IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2025 ND 180
Devin J. Heisler, Plaintiff and Appellee
v.
Natasha W. Reiger, Defendant and Appellant
and
The State of North Dakota, Statutory Real Party in Interest
No. 20250133
Appeal from the District Court of Towner County, Northeast Judicial District,
the Honorable Michael P. Hurly, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Sydney E. Bata, Grafton, ND, for plaintiff and appellee; submitted on brief.
Elise A. Fischer, Bismarck, ND, for defendant and appellant; submitted on brief.
Heisler v. Reiger
No. 20250133
Jensen, Chief Justice.
[¶1] Natasha Reiger appeals from a judgment and decree of paternity that
awarded primary residential responsibility of her child to the child’s father,
Devin Heisler, as well as establishing a stepped parenting schedule for Reiger,
and awarding some primary decision-making authority to Heisler. Reiger also
appeals from the district court’s subsequent denial of her post-trial motion
seeking relief under both N.D.R.Civ.P. 59 and N.D.R.Civ.P. 60(b). We affirm the
judgment and decree of paternity.
I
[¶2] Reiger and Heisler had a relationship that resulted in the March 2023 birth
of a daughter. Both parties admit they had issues with drugs during their
relationship; both parties subsequently made or were making attempts to end
their use of drugs. In July 2023, Heisler initiated a complaint asking to be
awarded primary residential responsibility of his daughter and primary
decision-making responsibility. The district court held a bench trial in April 2024.
The two primary witnesses at the bench trial were Reiger and Heisler.
[¶3] Following the bench trial, the district court entered detailed findings of
fact, conclusions of law, and an order for judgment awarding Heisler primary
residential responsibility of his daughter, a stepped parenting schedule for
Reiger, and some primary decision-making responsibility to Heisler. In part, the
court made a credibility determination against Reiger about whether she was
still engaged in substance abuse.
[¶4] A final judgment and decree of paternity was entered on May 23, 2024. A
notice of entry of judgment was served on May 24, 2024. On June 19, 2024, Reiger
filed a post-trial motion invoking both N.D.R.Civ.P. 59 and N.D.R.Civ.P. 60(b).
The district court held a hearing on the post-trial motion in October 2024 and
entered an order denying the motion on December 19, 2024. The clerk of district
court served both parties with the order denying the post-trial motion on that
same date.
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[¶5] On February 10, 2025—after Heisler had failed to do so as the prevailing
party—Reiger served a notice of entry regarding the order denying her post-trial
motion to start the clock running for the time to appeal under N.D.R.App.P.
4(a)(1). Reiger then filed an appeal from both the original judgment and the order
denying her post-trial motion on April 9, 2025.
II
[¶6] Before addressing the merits of Reiger’s appeal, we address Heisler’s
request to dismiss the appeal as untimely. Heisler contends this appeal is
untimely and should be dismissed because it was filed more than 60 days after
notice of entry of the original judgment, and more than 60 days after the clerk of
district court had served both parties with the order denying Reiger’s post-trial
motion pursuant to N.D.R.Ct. 3.5(e)(5).
[¶7] The time for Reiger to appeal from the original judgment was extended
beyond 60 days from the service of the notice of entry of the original judgment
on May 24, 2024, because she filed a motion invoking both Rules 59 and 60 of the
North Dakota Rules of Civil Procedure twenty-six days later on June 19, 2024.
See N.D.R.Civ.P. 59(c)(2) (indicating a Rule 59 motion brought on any ground is
timely if brought within 60 days after notice of entry of judgment); N.D.R.App.P.
4(a)(3) (extending the time to appeal following a timely Rule 59 motion, and
extending the time to appeal following a Rule 60 motion if “filed no later than 28
days after notice of entry of judgment.”). When a motion under Rule 59 is
brought within 60 days of the service of the notice of entry of judgment or Rule
60 motion is brought within 28 days of the service of the notice of entry of
judgment, the “full time to file an appeal runs for all parties from service of notice
of the entry of the order disposing of the last such remaining motion[.]”
N.D.R.App.P. 4(a)(3)(A). Here, the notice of entry of the order disposing of the
post-trial motion was served on February 10, 2025, so the appeal filed within 60
days of that date on April 9, 2025, was timely as to both the original judgment
and the order denying the post-trial motion.
[¶8] Heisler contends the clerk of district court’s service of the order denying
the post-trial motion on December 19, 2024, should satisfy the notice of entry
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requirements of N.D.R.App.P. 4. In Thorson v. Thorson, 541 N.W.2d 692 (N.D.
1996), this Court held the 60-day period for filing a notice of appeal will start to
run in the absence of a notice of entry only when the record clearly shows the
appealing party had actual knowledge of the order, evidenced by some
affirmative action taken by the appealing party that demonstrates actual
knowledge.
Id. at 694-95. The Court further held that the affidavit of mailing from
the trial court in that case (the functional equivalent of the email notice the clerk
of district court provided here pursuant to N.D.R.Ct. 3.5(e)(5)) “does not equate
with actual notice under these precedents establishing an exception to the
requirement of service of notice of entry of judgment by the prevailing party.”
Id. at 695.
[¶9] Similar to Thorson,
541 N.W.2d 692, there is no evidence in this record of
an affirmative action taken by the appealing party to show actual knowledge of
the entry of the order denying the post-trial motion until Reiger’s counsel filed
the notice of entry of order on February 10, 2025. Thus, February 10, 2025 “was
the first time that the record clearly evidenced that [Reiger] had actual
knowledge of entry of the order[.]”
Id. at 695. We decline to equate the email
notice the clerk of district court provided pursuant to N.D.R.Ct. 3.5(e)(5) with
actual notice for purposes of the exception mentioned in Thorson and the other
precedents referenced therein. The appeal filed within 60 days of February 10,
2025, was timely.
III
[¶10] In her appeal of the judgment, Reiger argues the district court erred by: (1)
awarding primary residential responsibility to Heisler; (2) providing her a
stepped parenting time schedule; and (3) awarding some aspects of primary
decision-making authority to Heisler. After our review of the record, we
conclude the judgment of the court is supported by findings meeting the
required standard of proof and affirm under N.D.R.App.P. 35.1(a)(2).
[¶11] As to Reiger’s appeal of the order denying her post-trial motion, our
review of the record does not reveal any manifest abuse of discretion by the
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district court, see, e.g., Rath v. Rath, 2018 ND 138, ¶ 9,
911 N.W.2d 919, and we
also affirm that decision under N.D.R.App.P. 35.1(a)(2) and (4).
IV
[¶12] The appeal was timely, but there are no issues raised on appeal that
warrant extended discussion. The judgment and decree of paternity of the
district court is affirmed pursuant to N.D.R.App.P. 35.1(a)(2) and (4).
[¶13] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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