Harmless Error in Misstating Domestic-Violence Factor (j) When No Credible Evidence Is Presented

Case: Vormestrand v. Craig, 2026 ND 69 (N.D. Mar. 26, 2026)
Court: Supreme Court of North Dakota
Posture: Appeal from amended judgment awarding primary residential responsibility to father; appeal also from order denying mother’s motion for new trial/reconsideration.

1. Introduction

Vormestrand v. Craig arises from a high-conflict parenting dispute following a 2022 stipulated judgment granting equal residential responsibility for the parties’ minor child, K.J.V. The judgment included an “automatic modification” clause stating that when the child reached school age (around summer 2024), the mother (Khilyn Craig) would have primary residential responsibility and could relocate out of state, with the father (Dwayne Vormestrand) receiving extended summer parenting time if relocation occurred.

The parties repeatedly failed to adhere to the parenting-time terms. In 2024, competing motions followed: Craig sought enforcement of the automatic-modification provision, relocation, and associated parenting-time/travel/support changes; Vormestrand sought primary residential responsibility. Craig relocated to Texas with the child in July 2024 before the district court ruled on relocation/enforcement, and she later appeared self-represented at the December 2024 evidentiary hearing. In June 2025, the district court awarded Vormestrand primary residential responsibility. Craig moved for a new trial (or reconsideration), which was denied.

On appeal, Craig argued the denial of a new trial was an abuse of discretion, asserting (i) legal error and insufficient evidence—especially on the domestic-violence best-interests factor (j), (ii) irregularities that allegedly prevented a fair trial (including restrictions on her use of notes and her pro se status), and (iii) “accident or surprise” stemming from how the court treated her relocation.

2. Summary of the Opinion

The Supreme Court of North Dakota affirmed both the amended judgment and the order denying a new trial. The Court held:

  • Although the district court appeared to misunderstand N.D.C.C. § 14-09-06.2(1)(j) by implying domestic violence must reach the presumption-triggering level to be “considered,” any error was harmless because the district court found no credible evidence of domestic violence in the record created at the December 2024 hearing.
  • The district court’s factor (e) findings (willingness/ability to facilitate the other parent’s relationship) were supported by the record, particularly Craig’s relocation without permission while motions were pending and her conduct restricting contact and information.
  • No “irregularity” warranting a new trial occurred: the court acted within discretion in controlling testimony (including refusing “reading from notes” absent a Rule 612 foundation), and pro se litigants are held to the same standards as represented parties.
  • No “accident or surprise” occurred under Rule 59(b)(3); Craig’s relocation and its potential consequences were foreseeable, and the decision rested on broader conduct, not relocation alone.
  • The district court did not need to rule on the automatic modification clause once its primary-responsibility award rendered that issue moot.

3. Analysis

3.1 Precedents Cited (and Their Role)

  • Zander v. Morsette, 2024 ND 80 — Provided the governing standard: new-trial rulings are reviewed for abuse of discretion. The Court used this to frame that it does not re-try the case; it asks whether the district court’s denial fell outside rational decision-making.
  • Rentz v. BNSF Ry. Co., 2020 ND 254 — Supplied the definition of abuse of discretion (arbitrary/unreasonable or misapplication of law). This anchored the Court’s evaluation of whether any alleged procedural/legal error required a new trial.
  • Grinaker v. Grinaker, 553 N.W.2d 204 (N.D. 1996) — Emphasized abuse of discretion is not presumed; the appellant bears the burden. This burden allocation mattered throughout because Craig’s claims were largely record-dependent.
  • Wanttaja v. Wanttaja, 2016 ND 14 (quoting Travelers Cas. Ins. Co. v. Williams Co. Constr., 2014 ND 160) — Clarified that Rule 59(b)(6) insufficiency-of-evidence new-trial motions are committed to the district court’s discretion; on appeal, review is narrower. This reinforced deference to trial-level weighing and factfinding.
  • Rummel v. Rummel, 234 N.W.2d 848 (N.D. 1975) — Confirmed insufficiency of evidence is a recognized ground for a new trial under Rule 59(b)(6). Its function here was foundational: Craig’s challenge was cognizable, but still discretionary.
  • Korynta v. Korynta, 2006 ND 17 — For bench trials, evidence is viewed in the light most favorable to the trial court’s findings. This substantially limited Craig’s attempt to re-litigate credibility and factual determinations.
  • Dieterle v. Dieterle, 2013 ND 71 and Norberg v. Norberg, 2014 ND 90 — Restated that the court must award primary residential responsibility to the parent who will better promote the child’s best interests, applying N.D.C.C. § 14-09-06.2 factors. They located the dispute within the statutory best-interests framework.
  • Topolski v. Topolski, 2014 ND 68 — Described how factor (j)’s rebuttable presumption is triggered (serious bodily injury, dangerous weapon, or pattern proximate to the proceeding). The Court used it to show the district court’s “threshold” description was incomplete/incorrect.
  • Law v. Whittet, 2014 ND 69 — Critical to the domestic-violence analysis: even if evidence does not trigger the presumption, credible evidence of domestic violence remains relevant and “dominates the hierarchy” of factors. The Court invoked this to recognize the district court’s misinterpretation could matter in other cases.
  • N.D.R.Civ.P. 61 (Harmless Error) — Although not a “case,” it is the dispositive analytical tool: errors not affecting substantial rights are disregarded. The Court relied on Rule 61 to affirm despite the district court’s misstatement of factor (j), because the factual predicate—credible evidence—was not found.
  • Zuraff v. Reiger, 2018 ND 143 (and N.D.R.Ev. 603) — Supported the point that unsworn statements (including questions posed during examination) are not evidence. This was pivotal: Craig’s earlier “allegations” embedded in questioning did not establish domestic violence evidence for factor (j).
  • Carlson v. Carlson, 2020 ND 36 and Grasser v. Grasser, 2018 ND 85 — Carlson illustrates that credible evidence of domestic violence must be addressed; Grasser reinforces appellate non-interference with credibility. Together they explain why the domestic-violence issue turned on credibility findings that the Supreme Court would not reweigh.
  • Gould v. Miller, 488 N.W.2d 42 (N.D. 1992) — Explained that not every factor requires an express finding; valid reasons may be discerned by inference. This undercut Craig’s claim that allegedly “ignored” evidence or motions required reversal.
  • Cendak Agri-Serv., Inc. v. Hausman, 275 N.W.2d 326 (N.D. 1979) and Hoge v. Hoge, 281 N.W.2d 557 (N.D. 1979) — Defined “irregularity” and required it to be patent/obvious from the record to justify a new trial under Rule 59(b)(1). The Court used these to reject Craig’s claims about trial management.
  • Cmty. Homes of Bismarck, Inc. v. Main, 2011 ND 27 and Harfield v. Tate, 2004 ND 45 — Addressed Rule 612 refreshing recollection and broad trial-management discretion. They supported the ruling that Craig could not simply “recite off a page” without laying foundation or requesting to refresh memory.
  • Desert Partners IV, L.P. v. Benson, 2014 ND 192, Rosendahl v. Rosendahl, 470 N.W.2d 230 (N.D. 1991), State v. Hilgers, 2004 ND 160, Schwab v. Zajac, 2012 ND 239, Hildebrand v. Stolz, 2016 ND 225, and State v. Falos, 431 N.W.2d 154 (N.D. 1988) — Collectively establish that self-represented litigants receive patience and courtesy but no procedural leniency; judges cannot act as counsel. These authorities disposed of Craig’s plea for extra latitude due to pro se status and claimed DV survivor status.
  • Bravera Bank v. Craft, 2023 ND 214 — Held that when a dispositive ruling resolves pending claims, other motions rendered moot need not be addressed. This supported affirmance on the automatic-modification/declaratory-relief sequencing argument.
  • Avery v. Boysen, 2020 ND 131 and Motter v. Traill Rural Water Dist., 2017 ND 267 — Clarified “accident or surprise” under Rule 59(b)(3), typically involving unforeseen evidence or legal theories that ordinary prudence could not guard against. They supported rejecting Craig’s “surprise” claim based on the predictable risks of relocating mid-litigation.

3.2 Legal Reasoning

The opinion is structured around the discrete Rule 59(b) grounds Craig invoked: (6) insufficient evidence/against law, (1) irregularity, and (3) accident/surprise. The Court’s method is notably pragmatic: it identifies a potential legal misstatement (factor (j)), then resolves the appeal via record-based harmless-error analysis.

A. Domestic violence factor (j): legal misstatement, but harmless in this record

The Supreme Court agreed that the district court “appears to have misinterpreted” N.D.C.C. § 14-09-06.2(1)(j) by implying domestic violence must meet the presumption-triggering threshold (serious injury/weapon/pattern) before it “may be considered.” Under Law v. Whittet, even non-presumptive domestic violence evidence must be weighed if credible.

But the Court then applied N.D.R.Civ.P. 61 (harmless error). The decisive point was factual: the district court did not find Craig’s domestic-violence allegations credible based on the evidence properly presented at the December 2024 hearing. The Supreme Court emphasized two record rules:

  • Unsworn allegations are not evidence. References raised in questioning were not testimony; under N.D.R.Ev. 603 and Zuraff v. Reiger, only sworn witnesses provide evidence.
  • Credibility findings are for the trial court. Under Grasser v. Grasser, the Supreme Court will not reweigh whether evidence was “credible.”

This produces the opinion’s most significant doctrinal takeaway: a trial court’s misdescription of factor (j)’s presumption framework will not warrant a new trial if the court made a supported finding that no credible domestic-violence evidence was presented in the first place. The error does not affect substantial rights because the factual trigger for factor (j)’s special weight—credibility—never attached.

B. Factor (e): facilitation of the other parent’s relationship

The Court upheld the district court’s heavy reliance on factor (e), which addressed each parent’s willingness and ability to foster the other parent’s relationship with the child. The trial court’s findings—Craig relocating without consent or a court ruling, withholding in-person parenting time for months, limiting and monitoring electronic contact, and failing to share address/school/provider information—supported the determination that Craig posed a significant risk of long-term interference.

Importantly, the Supreme Court treated Craig’s contrary arguments (ignored negative evidence about Vormestrand; misread record) as reweighing requests barred by the standard of review. The district court acknowledged Vormestrand’s retaliatory withholding but assigned greater weight to Craig’s conduct during pending motions—an evaluative choice the abuse-of-discretion standard protects.

C. Irregularity (Rule 59(b)(1)): notes, pro se status, and sequencing of issues

The Court treated “irregularity” as a strict, record-evident concept (from Cendak Agri-Serv., Inc. v. Hausman and Hoge v. Hoge), rejecting each claim:

  • Notes on the stand: Under N.D.R.Ev. 612 and Cmty. Homes of Bismarck, Inc. v. Main, a witness must show a need to refresh memory and that the writing will help. Craig did not object, did not request to refresh recollection, and did not lay foundation; therefore, the court’s instruction not to “recite off a page” was not an irregularity.
  • Pro se / domestic violence survivor “latitude”: North Dakota precedent—Desert Partners IV, L.P. v. Benson, Schwab v. Zajac, Hildebrand v. Stolz, State v. Falos—holds pro se parties to the same rules and forbids judges from acting as counsel. The Court declined to adopt out-of-state “special treatment” concepts and reaffirmed the state’s even-handed approach.
  • Automatic modification provision not decided first: Under Bravera Bank v. Craft, once the court’s award of primary residential responsibility resolved the dispositive issue, other issues (including enforceability/operation of the automatic modification clause) were moot and need not be decided in sequence.

D. Accident or surprise (Rule 59(b)(3)): relocation consequences were foreseeable

Applying Avery v. Boysen and Motter v. Traill Rural Water Dist., the Court noted Rule 59(b)(3) usually concerns unforeseeable evidence or legal theories. Craig’s relocation during active litigation, without consent or an order, carried predictable litigation risk. The district court did not treat relocation alone as dispositive; it treated Craig’s ensuing restriction of parenting time and information as central to the best-interests analysis. That combination was not “surprise” that ordinary prudence could not guard against.

3.3 Impact

1) Domestic-violence factor (j) litigation will turn even more sharply on credibility and proper evidentiary presentation. The opinion underscores that factor (j)’s special role is activated only by credible evidence. Parties must present sworn testimony and properly admitted exhibits; “allegations” embedded in argument or questioning will not preserve the issue.

2) Harmless-error doctrine provides insulation where the record independently supports the result. Even when a district court articulates factor (j) imperfectly, affirmance is likely if the court made a supportable credibility determination and the alleged misstatement did not affect substantial rights. This is not an invitation to misstate the law; it is a strong reminder that appellate correction is tied to prejudice.

3) Relocation during pending motions can materially affect factor (e) and overall best-interests weighing. The Court approved factoring not just the move, but the parent’s conduct around the move—unilateral action, withholding parenting time, limiting contact, and obstructing information—as bearing directly on willingness to facilitate the other parent’s relationship.

4) Pro se litigants remain responsible for evidentiary foundations and procedural steps. The Court reaffirmed that trial judges may not function as “auxiliary counsel.” This has practical implications: parties alleging domestic violence, coercive control, or other safety issues must still marshal evidence through admissible means.

4. Complex Concepts Simplified

  • Primary residential responsibility: The court’s designation of which parent is principally responsible for the child’s residence and day-to-day care (often what other jurisdictions call “primary custody”).
  • Best-interests factors (N.D.C.C. § 14-09-06.2): A statutory checklist the court must consider to decide which arrangement best serves the child.
  • Factor (j) (domestic violence) & “rebuttable presumption”: If certain domestic-violence findings exist (serious injury, weapon, or pattern), the law presumes the perpetrator should not receive residential responsibility. “Rebuttable” means the presumption can be overcome, but only with a strong evidentiary showing (clear and convincing evidence).
  • Credible evidence: Evidence the judge believes. If the judge does not find the witness reliable, the judge may find the evidence not credible even if allegations are made.
  • Harmless error (N.D.R.Civ.P. 61): Appellate courts do not reverse for mistakes that did not affect the outcome or a party’s substantial rights.
  • Abuse of discretion: A deferential standard. The appellate court will not substitute its view merely because it might have decided differently; it reverses only if the decision is unreasonable, arbitrary, or based on misapplied law that matters.
  • Refreshing recollection (N.D.R.Ev. 612): A witness may use a writing to jog memory, but must first show memory needs refreshing and that the writing will help. It is not a right to read a prepared script.
  • Mootness: If a later ruling resolves the dispute in a way that makes another issue irrelevant, courts need not decide the now-irrelevant issue.

5. Conclusion

Vormestrand v. Craig affirms a custody modification and denial of a new trial while delivering a pointed procedural lesson: even where a district court’s articulation of N.D.C.C. § 14-09-06.2(1)(j) is imperfect, reversal requires prejudice—particularly where the court finds no credible domestic-violence evidence in the record created at trial. The decision also reinforces North Dakota’s consistent approach to pro se litigants (no procedural leniency) and highlights how unilateral relocation and parenting-time interference can decisively shape the best-interests calculus, especially factor (e).