Edison v. Edison

Docket Number20220290
Decision Date02 August 2023
PartiesSigne Ann Edison, Plaintiff and Appellee v. Jeffrey Bryce Edison, Defendant and Appellant
CourtNorth Dakota Supreme Court


2023 ND 141

Signe Ann Edison, Plaintiff and Appellee
Jeffrey Bryce Edison, Defendant and Appellant

No. 20220290

Supreme Court of North Dakota

August 2, 2023

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Tristan J. Van de Streek, Judge.

Michael L. Gjesdahl, Fargo, North Dakota, for plaintiff and appellee.

Benjamin B. Freedman, Fargo, North Dakota, for defendant and appellant. Jacquelyn S. Lutz, Woodbury, Minnesota, and Linda R. Allen, St. Paul, Minnesota, amicus curiae.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and Justice Crothers joined. Justice McEvers filed an opinion concurring in part and dissenting in part, in which Justice Bahr joined. Justice Bahr filed an opinion concurring in part and dissenting in part, in which Justice McEvers joined.



Tufte, Justice.

[¶1] Jeffrey Edison appeals from a divorce judgment and an amended judgment awarding primary residential responsibility for two children to Signe Edison, arguing error in the form of gender bias and in the court's finding that Jeffrey Edison was underemployed for purposes of child support. Signe Edison argues that Jeffrey Edison waived his gender bias argument and, in the alternative, that the trial court's judgment was not based on gender bias. Jeffrey Edison also requests this Court to award the parties equal residential responsibility and impose a "50/50 parenting plan" or reassign the case on remand to a different trial judge. We reverse and remand with instructions to reconsider the best interests of the children under N.D.C.C. § 14-09-06.2(1) and to recalculate any child support obligations.


[¶2] Signe Edison argues Jeffrey Edison waived his gender bias argument because he did not present this issue to the district court when he brought a post-judgment motion "based upon Rule 59 (New Trial; Amending Judgment)." Whether this issue is waived on appeal depends on whether the motion sought a new trial under N.D.R.Civ.P. 59(b). When a party moves for a new trial at the district court, the moving party is later limited on appeal to the grounds presented to the trial court, even if the appeal is also from the judgment itself. Larson v. Kubisiak, 1997 ND 22, ¶ 5, 558 N.W.2d 852; see also Prairie Supply, Inc. v. Apple Elec., Inc., 2015 ND 190, ¶ 7, 867 N.W.2d 335; Riddle v. Riddle, 2018 ND 62, ¶ 8, 907 N.W.2d 769. For purposes of Rule 59, a "new trial" is defined as "a re-examination of an issue of fact in the same court, after a trial and decision by a jury, court, or referee." N.D.R.Civ.P. 59(a).

[¶3] Central to the waiver question here is the distinction between a Rule 59(b) request for a "new trial," meaning a "re-examination of an issue of fact" and a request under Rule 52(b) and 59(j) for amended findings, both of which ask the court to change its mind on a finding of fact. A "new trial" is generally understood to be a "wholly new trial … unfettered by the rulings, pro or con,


made at the first trial, and with the right to have new rulings on evidence…." 58 Am. Jur. 2d New Trial § 1.

[¶4] Under N.D.R.Civ.P. 59(j), a party may move to amend a judgment, which requests a court to "reconsider its judgment and correct errors of law." Flaten v. Couture, 2018 ND 136, ¶ 28, 912 N.W.2d 330 (citing Tuhy v. Tuhy, 2018 ND 53, ¶ 20, 907 N.W.2d 351); see generally 47 Am. Jur. 2d Judgments § 636. When a party moves under N.D.R.Civ.P. 59(j) to alter or amend a judgment, it is not limited in its appeal to a review of the grounds the party presented in its motion to the trial court, unlike when a party moves under N.D.R.Civ.P. 59(b) for a new trial. In re N.C. C., 2000 ND 129, ¶ 12, 612 N.W.2d 561. The distinguishing factor between these two motions is that "[u]nlike a N.D.R.Civ.P. 59(b) motion for a new trial, a N.D.R.Civ.P. 59(j) motion to alter or amend a judgment does not usually request a reexamination of issues of fact." Id. "Rather, a motion to alter or amend 'may be used to ask the court to reconsider its judgment and correct errors of law.'" Id.

[¶5] A court may also correct a "clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record" under N.D.R.Civ.P. 60(a). Application of N.D.R.Civ.P. 60(a) is appropriate when the movant claims one of the following occurred: a "clerical mistake, oversight, or omission in the judgment or amended judgment." McWethy v. McWethy, 366 N.W.2d 796, 799 (N.D. 1985). Under N.D.R.Civ.P. 60(b)(1), a court may relieve a party from a "mistake, inadvertence, surprise, or excusable neglect."

[¶6] The motion in question was simply titled "motion." Neither the motion nor the brief in support requested a "new trial" or cited N.D.R.Civ.P. 59(b). Each of the four citations to Rule 59 in the brief was specifically to N.D.R.Civ.P. 59(j), which provides for motions "to alter or amend a judgment." In the body of the motion, Jeffrey Edison stated he "moves the Court for an amending the findings and/or Judgment entered June 24, 2022, or for relief from Judgment." To inform the adversary of the nature of the motion and the relief sought, a movant has the burden to accurately label a motion. N.C. C., 2000 ND 129, ¶ 11.


On appeal we "may look to the substance of the motion to determine its proper classification." Id.; see also Flaten, 2018 ND 136, ¶ 39.

[¶7] Jeffrey Edison's motion sought the following relief:

a. Correcting the error of awarding Signe the property in items 26, 27, 29, 31, 101, and 102 in Exhibit A attached to the Judgment
b. Including a vacation schedule as required by N.D.C.C. 14-09-30(2)(d)(1);
c. Correcting the error of having Memorial Day and Labor Day holidays end on the night prior to the holidays.
d. Imposing a proximity restriction on Signe.
e. Correcting Jeff's child support obligation.

Each request asked the court to amend the findings or judgment or correct what Jeffrey Edison asserted were errors or omissions in the judgment. See McWethy, 366 N.W.2d at 799. Nowhere does he expressly request a "new trial" or "a re-examination of an issue of fact," which would invoke the language of the definition of "new trial." Each request for relief sought correction of a purported error or omission. Van Sickle v. Hallmark & Assocs., Inc., 2013 ND 218, ¶ 18, 840 N.W.2d 92; N.C. C., 2000 ND 129, ¶ 12; McWethy, 366 N.W.2d at 799.

[¶8] The substance of the motion and Jeffrey Edison's argument to the district court invoked the court's authority under N.D.R.Civ.P. 52(b), 59(j), 60(a), and 60(b)(1) but not N.D.R.Civ.P. 59(b). Jeffrey Edison is not limited on appeal to the arguments he made in the motion. Therefore, he did not waive his gender bias argument, and we will now consider the merits of his argument.


[¶9] Jeffrey Edison argues that the district court erred in awarding Signe Edison primary residential responsibility on the basis of gender bias. We have explained the standard of review for a trial court's award of primary residential responsibility.

[The district] court's award of primary residential responsibility is a finding of fact, which will not be reversed on appeal unless it is
clearly erroneous or it is not sufficiently specific to show the factual basis for the decision. 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, although there is some evidence to support it, on the entire record, we are left with a definite and firm conviction a mistake has been made. Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of witnesses, and we will not retry a custody case or substitute our judgment for a district court's initial custody decision merely because we might have reached a different result. The district court has substantial discretion in making a custody determination, but it must consider all of the best-interest factors. Although a separate finding is not required for each statutory factor, the court's findings must contain sufficient specificity to show the factual basis for the custody decision.

Rustad v. Baumgartner, 2018 ND 268, ¶ 4, 920 N.W.2d 465 (quoting Zuraff v. Reiger, 2018 ND 143, ¶ 11, 911 N.W.2d 887).

[¶10] This Court has explained the standard for custody determinations at the district court.

In an initial custody decision, the trial court must award custody of the child to the person who will better promote the best interests and welfare of the child. Neither the fitness of the parents nor fairness to the parents is the appropriate test for determining custody, but rather the predominant consideration is the best interests of the child.

Klein v. Larson, 2006 ND 236, ¶ 7, 724 N.W.2d 565 (cleaned up). "For the purpose of parental rights and responsibilities," a district court determines the best interests of a child by considering the factors found in section 14-09-06.2(1), N.D.C.C. See also Rustad v. Rustad, 2014 ND 148, ¶ 9, 849 N.W.2d 607 (stating that a court must consider all of the relevant factors under N.D.C.C. § 14-09-06.2(1)).

[¶11] North Dakota law broadly prohibits discrimination on the basis of sex. N.D.C.C. § 14-02.4-01. When determining primary residential responsibility "[b]etween the mother and father, whether married or unmarried, there is no


presumption as to whom will better promote the best interests and welfare of the child." N.D.C.C. § 14-09-29(1). The tender years doctrine, which held that "children of 'tender years,' regardless of their gender, belong with their mother," was long ago replaced with a principle of neutrality between mothers and fathers. Rustad, 2014 ND 148, ¶ 12 ("There is no gender bias in deciding issues related to parental rights and responsibilities regardless of the child's age."); see also McDowell v. McDowell, 2003...

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