Lessard v. Johnson

• Court: United States State Supreme Court of North Dakota
• Citation: 970 N.W.2d 160
• Docket Number: 20200206
• Parties: Julie LESSARD, Plaintiff and Appellee v. Kevin JOHNSON, Defendant and Appellant
• Decision Date: 18 February 2022

970 N.W.2d 160

Julie LESSARD, Plaintiff and Appellee
v.
Kevin JOHNSON, Defendant and Appellant

No. 20200206

Supreme Court of North Dakota.

FILED FEBRUARY 18, 2022

Michael L. Gjesdahl (argued) and Kari A. Losee (appeared), Fargo, ND, for plaintiff and appellee.

Kristin A. Overboe, Fargo, ND, for defendant and appellant.

Jensen, Chief Justice.

¶1] This case involves three appeals after two limited remands by this Court for additional proceedings in the district court. Kevin Johnson appeals from several district court orders, a second amended judgment, and a third amended judgment. We conclude Johnson's issue, contending the district court had granted a divorce only to Julie Lessard and thereby exceeded its authority, is frivolous and award Lessard $750 in attorney's fees under N.D.R.App.P. 38. We further conclude the court did not err in holding Johnson failed to establish a prima facie case requiring an

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evidentiary hearing to modify residential responsibility, the court did not err in granting Lessard's motions for a protective order and for sanctions, and its decision allowing Lessard to relocate out of state with the minor children is not clearly erroneous.

¶2] While on remand, Johnson filed a cross-motion to change residential responsibility. The district court dismissed the motion, finding the court lacked jurisdiction over a new motion because of the pending appeals. The district court correctly found it was without jurisdiction to decide the motion, but improperly exercised its jurisdiction in dismissing the motion. We therefore vacate the court's March 2021 order dismissing his cross-motion, which remains pending in the district court. We affirm the remaining orders, the second amended judgment, and the third amended judgment.

I

[¶3] Johnson and Lessard were married in 2006 and have three minor children together. In 2018, Lessard commenced this action for divorce. After a trial, the district court awarded Lessard primary residential responsibility for the children and awarded Johnson parenting time. Lessard v. Johnson , 2019 ND 301, ¶ 4, 936 N.W.2d 528. The court also set Johnson's child support obligation at $0 per month, ordered neither party would pay spousal support, divided the parties’ marital estate, and held the parties were responsible for their own attorney's fees. Id. A divorce judgment was entered, which was later amended.

Id. The amended judgment and other post-judgment orders were subsequently affirmed on appeal. Id. at ¶¶ 1, 39.

[¶4] In May 2020, Lessard moved the district court to amend the judgment seeking, among other things, an increase in Johnson's child support obligation and equal sharing of liability for the children's additional expenses. Johnson made a countermotion to modify residential responsibility. The court denied his countermotion, and Johnson appealed. In August 2020, the case was remanded for the district court to consider other pending motions, including the motion to amend the judgment, a motion for sanctions, a motion to limit discovery, and a motion to reconsider. After a hearing, the district court issued an order on the pending motions and entered a second amended judgment. Johnson filed a second appeal.

[¶5] In February 2021, while the appeal was pending, Lessard moved this Court to remand the case for the district court to consider a motion to relocate out of state with the minor children. We again issued a limited remand only for the district court to consider the proposed motion. Lessard subsequently filed her motion with supporting documents in the district court, seeking to allow her to relocate to Nebraska. Johnson opposed her motion on remand and, without seeking further leave from this Court, filed a cross-motion to change residential responsibility. The court on remand dismissed his cross-motion and, after a hearing, granted Lessard's motion to relocate. A third amended judgment was entered, and Johnson filed a third appeal.

II

[¶6] Johnson argues the district court exceeded its authority under the North Dakota Century Code by awarding Lessard a divorce and granting both parties the right to remarry and erred by failing to address subject matter jurisdiction after it was raised by Johnson.

[¶7] Generally, under N.D.C.C. § 14-05-01 a marriage is dissolved only "[b]y the death of one of the parties" or "[b]y a judgment of a court of competent jurisdiction

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decreeing a divorce of the parties." Section 14-05-02, N.D.C.C., provides that "[t]he effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons, but neither party to a divorce may marry except in accordance with the decree of the court granting the divorce." See also 24 Am. Jur.2d Divorce and Separation § 1 (November 2021 Update) ("Divorce is effected by a judicial decree which terminates the marital relationship and changes the legal status of married parties."); 27A C.J.S. Divorce § 1 (October 2021 Update) ("When the word ‘divorce’ is confined to its strict legal sense, it means the legal dissolution of a lawful union for a cause arising after marriage."); Black's Law Dictionary 603 (11th ed. 2019) (defining divorce as "[t]he legal ending of a marriage; specif., the legal dissolution of a marriage by a court").

¶8] Here, the judgment provides "[Lessard] is awarded an absolute decree of divorce from [Johnson] on the grounds of irreconcilable differences, all in accordance with the provisions of the North Dakota Century Code." See N.D.C.C. § 14-05-09.1 ("Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved."). The judgment also specifically states that "[e]ach party is free to remarry at any time after entry of Judgment herein."

[¶9] The parties’ marital relationship was dissolved, and the amended divorce judgment was affirmed. Lessard , 2019 ND 301, 936 N.W.2d 528. Johnson nevertheless argues that the district court only granted Lessard a divorce, failed to grant both parties a divorce, and the court lacks jurisdiction to take any further action. The court granted Lessard a divorce from Johnson and specifically decreed that both parties could remarry. There is no ambiguity in the judgment that the divorce is mutual.

[¶10] Johnson's reading of the judgment to grant Lessard a divorce from Johnson but not grant Johnson an award of divorce from Lessard is nonsensical and frivolous. We conclude Johnson's argument on appeal is flagrantly groundless, devoid of merit and demonstrates persistence in the course of litigation evidencing bad faith. We therefore order Johnson pay attorney's fees in the amount of $750 under N.D.R.App.P. 38. See Estate of Pedro v. Scheeler , 2014 ND 237, ¶ 18, 856 N.W.2d 775 (holding appeal asserted numerous frivolous arguments and ordering attorney's fees and costs); In re Hirsch, 2014 ND 135, ¶ 15, 848 N.W.2d 719 (same).

III

[¶11] Johnson argues the district court erred in its July 2020 order by finding he failed to establish a prima facie case warranting an evidentiary hearing on modification of the parties’ residential responsibility.

[¶12] We have explained when an evidentiary hearing must be held for a motion to change residential responsibility within two years of a determination:

Section 14-09-06.6, N.D.C.C., governs post-judgment primary residential responsibility modification, and when a party moves to modify residential responsibility within two years after an order establishing residential responsibility, the court applies a stricter or more rigorous modification standard. See N.D.C.C. § 14-09-06.6(5) ; In re N.C.M. , 2013 ND 132, ¶ 9, 834 N.W.2d 270 ; Laib v. Laib , 2008 ND 129, ¶ 8, 751 N.W.2d 228. To obtain an evidentiary hearing on a motion for modification, the

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party seeking the modification must first establish a prima facie case under N.D.C.C. § 14-09-06.6(4).

Lucas v. Lucas , 2014 ND 2, ¶ 7, 841 N.W.2d 697 ; see also N.D.C.C. § 14-09-06.6(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 parenting time; 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 residential responsibility for the child has changed to the other parent for longer than six months."). Under N.D.C.C. § 14-09-06.6(5), a district court may not modify primary residential responsibility within the two-year period unless the moving party establishes that:

[A] change in primary residential responsibility is in the child's best interests and the persistent and willful denial of parenting time, the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development, or the primary residential responsibility for the child has changed to the other parent for longer than six months.

Stoddard v. Singer , 2021 ND 23, ¶ 23, 954 N.W.2d 696.

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