RUSTAN v. State of North Dakota, Statutory Real Party In Interest (2026)

[¶1] Tyler Ball appeals from the district court's judgment and parenting plan entered December 29, 2025, and an order on pending motions entered February 4, 2026. Ball argues the court: (1) failed to provide a sufficient factual basis for the supervised parenting structure, decision-making authority, and related provisions in the parenting plan; and (2) failed to supply sufficient court-defined criteria for advancement through the later stages of the graduated parenting schedule. Ball also appeals the denial of a motion he brought under N.D.R.Civ.P. 52(b), a motion to clarify, and the court's award of $500 in attorney's fees entered in an order denying stay on March 18, 2026. Rustan requests an award of appellate attorney's fees. We affirm in part, reverse in part, and remand.

I

[¶2] Alexis Rustan commenced this action seeking primary residential responsibility for C.F.B., the parties’ minor child born in 2016, with Ball receiving supervised parenting time. Ball, proceeding pro se and residing in the state of Washington, answered and agreed that Rustan should have primary residential responsibility, but sought unsupervised parenting time.

[¶3] C.F.B. has been diagnosed with Level 3 Autism Spectrum Disorder, ADHD, Global Developmental Disability Delay, speech impairment, sensory disorder, and social anxiety. Rustan holds bachelor's and master's degrees in psychology and has been a stay-at-home caregiver for C.F.B. since the parties’ separation when C.F.B. was approximately four years old. Ball relocated to Washington in 2023 and, since then, has had in-person contact with C.F.B. only twice.

[¶4] Trial was held November 7, 2025. The district court had excluded Ball's medical evidence as a sanction for his failure to respond adequately to discovery requests. Rustan presented testimony from herself and her mother, Gabby Rustan, a trained paid caregiver for C.F.B. Both testified that C.F.B. requires essentially “24/7 hands-on supervision and care” due to her conditions, including a serious risk of “elopement,” self-harm during meltdowns, and an inability to communicate her needs except through visual aids. C.F.B. also relies on sensory equipment, compression clothing, and a dedicated safe space in Rustan's home, and participates in ABA therapy, occupational therapy, speech therapy, and play therapy. Ball minimized the effects of C.F.B.’s conditions and offered no persuasive evidence of how he would address them.

[¶5] On December 3, 2025, the district court issued a memorandum decision. The court found Ball's testimony untrustworthy on significant matters, including his health and disability. The court further found that Ball “has not demonstrated he is capable of or willing to provide” the supervision, care, and treatment that Rustan and her mother had been providing for C.F.B. Concluding that Rustan's proposed graduated parenting plan would best serve C.F.B.’s interests, the court adopted it. On December 29, 2025, the court entered its findings of fact, conclusions of law, and order for judgment; parenting plan; and judgment.

[¶6] The parenting plan provides for a four-phase graduated schedule. In Phase 1, Ball receives a minimum of five to seven consecutive days of parenting time in North Dakota twice per year, with no holiday time, with all parenting time supervised by a trained individual agreed upon by the parties. Supervised parenting continues until (1) a medical professional assesses Ball and determines he has the physical capability to care for C.F.B. without assistance, and (2) a professional providing care for C.F.B. concurs that Ball has the training and skills to parent unsupervised. Phase 2 allows unsupervised in-state parenting time, confined to daytime hours, and alternate Christmases. Phases 3 and 4 permit one and then two weeks of parenting time in Ball's state of residence each summer, conditioned on C.F.B. having made “substantial progress” in the areas of communication, safety awareness, independent skills, and self-regulation “as recommended by a professional who is familiar with the minor child's current situation.” The parenting plan also grants Rustan primary decision-making authority, allows her to obtain a passport for C.F.B. without Ball's authorization, and requires the parties to split any uncovered medical or therapeutic expenses equally.

[¶7] After judgment was entered, Ball moved under N.D.R.Civ.P. 52(b) for amended or additional findings and to clarify and limit the parenting plan. On February 4, 2026, the district court denied both motions, concluding they “lack proper notice and thus, are not properly before the Court.” Ball also moved for a stay of the passport provision pending appeal. On March 18, 2026, the court denied the stay, concluded the motion lacked merit, and awarded Rustan $500 in attorney's fees.

II

[¶8] Ball argues the district court failed to articulate specific findings explaining why supervised parenting time is necessary, why medical certification is a prerequisite to unsupervised parenting, why Rustan was granted primary decision-making and passport authority, and why the parties must share uncovered medical and therapeutic expenses equally. Parenting-time determinations are findings of fact reviewed under the clearly erroneous standard. A finding is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing the entire record, the Court is left with a definite and firm conviction that a mistake has been made. Taylor v. Taylor, 2022 ND 39, ¶ 8, 970 N.W.2d 209.

[¶9] Restrictions on parenting time must be supported by findings showing, by a preponderance of the evidence, that unrestricted parenting time is likely to endanger the child's physical or emotional health. N.D.C.C. § 14-05-22(2); Vetter v. Vetter, 2026 ND 36, ¶ 10, 31 N.W.3d 662; Taylor, 2022 ND 39, ¶ 16, 970 N.W.2d 209. When restrictions are imposed, the court must articulate findings supporting the limitation. Marquette v. Marquette, 2006 ND 154, ¶ 11, 719 N.W.2d 321. Valid reasons supporting parenting determinations may be “fairly discernible, either by deduction or inference,” and findings need not follow a rigid verbal formula so long as they are “stated with sufficient specificity to” disclose the factual basis for the decision. In re Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351.

[¶10] The district court's findings, read together, provide a discernible basis for the supervised-parenting structure and all related provisions Ball challenges. The court found C.F.B. requires “24/7 hands-on supervision and care,” faces a real elopement risk, is prone to dangerous self-harm during meltdowns, and cannot communicate her needs except through visual aids. The court found that Rustan and her mother have been providing and arranging the specialized care C.F.B. requires, and that Ball “has not demonstrated he is capable of or willing to provide such supervision, care, or treatment.” The court also found Ball's testimony untrustworthy on significant matters and that he minimized C.F.B.’s conditions and limitations. The medical-certification prerequisite flows logically from the court's finding that Ball asserted significant disabilities while being precluded from presenting medical evidence through his own discovery failures. The court's reasoning for granting Rustan primary decision-making authority and requiring equal expense-sharing can likewise be discerned from its overall finding that Rustan has been the sole competent caregiver and that Ball has been largely absent and not credible. See Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351. The court's findings of fact are not clearly erroneous.

III

[¶11] Ball next argues the parenting plan improperly delegates the advancement of his parenting time to nonjudicial actors without defined standards. A district court generally cannot delegate to anyone the power to decide questions of residential responsibility or related parenting-time issues. Vetter, 2026 ND 36, ¶ 13, 31 N.W.3d 662; Boyda v. Boyda, 2025 ND 193, ¶ 21, 27 N.W.3d 706. Whether a plan improperly delegates turns on whether the court provided specific criteria governing each step, or instead left it to a third party to determine the criteria and decide whether they have been met. Boyda, ¶ 23. In Boyda, the court's stepped plan required the therapist to approve the father's progress before graduating between steps, required him to follow all therapist recommendations without limitation, and gave the therapist singular authority to determine whether the criteria for each step had been met—an improper delegation. Id. By contrast, we upheld a plan in Wolt v. Wolt, 2010 ND 26, ¶¶ 39–40, 778 N.W.2d 786, because counselors were permitted only to make recommendations to the court, leaving the ultimate decision with the court.

[¶12] The Phase 1 and 2 supervised-parenting conditions do not improperly delegate. Those conditions—medical clearance and professional concurrence on Ball's training and skills—are objective in character and directly tied to the district court's specific finding that Ball has not demonstrated the capacity to provide the care C.F.B. requires. The court identified what must be demonstrated; it did not leave it to a professional to invent the criteria.

[¶13] Phases 3 and 4 present a different question. Those phases condition Ball's summer parenting time in his home state on C.F.B. having made “substantial progress” in communication, safety awareness, independent skills, and self-regulation, “as recommended by a professional who is familiar with the minor child's current situation.” The plan defines no threshold for “substantial progress” in any of these four domains, provides no timeline, and identifies no specific professional. Critically, the district court retained no mechanism for judicial review of any professional recommendation under these phases. Unlike the Phase 1 and 2 conditions—which are grounded in the court's specific findings about Ball's demonstrated capacity—the Phase 3 and Phase 4 conditions leave the determinative question entirely to an unnamed professional without court-defined standards or retained judicial oversight, analogous to the delegation found improper in Boyda, 2025 ND 193, ¶ 23, 27 N.W.3d 706.

[¶14] We reverse the Phase 3 and Phase 4 parenting-time advancement provisions. We remand to the district court to establish objective criteria for advancement or a mechanism for judicial review of any professional recommendations.

IV

[¶15] Ball challenges the district court's denial of his N.D.R.Civ.P. 52(b) motion and motion to clarify. The court denied both motions primarily because they “lack proper notice and thus, are not properly before the Court.” The denial of a motion brought under Rule 52(b) is reviewed for an abuse of discretion. Buchholz v. Overboe, 2022 ND 203, ¶ 36, 982 N.W.2d 275.

[¶16] Ball does not challenge the lack-of-notice determination on appeal. When a district court provides alternative grounds for its decision and a party does not challenge both grounds on appeal, the party abandons any challenge to the unchallenged ground. Somerset Ct., LLC v. Burgum, 2021 ND 58, ¶¶ 12–14, 956 N.W.2d 392; Interest of J.J.T. v N.R.T. (In re J.J.T.), 2018 ND 165, ¶ 29, 915 N.W.2d 106. The court did not abuse its discretion in denying Ball's post-judgment motions for lack of proper notice.

V

[¶17] Ball also challenges the $500 attorney's fee award entered when the district court denied his motion for a stay pending appeal. The court's award of attorney's fees is reviewed for an abuse of discretion. Walstad v. Walstad, 2013 ND 176, ¶ 29, 837 N.W.2d 911.

[¶18] The district court concluded Ball's stay motion lacked merit. A finding that a motion is without merit is not equivalent to a finding that a motion is frivolous, and we will not infer a finding of frivolousness from a finding that a motion is without merit. See Williams v. State, 405 N.W.2d 615, 624 (N.D. 1987). The court made no finding that Ball's motion was frivolous, and we decline to make that inference. We conclude the court abused its discretion in awarding attorney's fees, and we reverse the $500 award.

VI

[¶19] Rustan requests appellate attorney's fees under N.D.R.App.P. 38 or, alternatively, a remand to the district court for a determination of attorney's fees under N.D.C.C. § 14-05-23. An appeal is frivolous if it is “flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith.” Healy v. Healy, 397 N.W.2d 71, 76 (N.D. 1986). Ball's appeal is not flagrantly groundless—we are reversing in part. We deny Rustan's request for appellate attorney's fees.

VII

[¶20] We affirm the district court's findings of fact regarding the supervised parenting structure, decision-making authority, passport authority, expense-sharing provisions, Phase 1 and Phase 2 parenting-time progression conditions, and the denial of Ball's post-judgment motions. We reverse the Phase 3 and Phase 4 parenting-time advancement provisions and remand to the district court to establish objective criteria for advancement or a mechanism for judicial review of any professional recommendations. We also reverse the $500 attorney's fee award. We deny Rustan's request for appellate attorney's fees.

Jensen, Justice.

[¶21] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese