Filed 06/29/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 148

Alicia Wisnewski, Plaintiff and Appellant

v.

Timothy Wisnewski, Defendant and Appellee

No. 20190209

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Steven L. Marquart, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by McEvers, Justice

Michael L. Gjesdahl (argued) and Kari A. Losee (appeared), Fargo, ND, for

plaintiff and appellant.

Erica L. Chisholm (argued) and Jonathan L. Green (on brief), Wahpeton, ND, 

for defendant and appellee.
1

Wisnewski v. Wisnewski

No. 20190209

McEvers, Justice.

Alicia Wisnewski appeals from a divorce judgment distributing property, 

awarding spousal support, declining to award attorney’s fees, determining 

parenting time, decisionmaking responsibility, and child support. Alicia 

Wisnewski argues the district court’s findings on domestic violence are 

insufficient and the finding that the statutory domestic violence presumption 

was rebutted is clearly erroneous. She also argues the court erred in 

determining joint decisionmaking responsibility, distributing property, 

allocating debts, failing to award attorney’s fees, and in determining child

support and spousal support. We affirm in part, reverse in part, and remand.

I

Alicia Wisnewski and Timothy Wisnewski were married in 1997 and 

have three children together, A.R.W., E.C.W., and I.A.W. Alicia Wisnewski 

works as a veterinarian, is the sole owner of a veterinary center, a partner in 

an animal boarding facility, and was mainly responsible for the household bills.

For 18 years, Timothy Wisnewski was self-employed with his own tree service 

and generally did not work during the months of October through April. On 

December 28, 2017, the parties separated after an incident of domestic 

violence. Stemming from the incident, Timothy Wisnewski was charged and 

plead guilty to felony C aggravated assault domestic violence and felony C

interfering with an emergency call. Prior to initiation of the divorce, a 

permanent domestic violence order was entered to protect Alicia Wisnewski 

and the minor children. A divorce action was initiated in June 2018. A trial 

was held April 4 and 5, 2019.

The district court heard conflicting testimony. Timothy Wisnewski 

testified he stayed home with the children during his time off work. Alicia 

Wisnewski testified Timothy Wisnewski only stayed home with the children as 

infants, and once the children started preschool, she was the primary caretaker 

and often had to have friends and co-workers help watch the children while 
2

she worked. Alicia Wisnewski testified that during the marriage, Timothy 

Wisnewski would smoke marijuana, drink alcohol excessively, drive drunk and 

high, and alleged approximately twenty years of substantial verbal, physical, 

and sexual abuse, some of which Timothy Wisnewski corroborated.

Alicia Wisnewski testified she is afraid of Timothy Wisnewski as he told 

her on multiple occasions he could kill her. According to Alicia Wisnewski, he 

also said if she dated someone, he would kill them both. She described that

initially the abuse was verbal, but the physical abuse began to “ramp up” in 

the last year and escalated until December 28, 2017.

Alicia Wisnewski testified she stopped sleeping in the bedroom and slept 

on the couch for last five or six months of their marriage. Timothy Wisnewski’s 

testimony was consistent on this point. She stated she slept on the couch 

because he raped her many times.

Alicia Wisnewski testified that in February 2017, Timothy Wisnewski 

choked her, bit her, and threw a heavy keychain at her head after she said she 

would not have sex with him. Pictures of bite marks on Alicia Wisnewski were 

introduced at trial.

Alicia Wisnewski testified that on September 1, 2017, after she told 

Timothy Wisnewski not to touch her, he yelled expletives at her, said he would 

give her something to be scared about, grabbed her wrists, pulled her off the 

couch, and kneed her in the jaw. Alicia Wisnewski testified he said he would 

cut her head off, they would not find her, and made a decapitation motion. 

Alicia Wisnewski stated their child, A.R.W., was on the couch asleep, woke up, 

and Timothy Wisnewski told A.R.W. “mom wouldn’t have sex” and left the 

room. Alicia Wisnewski testified A.R.W. told her he had faked sleeping and 

heard it all. Alicia Wisnewski testified that later the next day, Timothy

Wisnewski grabbed her from behind, pushed her on the bed, pinned down her 

shoulders with his knees, and tried to masturbate onto her face. Timothy 

Wisnewski denied doing these things when he testified.

Alicia Wisnewski alleged Timothy Wisnewski assaulted her on 

November 3, 2017 and chipped her tooth. She introduced pictures of the 
3

chipped tooth and her lip. Timothy Wisnewski testified he chipped Alicia

Wisnewski’s tooth by accident.

Alicia Wisnewski testified that on December 7, 2017, after she told 

Timothy Wisnewski she was not going to bed with him, he grabbed her breast 

and twisted it hard, causing her to drop to the ground. She testified he grabbed 

her neck, pulled her onto the couch, wrapped his legs around her so she could 

not move, “kissed” her by covering her nose and mouth with his mouth, 

squeezed her so she could not breathe, and said “now you should be scared 

because I can kill you any time.” At trial, Alicia Wisnewski produced pictures 

of bruises that resulted on her shoulder, on her cheek, on her chin, and on her 

thigh. Timothy Wisnewski denied doing these things.

Alicia Wisnewski testified that on December 17, 2017, Timothy 

Wisnewski came into the living room and told her to go to the bedroom. She 

told him no and he yelled expletives at her, threw pillows at her, sat on her 

chest, read Bible verses about wives submitting to their husbands, and shoved 

his fingers into her crotch, trying to put his fingers into her vagina through her 

leggings.

Alicia Wisnewski testified that on December 28, 2017, she was working 

when Timothy Wisnewski told her to come to bed. She said no, and he sat on 

her legs, closed her laptop and said “give me some love.” She told him to get 

off, and he threw the laptop on the floor. She testified he grabbed her ponytail, 

licked her face, rubbed his facial hair on the side of her face, and told her “this 

is love. This is what you get when you don’t give me sex.” Alicia Wisnewski 

said her face was red from him rubbing his whiskers on her face and introduced 

pictures at trial. She testified he then grabbed her around the chest and 

pushed her face into the couch, leaving her unable to breathe. She testified 

A.R.W. came into the room and said “Dad, you’re hurting her. Dad, you need 

to stop it.” Timothy Wisnewski then let her go and she grabbed her cell phone 

and went into the bathroom, but he came in and pried the phone out of her 

hands. She testified she then grabbed the cordless phone, and Timothy

Wisnewski wrestled the cordless phone from her. When he left, she called 911.
4

Timothy Wisnewski testified that on December 28, 2017 he asked Alicia 

Wisnewski for a kiss and hugged her. He agreed she tried to get away and he 

would not let her. He agreed he licked her face and testified he gave her a 

“whisker rub” but denied rubbing her face raw or squeezing her so she could 

not breathe or pushing her face into the couch. He agreed the children were 

awakened by the incident and two of his children appeared, and that A.R.W. 

had a knife and told Timothy Wisnewski to stop hurting his mom. Timothy 

Wisnewski agreed he let Alicia Wisnewski go, chased her, and grabbed the 

phone from her.

Following this incident, Timothy Wisnewski was arrested, charged with 

aggravated assault and interference with an emergency call. He was released 

with the bail requirement not to have contact with Alicia Wisnewski by phone 

or in person. Alicia Wisnewski testified he violated this condition the day he 

was released; she came home and found a note on the counter, saying he had 

taken all the guns and ammo. She further testified Timothy Wisnewski was 

charged for violating the no contact order. As part of the sentence for the 

aggravated assault, the court ordered, as a condition of probation, Timothy 

Wisnewski continue treatment with Dr. Krislea Wegner, a licensed 

psychologist.

The district court received in evidence during the trial a copy of a 

permanent domestic violence protection order entered in March 2018. In the 

order, the court found Timothy Wisnewski committed domestic violence and 

also that he committed a pattern of domestic violence. The court also received 

in evidence an order finding Timothy Wisnewski in contempt for failing to 

follow requirements of the domestic violence protection order. The order 

specifically noted Timothy Wisnewski failed to get a psychiatric evaluation, 

participate in the STAND program or individual therapy sessions for his 

tendency to form maladaptive relationships, obtain anger management 

training skills, participate in the appropriate level of chemical health 

treatment, or receive parent education on healthy discipline and other 

parent/child relationship issues recommended by Dr. Wegner.
5

Dr. Wegner also testified at the trial. Dr. Wegner testified Timothy

Wisnewski admitted to her he called Alicia Wisnewski expletives, used 

marijuana daily, drank twelve beers a day, and spent time in his “clubhouse” 

smoking marijuana and drinking. Dr. Wegner testified the protection order 

placed the condition of continuing treatment with her, but Timothy Wisnewski

had not continued treatment with her. Dr. Wegner made six recommendations 

and he did not follow any of the recommendations and treatment at Hope Unit 

was not part of her recommendations. Timothy Wisnewski testified he went 

to Hope Unit outpatient treatment, he had been sober for 15 months, and he 

did not use marijuana anymore.

Dr. Wegner testified she also interviewed A.R.W., who told Dr. Wegner 

his father drank every day and he knew his father smoked marijuana. A.R.W. 

also indicated he knew his father was hurting his mother and could hear her 

screaming at night. He indicated he did not intervene because he did not want 

to cause trouble, except in the final instance where he felt he needed to and 

took a knife and confronted his father. Dr. Wegner testified A.R.W. told her he 

was very scared for his mother.

After trial, the district court made findings and entered judgment, 

granting an absolute decree of divorce. The parties stipulated to primary 

residential responsibility. The court found domestic violence occurred, but 

found the domestic violence presumption had been rebutted and awarded 

Timothy Wisnewski unsupervised parenting time and joint decisionmaking 

responsibility. The court divided the marital property and awarded Timothy

Wisnewski spousal support. The court also ordered Timothy Wisnewski to pay 

child support. Alicia Wisnewski appealed.

After oral argument on the appeal, Alicia Wisnewski moved this Court 

to take judicial notice under N.D.R.Ev. 201, that the domestic violence 

protection order, which was to expire, had been extended. Because the district 

court received the domestic violence protection order into evidence, we take 

judicial notice the order has been extended.
6

II

On appeal, Alicia Wisnewski argues the district court’s findings 

regarding domestic violence are insufficient and ignored evidence favoring her.

This Court has stated:

A district court’s parenting time determination is a finding of fact 

that we review under our clearly erroneous standard. A finding of 

fact is clearly erroneous (1) if it is induced by an erroneous view of 

the law; (2) if no evidence exists to support it; or (3) if the reviewing 

court, on the entire evidence, is left with a definite and firm 

conviction that a mistake has been made.

O’Hara v. Schneider, 2017 ND 159, ¶ 7, 897 N.W.2d 326 (citations omitted).

The district court, in making its findings regarding domestic violence 

stated:

Alicia urges this Court to require Timothy to have 

supervised parenting time with the children. Parenting time with 

a parent without residential responsibility is presumed to be in the 

child’s best interests, and “a court should only withhold visitation 

when it is likely to endanger the child’s physical or emotional 

health.” Curtiss v. Curtiss, 2017 ND 60, ¶ 5, 891 N.W.2d 358. The 

court further stated that “denying a parent without [primary] 

residential responsibility parenting time with a child is ‘an 

onerous restriction,’ such that ‘physical or emotional harm 

resulting from the visitation must be demonstrated in detail’ 

before it is imposed.” Id.

On December 28, 2017, Timothy assaulted Alicia in an act of 

domestic violence. He was charged with Aggravated Assault 

Domestic Violence, a C Felony. On September 17, 2018, Timothy 

pled guilty to that offense.

While this Court has said parenting time should only be withheld when 

it is likely to endanger the child’s physical or emotional health, withholding 

parenting time is not at issue here. Parenting time is presumed to be in the 

child’s best interests, but when domestic violence has been alleged the district 

court must consider N.D.C.C. § 14-09-29(2), which provides:
7

If the court finds that a parent has perpetrated domestic violence 

and that parent does not have residential responsibility, and there 

exists one incident of domestic violence which resulted in serious 

bodily injury or involved the use of a dangerous weapon or there 

exists a pattern of domestic violence within a reasonable time 

proximate to the proceeding, the court shall allow only supervised 

parenting time with that parent unless there is a showing by clear 

and convincing evidence that unsupervised parenting time would 

not endanger the child’s physical or emotional health.

“The district court’s findings should be sufficiently detailed to allow this 

Court to understand the basis for its decision.” Mowan v. Berg, 2015 ND 95, ¶ 

9, 862 N.W.2d 523. Alicia Wisnewski testified about many instances of

domestic violence. Timothy Wisnewski denied many of these allegations. The 

court’s only finding on domestic violence was the acknowledgment of Timothy

Wisnewski’s criminal conviction for aggravated assault domestic violence. The 

record reflects the conviction for aggravated assault was for violating N.D.C.C. 

§ 12.1-17-02(1)(a), which requires willfully causing serious bodily injury. The 

conviction alone in this instance is sufficient reason to find the statutory 

presumption was triggered based on serious bodily injury. While we would 

have preferred more detailed findings, especially considering the conflicting 

testimony of the parties, it is clear from the record Timothy Wisnewski’s 

conduct triggered the presumption of supervised parenting under N.D.C.C. § 

14-09-29(2). The court’s finding was not clearly erroneous.

III

Alicia Wisnewski argues the district court erred in finding the domestic 

violence presumption was rebutted and allowing Timothy Wisnewski 

unsupervised parenting time. We agree.

The district court found Timothy Wisnewski had perpetrated domestic 

violence. As such, Timothy Wisnewski should only receive supervised 

parenting time “unless there is a showing by clear and convincing evidence 

that unsupervised parenting time would not endanger the child’s physical or 

emotional health.” N.D.C.C. § 14-09-29(2).
8

The district court found the presumption was rebutted, stating:

Although two of the children witnessed this incident, none of 

this violence was directed toward the children. This event 

occurred over 15 months ago. At the time of this event, Timothy 

was consuming alcohol and smoking marijuana. The Court finds 

Timothy’s testimony credible that he has discontinued using 

alcohol and marijuana since this incident. He has completed a 

Substance Use Disorder Comprehensive Assessment at the Hope 

Unit of St. Francis Health in Breckenridge. Timothy also 

completed the outpatient program that was recommended. 

Timothy loves his children very much.

The Court finds that Timothy has proved by clear and 

convincing evidence that unsupervised parenting time will not 

endanger the children’s physical or emotional health.

A

When considering whether the presumption was rebutted, the district 

court found although two of the children witnessed the violence, none of the 

violence was directed toward them. This Court has said using the rationale 

there was no violence toward the children “disregards the many cases in which 

this Court has stressed that ‘the lack of violence toward the children does not 

rebut the presumption’ under . . . § 14-09-29(2).” O’Hara v. Schneider, 2017 

ND 53, ¶ 27, 890 N.W.2d 831. See also Zuger v. Zuger, 1997 ND 97, ¶ 30, 563 

N.W.2d 804; Engh v. Jensen, 547 N.W.2d 922, 925 (N.D. 1996); Bruner v. 

Hager, 534 N.W.2d 825, 828 (N.D. 1995). “[T]he legislature intended that 

courts presume that any domestic violence negatively impacts the best 

interests of the children.” Engh, at 925. This statutory presumption rests on 

the premise that children are harmed emotionally and too often physically 

when they are around perpetrators of domestic violence.

We have analyzed a similar presumption in N.D.C.C. § 14-09-06.2(1)(j),

and said that domestic violence as defined under N.D.C.C. § 14-07.1-01 means 

the presumption “arises whenever violence is directed at any member of a 

household or family, not only when a child is the direct victim of the violence.”

Heck v. Reed, 529 N.W.2d 155, 163 (N.D. 1995). “If the legislature had intended 

a distinction be drawn between the adverse impact of the violence directed at 
9

a parent but not a child, it would not have defined ‘domestic violence’ as harm 

to family and household members, but would have used a more limiting phrase 

such as ‘child abuse.’” Id. “[C]hildren are victimized by the climate of violence 

created by domestic violence between their parents, even if they are not direct 

targets of the abuse.” Id.

Even though the children may not have physical injuries or been the 

intended targets of Timothy Wisnewski’s domestic violence, children are still 

victimized by the climate a domestic violence situation creates. Any domestic 

violence is presumed to negatively impact children. There was unrebutted 

evidence the children witnessed seeing or hearing the domestic violence, 

particularly, the December 18, 2017 incident of domestic violence when

Wisnewskis’ son intervened and used a knife to protect his mother. The district 

court clearly erred in relying on the “absence” of domestic violence directed at 

the children to rebut the presumption.

B

When considering whether the presumption was rebutted, the district 

court also found Timothy Wisnewski was consuming alcohol and smoking

marijuana when he assaulted Alicia Wisnewski on December 18, 2017. The 

court also considered Timothy Wisnewski’s discontinued use of alcohol and 

marijuana and completion of an outpatient program as factors to show the 

presumption was rebutted.

The district court’s reliance on Timothy Wisnewski’s substance use at 

the time of the aggravated assault to minimize or rationalize the conduct is not 

appropriate. Drugs or alcohol do not cause domestic violence and may not be 

used by a perpetrator of domestic violence as an excuse for his or her actions.

This Court has reversed district courts for rationalizing an 

individual’s acts of physical violence because the victim “pushed a 

button.” Domestic violence is not caused by stress in the 

perpetrator’s life, alcohol consumption, or a particular victim’s 

propensity to push a perpetrator’s buttons. Rather, domestic 

violence is a learned pattern of behavior aimed at gaining a 

victim’s compliance.
10

O’Hara v. Schneider, 2017 ND 53, ¶ 26, 890 N.W.2d 831 (citations omitted). 

The court found Timothy Wisnewski had “also completed the outpatient 

program that was recommended.” This finding has some support in the record. 

However, it was not the treatment recommendation by Dr. Wegner, the 

professional whose recommendations Timothy Wisnewski was court ordered to 

follow in both his criminal case and the domestic violence protection order 

proceeding.

This Court has said perpetrators can “unlearn the pattern of domestic 

violence; however, this requires sufficient motivation for changing their violent 

behavior.” Heck, 529 N.W.2d 155, 165. Additionally, “[a]bsent such proof of 

rehabilitation, it was clearly erroneous to conclude, as the trial judge did here, 

that [the perpetrator of domestic violence] will no longer use domestic violence 

as a means of controlling his intimate partners.” Id. The treatment Timothy 

Wisnewski received was solely for his substance abuse, and according to Dr. 

Wegner, he had not completed any of her six recommendations he was ordered 

to complete associated with his conditions of probation or as provided in the 

domestic violence protection order. While laudable, it is insufficient for a 

perpetrator of domestic violence to complete drug or alcohol treatment to rebut 

the presumption, because it is not treatment for domestic violence and does not 

address violent behaviors and tendencies. The district court clearly erred by 

relying on Timothy Wisnewski’s alcohol and drug use and subsequent 

substance use disorder treatment to find the presumption of domestic violence 

was rebutted.

C

The district court also relied on the fact the December, 18, 2017 violence 

“occurred over 15 months ago.” A divorce action was initiated in June 2018, 

only 6 months after the aggravated assault domestic violence. While this case 

deals with unsupervised parenting time, what this Court has said regarding 

the passage of time in awarding primary residential responsibility is relevant.

The “lapse of time alone is not enough to overcome the statutory presumption 

against awarding custody to a perpetrator of domestic abuse.” Krank v. Krank, 

541 N.W.2d 714, 717 (N.D. 1996). While Krank involved the statutory 
11

presumption on domestic violence under N.D.C.C. § 14-09-06.2(1)(j), the theory 

is the same. Lapse of time alone does not overcome the presumption because 

domestic violence is a learned behavior. Id. We have suggested a perpetrator 

of domestic violence may be able to show rehabilitation by evidence of 

participation in a treatment program or counseling for domestic violence. Id. 

Timothy Wisnewski has not completed any treatment for domestic violence. In 

the 15 months the parties had not lived together, he violated a no contact order 

and was found in contempt in the domestic violence protection order 

proceeding. Based on the facts of this case, the passage of time alone does not 

rebut the presumption.

D

The district court also found “Timothy loves his children very much.” 

While no doubt this is true, and is part of the best interest factors for a court 

to consider, the court did not explain how it rebuts the presumption. A 

perpetrator of domestic violence might love his or her children, but this is not 

clear and convincing evidence the perpetrator will not endanger the children.

To rebut the presumption there must be a showing by clear and 

convincing evidence that unsupervised parenting time would not endanger the 

child’s physical or emotional health. The district court, in finding the 

presumption was rebutted, relied on the “absence” of violence directed toward 

the children, Timothy Wisnewski’s substance abuse and subsequent 

treatment, the passage of time, and love for his children. After reviewing the 

entire record, the evidence the court relied on leaves us with a definite and 

firm conviction that a mistake has been made and fails to provide clear and 

convincing evidence that unsupervised parenting time would not endanger the 

children. The court clearly erred in awarding Timothy Wisnewski

unsupervised parenting time. We reverse and remand for the court to 

establish a parenting plan that incorporates supervised parenting for Timothy

Wisnewski.
12

IV

Alicia Wisnewski argues the district court erred in awarding joint 

decisionmaking responsibility over the children. Alicia Wisnewski argues 

there was no agreement, the court did not follow the provisions of N.D.C.C. § 

14-09-31, joint decisionmaking responsibility requires her to keep in contact 

with someone she has a protection order against, and the finding is clearly 

erroneous.

A district court’s ruling on decisionmaking is a finding of fact, subject to 

the clearly erroneous standard. Dick v. Erman, 2019 ND 54, ¶ 14, 923 N.W.2d 

137. A court need not make separate findings for each best interest factor, but 

as with parenting responsibility, the court’s findings must provide sufficient 

detail to show the factual basis for the decision. Hoff v. Gututala-Hoff, 2018 

ND 115, ¶ 6, 910 N.W.2d 896.

Regarding decisionmaking, the district court found: 

Alicia and Timothy shall have joint decision making responsibility 

over the minor children so as to allow each parent to continue to 

have a full and active role in making major decisions in the 

children’s lives, including, but not limited to, those decisions 

relating to medical care, religion, and education.

The district court also found the parties agreed to make major decisions 

and determined the parties must make decisions jointly “after discussion and 

consultation with one another.”

Section 14-09-31, N.D.C.C., provides in pertinent part:

2. If the parents cannot agree on allocation of decisionmaking 

responsibility, the court shall enter an order allocating 

decisionmaking responsibility in the best interests of the child.

. . . .

4. If the court finds that domestic violence as defined in section 

14-07.1-01 has occurred, the court shall consider such domestic 

violence in determining whether joint decisionmaking is in the 

best interests of the child. In such cases, the court shall make 

orders for the allocation of parental rights and responsibilities that
13

best protect the child, the parent, or both. If joint decisionmaking 

responsibility is granted, even though there is evidence of domestic 

violence, the court shall provide written findings to support the 

order.

(Emphasis added.)

The parents did not agree on decisionmaking responsibility. The district 

court clearly erred by including a provision that stated the parties agreed to 

make major decisions on the health, welfare, education, or upbringing of the 

children jointly and did not provide findings on the best interests of the 

children.

In addition, N.D.C.C. § 14-09-31 requires the district court to make 

written findings to support the order of joint decisionmaking if the court finds 

domestic violence occurred. The court found domestic violence occurred, but 

did not make written findings to support an order of joint decisionmaking. 

“When a trial court does not make required findings, it errs as a matter of law, 

and it is necessary to remand for additional findings.” Horsted v. Horsted, 2012 

ND 24, ¶ 5, 812 N.W.2d 448 (quoting Sailer v. Sailer, 2009 ND 73, ¶ 28, 764 

N.W.2d 445).

We conclude the district court did not provide sufficient findings and we 

reverse and remand the award of joint decisionmaking. On remand, the court 

must provide written findings that consider the best interests of the children, 

and allocate rights and responsibilities in a manner that best protects the 

children and Alicia Wisnewski.

V

Alicia Wisnewski argues the district court erred in awarding spousal 

support because Timothy Wisnewski did not demonstrate a need for support 

or that she had the ability to pay.

“An award of spousal support is a finding of fact which will not be set 

aside on appeal unless clearly erroneous.” Schmuck v. Schmuck, 2016 ND 87, 

¶ 6, 882 N.W.2d 918.
14

The district court must make spousal support awards in 

consideration of the needs of the spouse seeking support and of the 

supporting spouse’s needs and ability to pay. Additionally, the 

district court must consider the relevant factors under the RuffFischer guidelines in determining an award of spousal support.

Thompson v. Thompson, 2018 ND 21, ¶ 30, 905 N.W.2d 772 (citation omitted).

A district court must consider the Ruff-Fischer guidelines in 

determining whether spousal support is appropriate, including:

[T]he respective ages of the parties, their earning ability, the 

duration of the marriage and conduct of the parties 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 the time, its income-producing 

capacity, if any, whether accumulated before or after the 

marriage, and such other matters as may be material.

Schmuck, at ¶ 6. “[T]he district court is not required to make specific findings 

on each factor, provided we can determine the reasons for the court’s decision.” 

Thompson, at ¶ 30 (quoting Krueger v. Krueger, 2008 ND 90, ¶ 8, 748 N.W.2d 

671).

The district court cited the Ruff-Fischer guidelines, stated the parties’ 

ages, and stated Timothy Wisnewski needed support and had been a part-time 

tree trimmer for most of the marriage, earning $20,000 a year. The court also 

considered Timothy Wisnewski stayed home to care for the children part of the 

time, and Alicia Wisnewski was awarded property that is income producing 

and Timothy was not.

Timothy Wisnewski testified he has monthly expenses of $540, but at the 

time he was not incurring an expense for housing because he was living with 

a friend rent free. He also testified he had difficulty finding employment due 

to his felony record. The evidence in the record supports the district court 

finding Timothy Wisnewski is in need of spousal support.

As to Alicia Wisnewski’s ability to pay, the district court found her 

annual income was approximately $90,000 per year. She argues the court 
15

erred by “cherry picking” her highest annual income, and did not consider her 

monthly expenses when determining she had the ability to pay.

The record reflects that Alicia Wisnewski’s annual income has been 

steadily increasing, more than doubling over the past five years. The income 

producing property awarded to Alicia Wisnewski was also considered by the 

district court. While her estimated monthly budget was not contested, and the 

court did not address her estimated expense, the evidence in the record 

supports the court’s findings. While we may not have come to the same 

conclusion, we are not left with a definite and firm conviction that a mistake 

has been made.

VI

Alicia Wisnewski argues the district court erred in its child support 

calculations and should have awarded child support back to the date the 

parties separated.

A

This Court has stated:

The standards of review used in child support 

determinations vary, depending on the issue appealed. Child 

support determinations involve questions of law which are subject 

to the de novo standard of review, findings of fact which are subject 

to the clearly erroneous standard of review, and may, in some 

limited areas, be matters of discretion subject to the abuse of

discretion standard of review.

Solwey v. Solwey, 2018 ND 82, ¶ 9, 908 N.W.2d 690 (citation omitted).

“Each child support order must include a statement of the net income of 

the obligor used to determine the child support obligation, and how that net 

income was determined.” N.D. Admin. Code. § 75-02-04.1-02(9). “A mere 

recitation that the guidelines have been considered in arriving at the amount 

of a child support obligation is insufficient to show compliance with the 

guidelines.” Spilovoy v. Spilovoy, 488 N.W.2d 873, 877 (N.D. 1992). When 
16

determining the net income of a self-employed obligor, N.D. Admin. Code § 75-

02-04.1-05(4), states that the average of the most recent five years of selfemployment activity, “if undertaken on a substantially similar scale, must be 

used to determine self-employment income.” (Emphasis added.) When selfemployment activity has not been operated on a similar scale, a shorter period 

may be used. Id. A court must either average the financial information of the 

most recent five-year period, or make specific findings that self-employment 

activity has not been operated on a substantially similar scale before using a 

shorter period of time. Raap v. Lenton, 2016 ND 195, ¶ 12, 885 N.W.2d 777. 

Additionally, a self-employed obligor may be found underemployed if the 

obligor’s gross income is significantly less than the statewide average earnings 

for persons with similar work history and qualifications. N.D. Admin. Code § 

75-02-04.1-07(1)(b); Entzie v. Entzie, 2010 ND 194, ¶ 15, 789 N.W.2d 550.

An obligor is presumed to be underemployed if the obligor’s gross 

income from earnings is less than the greater of:

a. Six-tenths of this state’s statewide average earnings for 

persons with similar work history and occupational 

qualifications.

N.D. Admin. Code § 75-02-04.1-07(2)(a).

The district court, in finding Timothy Wisnewski had a child support 

obligation, stated his average gross income over the last three years is $14,820, 

his monthly income is $1,115, and his monthly obligation is $293. The court 

admitted in evidence tax returns from 2013 to 2017. The court stated it 

averaged the gross income over the past three years, but did not state why it 

did not consider the last five years or how the net income was determined.

Timothy Wisnewski testified he had been self-employed as a tree 

trimmer. The district court did not make specific findings that Timothy

Wisnewski’s self-employment activity has not been operated on a substantially 

similar scale before using a shorter period of time to determine income. The 

court received evidence of average statewide earnings for persons with similar 

work history and occupation qualifications, but did not address whether 

Timothy Wisnewski was underemployed. See N.D. Admin. Code. §§ 75-02-
17

04.1-05(6)(b), 75-02-04.1-05(7)(b). We are unable to discern why the court used 

only the past three years to determine Timothy Wisnewski’s gross income or 

how the court determined his gross income to be $14,820. The court erred by 

failing to make detailed findings. We reverse and remand for specific findings 

explaining how Timothy Wisnewski’s net income was determined and whether 

he should be considered underemployed.

B

Alicia Wisnewski also argues the district court erred by not awarding

child support during the period since the parties’ separation.

Parents have a duty to support their children. N.D.C.C. §§ 14-09-08, 14-

08.1-01. These statutes apply when there is a court ordered obligation, but 

they also apply when child support has not been ordered. Hagel v. Hagel, 2006 

ND 181, ¶ 6, 721 N.W.2d 1; see also Adoption of A.M.B., 514 N.W.2d 670, 673-

74 (N.D. 1994) (noting the absence of a court order does not absolve a parent’s 

obligation to support a child). “District courts have the authority to award past 

due child support.” Ackerman v. Ackerman, 1999 ND 135 ¶ 20, 596 N.W.2d 

332 (relying on Linrud v. Linrud, 552 N.W.2d 342, 347 (N.D. 1996)).

From the record, it appears that from the time of the parties’ separation, 

the children resided with Alicia Wisnewski. Alicia Wisnewski did not move for 

child support by way of an interim order during the pendency of the divorce. 

However, at trial, Alicia Wisnewski argued Timothy Wisnewski should be 

required to pay child support from the date of the parties’ separation. In the 

alternative she argued that in lieu of past child support, the district court 

award her a disproportionate distribution in property. The court did not 

address the issue, either in dividing the marital property or in awarding child 

support. We are unable to discern why the court did not address child support 

during the parties’ separation and we remand for findings.

VII

Alicia Wisnewski makes two arguments regarding attorney’s fees. First, 

Alicia Wisnewski argues the district court erred allocating to her attorney’s 
18

fees of $8,000 and professional fees of $5,000 owed to Dr. Wegner as debts of 

the marital estate. She also argues the court completely ignored her request 

for attorney’s fees and professional fees under N.D.C.C. § 14-09-29(4).

A

“A district court’s distribution of marital property is treated as a finding 

of fact, which we review under the clearly erroneous standard of review.” 

McCarthy v. McCarthy, 2014 ND 234, ¶ 8, 856 N.W.2d 762. The district court 

must apply the Ruff-Fischer guidelines when distributing property, including 

the conduct of the parties during the marriage. Swanson v. Swanson, 2019 ND 

25, ¶ 12, 921 N.W.2d 666. This Court has not mandated the district court to 

weigh domestic violence more heavily than other factors under the RuffFischer guidelines. Id. at ¶ 14. But we may still reverse if we have a definite 

and firm conviction a mistake has been made.

The district court included $8,000 of debt to Gjesdahl Law Firm and 

$5,000 of debt to Dr. Wegner in Alicia Wisnewski’s portion of debts when 

distributing the marital estate. Timothy Wisnewski owed a debt of $8,000 to 

Gjesdahl Law Firm and $5,000 to Dr. Wegner pursuant to the domestic 

violence protection order. The order states Timothy Wisnewski shall pay Alicia 

Wisnewski for these costs and fees under N.D.C.C. § 14-09-29(4), but

nonpayment of these debts should not be grounds for contempt, but should be 

recognized by the divorce court in the distribution of the marital property. 

Timothy Wisnewski admitted at trial these debts belonged to him. A court

may order a party to a divorce to assume their own separate indebtedness 

accumulated since separation. Kosobud v. Kosobud, 2012 ND 122, ¶ 13, 817 

N.W.2d 384 (holding attorney’s fees were properly excluded from the property 

and debt in a divorce). The court’s findings under the Ruff-Fischer guidelines 

do not address why Alicia Wisnewski should be responsible for these debts, 

stemming from Timothy Wisnewski’s domestic violence. Under the facts of this 

case, we are left with a definite and firm conviction a mistake has been made. 

We reverse and remand for the court to allocate these debts to Timothy

Wisnewski.
19

B

Alicia Wisnewski’s request for attorney’s fees and professional fees in the 

divorce were made under N.D.C.C. § 14-09-29(4). Whether to award attorney’s 

fees is generally within the discretion of the district court and we will not 

disturb a court’s decision unless the court abuses its discretion. Datz v. Dosch,

2014 ND 102, ¶ 22, 846 N.W.2d 724. “A 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 decision, or if it 

misinterprets or misapplies the law.” Id.

Section 14-09-29(4), N.D.C.C., provides:

In any proceeding dealing with parental rights and responsibilities 

in which a parent is found to have perpetrated domestic violence, 

and there exists one incident of domestic violence which resulted 

in serious bodily injury or involved the use of a dangerous weapon 

or there exists a pattern of domestic violence within a reasonable 

time proximate to the proceeding, all court costs, attorney’s fees, 

evaluation fees, and expert witness fees must be paid by the 

perpetrator of the domestic violence unless those costs would place 

an undue financial hardship on that parent.

(Emphasis added.)

Timothy Wisnewski argues this statute is not mandatory or absolute. 

We agree. However, when a parent perpetrates domestic violence as described 

in the statute, fees must be awarded unless those costs would place an undue 

financial hardship. The district court found Timothy Wisnewski perpetrated 

domestic violence as defined in the statute. The court abused its discretion by 

not addressing the presumption that Timothy Wisnewski, as the perpetrator 

of domestic violence, should pay for the costs of the proceeding. We reverse 

and remand for the court to either award attorney’s fees and professional costs 

to Alicia Wisnewski or make findings on whether Timothy Wisnewski would

suffer an undue financial hardship.
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VIII

Alicia Wisnewski generally argues the district court’s failure to make 

detailed findings on domestic violence and misapplication of the law tend to 

show bias, and that disqualification is necessary on remand.

Alicia Wisnewski did not raise the issue of judicial bias in the district 

court. “The failure to raise the issue of judicial bias in the trial court precludes 

our review on appeal.” Wenzel v. Wenzel, 469 N.W.2d 156, 158 (N.D. 1991). To 

Alicia Wisnewski’s argument that the court’s findings and rulings show bias, 

“[a]dverse rulings alone are not evidence of judicial bias or partiality.” Dieterle 

v. Dieterle, 2013 ND 71, ¶ 34, 830 N.W.2d 571. Because judicial bias was not 

raised in the district court, we will not further address it for the first time on 

appeal.

We have considered Alicia Wisnewski’s remaining issues and conclude 

they are unnecessary to our decision or without merit.

We affirm the judgment in part, reverse in part, and remand to the 

district court to make additional findings consistent with this opinion.

[¶68] Lisa Fair McEvers

Jon J. Jensen, C.J.

I concur in the result

Gerald W. VandeWalle
21

Crothers, Justice, specially concurring.

[¶69] I agree with the result and with most of what the majority has written. 

However, I respectfully disagree with the disposition of the domestic violence 

presumption issue in Part III(D). There, the majority states, “We reverse and 

remand for the court to establish a parenting plan that incorporates supervised 

parenting for Timothy Wisnewski.” Majority opinion, at ¶ 35. 

[¶70] The underlying judicial inquiry is whether parenting time with Timothy 

Wisnewski is in the children’s best interests. See N.D.C.C. § 14-09-29(1) (“A 

court issuing an order that deals with parenting rights and responsibilities of 

a child entered under this chapter shall award the parental rights and 

responsibilities concerning the child to a person, agency, organization, or 

institution as will, in the opinion of the court, promote the best interests and 

welfare of the child.”). Instead of directing entry of an order requiring 

supervised parenting time, and instead of freezing the result in this case under 

the evidence as it existed more than 14 months ago, the children’s best 

interests would be better served by remanding this question for the district 

court to decide the issue anew. 

[¶71] Daniel J. Crothers

Jerod E. Tufte