Isolated Parental DUI and the “Material Change in Circumstances” Threshold in North Dakota Custody Law:
A Comprehensive Commentary on Johnson v. Staiger, 2025 ND 198

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I. Introduction

Johnson v. Staiger, 2025 ND 198, is a significant decision of the North Dakota Supreme Court addressing when a parent’s single driving-under-the-influence (DUI) incident—committed while the child is in the vehicle—constitutes a “material change in circumstances” justifying modification of primary residential responsibility (custody) and parenting time.

The case arises from an ongoing conflict between unmarried parents, Courtney Johnson (mother, appellee) and Joshua Staiger (father, appellant), over their young child, D.S. (born 2020). The mother has had primary residential responsibility under prior orders; the father has parenting time under a graduated, alcohol-monitoring-based plan imposed because of his own alcohol and mental health history.

After Johnson was arrested for DUI with the child in the car, Staiger moved to transfer primary residential responsibility to himself, or alternatively to significantly expand his parenting time, adjust alcohol-testing requirements, and strengthen safety measures. The district court declined to change primary residential responsibility, made only targeted changes to the parenting plan, and later denied Staiger’s motions for reconsideration and clarification. The Supreme Court affirmed.

The decision clarifies several important points in North Dakota family law:

• A parental DUI—even with a child present—does not automatically constitute a material change in circumstances; there must be evidence that the incident has adversely affected the child or led to a general decline in the child’s condition.
• Improvement in the noncustodial parent’s circumstances, without a corresponding decline in the child’s condition under the custodial parent, is insufficient to warrant modification of primary residential responsibility.
• Limitations exist on using a new motion to collaterally attack unappealed parenting plan provisions from an earlier judgment.
• “Motions to reconsider” must be analyzed under N.D.R.Civ.P. 59(j) or 60(b), and relief requires precise, rule-based grounds—not just re-argument or belated evidence.
• “Clarification” is appropriate only to resolve ambiguity in a judgment, not to reopen settled issues or re-litigate policy disagreements.

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II. Summary of the Opinion

A. Factual and Procedural Background

• Johnson and Staiger are unmarried parents of D.S. (born in 2020) ([¶2]).
• The original judgment awarded primary residential responsibility to Johnson, with Staiger receiving every-other-weekend and one midweek evening of parenting time ([¶2]).
• In April 2022, Johnson moved to modify the parenting plan to restrict Staiger’s time and implement a graduated visitation schedule. This culminated in a July 6, 2023 amended judgment imposing:
  • a graduated parenting plan for Staiger;
  • three-times-daily Soberlink alcohol testing for one year, with any positive or missed test causing a “reset” to Step 1 (supervised visits for a portion of six weeks) ([¶4]);
  • requirements for Staiger to continue mental health treatment and provide proof of participation ([¶4]).
• Staiger appealed that 2023 amended judgment but voluntarily dismissed his appeal; he has never advanced beyond Step 1 of the graduated plan ([¶5]).
• In March 2024, Johnson was arrested for and pled guilty to DUI with D.S. in the car, after bumping another vehicle at a stoplight ([¶6]). She was placed on the 24/7 sobriety program and fitted with an alcohol-sensing ankle monitor in April 2024 ([¶6], [¶20]).

Following Johnson’s DUI, Staiger moved to:

• obtain primary residential responsibility, or alternatively;
• obtain equal parenting time and joint decision-making responsibility;
• remove his 12:30 p.m. Soberlink test on workdays; and
• impose additional safety measures preventing Johnson from endangering D.S. ([¶7]).

In November 2024, the district court:

• denied the motion to change primary residential responsibility, finding no material change in circumstances warranting modification ([¶8], [¶15]);
• modified the parenting plan only to:
  • remove the noon Soberlink test on Staiger’s workdays;
  • require Johnson to continue on the 24/7 sobriety program;
  • require Johnson to begin mental health services as recommended by the Human Service Zone and provide proof of compliance; and
  • add symmetrical alcohol-related restrictions on each parent caring for or transporting D.S. within 8 hours of alcohol use ([¶9], [¶33]–[¶34]).

Staiger then filed a motion for reconsideration and a separate motion for clarification. Both were denied. Johnson requested attorney’s fees on appeal, claiming the appeal was frivolous.

B. Issues on Appeal and Holdings

1. Modification of primary residential responsibility
   • Issue: Did the district court clearly err by finding no material change in circumstances and by refusing to modify primary residential responsibility?
   • Holding: No. A single DUI incident, without demonstrated adverse impact on the child or a general decline in the child’s condition, does not compel a finding of material change in circumstances. The refusal to alter primary residential responsibility is not clearly erroneous ([¶15]–[¶22], [¶27]).
2. Modification of parenting time and parenting plan provisions
   • Issue: Did the district court clearly err in failing to award equal parenting time, joint decision-making, or broader changes to alcohol-related conditions, including those imposed on Staiger?
   • Holding: No. The 2023 restrictions on Staiger’s parenting time and testing are part of an unappealed judgment and cannot be collaterally attacked in this proceeding. The 2024 modifications, which relaxed one testing requirement and imposed new safeguards on Johnson, were within the district court’s discretion and supported by the record ([¶29]–[¶36]).
3. Denial of motion for reconsideration
   • Issue: Did the district court abuse its discretion in denying Staiger’s motion for reconsideration under N.D.R.Civ.P. 59(j) or 60(b), particularly given the alleged failure to allow a reply brief?
   • Holding: No. Although the district court initially issued its order before the reply brief was due, it later considered the reply and concluded no change was warranted ([¶41]–[¶43]). The reconsideration motion failed to identify errors of law (Rule 59(j)) or any specific Rule 60(b) ground, and relied on evidence not shown to be previously unavailable; denial was no abuse of discretion ([¶44]–[¶48]).
4. Motion for clarification
   • Issue: Did the district court abuse its discretion by not expressly ruling on, or by effectively denying, the motion for clarification?
   • Holding: No. The court implicitly denied the motion by directing the parties to use the parenting plan’s dispute resolution procedure and by stating no modification of its prior order was warranted ([¶52]–[¶53]). There was no showing of ambiguity in the judgment that required judicial clarification.
5. Attorney’s fees for frivolous appeal (N.D.R.App.P. 38)
   • Issue: Was the appeal so groundless or pursued in bad faith that attorney’s fees should be awarded?
   • Holding: No. The appeal was not flagrantly groundless, devoid of merit, or in bad faith. Johnson’s request for attorney’s fees is denied ([¶54]–[¶55]).

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III. Analysis

A. Precedents Cited and Their Role in the Court’s Reasoning

1. Standard of Review and Custody Modification Framework

• Kinden v. Kinden, 2025 ND 68, 19 N.W.3d 811 (cited at [¶12]):
  • Reaffirmed that decisions on residential responsibility are findings of fact reviewed under the clearly erroneous standard.
  • Defines a finding as clearly erroneous if induced by an erroneous view of the law, unsupported by evidence, or if the appellate court is left with a “definite and firm conviction that a mistake has been made.”
  • Emphasizes that appellate courts do not reweigh evidence or substitute judgment; a choice between two permissible views is not clearly erroneous.
• Iakel-Garcia v. Anderson, 2021 ND 210, 966 N.W.2d 892 (quoted in Kinden and adopted here):
  • Provides the language on deference to district courts in custody determinations.
  • Underpins the Supreme Court’s posture in Johnson: the Court will not revisit the trial court’s credibility assessments or balancing of conflicting evidence.
• Weber v. Pennington, 2025 ND 105, 22 N.W.3d 726 (¶13) and Schroeder v. Schroeder, 2014 ND 106, 846 N.W.2d 716:
  • Clarify that N.D.C.C. § 14‑09‑06.6(6)(a) requires a material change in circumstances as to the child or the parties before modifying primary residential responsibility.
  • Define “material change in circumstances” as “important new facts that were unknown at the time of a prior custodial decree” ([¶13]).
  • Require that the material change must adversely affect the child or result in a general decline in the child’s condition ([¶13], citing Anderson v. Spitzer, 2022 ND 110).
• Zittleman v. Bibler, 2025 ND 87, 20 N.W.3d 148 (¶13, ¶26):
  • Reiterates the two-step process:
    1. Determine whether there has been a material change in circumstances.
    2. If so, determine whether modification is necessary to serve the child’s best interests.
  • If no material change is found, the court is not required to analyze the best-interest factors ([¶13], [¶26]).

These authorities collectively structure the Court’s analysis: the presence or absence of a material change is a threshold question, and appellate review is highly deferential.

2. Parental Alcohol Use and DUI as Basis for Modification

The Court places Johnson in the context of earlier North Dakota decisions where substance abuse and DUI were central to modification:

• Ramstad v. Biewer, 1999 ND 23, 589 N.W.2d 905 (¶17):
  • Material change found where the custodial parent:
    • was a sober alcoholic at time of original custody order but had resumed drinking;
    • had two DUI convictions within eight months;
    • refused treatment and expressed no intention to stop drinking;
    • combined with evidence of domestic violence and an unstable living environment.
  • Critically, there was substantial proof that these circumstances adversely affected the child—e.g., poor school performance, psychosomatic complaints (headaches), and disclosures about witnessing domestic violence ([¶17]).
  • The decision itself was controversial (3–2 split), underscoring how high the bar is even with a serious substance abuse pattern and clear child impact.
• Ludwig v. Burchill, 514 N.W.2d 674 (N.D. 1994) (¶18):
  • Material change in circumstances partly based on:
    • custodial parent’s second DUI after having been ordered to attend AA;
    • failure to comply with treatment (AA attendance);
    • continued drinking and failure to adjust work schedule as expected;
    • abdication of parenting responsibilities.
  • District court found that the parent’s alcohol dependence negatively affected parenting skills and adversely affected the child, which was key to the modification.
  • Again, there was a dissent, showing that even multiple DUIs and non-compliance do not make modification automatic.
• McCay v. McCay, 2024 ND 130, 9 N.W.3d 687 (¶19):
  • The Court affirmed a finding of material change where:
    • custodial parent was diagnosed with alcohol use disorder and cannabis use disorder;
    • failed to complete treatment and exhibited disregard for court orders to address chemical use;
    • had been charged with his fourth DUI after the original order;
    • was repeatedly unemployed, incarcerated, and moved frequently;
    • was convicted of endangering the child.
  • The district court explicitly found that these developments adversely affected the child ([¶19]).
• Jelsing v. Peterson, 2007 ND 41, 729 N.W.2d 157 (¶20):
  • Referenced to support the proposition that a court may properly view a DUI incident as isolated when:
    • it is not repeated;
    • the parent appears to have “seen the error of her ways;” and
    • the conduct is not likely to recur.
  • Shows that an isolated DUI, in the absence of further issues, may be insufficient to warrant modification.

Against this backdrop, Johnson clarifies that the existence of a single DUI offense—even involving the child in the vehicle—does not automatically equal a material change absent evidence of harm to the child or a deterioration in the child’s condition ([¶16], [¶20], [¶22]).

3. Noncustodial Parent’s Improved Circumstances

• Krueger v. Hau Tran, 2012 ND 227, 822 N.W.2d 44 (¶21):
  • Recognizes that a material change can exist where:
    • the noncustodial parent’s situation improves; and
    • this improvement is accompanied by a general decline in the child’s condition with the custodial parent over the same period.
  • Johnson applies Krueger to reject Staiger’s argument that his improved mental health and sobriety alone support modification, because there was no evidence of decline in D.S.’s condition ([¶21]).

4. Parenting Time, Decision-Making, and Prior Judgments

• Fleck v. Fleck, 2023 ND 129, 993 N.W.2d 534 (¶29–¶30):
  • Requires a party seeking to modify parenting time to show:
    • a material change in circumstances since the last parenting-time order; and
    • that the proposed modification is in the child’s best interests.
  • Holds that attempts to challenge parenting plan restrictions from an unappealed prior judgment constitute an impermissible collateral attack ([¶30]). Johnson uses this to limit review strictly to the 2024 second amended judgment, not the 2023 one.
• Lerfald v. Lerfald, 2021 ND 150, 963 N.W.2d 244 (¶30):
  • Similarly holds that a party cannot, via a later modification motion, re-litigate terms of a prior, unappealed judgment.
  • Supports the Court’s refusal to revisit the original Soberlink and graduated-plan conditions.
• Field v. Field, 2024 ND 84, 6 N.W.3d 595 (¶29):
  • Confirms that decision-making responsibility (e.g., joint vs. sole) is a finding of fact reviewed for clear error.
  • Reinforces that appellate courts owe deference to the district court’s view of what level of shared decision-making is appropriate.

5. Motions for Reconsideration: Rules 59(j) and 60(b)

• Zepeda v. Cool, 2021 ND 146, 963 N.W.2d 282 (¶38):
  • North Dakota law “does not formally recognize motions to reconsider.”
  • Such motions may be treated as Rule 59(j) motions to alter or amend, or as Rule 60(b) motions for relief from judgment, if properly framed.
• Wheeler v. Sayler, 2022 ND 220, 982 N.W.2d 573 (¶38):
  • Restates that a court may construe a reconsideration motion as Rule 59(j) or 60(b) depending on its substance.
• Schmidt v. Hageness, 2022 ND 179, 981 N.W.2d 120 (¶38–¶40):
  • Denials of Rule 59(j) and 60(b) motions are reviewed for abuse of discretion.
  • Rule 59(j) is for correcting errors of law or considering previously unavailable evidence; it should not be used merely to reexamine facts or evidence already presented ([¶39]).
  • Rule 60(b) relief is available only for specific grounds (mistake, new evidence, fraud, etc.) and in “exceptional circumstances” ([¶40]).
• Curtiss v. State, 2020 ND 256, 952 N.W.2d 43 (¶38):
  • Defines abuse of discretion: arbitrary, unreasonable, unconscionable, or not a product of a rational mental process, or based on a misinterpretation of law.
• Harris v. Oasis Petroleum, Inc., 2024 ND 85, 6 N.W.3d 611 (¶39):
  • Explains Rule 59(j) is intended to correct errors of law; it is not a vehicle for relitigating factual findings.
• Werven v. Werven, 2016 ND 60, 877 N.W.2d 9 (¶46):
  • Limits Rule 59(j): a motion to amend a judgment may not be used to present evidence that was available at trial but simply not introduced.
• Richardson v. Richardson, 2022 ND 185, 981 N.W.2d 907 and Matter of Yates, 2022 ND 11, 969 N.W.2d 195 (¶46):
  • Both affirm denials of reconsideration where movants failed to identify specific grounds under Rule 59(j) or 60(b).
  • Johnson follows these cases in holding that simply citing the rules or reciting their labels is insufficient; the movant must tie arguments to specific rule-based grounds.
• Fleck v. Fleck, 337 N.W.2d 786 (N.D. 1983) (¶46):
  • Early authority emphasizing that mere recitation of Rule 60(b) grounds without “specific details” is not enough for relief.

6. Motions for Clarification

• Matter of Curtiss A. Hogen Trust B, 2020 ND 71, 940 N.W.2d 635 (¶50) and Hoverson v. Hoverson, 2017 ND 27, 889 N.W.2d 858:
  • Clarification is appropriate when:
    • a judgment fails to specify particulars; and
    • uncertainties in the decree arise from subsequent events.
• Neubauer v. Neubauer, 524 N.W.2d 593 (N.D. 1994) (¶50):
  • Recognizes motions for clarification when there is an ambiguous provision that creates an actual controversy between the parties.
• Ritter v. Ritter, 2017 ND 180, 899 N.W.2d 272 and Praus v. Praus, 2010 ND 156, 786 N.W.2d 697 (¶50, ¶52):
  • Hold that denial of a motion for clarification is reviewed for abuse of discretion.

Johnson uses these cases implicitly to frame when clarification is appropriate, concluding that Staiger’s request was really an attempt to reopen resolved issues or seek new substantive relief, not to clarify ambiguous language.

7. Procedural Fairness and Right to Reply

• Dietz v. Dietz, 2007 ND 84, 733 N.W.2d 225 (¶41):
  • Holds it is error for a district court to rule before a party has had an opportunity to file a reply brief under N.D.R.Ct. 3.2(a)(2).
  • In Johnson, the Supreme Court recognizes the district court issued its order prematurely but holds the error was cured because the court later considered the reply and confirmed its prior ruling ([¶42]–[¶43]).

8. Frivolous Appeals and Attorney’s Fees

• McCay v. McCay, 2024 ND 130, 9 N.W.3d 687 (¶54):
  • Defines a frivolous appeal as one that is “flagrantly groundless, devoid of merit, or demonstrates bad faith in pursuing the litigation.”
  • In Johnson, this standard is applied to reject Johnson’s request for attorney’s fees on appeal.

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B. The Court’s Legal Reasoning

1. No Material Change of Circumstances from a Single DUI Incident

The heart of the decision lies in the analysis of whether Johnson’s DUI, with D.S. in the vehicle, constituted a material change in circumstances warranting a change in primary residential responsibility.

The district court expressly stated it was not condoning Johnson’s choice to drive after drinking. The Supreme Court emphasizes the same point: the court is not passing moral approval on the conduct but is constrained to evaluate:

• whether the new fact is important; and
• whether it has adversely affected the child or led to a general decline in the child’s condition ([¶15], [¶20]).

Key factual findings by the district court (affirmed as not clearly erroneous):

• D.S. was uninjured in the crash ([¶15]).
• No evidence (testimony or documentation) showed:
  • emotional harm to D.S. as a result of the crash;
  • a decline in D.S.’s educational or developmental status; or
  • that Johnson was unable to provide love, affection, guidance, and nurture ([¶15]).
• Johnson:
  • completed an eight-hour ADAPT education program;
  • had been wearing an ankle monitor since April 2024; and
  • had no positive alcohol tests since then ([¶20]).

The Supreme Court then distinguishes the case from Ramstad, Ludwig, and McCay, where:

• There were multiple DUIs and/or chronic, untreated substance abuse.
• There was clear non-compliance with treatment orders or AA participation.
• There was evidence of adverse effects on the child (behavioral, emotional, educational).
• In some cases, additional risk factors existed: domestic violence, unstable housing, repeated incarcerations, endangerment convictions.

By contrast, Johnson’s case involved an isolated DUI incident, after which she complied with court-ordered sobriety monitoring and participated in education and recommended treatment. Borrowing the rationale of Jelsing, the district court and Supreme Court characterize the event as serious but isolated and not likely to recur, especially given monitoring.

Critically, the Court makes the following clarifying statements:

• “Our cases show district courts may properly consider a parent's alcohol abuse and act of driving under the influence when determining whether a material change of circumstances exists. However, our cases do not show an isolated incident of a parent driving under the influence automatically mandates a finding of a material change of circumstances.” ([¶16], emphasis added).
• “While, depending on the specific facts, a parent driving impaired with a child in the vehicle may constitute a material change in circumstances, under the facts of this case, the court's finding there was not a material change in circumstances requiring modification of primary residential responsibility is not clearly erroneous.” ([¶22], emphasis added).

Thus, Johnson does not immunize DUI incidents from scrutiny; it rejects a per se rule and insists on a context-specific assessment of impact on the child.

2. Noncustodial Parent’s Improved Circumstances Are Insufficient Alone

Staiger argued that his participation in therapy, aftercare, sobriety efforts, and mental health treatment constitute an improvement in his situation that should support a custody change ([¶14]). The Supreme Court, relying on Krueger, rejects this argument:

• A noncustodial parent’s improvement can amount to a material change only when coupled with a decline in the child’s condition with the custodial parent ([¶21]).
• Here, the district court found no decline in D.S.’s condition; therefore, even assuming Staiger’s progress, there was no qualifying material change.

This element of the decision reinforces stability in custodial arrangements: improvement by the noncustodial parent is good and can justify more parenting time, but it does not automatically justify uprooting the child’s primary residence.

3. Best Interests: A Non-Dispositive Analysis Here

After concluding there was no material change in circumstances, the district court nonetheless made detailed findings on the best-interest factors, ultimately concluding that factors (b), (d), (e), (j), and (l) favored Johnson ([¶24]). Staiger did not challenge those factor-specific findings on appeal, nor did he even identify a particular factor in his argument ([¶25]).

The Supreme Court notes two important points:

1. Because the district court found no material change, it was not obliged to analyze best interests at all (per Zittleman, [¶26]). Thus, any alleged errors in that analysis would not change the result unless the material-change determination was clearly erroneous.
2. Staiger’s complaints centered on restrictions on his parenting time (e.g., alcohol-testing regime), not on primary residential responsibility. That argument belongs in a parenting time analysis, not a custody-change analysis ([¶25]).

By framing the issues this way, the Supreme Court underscores that:

• The proper sequence—material change first, then best interests—must be observed.
• Appellants must specifically challenge the factor findings if they wish to contest a best-interest determination.

4. Parenting Plan Modifications: Limited, Targeted Changes

Staiger also sought broader modifications to parenting time (equal time, joint decision-making) and to the safety and testing regime. The Supreme Court separates what is properly reviewable from what is not.

a. No Collateral Attack on 2023 Parenting Plan Restrictions

The Soberlink requirements and the graduated plan under the July 2023 amended judgment were not appealed at that time. By 2024, when Staiger sought their removal, they were already final.

Applying Fleck and Lerfald, the Court holds:

• Staiger cannot use a motion to modify to collaterally attack the validity or fairness of parenting plan provisions in an earlier, unappealed judgment ([¶30]).
• The Court will review only the changes in the November 19, 2024 second amended judgment.

The only direct change to Staiger’s testing obligations in that 2024 judgment was the removal of the 12:30 p.m. test on his workdays, a modification in his favor that he does not challenge ([¶31]).

b. New Restrictions Imposed on Johnson

Staiger did explicitly request “reasonable safety measures” to prevent Johnson from placing D.S. in harm’s way ([¶7], [¶32]). In response, the district court:

• required Johnson to:
  • continue participation in the 24/7 sobriety program (already mandated in her criminal case);
  • report any positive test to Staiger within 24 hours via Our Family Wizard ([¶33]);
  • begin mental health services as recommended by the Human Service Zone and provide proof of compliance within specified timelines ([¶33]).
• imposed parallel alcohol-related rules on both parents:
  • neither parent may drink any alcohol while caring for D.S.;
  • neither may care for D.S. within eight hours of consuming alcohol; and
  • neither may transport D.S. while under the influence or within eight hours of consuming alcohol ([¶9], [¶34]).

Staiger argued these restrictions on Johnson were too lenient relative to the stringent graduated plan and Soberlink obligations imposed on him ([¶35]). The Court responds in two ways:

• First, the restrictions on Staiger derive from a different factual record, including findings about his “alcohol, mental health, and behavior issues” ([¶35]). Those earlier findings are not within the scope of the present appeal.
• Second, the adequacy of restrictions imposed on Johnson must be evaluated on the record now before the Court: a single DUI, compliance with 24/7 monitoring, and no proven harm to D.S. Given that record, the Court holds that Staiger has not shown the district court clearly erred in finding the Johnson-focused restrictions sufficient to protect D.S. ([¶35]–[¶36]).

Thus, while Staiger sought symmetrical treatment, the Court emphasizes that symmetry is not required; conditions must be tailored to the demonstrated risks of each parent.

5. Motions for Reconsideration: Substance over Label

Staiger’s “motion for reconsideration” cited N.D.R.Civ.P. 60(b) and referenced Rule 59(j), but—as the Supreme Court notes—his argument addressed only their timeliness, not their substance ([¶44]).

The Court’s key findings:

• Staiger did not:
  • identify a specific alleged error of law for correction under Rule 59(j); nor
  • specify which of the six 60(b) grounds applied (mistake, new evidence, fraud, etc.), nor how any applied ([¶46]).
• He provided “new” documents and information but failed to show they were unavailable prior to the hearing, which is a prerequisite for treating them as “newly discovered evidence” under either Rule 59(j) or 60(b)(2) ([¶45]–[¶46]).
• His arguments largely rehashed evidence and reasoning already presented, contrary to the limited role of Rule 59(j) and 60(b).

Regarding the premature ruling (before the reply brief was due), the Court finds that:

• The district court acknowledged receipt of the late reply of Staiger and explicitly stated that, after reviewing it, “no modification of the Court’s previous Order is warranted” ([¶42]).
• This cured the initial procedural defect under Dietz, as Staiger was ultimately heard, and the court evaluated his reply’s content ([¶43]).

On appeal, Staiger again did not tie his arguments to any specific Rule 59(j) or 60(b) ground. The Supreme Court, following Richardson, Yates, and Fleck, holds that such generalized re-argument fails to establish an abuse of discretion ([¶47]–[¶48]).

6. Motion for Clarification: No Ambiguity, No Relief

Staiger also filed a motion for clarification, arguing:

• that the district court had not addressed certain specific relief he requested; and
• that the parties disagreed over the meaning of some parenting plan terms ([¶51]).

Johnson responded by asserting res judicata, essentially arguing that these issues had already been decided and could not be re-litigated ([¶51]).

The district court’s order did not separately label a ruling on the clarification motion, but it:

• stated that “no modification of the Court’s previous order is warranted”; and
• directed that “[a]ny disputes regarding the parenting plan must be resolved by utilizing the dispute resolution procedure detailed in the parenting plan” ([¶52]).

The Supreme Court interprets this as an implicit denial of the clarification motion and finds no abuse of discretion ([¶53]). The underlying reasoning is:

• There was no showing of a facial ambiguity in the judgment language.
• Disagreements about implementation are to be addressed through the agreed-upon dispute resolution mechanism, not by treating them as ambiguity requiring judicial clarification.

7. Attorney’s Fees for Frivolous Appeal

Johnson argued that:

• Staiger misrepresented the district court’s findings;
• his appeal was devoid of merit; and
• he was essentially re-litigating the same issues ([¶54]).

Applying McCay’s standard, the Court concludes:

• Although Staiger did not prevail, his appeal was not “flagrantly groundless” or pursued in bad faith ([¶55]).
• Therefore, attorney’s fees under N.D.R.App.P. 38 are denied.

This preserves meaningful appellate review in close or recurring family-law disputes, even where the appellant ultimately fails.

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IV. Impact of the Decision

A. Clarifying the Role of Single DUI Incidents in Custody Modifications

Johnson v. Staiger brings needed clarity to how North Dakota courts should treat isolated DUI incidents involving a child in custody-modification proceedings:

• There is no automatic or per se rule that a DUI with a child present constitutes a material change in circumstances.
• Courts must separately analyze:
  • the seriousness of the conduct; and
  • its actual impact on the child’s safety, well-being, and overall condition.
• Evidence of no injury, no emotional harm, continuing development, and the parent’s prompt engagement with sobriety monitoring and education can support a finding of no material change.

Future litigants will need to focus not merely on the occurrence of the DUI, but on:

• patterns of behavior (repeated DUIs vs. isolated event),
• treatment compliance or refusal,
• objective indicators of the child’s functioning (school, health, behavior), and
• whether the custodial parent’s behavior reflects systemic risk as opposed to a single lapse.

B. Stability of Primary Residential Responsibility

The decision reinforces North Dakota’s long-standing emphasis on stability in primary residential responsibility:

• Changes are disfavored absent significant, child-impacting developments.
• Even serious misconduct by the custodial parent will not necessarily prompt a change unless it demonstrably harms or threatens the child’s welfare.
• This approach discourages repeated custody litigation based on episodic events, while still allowing intervention where incidents are part of a larger pattern of deterioration.

C. Tailored Safety Conditions Instead of Automatic Custody Transfer

Rather than transferring primary residential responsibility, the district court and Supreme Court opt for calibrated safety measures:

• Continued, court-supervised sobriety monitoring (24/7 program).
• Requirements to enter and comply with mental health treatment.
• Symmetrical 8-hour abstinence rules for both parents when caring for or transporting the child.

This signals that:

• Chemical-dependency-related missteps will often be addressed by supervision and treatment conditions, rather than immediate reallocation of residential responsibility.
• Courts will look for ways to mitigate risk while preserving continuity in the child’s primary home, whenever reasonably safe.

D. Litigation Practice: Reconsideration and Clarification Motions

The decision carries several practical lessons for litigators:

• A “motion to reconsider” must be anchored in specific grounds under:
  • Rule 59(j) (errors of law, previously unavailable evidence), or
  • Rule 60(b) (mistake, newly discovered evidence, fraud, void judgment, changed underlying judgment, or other exceptional reason).
• Simply filing new documents without proving they were previously unavailable is not enough.
• Re-arguing evidence or asking the court to “try again” is not the function of either rule and will likely be rejected.
• For motions to clarify, counsel must:
  • identify specific ambiguous language in the judgment;
  • show how subsequent events created uncertainty; and
  • demonstrate that an actual, concrete controversy arises from that ambiguity.

In short, Johnson tightens expectations for post-judgment motion practice, limiting judicial reconsideration to circumstances expressly contemplated by the Rules.

E. Appellate Strategy and Preservation

The case also underscores key appellate strategy points:

• Parties must timely appeal judgments that impose contested parenting plan restrictions; otherwise, attempts to challenge them later may be barred as collateral attacks.
• Appellants must:
  • specifically identify which best-interest factors were wrongly found and why; and
  • tie factual arguments to applicable legal standards (material change, clear error, abuse of discretion).

Failure to do so, as in Staiger’s broad, non-specific best-interest argument, greatly limits the chance of success.

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V. Complex Concepts Simplified

• Primary Residential Responsibility:
  • The legal term in North Dakota for which parent has primary physical custody of the child—where the child primarily lives.
• Parenting Time:
  • The schedule governing when the non-residential parent spends time with the child (formerly “visitation”).
• Decision-Making Responsibility:
  • Authority to make major decisions about the child’s life (education, health care, religion). Can be joint (shared) or primary with one parent.
• Material Change in Circumstances:
  • Legal definition in this context: Important new facts, not known at the time of the prior custody decree, that:
    • affect the child or the parents in a significant way; and
    • adversely affect the child or cause a general decline in the child’s condition.
  • It is the threshold that must be met before a court can consider changing primary residential responsibility.
• Best-Interest Factors:
  • A statutory list of factors the court considers to decide what arrangement serves the child’s overall welfare (e.g., child’s needs, parental ability to provide care, stability of home, history of substance abuse or violence, etc.).
  • In North Dakota, the court evaluates these factors after finding a material change in circumstances.
• Clearly Erroneous Standard:
  • Appellate courts defer to the trial court’s fact-finding and will reverse only if:
    • a finding is based on an incorrect legal rule;
    • there is no evidence supporting the finding; or
    • the appellate court is left with a firm conviction a mistake was made.
• Abuse of Discretion:
  • Standard of review for decisions like denial of reconsideration or clarification.
  • A court abuses its discretion if it acts arbitrarily, unreasonably, unconscionably, or misapplies the law.
• Rule 59(j) Motion (Alter or Amend Judgment):
  • Used to correct legal errors in a judgment or, in limited cases, consider truly new evidence.
  • Not a vehicle for reweighing evidence or arguing the same facts again.
• Rule 60(b) Motion (Relief from Judgment):
  • Allows a court to relieve a party from a final judgment for specific reasons:
    1. Mistake, inadvertence, surprise, or excusable neglect;
    2. Newly discovered evidence that could not have been found earlier with due diligence;
    3. Fraud, misrepresentation, or misconduct by an opposing party;
    4. Void judgment (e.g., lack of jurisdiction);
    5. Judgment based on an earlier judgment that has been reversed or vacated;
    6. Any other reason justifying relief, used in exceptional circumstances.
• Collateral Attack:
  • An attempt to undermine or change a final judgment indirectly, in a later proceeding, instead of appealing that judgment directly in a timely manner.
  • Generally disallowed; parties must appeal if they want to challenge a judgment’s validity.
• Frivolous Appeal:
  • An appeal that is flagrantly groundless, devoid of legal merit, or brought in bad faith.
  • North Dakota appellate courts may award attorney’s fees for such appeals, but the threshold is high.
• 24/7 Sobriety Program / Soberlink (contextual, not legal definitions):
  • 24/7 Sobriety Program: A criminal-justice program requiring participants to be continuously monitored for alcohol use (via frequent testing, SCRAM/ankle monitors, etc.).
  • Soberlink: A remote breathalyzer system that records and transmits results, often used in family-law contexts to monitor sobriety during parenting time.

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VI. Conclusion

Johnson v. Staiger is an important clarification of North Dakota custody law at the intersection of parental substance use and child welfare. It confirms that:

• A single DUI incident with a child present does not, by itself, compel a finding of material change in circumstances warranting a transfer of primary residential responsibility.
• What matters is the demonstrable impact on the child: injury, emotional harm, deterioration in schooling or development, or a broader pattern of unsafe conduct.
• Improvement in the noncustodial parent’s circumstances, although commendable, is not enough to change custody absent evidence that the child’s condition has worsened with the custodial parent.
• Courts may instead use targeted, behavior-specific conditions (monitoring, abstinence windows, mandatory treatment) to manage safety concerns while preserving the child’s stability.
• Post-judgment practice must respect procedural limits: motions labelled as “reconsideration” or “clarification” will be judged under the narrow standards of Rules 59(j) and 60(b), and cannot be used as vehicles for re-litigating settled issues or presenting previously available evidence.
• Finally, not every losing appeal is frivolous; robust but non-meritorious challenges to custody and parenting decisions remain within the legitimate bounds of appellate advocacy.

In the broader legal context, Johnson reaffirms North Dakota’s commitment to stability, evidence-based decisionmaking, and individualized assessment of parental conduct. It cautions against reflexive custody shifts based on isolated misconduct, while ensuring that courts retain and use a full toolbox of safety measures to protect children when substance use becomes a concern.