Martinson v. Martinson

• Decision Date: 10 June 2010
• Docket Number: No. 20090324.,20090324.
• Citation: 783 N.W.2d 633,2010 ND 110
• Parties: Aimee M. MARTINSON, Plaintiff and Appellantv.James W. MARTINSON, Defendant and Appellee.
• Court: North Dakota Supreme Court

783 N.W.2d 633

2010 ND 110

Aimee M. MARTINSON, Plaintiff and Appellantv.James W. MARTINSON, Defendant and Appellee.

No. 20090324.

Supreme Court of North Dakota.

June 10, 2010.

COPYRIGHT MATERIAL OMITTED

Suzanne Marie Schweigert, Bismarck, N.D., for plaintiff and appellant.

Irvin B. Nodland, Bismarck, N.D., for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Aimee Martinson appeals from a district court order awarding her attorney fees and an order denying her motion for relief. She argues the court abused its discretion in denying part of her request for attorney fees and costs and vacating an ex parte order awarding her attorney fees. We affirm in part, reverse in part, and remand.

I

[¶ 2] Aimee and James Martinson were married in 2000, and have two minor children together. The Martinsons divorced in Burleigh County in 2006. The parties reached an agreement on child custody and visitation issues, and a judgment was entered incorporating the parties' stipulation. Aimee Martinson was awarded physical custody of the children, and James Martinson was awarded visitation. After the divorce, Aimee Martinson and the children moved to the Minneapolis, Minnesota area and James Martinson often traveled to the Minneapolis area to exercise visitation with the children.

[¶ 3] In April 2007, one of the parties' children told a school counselor that James Martinson had sexually abused the child. Both children later alleged James Martinson sexually abused them. The allegations were reported to Dakota County Social Services and the Bloomington Police Department and both began investigating the allegations.

[¶ 4] Aimee Martinson sought a protective order in Minnesota. On April 30, 2007, the Minnesota district court granted an emergency ex parte order for protection, prohibiting James Martinson from having any contact with Aimee Martinson and the children. A hearing on the order was continued to allow for further investigation.

[¶ 5] On August 9, 2007, Aimee Martinson moved for an ex parte interim order in North Dakota to prohibit James Martinson from having any contact with the children while the investigations continued. The ex parte order was granted on August 10, 2007. As part of the ex parte interim order, the court awarded Aimee Martinson an unspecified amount of attorney fees. Aimee Martinson submitted an affidavit showing attorney fees and costs in the amount of $17,043.44, including fees from the Minnesota proceedings and the North Dakota ex parte interim order. James Martinson requested a hearing on the ex parte interim order.

[¶ 6] After the North Dakota protection order was granted Aimee Martinson requested the Minnesota district court dismiss the Minnesota protection order because it was no longer necessary. The Minnesota protection order was dismissed on August 10, 2007.

[¶ 7] The Bloomington Police Department and Dakota County Social Services closed their investigations of the abuse allegations in fall 2007. The Bloomington Police Department determined the children had been interviewed too many times for their information to be consistent or reliable and the allegations were unsubstantiated. Dakota County Social Services issued its report, stating it could not find there was maltreatment because the children's statements were inconsistent and James Martinson denied the allegations. Dakota County Social Services also recommended the children remain in therapy to work on issues of sexual abuse and not have visitation with James Martinson until it is determined the visitation would not be detrimental to the children's therapy process.

[¶ 8] On November 29, 2007, Aimee Martinson moved to modify the divorce judgment in North Dakota, requesting visitation be modified and James Martinson not have visitation with the children until the children's therapist determines visitation would not be detrimental. James Martinson opposed the motion and requested a hearing. The hearing date was set and rescheduled several times.

[¶ 9] In April 2009, the parties reached an agreement on the visitation issue. The parties stipulated that their experts would select an independent mental health expert to evaluate the children and develop a plan to restore contact between the children and James Martinson, that a nanny would accompany the children on longer visits, and that the parties' experts would choose a new therapist for the children. The parties also agreed that the district court would resolve any financial issues, including who would be responsible for the costs and expenses of the proceedings and future visitation expenses.

[¶ 10] A hearing on the financial issues was held in April 2009, and the parties testified and submitted other evidence. Aimee Martinson requested she be awarded full attorney fees and costs. She also requested James Martinson be responsible for any future counseling expenses, all of the future fees for their expert witnesses, and all supervised visitation expenses. James Martinson opposed Aimee Martinson's request and requested the court award him attorney fees under N.D.C.C. § 14-09-24 for costs incurred fighting the willful and persistent denial of visitation rights.

[¶ 11] The district court entered an order on May 14, 2009, partially granting Aimee Martinson's request for attorney fees. The court awarded Aimee Martinson $15,735.97 for the attorney fees and costs incurred in obtaining the Minnesota protective order. The court denied Aimee Martinson's request for all other attorney fees and costs, finding there was no modification of the judgment and Aimee Martinson abandoned her motion. The court also vacated the award of attorney fees ordered in the ex parte interim order. The court denied James Martinson's request for attorney fees and costs, finding Aimee Martinson was not acting in a willful and persistent effort to preclude visitation without a basis in fact. The court also ordered the parties be equally liable for costs of any future counseling or therapy for the children. The court entered an order adopting the parties' stipulation modifying visitation on June 15, 2009.

[¶ 12] In July 2009, Aimee Martinson moved for relief from the order partially denying her request for attorney fees under N.D.R.Civ.P. 60(b), arguing the court incorrectly found she abandoned her motion to modify the judgment and based its decision on that erroneous finding. She requested the court reconsider her motion for attorney fees. On September 1, 2009, the court denied Aimee Martinson's motion for relief, finding her request for attorney fees was denied because she failed to provide a sufficient basis for the court to award attorney fees and its decision was not based on a mistaken finding. The court also found an injustice would result if the motion for relief was granted because James Martinson has relied upon the order and reconsidering Aimee Martinson's request for attorney fees and costs would delay reuniting the children with James Martinson.

II

[¶ 13] Aimee Martinson argues the district court abused its discretion by determining an award of attorney fees was not appropriate because she abandoned her motion to modify the judgment, by vacating the prior ex parte interim order awarding her attorney fees, and by denying her motion for relief from the order.

A

[¶ 14] A district court has discretion to award attorney fees and costs in divorce actions under N.D.C.C. § 14-05-23. Heinle v. Heinle, 2010 ND 5, ¶ 32, 777 N.W.2d 590. In deciding whether to award attorney fees and costs under N.D.C.C. § 14-05-23:

[T]he trial court must balance one [party's] needs against the other [party's] ability to pay. 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 unreasonably increased the time spent on the case. An award of attorney fees requires specific findings supported by evidence of the parties' financial conditions and needs.

Id. (quoting Reiser v. Reiser, 2001 ND 6, ¶ 15, 621 N.W.2d 348) (citations omitted). A court must make specific findings supported by evidence of the parties' financial needs and conditions to award attorney fees. Lautt v. Lautt, 2006 ND 161, ¶ 12, 718 N.W.2d 563. “An award of attorney fees must generally be supported by evidence upon which the court can determine the requested fees are reasonable and legitimate.” Whitmire v. Whitmire, 1999 ND 56, ¶ 14, 591 N.W.2d 126.

[¶ 15] An award of attorney fees is within the court's discretion and will not be disturbed on appeal unless the court abuses its discretion. Heinle, 2010 ND 5, ¶ 32, 777 N.W.2d 590. The court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, misinterprets or misapplies the law, or its decision is not the product of a rational mental process leading to a reasoned determination. Berg v. Berg, 2000 ND 36, ¶ 22, 606 N.W.2d 895. “A [district] court acts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied on are stated and considered together for the purpose of achieving a reasoned and reasonable determination.” Terry v. Terry, 2002 ND 2, ¶ 4, 638 N.W.2d 11.

[¶ 16] In the May 2009 order, the district court granted part of Aimee Martinson's request for attorney fees and costs and denied her request for the remaining portion, finding:

[T]he [legal proceedings in Minnesota] on behalf of the minor children and as taken by [Aimee Martinson] upon professional advice and assistance, were initiated in the best interests of the minor children and upon a reasonable factual basis for the same. Accordingly, the Court does herewith award [Aimee Martinson] attorney's fees and costs incurred within the State of Minnesota in obtaining the Minnesota protective order until such time as investigations were concluded by Dakota [C]ounty Social Services and the Bloomington, Minnesota, Police Department, and

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