from the District Court of Cass County, East Central Judicial
District, the Honorable Frank L. Racek, Judge.
Michael L. Gjesdahl, Fargo, ND, for plaintiff and appellee;
submitted on brief.
Kristin A. Overboe, Fargo, ND, for defendant and appellant;
submitted on brief.
Kevin Johnson appeals from an amended judgment granting Julie
Lessard a divorce and from orders denying his motions for a
new trial and for contempt. Johnson argues the district court
erred in denying his motion for a new trial, deciding primary
residential responsibility for the parties' children,
dividing the marital estate, and denying his motion for
contempt. We affirm.
Johnson and Lessard were married in 2006, and have three
minor children together. In 2018 Lessard sued for divorce,
requesting the district court award her primary residential
responsibility for the parties' children, order Johnson
to pay child support, and equitably distribute the
parties' assets and debts. Johnson responded and
requested the court award him primary residential
responsibility for the children, child support, spousal
support, an equitable division of the marital estate, and
attorney's fees. The parties filed a joint asset and debt
listing under N.D.R.Ct. 8.3.
The trial was scheduled for October 2, 2018, but was
rescheduled to December 6, 2018. Johnson's attorney moved
to withdraw as counsel, which the district court granted on
October 31, 2018. On November 30, 2018, Johnson's new
counsel filed a notice of appearance. On December 4, 2018,
Johnson moved for a continuance, arguing he recently hired a
new attorney, Lessard hampered his efforts to do so because
she controlled marital funds, and she was unwilling to give
him enough money to hire an attorney. The court denied
After a court trial, the district court awarded Lessard
primary residential responsibility for the children, awarded
Johnson parenting time, ordered Johnson's child support
obligation was $0 per month, and ordered neither party shall
pay the other spousal support. The court also divided the
marital estate and ordered that each party was responsible
for his or her own attorney's fees. Judgment was entered,
and was later amended.
On March 6, 2019, Johnson moved to modify primary residential
responsibility for the children. He also moved for a new
trial and relief from the judgment, arguing the
irregularities in the proceedings, including the district
court's denial of his motion for a continuance, prevented
him from having a fair trial. He argued the court's
property division was not equitable and the court did not
explain the disparity in the division, and the court did not
properly apply the best interest factors in deciding primary
residential responsibility for the children. Johnson also
moved to amend the judgment and to hold Lessard in contempt.
Lessard opposed the motions. The district court denied
Johnson's post-judgment motions. Johnson timely appealed.
Johnson argues the district court erred by denying his motion
for a new trial under N.D.R.Civ.P. 59 because the
court's failure to grant his request for a continuance
prejudiced the presentation of his case and deprived him of
an equal opportunity to prepare for trial. He claims he
requested a continuance for good cause because Lessard
controlled the marital funds and she refused his request for
money, which restricted his efforts to find an attorney.
A district court has discretion in deciding whether to grant
or deny a motion for a new trial under N.D.R.Civ.P. 59(b).
Riddle v. Riddle, 2018 ND 62, ¶ 5, 907 N.W.2d
769. Our review of the court's decision is limited to
deciding whether the court manifestly abused its discretion.
Id. A district court abuses its discretion when it
acts in an arbitrary, unreasonable, or unconscionable manner,
it misinterprets or misapplies the law, or when its decision
is not the product of a rational mental process leading to a
reasoned determination. Id.
Under N.D.R.Civ.P. 59(b)(1), a court may grant a motion for a
new trial on the grounds of "irregularity in the
proceedings of the court, jury, or adverse party, or any
court order or abuse of discretion that prevented a party
from having a fair trial[.]" Under N.D.R.Ct. 6.1(b) a
motion for a continuance "shall be promptly filed as
soon as the grounds therefor are known and will be granted
only for good cause shown[.]"
The district court denied Johnson's motion for a new
trial. The court explained that the parties were told to be
ready for trial on October 2, 2018, written discovery was
closed, the parties engaged in mediation, the parties
essentially agreed to the financial items, and primary
residential responsibility for the children remained an
issue. The court found Johnson's first attorney withdrew
on October 31, 2018, new counsel filed a notice of appearance
on November 30, 2018, and Johnson moved for a continuance two
days before trial on December 4, 2018. The court found
Johnson knew he needed new counsel but he waited one month
before acquiring new counsel and he failed to show how the
failure to grant a continuance was an irregularity in the
proceedings of the court that prevented him from having a
fair trial. The court found each party was allowed time to
present their case, almost all of the parties' exhibits
were accepted, each party was allowed to testify, and the
failure to grant a continuance did not prevent a fair trial.
Johnson failed to establish the district court abused its
discretion by denying his motion for a new trial. We conclude
the court did not act in an arbitrary, unreasonable, or
unconscionable manner by denying Johnson's motion for a
Johnson argues the district court erred in awarding Lessard
primary residential responsibility for the parties'
children. He contends the court failed to consider relevant
best interest factors and erred by finding his alcoholism
played a significant role in weighing the best interest