IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 188
Alexander R. Curtis, Defendant and Appellant
v.
Jenna J. Curtis, Plaintiff and Appellee
and
State of North Dakota, Statutory Real Party in Interest
No. 20240115
Appeal from the District Court of Cass County, East Central Judicial District, the
Honorable Stephannie N. Stiel, Judge.
DISMISSED.
Opinion of the Court by Tufte, Justice.
Joshua Nyberg, Fargo, N.D., for defendant and appellant.
Leslie J. Aldrich (argued) and Victoria C. Hicks (on brief), Fargo, N.D., for
plaintiff and appellee.
Curtis v. Curtis
No. 20240115
Tufte, Justice.
[¶1] Alexander Curtis appeals from a district court judgment entered after a
bench trial on custody proceedings. On appeal, Alexander Curtis argues the
district court’s award of primary residential responsibility to Jenna Curtis is
clearly erroneous because the court’s findings on the best interest factors are
contradicted by the evidence. He also argues the court erred by including a “selfexecuting automatic” reduction in his parenting time when the child reaches
school age. Jenna Curtis requests attorney’s fees. We dismiss Alexander Curtis’s
appeal from the district court judgment because his appeal was untimely.
I
[¶2] Prior to trial, the parties settled the issues of marital property, debt
distribution, and spousal support. The parties agreed to a parenting schedule
while this case was pending wherein Alexander Curtis has parenting time from
Sunday evening until Wednesday morning, and Jenna Curtis has parenting time
from Wednesday morning until Sunday evening. The parties proceeded to trial
on the issues of primary residential responsibility, child support, and attorney’s
fees.
[¶3] After trial, the district court found factors (a), (b), (c), (d), (f), and (h) favor
Jenna Curtis; factors (e), (g), and (k) were neutral; and factors (i), (j), (l), and (m)
were not applicable; no factors favored Alexander Curtis. The district court
found it was in the best interests of the child to award Jenna Curtis primary
residential responsibility subject to Alexander Curtis’s reasonable parenting
time. The court ordered the parties to follow the same parenting time schedule
they have used since March 2023 until August 1, 2025. Beginning August 1, 2025,
when the child will begin school, the parenting schedule will change, and
Alexander Curtis’s parenting time will be reduced. Judgment was entered on
January 10, 2024. Notice of entry of judgment was filed and served on January
15, 2024.
1
[¶4] On March 12, 2024, Alexander Curtis filed a Rule 60(b), N.D.R.Civ.P.,
motion for relief, arguing the district court erred in determining the best interest
factors and erred by reducing his parenting time when the child begins school.
The court denied the motion. Alexander Curtis appealed only the district court
judgment and not the order denying Rule 60 relief.
II
[¶5] “Before we consider the merits of an appeal, we must have jurisdiction.”
Kaspari v. Kaspari, 2023 ND 207, ¶ 4,
997 N.W.2d 621 (citations omitted).
“Although neither party raised the issue of jurisdiction, this Court has the duty
to dismiss an appeal on its own if we conclude the attempted appeal fails for lack
of jurisdiction.”
Id. “The time limit for filing a notice of appeal is jurisdictional,
and we dismiss an appeal if we conclude we do not have jurisdiction.” Id. at ¶ 5
(citations omitted).
[¶6] In a civil case, “the notice of appeal required by [N.D.R.App.P. 3] must be
filed with the clerk of the supreme court within 60 days from service of notice of
entry of the judgment or order being appealed.” N.D.R.App.P. 4(a)(1). A motion
under Rule 60, N.D.R.Civ.P., tolls the time to appeal “if the motion is served and
filed no later than 28 days after notice of entry of judgment.” N.D.R.App.P.
4(a)(3)(A)(vi); see also Kaspari,
2023 ND 207, ¶ 6 (explaining “the time to appeal
the . . . judgment was not tolled under N.D.R.App.P. 4(a)(3)(A)(vi)” because
Kaspari “served and filed his motion for relief from judgment more than 28 days
after service of the notice of entry of judgment”).
[¶7] Notice of entry of judgment was filed and served on January 15, 2024.
Alexander Curtis filed a Rule 60, N.D.R.Civ.P., motion on March 12, 2024, 57
days after notice of entry of judgment was served. The time to appeal the
judgment was not tolled under N.D.R.App.P. 4(a)(3)(A)(vi) because the Rule 60
motion was not filed and served within 28 days from notice of entry of judgment.
Under Rule 4, N.D.R.App.P., Alexander Curtis was required to file the notice of
appeal within 60 days from January 15, 2024. Alexander Curtis filed his notice of
appeal on April 12, 2024, 88 days after notice of entry of judgment was served.
2
Therefore, his appeal of the judgment is untimely, and we are without
jurisdiction to decide it.
III
[¶8] Jenna Curtis argues this appeal is frivolous and requests attorney’s fees.
She does not provide support for her argument. “An appeal is frivolous if it is
flagrantly groundless, devoid of merit, or demonstrates bad faith in pursuing the
litigation.” McCay v. McCay, 2024 ND 130, ¶ 30, 9 N.W.3d 687. Alexander Curtis’s
appeal is not flagrantly groundless or devoid of merit, nor does it demonstrate
bad faith in pursuing the litigation. We deny the request for attorney’s fees on
appeal.
IV
[¶9] We dismiss Alexander Curtis’s appeal of the judgment.
[¶10] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
3
