                Filed 2/12/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 42

Jason P. Stevenson,                               Plaintiff and Appellant
      v.
Rhonda S. Biffert,                               Defendant and Appellee



                                No. 20190106

Appeal from the District Court of Mercer County, South Central Judicial
District, the Honorable James S. Hill, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Kristin A. Redmann and Heather M. Krumm, Mandan, N.D., for plaintiff and
appellant; submitted on brief.

DeAnn M. Pladson, Fargo, N.D., for defendant and appellee; submitted on
brief.
                             Stevenson v. Biffert
                                No. 20190106

Tufte, Justice.

[¶1] Jason Stevenson appeals a district court judgment awarding Rhonda
Biffert primary residential responsibility of the parties’ minor child. The
judgment also ordered a sale of the parties’ house and ordered Stevenson to
pay Biffert $13,000 for a loan and a vehicle. We affirm.

                                         I

[¶2] Stevenson and Biffert were in a relationship for approximately eight
years and have one child. In January 2018, Stevenson sued Biffert for primary
residential responsibility of the child. Biffert counterclaimed, seeking primary
residential responsibility and an equitable distribution of the parties’ real
property.

[¶3] After a bench trial, the district court awarded primary residential
responsibility to Biffert. The court also decided issues related to the parties’
house, a $5,000 loan from Biffert to Stevenson, and Stevenson’s sale of a vehicle
for $16,000. The court ordered the parties’ house to be sold and distributed the
net sale proceeds between Stevenson and Biffert. The court ordered Stevenson
to pay Biffert $5,000 for the loan and $8,000 for her share of the vehicle
proceeds.

                                        II

[¶4] Stevenson argues the district court erred in awarding Biffert primary
residential responsibility.

[¶5] A district court’s award of primary residential responsibility is a finding
of fact that will not be overturned unless clearly erroneous. Lizakowski v.
Lizakowski, 2019 ND 177, ¶ 14, 930 N.W.2d 609. A finding of fact is clearly
erroneous if it is induced by an erroneous view of the law, if there is no evidence
to support it, or if, although there is some evidence supporting it, on the entire
record, we are left with a definite and firm conviction a mistake has been made.
Id. at ¶ 6. We do not reweigh the evidence or reassess the credibility of

                                        1
witnesses under the clearly erroneous standard. Rustad v. Baumgartner, 2018
ND 268, ¶ 4, 920 N.W.2d 465. A court must award primary residential
responsibility in light of the child’s best interests, considering all the relevant
best-interest factors under N.D.C.C. § 14-09-06.2(1) (2018):

      a. The love, affection, and other emotional ties existing between
      the parents and child and the ability of each parent to provide the
      child with nurture, love, affection, and guidance.

      b. The ability of each parent to assure that the child receives
      adequate food, clothing, shelter, medical care, and a safe
      environment.

      c. The child’s developmental needs and the ability of each parent
      to meet those needs, both in the present and in the future.

      d. The sufficiency and stability of each parent’s home
      environment, the impact of extended family, the length of time the
      child has lived in each parent’s home, and the desirability of
      maintaining continuity in the child’s home and community.

      e. The willingness and ability of each parent to facilitate and
      encourage a close and continuing relationship between the other
      parent and the child.

      f. The moral fitness of the parents, as that fitness impacts the
      child.

      g. The mental and physical health of the parents, as that health
      impacts the child.

      h. The home, school, and community records of the child and the
      potential effect of any change.

      i.   [Preference of a mature child.]

      j.   Evidence of domestic violence. . . .

      k. The interaction and inter-relationship, or the potential for
      interaction and inter-relationship, of the child with any person


                                         2
      who resides in, is present, or frequents the household of a parent
      and who may significantly affect the child’s best interests. The
      court shall consider that person’s history of inflicting, or tendency
      to inflict, physical harm, bodily injury, assault, or the fear of
      physical harm, bodily injury, or assault, on other persons.

      l. The making of false allegations not made in good faith, by one
      parent against the other, of harm to a child as defined in section
      50-25.1-02.

      m. Any other factors considered by the court to be relevant to a
      particular parental rights and responsibilities dispute.

[¶6] The district court addressed each of the best-interest factors under
N.D.C.C. § 14-09-06.2(1). The court found factors (a), (c), (d), (e), (h), and (k)
either favored or slightly favored Biffert. The court found factors (b), (f), (g), (i),
(j), (l), and (m) favored neither party or did not apply.

[¶7] Stevenson claims the district court imposed an extra burden on him in
making its decision on primary residential responsibility. In its memorandum
decision and order, the court stated, “Stevenson works without credible
evidence to attempt to create reasons to shift primary residential
responsibility. The Court concludes he has failed to do so based upon the
greater weight of the evidence.”

[¶8] Under a stipulated interim order entered before trial, Biffert was
awarded primary residential responsibility. The court may have used the
language about shifting primary residential responsibility because Biffert had
primary residential responsibility under the interim order. This Court has
stated that relying on a parent’s primary caretaking under an interim order
might be improper. Peek v. Berning, 2001 ND 34, ¶ 10, 622 N.W.2d 186;
Kjelland v. Kjelland, 2000 ND 86, ¶ 10, 609 N.W.2d 100. However, when read
within the context of the entire decision, we conclude the court’s statement
about shifting primary residential responsibility did not place an additional
burden on Stevenson or cloud the court’s findings. The court made findings on
each best-interest factor and awarded Biffert primary residential
responsibility on the basis of those findings.


                                          3
[¶9] Stevenson asserts the district court improperly analyzed the best-
interest factors. For example, on factor (b), relating to the ability of each parent
to provide a safe environment for the child, Stevenson argues the court wholly
disregarded facts favorable to him. The court found factor (b) favored neither
party, stating that “both parents are able and willing to provide K.S. with
adequate food, clothing, shelter, medical care, and a safe environment.” By
finding he was able and willing to provide a safe environment for the child, the
court necessarily considered the facts he argues were disregarded.

[¶10] Stevenson’s remaining arguments relating to the district court’s findings
on the best-interest factors are an invitation for this Court to reweigh the
evidence. Under the clearly erroneous standard, we do not reweigh the
evidence or reassess the credibility of witnesses. Stevenson has failed to
demonstrate that the court’s findings on the best-interest factors were clearly
erroneous.

[¶11] We conclude the court’s award of primary residential responsibility to
Biffert was not clearly erroneous. The court’s findings have support in the
record, and we are not left with a definite and firm conviction a mistake has
been made.

                                        III

[¶12] Stevenson argues the district court violated his due process rights on the
basis of the court’s conduct at trial. He also claims the issues related to the
parties’ house, the loan, and the vehicle payment were not properly brought
before the court.

                                         A

[¶13] Stevenson contends he was not put on proper notice that issues relating
to the parties’ house, the loan, and the vehicle payment would be raised at trial.
He argues the district court lacked subject matter jurisdiction to decide those
issues. He claims the portions of the judgment addressing those issues are void
for lack of subject matter jurisdiction and should be vacated.




                                         4
[¶14] “Subject matter jurisdiction is the court’s legal authority to hear and
determine the general subject involved in an action.” Cont’l Res., Inc. v. Counce
Energy BC #1, LLC, 2018 ND 10, ¶ 6, 905 N.W.2d 768. “Issues involving subject
matter jurisdiction cannot be waived and can be raised sua sponte at any time.”
Munson v. Indigo Acquisition Holdings, LLC, 2019 ND 197, ¶ 23, 931 N.W.2d
679. The parties do not dispute that the district court has legal authority to
partition real and personal property in the same action under N.D.C.C. § 32-
16-01. The dispute is whether this authority was properly invoked. For subject
matter jurisdiction to attach, the particular issue to be decided must be
properly brought before the district court in the action. Id.

[¶15] Rule 15(b)(2), N.D.R.Civ.P., allows issues not raised in the pleadings to
be tried by the parties’ consent:

            When an issue not raised by the pleadings is tried by the
      parties’ express or implied consent, it must be treated in all
      respects as if raised in the pleadings. A party may move—at any
      time, even after judgment—to amend the pleadings to conform
      them to the evidence and to raise an unpleaded issue. Failure to
      amend does not affect the result of the trial of that issue.

An issue may be tried by consent when a party introduces evidence that varies
the theory of the case without objection by the opposing party on the grounds
that it is not within the issues in the pleadings. Aho v. Maragos, 2000 ND 14,
¶ 7, 605 N.W.2d 161.

[¶16] Under the judgment, the district court ordered a sale of the parties’
house, awarding Biffert 57 percent of the net proceeds and Stevenson 43
percent. The court ordered Stevenson to pay Biffert $5,000 for repayment of a
loan and $8,000 for her share of the vehicle sold by Stevenson.

[¶17] Stevenson’s complaint sought primary residential responsibility of the
parties’ child. Biffert’s counterclaim requested equitable distribution of the
real property. Stevenson’s reply to Biffert’s counterclaim agreed the real
property “requires equitable distribution.” The parties also executed a
Stipulation for Partial Judgment and Parenting Plan that provided, “Evidence
will be presented at the September 28, 2018 Trial as to who shall receive the

                                       5
residence, and how the equity in the home shall be apportioned.” We conclude
the distribution of the parties’ house was properly before the district court.

[¶18] The parties did not raise the $5,000 loan repayment or the vehicle
payment in their pleadings. At trial, the district court referenced an off-the-
record ruling that it would allow evidence and testimony on those issues. In
his testimony at trial, Stevenson indicated he recalled being asked in his
deposition about Biffert lending him $5,000. Stevenson testified he disputed
the amount of the loan, but he did not express surprise or object at trial on the
grounds that the loan was outside of the pleadings. When asked, “Do you
understand that Rhonda would like to be reimbursed her $5,000?” Stevenson
did not object, but simply responded, “I can understand that.” We conclude the
court’s authority to decide this issue was properly invoked because the claim
for repayment of the $5,000 loan was tried by the implied consent of the
parties.

[¶19] Stevenson also argues the offset payment for a vehicle was beyond the
pleadings. At trial, Stevenson did object to the relevance of testimony about
the vehicle. But before entry of judgment, the parties executed a Stipulation
for Additional Order for Judgment addressing the vehicle payment. We
conclude the vehicle payment was presented to the court and resolved by
agreement of the parties, and Stevenson was not denied due process.

                                       B

[¶20] Stevenson asserts the district court failed to provide him a reasonable
opportunity to present evidence at trial. He argues the court interjected
frequently during his testimony, his witnesses’ testimony, and the parenting
investigator’s testimony. He claims the court rarely interrupted Biffert and her
witnesses. Stevenson contends the court reached a decision before hearing all
the evidence.

[¶21] “A district court has broad discretion over the presentation of evidence
and the conduct of trial, but it must exercise its discretion in a manner that
best comports with substantial justice.” Jalbert v. Eagle Rigid Spans, Inc.,
2017 ND 50, ¶ 9, 891 N.W.2d 135. A court also has authority under N.D.R.Ev.


                                       6
614(b) to “examine a witness regardless of who calls the witness.” A court
abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable
manner, if it misinterprets or misapplies the law, or if its decision is not the
product of a rational mental process. Jalbert, at ¶ 9.

[¶22] Stevenson does not claim the district court’s examination of witnesses
precluded him from presenting his case. Stevenson did not object to the court’s
examination of witnesses. See N.D.R.Ev. 614(c) (allowing a party to object to a
court’s examination of a witness). The court requested the testimony of the
parenting investigator, stating it had concerns about the investigator’s report.
After reviewing the entire record, we conclude the district court’s conduct at
trial, including its examination of witnesses and the parenting investigator,
was not an abuse of discretion.

                                       IV

[¶23] We have considered the parties’ remaining arguments and conclude they
are either without merit or not necessary to our decision. The judgment is
affirmed.

[¶24] Jerod E. Tufte
      Gerald W. VandeWalle
      Daniel J. Crothers
      Carol Ronning Kapsner, S.J.
      Jon J. Jensen, C.J.




[¶25] The Honorable Carol Ronning Kapsner, Surrogate Judge, sitting in place
of McEvers, J., disqualified.

                                       7
