ND 69, ¶ 13, 877 N.W.2d 20; see also Prchal, 

2011 ND 62, ¶ 12 (collecting additional cases analyzing materially changed 

circumstances in the context of parenting time). However, to be clear, 

regardless of how or whether the changed circumstances affect the child, 

modification of parenting time must always be in the child’s best interests. 

Ritter, 2016 ND 16, ¶ 8. As a corollary to this rule, changes to parenting time 

may never be at the child’s expense or create conditions adverse to the child’s 

interests. 

[¶16] Here, the district court entered a preliminary order for an evidentiary 

hearing determining Ryan Fleck had met his burden of establishing a prima 

facie case under N.D.C.C. § 14-09-06.6. Based on the evidence presented at the 

hearing, the court found Ryan Fleck had not met his burden of proof. The court 

determined Ryan Fleck was required to “show, in addition to a material change 

in circumstance, that the material change in circumstance adversely affected 

[the children] or resulted in a general decline in their condition.” On this basis, 

and specifically relying on our opinion in Kunz v. Slappy, 2021 ND 186, the 

court declined to modify parenting time. 

[¶17] We conclude the district court misapplied the law. Kunz clarified the 

requirements for modifying primary residential responsibility under N.D.C.C. 

§ 14-09-06.6(6), which does not apply to modifications of parenting time.

Section 14-05-22(2) instead governs parenting time modifications. Under § 14-

05-22(2) and our case law, Ryan Fleck was not required to establish a prima

facie case to be entitled to an evidentiary hearing. Nor was he required to prove 
7

a material change in circumstances adversely affected the children or resulted 

in a decline in their condition. Adding the unnecessary requirement of proving 

a prima facie case was harmless because he received an evidentiary hearing; 

however, the district court’s imposition of these additional statutory 

requirements on Ryan Fleck’s motion to modify parenting time constitutes a 

misapplication of the law, and we therefore hold the court’s decision is clearly 

erroneous.

C

[¶18] In addition to the district court’s determination that Ryan Fleck did not 

establish a material change in circumstances, the court appears to have made 

an alternative finding that modification of parenting time would not be in the 

best interests of the children. The court noted Ryan Fleck did not analyze the 

best interest factors under N.D.C.C. § 14-09-06.2, and the court found Ryan 

Fleck’s testimony “was more of a statement as to what he wanted for visitation 

and parenting time rather than a persuasive analysis of facts that would 

justify modification.” The court’s analysis does not address the main impetus 

of Ryan Fleck’s argument. He asserted the current “loose” and “not structured” 

parenting plan is not in the best interests of the children given the conflict 

between the parties and their inability to communicate. He also argued the 

plan was not in compliance with N.D.C.C. § 14-09-30 because it does not 

contain various scheduling, transportation, and communication provisions. 

The thrust of his argument is that a more structured plan, specifically 

complying with § 14-09-30, would benefit the children by imposing, in his 

words, “clear expectations” that will “avoid future disputes.” Because we are 

unable to decipher the court’s rationale for rejecting Ryan Fleck’s argument, 

we decline to affirm the court’s decision on the basis of its alternative best 

interest finding. See McCormick, Inc. v. Fredericks, 2020 ND 161, ¶ 57, 946 

N.W.2d 728 (stating we cannot perform our appellate function if we cannot 

understand the district court’s rationale). 

D

[¶19] Ryan Fleck argues the current parenting plan constitutes an improper 

restriction on his right to parent. However, he did not appeal from the initial 
8

judgment. His arguments concerning the validity of the restrictions in the 

unappealed judgment constitute an impermissible collateral attack. See 

Lerfald v. Lerfald, 2021 ND 150, ¶ 10, 963 N.W.2d 244 (holding movant for 

modification of parenting time was not allowed to challenge unappealed 

parenting time requirements). A party may not use subsequent proceedings to 

attack a final decision that was not appealed. Id. If Ryan Fleck believed the 

court erred when it adopted the parties’ stipulated parenting plan, “his remedy 

was to appeal that decision.” Id.

III

[¶20] We affirm the district court’s ruling allowing Dana Fleck to testify under 

N.D.R.Ct. 3.2. We reverse the portion of the district court’s order denying Ryan

Fleck’s motion to modify parenting time and remand the case for the court to 

make new findings applying the legal standards consistent with this opinion.

[¶21] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Jay A. Schmitz, D.J.

[¶22] The Honorable Jay A. Schmitz, D.J., sitting in place of Bahr, J., 

disqualified.