IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 124

Trinda Ann Eubanks, Plaintiff and Appellee

v.

Justin Gary Fisketjon, Defendant and Appellant

and

State of North Dakota, Statutory Real Party in Interest 

No. 20200288

Appeal from the District Court of Williams County, Northwest Judicial 

District, the Honorable Joshua B. Rustad, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by VandeWalle, Justice.

Gregory W. Liebl, Fargo, ND, for plaintiff and appellee.

Jonathan L. Green, Wahpeton, ND, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 8, 2021 

STATE OF NORTH DAKOTA
1

Eubanks v. Fisketjon

No. 20200288

VandeWalle, Justice.

[¶1] Justin Fisketjon appealed from a judgment determining primary 

residential responsibility of the parties’ minor child and awarding child 

support. We reverse a portion of the judgment awarding child support and 

remand the case for recalculation of the child support amount. We summarily 

affirm the judgment in all other respects.

I

[¶2] The parties were never married. Trinda Eubanks sued Justin Fisketjon 

for primary residential responsibility of the parties’ minor child and for child 

support in September 2018. On April 25, 2019, the district court ordered 

Fisketjon to pay Eubanks $1,208 a month in child support. In February 2020, 

the court held a two-day trial. After the trial, Fisketjon filed a motion to reopen 

the record to present additional evidence. The court denied his motion. On 

September 1, 2020, the court entered judgment awarding Eubanks primary 

residential responsibility of the child and the majority of parenting time. The 

judgment also ordered Fisketjon to pay Eubanks child support under the same

terms as its initial child support order. Fisketjon filed his notice of appeal on 

October 30, 2020.

II

[¶3] Fisketjon challenges the district court’s award of child support, its 

primary residential responsibility determination, and its allocation of 

parenting time. As a threshold matter, Eubanks claims Fisketjon’s appeal of 

the child support issue is untimely because it was not made within sixty days 

of the initial order awarding child support, which Eubanks claims is “final” and 

“not interlocutory.”

[¶4] “Only judgments and decrees which constitute a final judgment of the 

rights of the parties to the action and orders enumerated by statute are 
2

appealable.” Brummund v. Brummund, 2008 ND 224, ¶ 5, 758 N.W.2d 735. 

Rule 54(b), N.D.R.Civ.P., states: 

[A]ny order or other decision, however designated, that adjudicates

fewer than all the claims or the rights and liabilities of fewer than

all the parties does not end the action as to any of the claims or

parties and may be revised at any time before the entry of a

judgment adjudicating all the claims and all the parties’ rights and

liabilities.

Under Rule 54(b), a district court may certify a judgment disposing of fewer 

than all claims as final when it determines there is “no just reason for delay.” 

Dellinger v. Wolf, 2020 ND 112, ¶ 5, 943 N.W.2d 772. “Absent a Rule 54(b) 

certification, a decision of the trial court which fails to adjudicate all of the 

claims of all of the parties is interlocutory and not appealable.” Kessel v. W. 

Sav. Credit Union, 434 N.W.2d 356, 357 (N.D. 1989).

[¶5] Here, although the parties were never married, we believe the district 

court’s support order is comparable to the temporary support order provided 

for in N.D.C.C. § 14-05-23. Eubanks, in her pleading, asked the court to 

determine primary residential responsibility, which had not been decided at 

the time the temporary support order was issued. The child support order 

therefore did not decide all of the claims brought by Eubanks in this action. It 

was interlocutory and not appealable. Because Fisketjon filed his notice of 

appeal within sixty days of service of notice of entry of the final judgment, 

which orders him to pay child support, we conclude his appeal is timely. See

N.D.R.App.P. 4(a)(1). Having determined Fisketjon’s appeal is timely, we turn

to the merits.

III

[¶6] Fisketjon asserts the district court improperly included his roommate’s 

share of rent as income in its child support calculation. We apply a mixed 

standard of review to appeals from child support determinations:

“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, 
3

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

of discretion standard of review.” Grossman v. Lerud, 2014 ND 

235, ¶ 6, 857 N.W.2d 92 (quoting State ex rel. K.B. v. Bauer, 2009 

ND 45, ¶ 8, 763 N.W.2d 462). “A finding of fact is clearly erroneous 

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

to support it, or if, on the entire record, we are left with a definite 

and firm conviction that a mistake has been made.” Richter v. 

Houser, 1999 ND 147, ¶ 3, 598 N.W.2d 193.

Gooss v. Gooss, 2020 ND 233, ¶ 14, 951 N.W.2d 247. 

[¶7] Under the child support guidelines set out in N.D. Admin. Code ch. 75-

02-04.1, the district court is required to determine an obligor’s net income and

apply that amount to the guidelines to calculate the child support obligation. 

Willprecht v. Willprecht, 2020 ND 77, ¶ 29, 941 N.W.2d 556. The guidelines 

provide definitions for both gross income and net income. See N.D. Admin. 

Code § 75-02-04.1-01(4) and (6). Income, for purposes of child support 

calculations, is also defined by N.D.C.C. § 14-09-09.10(9) as “any form of 

payment, regardless of source, owed to an obligor . . . .”

[¶8] Fisketjon testified at trial: 

I share my apartment with [my roommate] and we both pay half 

of the rent. It’s not rental income to me. He pays half and I pay 

half, so it’s not income.

. . .

He doesn’t pay me per se, he gives me the half. The full 

amount comes out of my checking account and he gives me his half 

— 500. 

The rental lease, which listed Fisketjon and his roommate as lessees, was 

admitted into evidence. The district court’s judgment includes half the rental 

amount as Fisketjon’s income in its child support calculation.

[¶9] We conclude the district court erred as a matter of law. Fisketjon and his 

roommate had an equal obligation to pay their landlord the full amount of the

rent under the terms of the lease. The rental obligation is money owed to the 
4

landlord; it is not money owed to Fisketjon. Thus, the roommate’s share of the 

rent is not a “payment . . . owed to an obligor” as required by the N.D.C.C. § 

14-09-09.10(9) definition of income. We reverse the district court’s judgment to

the extent it includes a portion of Fisketjon and his roommate’s rental 

obligation as Fisketjon’s income.

IV

[¶10] Fisketjon makes various arguments concerning the district court’s 

primary residential responsibility determination and its allocation of 

parenting time. We reject his arguments.

A

[¶11] Fisketjon challenges the district court’s primary residential 

responsibility determination. He asserts we should take judicial notice that he 

pled guilty to disorderly conduct, a charge the court incorrectly characterized 

as simple assault in its analysis. Although we grant Fisketjon’s request, it does 

not change our decision. Both parties agree the incident underlying the charge 

does not raise a presumption of domestic violence under subsection j of the best 

interest factors. See N.D.C.C. § 14-09-06.2(1)(j). Because the district court’s 

findings support its primary residential responsibility determination, we 

summarily affirm under N.D.R.App.P. 35.1(a)(2).

B

[¶12] Fisketjon challenges the district court’s allocation of parenting time

arguing “a district court should have to grant a noncustodial parent as much 

time as possible unless and until it issues findings as to why the parenting 

time should be reduced.” He requests we remand the case for the district court

to make additional findings concerning his right to parent. We decline to do so. 

We have long held parenting decisions must be made in light of the child’s best 

interests. See Nelson v. Ecklund, 283 N.W. 273, 275 (N.D. 1938) (“the rights of 

the parents are to be enforced in the light of the best interest of the child, the 

best interests of the child being paramount.”). The requirement that parenting 

decisions are determined in light of the child’s best interest is codified. See 

N.D.C.C. § 14-09-06.2 (setting out the best interests factors). The district
5

court’s findings support a determination that unequal parenting time is in the 

child’s best interests. We summarily affirm under N.D.R.App.P. 35.1(a)(2) and 

(7).

C

[¶13] Fisketjon argues the district court erred when it denied his post-trial 

motion to reopen the record to present additional evidence concerning 

Eubanks’ fitness to parent. We summarily affirm under N.D.R.App.P. 

35.1(a)(4). See Vandal v. Leno, 2014 ND 45, ¶ 26, 843 N.W.2d 313 (a district 

court’s decision on whether to reopen the record to receive additional evidence

is reviewed for an abuse of discretion).

V

[¶14] We conclude the appeal is not frivolous and therefore deny Eubanks’

requests for attorney fees under N.D.R.App.P. 38.

VI

[¶15] We reverse the portion of the judgment awarding child support and 

remand the case for recalculation of the child support amount in accordance 

with this opinion. The judgment is affirmed in all other respects.

[¶16] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte