Lawrence v. Delkamp

• Decision Date: 01 April 2003
• Docket Number: No. 20020291., No. 20020244
• Citation: 2003 ND 53,658 N.W.2d 758
• Parties: John Daniel LAWRENCE, aka Dan Lawrence, Plaintiff and Appellant, v. Tina Lucille DELKAMP, Defendant and Appellee.
• Court: North Dakota Supreme Court

658 N.W.2d 758

2003 ND 53

John Daniel LAWRENCE, aka Dan Lawrence, Plaintiff and Appellant, v. Tina Lucille DELKAMP, Defendant and Appellee.

Nos. 20020244, 20020291.

Supreme Court of North Dakota.

April 1, 2003.

William E. McKechnie, McKechnie Law Office, P.C., Grand Forks, for plaintiff and appellant.

Arnold V. Fleck, Fleck Law Office, Bismarck, for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] John Daniel Lawrence appealed from a July 30, 2002 amended judgment suspending Lawrence's visitation rights with his son. Lawrence also appealed from a September 16, 2002 judgment awarding the child's mother, Tina Lucille Delkamp, costs and attorney fees for defending against Lawrence's July 3, 2001 motion to modify custody. We hold the district court did not abuse its discretion in awarding Delkamp costs and attorney fees in proceedings involving custody and visitation issues between Lawrence and Delkamp. We further hold the district court did not err in denying Lawrence an evidentiary hearing on his request to change custody or in requiring that Lawrence's visitation with his son be supervised. We affirm both judgments from which Lawrence has appealed, but we deny Delkamp's request for double costs and attorney fees on appeal.

I

[¶ 2] Lawrence and Delkamp were never married to each other, but they had a son who was born in August 1992. Through paternity proceedings and a series of amended judgments and orders, Delkamp was awarded custody of the child with visitation for Lawrence, who was also ordered to pay child support. In a February 2, 2000 order the district court restricted Lawrence's visitations with the child to supervised visits at the Family Safety Center in Bismarck. Lawrence appealed from that order, and in Lawrence v. Delkamp, 2000 ND 214, ¶ 13, 620 N.W.2d 151, this Court reversed the order, concluding the district court erred in finding Lawrence had committed domestic violence for purposes of deciding custody and visitation issues under N.D.C.C. § 14-09-06.2(1)(j). We remanded the case to the district court for a redetermination of visitation and of Delkamp's request for costs and attorney fees.

[¶ 3] After remand, the district court entered an order on September 26, 2001 awarding Lawrence supervised visitation with his son on the second Saturday of each month in accordance with the "time, costs, and location" mechanisms set out in the court's February 2, 2000 order. The court also reconfirmed its February 2, 2000 order awarding Delkamp costs of $1,696.70 under N.D.C.C. § 14-17-15.

[¶ 4] On July 6, 2001 Lawrence filed a motion for change of custody, which was denied by separate order of the court filed September 26, 2001. Lawrence's subsequent motion for reconsideration was denied on January 15, 2002. Judgment was filed on September 16, 2002 awarding Delkamp costs and attorney fees of $3,234.67 for her defense of Lawrence's motion to change custody. A separate judgment was entered on July 30, 2002 suspending Lawrence's visitations with his son "until [Lawrence] successfully completes a domestic violence treatment program offered through one of the state's human service centers."

II

[¶ 5] Lawrence asserts the district court's award of $1,696.70 costs to Delkamp on remand from the prior appeal is erroneous, as a matter of law. In its February 2, 2000 order the district court denied Delkamp's request for attorney fees but awarded her costs on motions she brought for modification of Lawrence's visitations and for a psychological evaluation of Lawrence, explaining:

[Delkamp] seeks attorney's fees and costs associated with the two motions most recently before the Court. She argues [Lawrence] is in a much better financial posture to pay part or all of her attorney's fees than she is. Further she suggests [Lawrence] is using the Courts to "break" her financially and that this is one more example of the emotional abuse he has visited upon her over the years. [Lawrence] resists.

This Court has authority to award costs and reasonable attorney's fees pursuant to N.D.C.C. § 14-17-15. [Delkamp] prevailed on both motions before the Court. She has provided the Court with an itemized list of costs associated with the motions. She is entitled to reimbursement for them. [Lawrence] shall pay [Delkamp] $1,696.70 by March 15, 2000. [Delkamp's] request for attorney's fees is denied.

Lawrence appealed from that order, and after our remand the district court entered an order on September 26, 2001 reconfirming its award of costs to Delkamp:

The Court finds the award of costs as determined in the February 2, 2000 Order appropriate. The Court finds Delkamp prevailed on both motions. Delkamp is not financially able to absorb the costs at issue. Lawrence is in a position to pay these costs, and due to Lawrence constantly filing motions requiring Delkamp to respond.

[¶ 6] In paternity proceedings the court may award costs under N.D.C.C. § 14-17-15, which provides, in part:

The court may order reasonable fees of experts and the child's guardian ad litem and other costs of the action and pretrial proceedings, including genetic tests, to be paid by the parties in proportions and at times determined by the court.

The court has discretion under this statute to apportion the costs between the parties. Mougey v. Salzwedel, 401 N.W.2d 509, 515 (N.D.1987). Although the court can, under this statute, award all of the costs against one of the parties, the reasons for such an apportionment must be set forth by the court. Id. at 516. The district court was correct in finding that Delkamp essentially prevailed on both motions. She had moved for a psychological evaluation of Lawrence and the parties stipulated to a domestic violence assessment making that motion moot. Delkamp had also moved for modification of visitation which the court granted in the form of specified supervised visitation between Lawrence and his son. While this Court, in deciding Lawrence's appeal from the February 2, 2000 order, concluded threats made by Lawrence to Delkamp did not constitute domestic violence we, nevertheless, characterized the threats as "serious and reprehensible" and further stated that Lawrence's threatening behavior was relevant to determining the "custody and visitation issues." Lawrence, 2000 ND 214, ¶ 8, 620 N.W.2d 151. The district court recognized that in addition to Delkamp receiving favorable results on her motions, the evidence also demonstrated that Lawrence was in a much better financial position than Delkamp to pay for the paternity proceedings. Under these circumstances, we conclude the district court did not abuse its discretion in awarding Delkamp $1,696.70 in costs for the motion proceedings.

III

[¶ 7] Lawrence asserts the district court erred, as a matter of law, in denying Lawrence an evidentiary hearing on his motion for a change of custody. On July 6, 2001 Lawrence filed a motion for change of custody, asserting that Delkamp was sabotaging his relationship with his son and was denying him visitations with the child. The controlling statute is N.D.C.C. § 14-09-06.6:

1. Unless agreed to in writing by the parties, no motion to modify a custody order may be made earlier than two years after the date of entry of an order establishing custody, except in accordance with subsection 3.

2. Unless agreed to in writing by the parties, if a motion for modification has been disposed of upon its merits, no subsequent motion may be filed within two years of disposition of the prior motion, except in accordance with subsection 3.

3. The time limitation in subsections 1 and 2 does not apply if the court finds:

a. The persistent and willful denial or interference with visitation;

b. The child's present environment may endanger the child's physical or emotional health or impair the child's emotional development; or

c. The primary physical care of the child has changed to the other parent for longer than six months.

4. A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

The party seeking modification of a custody order bears the burden of showing a change of custody is required, and the trial court's decision on the issue is a finding of fact subject to the clearly erroneous standard of review. Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480. A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party. O'Neill v. O'Neill, 2000 ND 200, ¶ 5, 619 N.W.2d 855.

[¶ 8] Lawrence concedes his motion was brought within two years of a prior disposition by the court of the custody issue on its merits. He also concedes that under the statute he is entitled to an evidentiary hearing on his motion only if he presents a prima facie case of Delkamp's "persistent and willful denial or interference with visitation" between Lawrence and his son. The district court, in its September 26, 2001 order denying Lawrence's motion for change of custody and request for evidentiary hearing on the motion, explained:

The Court in determining whether or not Lawrence has established a prima facie case justifying a modification, takes into consideration the affidavit filed by Lawrence and the responsive affidavits of Delkamp, Cassie Roberdeau, and Dennis Larkin.

The information presented in Lawrence's affidavit does not specifically address the

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