970 N.W.2d 160
N.D.2022Background
- Julie Lessard and Kevin Johnson divorced after a trial; the district court awarded Lessard primary residential responsibility for their three minor children, set Johnson’s child support at $0, and entered (and later amended) a divorce judgment that allowed both parties to remarry.
- Lessard moved to amend the judgment (seeking changes including child support and expense sharing); Johnson filed a countermotion to modify residential responsibility.
- This Court remanded twice for the district court to rule on pending post-judgment motions. While a limited remand was pending to consider Lessard’s motion to relocate to Nebraska, Johnson filed a cross-motion to change residential responsibility without seeking expanded remand.
- On remand the district court dismissed Johnson’s cross-motion (concluding it lacked jurisdiction to decide new motions on limited remand) and granted Lessard’s motion to relocate; a third amended judgment followed and Johnson appealed.
- The Supreme Court affirmed most rulings (including denial of a prima facie showing for modification, the protective order limiting discovery, sanctions, and the relocation), vacated the district court’s March 2021 order insofar as it summarily dismissed Johnson’s cross-motion (leaving that motion pending), and awarded Lessard $750 in appellate fees under N.D.R.App.P. 38 for a frivolous jurisdiction argument by Johnson.
Issues
| Issue | Plaintiff's Argument (Lessard) | Defendant's Argument (Johnson) | Held |
|---|---|---|---|
| Whether the divorce judgment granted only Lessard a divorce and thus exceeded court authority | Judgment is mutual; Lessard treated as divorced and free to remarry | Court allegedly granted a divorce only to Lessard and lacked jurisdiction to act further | Court rejected Johnson’s reading as frivolous; judgment is mutual; award of $750 fees to Lessard under N.D.R.App.P.38 |
| Whether Johnson established a prima facie case entitling him to an evidentiary hearing to modify residential responsibility (within two years) | N/A (Lessard opposed) | Alleged interference with parenting time, children prefer him, and other complaints justified a hearing | Court held Johnson’s affidavit consisted mainly of hearsay/conclusions and did not meet the prima facie standard; no error in denying an evidentiary hearing |
| Whether the district court abused discretion by issuing a protective order limiting discovery of Lessard’s finances | Protective order appropriate given burden and marginal benefit to pending motions | Needs broader financial discovery (tax returns insufficient) | Court found no abuse of discretion in limiting discovery to tax returns and 2020 YTD income information |
| Whether the district court had jurisdiction on limited remand to dismiss Johnson’s cross-motion to modify custody | Remand limited to relocation; Lessard argued court should not decide new motions | Johnson argued the dismissal was invalid and his motion remains pending | Court held the district court lacked authority to summarily deny/dismiss the cross-motion on limited remand; March 2021 dismissal vacated and the motion remains pending |
| Whether the district court clearly erred in granting Lessard’s relocation to Nebraska under Stout/Hawkinson factors | Relocation improves quality of life; motives genuine; reasonable visitation arrangements | Relocation harms parent-child relationship; financial benefit speculative; potential noncompliance with parenting-time orders | Court found factual findings supported that factors 1,2 and 4 favored relocation, factor 3 did not outweigh others; relocation not clearly erroneous |
| Whether sanctions to Johnson under N.D.R.Civ.P. 11 were improper and whether he should have received attorney’s fees | N/A | Argued sanctions and denial of his fee request were erroneous | Court affirmed sanctions finding the motion lacked evidentiary support and was not brought in good faith |
Key Cases Cited
- Frueh v. Frueh, 2008 ND 26, 745 N.W.2d 362 (prima facie for custody modification requires competent, first‑hand affidavits and is a "bare minimum")
- Lucas v. Lucas, 2014 ND 2, 841 N.W.2d 697 (describing stricter standard for custody modification within two years and prima facie requirement)
- Kerzmann v. Kerzmann, 2021 ND 183, 965 N.W.2d 427 (review standard and prima facie analysis de novo)
- Stoddard v. Singer, 2021 ND 23, 954 N.W.2d 696 (statutory limits on modifying primary residential responsibility within two years)
- Norby v. Hinesley, 2020 ND 153, 946 N.W.2d 494 (moving parent bears burden to prove relocation is in child’s best interests)
- Seay v. Seay, 2015 ND 42, 859 N.W.2d 398 (procedural guidance when competing relocation and custody modification motions are filed)
- Holkesvig v. Grove, 2014 ND 57, 844 N.W.2d 557 (district court loses jurisdiction when notice of appeal is filed but retains limited inherent powers)
- Estate of Pedro v. Scheeler, 2014 ND 237, 856 N.W.2d 775 (affirming award of fees for frivolous appellate arguments)