Jorgenson v. Ratajczak, 980255

• Decision Date: 09 April 1999
• Docket Number: No. 980255,980255
• Parties: Beverly J. JORGENSON, f/k/a Beverly J. Ratajczak, Plaintiff and Appellee, v. Ervin S. RATAJCZAK, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 527

592 N.W.2d 527

1999 ND 65

Beverly J. JORGENSON, f/k/a Beverly J. Ratajczak, Plaintiff and Appellee, v. Ervin S. RATAJCZAK, Defendant and Appellant.

No. 980255.

Supreme Court of North Dakota.

April 9, 1999.

Kevin J. Deitz, of Gjesdahl & Deitz, PLLP, Fargo, ND, for plaintiff and appellee.

Jonathan T. Garaas, of Garaas Law Firm, Fargo, ND, for defendant and appellant.

KAPSNER, Justice.

¶1 Ervin Ratajczak appeals from an order adopting a judicial referee's decision awarding Beverly Jorgenson $11,614.30 in attorney fees for proceedings stemming from a prior appeal in their divorce action. We hold Jorgenson's request for attorney fees for the prior appeal was timely, and the trial court did not err in adopting the referee's decision awarding Jorgenson attorney fees for those proceedings. We also conclude Jorgenson is entitled to attorney fees for this appeal, and we remand to the trial court for a determination of those fees. We affirm and remand.

I

¶2 In Ratajczak v. Ratajczak, 1997 ND 122, p 30, 565 N.W.2d 491, we affirmed a divorce decree ordering Ratajczak to pay Jorgenson $2,500 per month for spousal support. During oral argument in that appeal, Jorgenson claimed Ratajczak's appeal was frivolous and asked us to award her attorney fees for the appeal. We declined to rule Ratajczak's appeal was frivolous, but we said Jorgenson was "entitled to request the district court to consider an award of attorney's fees based on need and equity. N.D.C.C. § 14-05-23." Ratajczak, 1997 ND 122, p 31, 565 N.W.2d 491.

¶3 On July 28, 1997, this Court's mandate and judgment was filed in the trial court. On October 10, 1997, Jorgenson moved under N.D.C.C. § 14-05-23 for attorney fees for the prior appeal. Ratajczak resisted Jorgenson's motion, contending it was not timely and she was not entitled to attorney fees.

¶4 After a protracted hearing, a referee awarded Jorgenson $8,964.12 in attorney fees for the prior appeal. The referee also awarded Jorgenson $2,650.18 in additional attorney fees, because Ratajczak's conduct in opposing Jorgenson's post-appeal motion had unreasonably increased the time spent on the motion. After a review on the record, the trial court adopted the referee's decision, concluding Jorgenson's motion was timely because it was made within a reasonable time, the referee's findings of fact were not clearly erroneous, and the referee did not err in awarding Jorgenson $11,614.30 in attorney fees. Ratajczak appealed.

II

¶5 When a trial court reviews a judicial referee's decision on the record, the court examines the referee's findings of fact under the clearly erroneous standard. Mehl v. Mehl, 545 N.W.2d 777, 780 (N.D.1996); Benson v. Benson, 495 N.W.2d 72, 77 (N.D.1993). 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 to support it, a reviewing court on the entire record is left with a definite and firm conviction a mistake has been made. Schmitz v. Schmitz, 1998 ND 203, p 5, 586 N.W.2d 490. A referee's conclusions of law are fully reviewable. Steffes v. Steffes, 1997 ND 49, p 8, 560 N.W.2d 888; Mehl at 780.

III

¶6 Ratajczak argues the trial court lacked jurisdiction to award Jorgenson attorney fees for the prior appeal, because her motion was not timely under N.D.C.C. § 14-05-23 and N.D.R.Civ.P. 54(e)(2).

A

¶7 Section 14-05-23, N.D.C.C., authorizes attorney fees for appeals in divorce actions, see Hendrickson v. Hendrickson, 553 N.W.2d 215, 220 (N.D.1996), and provides "[d]uring any time in which an action for divorce is pending, the court, upon application of a party, may issue an order ... for the payment of attorney fees." Under N.D.R.Civ.P. 54(e)(2), a claim for attorney fees not determined by the judgment must be made by motion within fifteen days after notice of entry of judgment.

¶8 Ratajczak argues there was no action "pending" under N.D.C.C. § 14-05-23 when Jorgenson moved for attorney fees in the trial court, and her motion was not timely because it was not made within fifteen days of the mandate in his prior appeal.

¶9 In Fichter v. Kadrmas, 507 N.W.2d 72, 74 (N.D.1993), we acknowledged a divorce court's continuing jurisdiction over support and custody issues. There, after a divorce decree became final and without a motion to reinvoke the court's jurisdiction, an ex-wife sought to depose her ex-husband to update information for child support. Id. at 73 n. 1. We held "once a final determination has been made and the time for appeal has passed, a divorce decree is not 'pending' until jurisdiction of the court is reinvoked by motion of a party." Id. at 75.

¶10 Here, Jorgenson asked this Court to award her attorney fees while the prior appeal was pending, and we specifically addressed her request by stating she was entitled to ask the trial court for attorney fees under N.D.C.C. § 14-05-23. Although Ratajczak claims that statement was dictum, it originated in the context of a specific request in this Court for appellate attorney fees and provided direction for further action. Without Jorgenson's prior request and our directive, a request to a trial court for attorney fees for appeal ordinarily must be made under N.D.R.Civ.P. 54(e)(2) within fifteen days after our mandate is filed in the trial court. We conclude, however, Jorgenson's request in this Court during the prior appeal and our directive extended the pending action within the meaning of N.D.C.C. § 14-05-23. We further conclude Jorgenson had a reasonable time to implement our directive, and we agree with the trial court's decision Jorgenson's request for attorney fees was made to that court within a reasonable time.

B

¶11 Ratajczak argues the trial court erred in awarding Jorgenson attorney fees for the prior appeal, because the parties stipulated they would each bear their own fees and costs "incurred herein" and their stipulation was incorporated into the judgment. He contends their contractual agreement unambiguously covered attorney fees incurred at trial and on appeal.

¶12 Initially, the parties stipulated to all matters except spousal support. Under the stipulation, the parties agreed to the division of their marital property and to payment of their own attorney fees "incurred herein." The parties' stipulation and the court's subsequent spousal support award were incorporated into a judgment that was the subject of the prior appeal.

¶13 When a stipulation is incorporated into a divorce decree, our focus is on the interpretation and enforcement of the judgment, not on the underlying contractual obligations. Botner v. Botner, 545 N.W.2d 188, 190 (N.D.1996); Sullivan v. Quist, 506 N.W.2d 394, 399 (N.D.1993). The interpretation of a judgment is a question of law, which is fully reviewable. Knoop v. Knoop, 542 N.W.2d 114, 117 (N.D.1996).

¶14 Here, the judgment required each party to bear their own attorney fees "incurred herein." We construe that clear language to require each party to bear their own attorney fees through proceedings leading up to entry of the judgment and not to forever bar an award of attorney fees necessitated by subsequent proceedings, including an appeal. We conclude the judgment does not preclude the trial court from awarding Jorgenson attorney fees for Ratajczak's prior appeal.

IV

¶15 Ratajczak argues the trial court erred in awarding Jorgenson attorney fees incurred for the prior appeal and for pursuing her motion to recover those fees in the trial court.

¶16 In Bakes v. Bakes, 532 N.W.2d 666, 669 (N.D.1995), we outlined the standard for awarding attorney fees in divorce actions:

The trial court has authority in a divorce case to award attorney fees for proceedings in the trial court and upon appeal. N.D.C.C. § 14-05-23. The principal standards guiding an award of attorney fees in a divorce action are one spouse's need and the other's ability to pay. Foreng v. Foreng, 509 N.W.2d 38, 41 (N.D.1993). The court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party has unreasonably increased the time spent on the case. Lucy v. Lucy, 456 N.W.2d 539, 544 (N.D.1990). We will not overturn an award of attorney fees unless the trial court abused its discretion. Foreng, 509 N.W.2d at 41.

¶17 A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, or if it misinterprets or misapplies the law. See Jarvis v. Jarvis, 1998 ND 163, p 8, 584 N.W.2d 84. In Matter of Conservatorship of Kinney, 495 N.W.2d 69, 71 (N.D.1993), we explained a court acts arbitrarily, unreasonably, or unconscionably when its exercise of discretion is not the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination.

A

¶18 Ratajczak raises a plethora of issues in which he essentially argues Jorgenson failed to show her need for, or his ability to pay, attorney fees for the prior appeal. He contends Jorgenson is able to pay her own attorney fees and argues the referee's decision failed to consider and properly weigh Jorgenson's monthly expenses and all of her income. He claims Jorgenson submitted false testimony and false affidavits about her expenses and income, which precludes an award of attorney fees. He argues the referee erred in not giving him favorable inferences, because Jorgenson was evasive and withheld information about how she spent her income and marital property award. He claims Jorgenson does not need an award of attorney fees, because she used her property distribution to pay her attorney fees.

¶19 In the prior appeal, we told Ratajczak that Jorgenson need not dissipate her property award for living expenses. Ratajczak, 1997 ND 122, p 30, 565 N.W.2d 491. Similarly, Jorgenson should not be penalized for using her...