993 N.W.2d 491
N.D.2023Background
- Derrick Dogbe and Rebekah J. Dogbe (now Grafsgaard) divorced in 2021; the district court awarded primary residential responsibility of their two children to Grafsgaard in a January 21, 2021 judgment.
- On June 8, 2022 (within two years), Dogbe moved to modify primary residential responsibility, submitting a brief, declaration, and financial information; Grafsgaard opposed.
- On November 29, 2022 the district court denied Dogbe’s modification motion for failure to establish a prima facie case and ordered Dogbe to pay $1,000 in attorney’s fees without explanatory findings.
- Dogbe moved under N.D.R.Civ.P. 60(b)(6) to vacate the fee award; after a January 18, 2023 hearing the court denied the motion and awarded Grafsgaard an additional $1,500 in fees, again with minimal findings.
- Dogbe appealed. The North Dakota Supreme Court affirmed the denial of the modification motion but reversed both attorney-fee awards and denied the appellee’s request for appellate sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dogbe established a prima facie case to modify primary residential responsibility within two years | Grafsgaard: deny—Dogbe failed to show a material change or best-interest basis | Dogbe: Grafsgaard’s mental/physical instability, interference with parenting time, and other incidents justify modification | Affirmed—Dogbe’s submissions were conclusory, lacked competent first‑hand facts showing a material change, and much relied-on evidence predated the 2021 order |
| Whether the district court properly awarded $1,000 in fees after denying the modification motion without findings | Grafsgaard: fees appropriate because Dogbe’s motion was frivolous | Dogbe: statute governing prima facie denials doesn’t authorize fees and no findings supported a frivolousness finding | Reversed—court abused discretion; fee award required explicit findings and analysis under §28-26-01(2) and reasonableness of amount |
| Whether Dogbe’s motion to vacate the fee award was frivolous and whether $1,500 in additional fees was proper | Grafsgaard: vacate motion was frivolous; fees for responding were appropriate | Dogbe: motion to vacate was meritorious and limited to striking an unexplained sanction | Reversed—motion to vacate was not properly deemed frivolous and court again failed to make required findings about frivolousness or fee reasonableness |
| Whether this appeal is frivolous and whether appellate fees should be awarded | Grafsgaard: appeal flagrantly groundless; request $750 | Dogbe: appeal not frivolous; he prevailed on one issue | Denied—the appeal was not frivolous because Dogbe succeeded on the attorney‑fees issue |
Key Cases Cited
- Heidt v. Heidt, 923 N.W.2d 530 (2019) (describes prima facie standard and requirement that affidavits contain competent first‑hand facts)
- Anderson v. Jenkins, 837 N.W.2d 374 (2013) (material change defined as an important new fact unknown at prior custody decision)
- DCI Credit Serv., Inc. v. Plemper, 966 N.W.2d 904 (2021) (court must expressly find a claim frivolous under §28-26-01(2) and explain fee reasonableness)
- McCarvel v. Perhus, 952 N.W.2d 86 (2020) (affirming necessity of a finding before awarding fees under frivolous‑claim statute)
- Sorum v. State, 947 N.W.2d 382 (2020) (standard of review for attorney’s fees—abuse of discretion)
- Moody v. Sundley, 868 N.W.2d 491 (2015) (definition and test for frivolous appeals)
- Viscito v. Christianson, 862 N.W.2d 777 (2015) (factors for awarding appellate sanctions)