*1
12(b),
Rule
proceedings.
in the criminal
ment and No. 20040142. given must parties Rule and all be Supreme Court of North Dakota. all opportunity present motion pertinent made material March 2005. by Rule 56. Rehearing April Denied 56(c), a motion for
Under N.D.R.Civ.P. judgment supporting pa- “and
summary days at least 34 be-
pers must be served “[t]he the motion be heard” and
fore days after party shall have 30
adverse of a brief within which to serve
service supporting pa- brief and
file an answer Thus, Kaiser, conclude that
pers.” we 56(c), should have
“under N.D.R.Civ.P. days after service of the
been afforded within which to serve and file
State’s brief supporting papers.”
an answer brief and ¶
Johnson, at 6. light of our conclusion that Kaiser
the trial court should have afforded days respond within which to to the brief, we need not
State’s motions parties have
address other matters the
raised.
Ill reversed, and judgment The pro-
the matter remanded for further
ceedings opinion. with this accordance WALLE, GERALD W. VANDE
C.J., NEUMANN, A. MARY WILLIAM MARING, and CAROL
MUEHLEN KAPSNER, JJ., concur.
RONNING
n David Sweeney under N.D.C.C.- 14r-09- 24: *3 parties married in The were
[IT2] only in and there is one Minnesota marriage. Lynch child from their In in filed for divorce Minnesota and moved permanently with the child to Dako- North decree, original ta. The Minnesota divorce 1991, granted custody in of the entered Lynch child to with reasonable visitation Sweeney. of in for Because difficulties exercising original de- visitation under mediation, cree, parties participated Sweeney subsequently and moved the his Minnesota court to enforce visitation In court en- rights. the Minnesota Judgment tered a Second Amended a schedule. contained detailed visitation judgment That was filed as a Minnesota in this state to allow foreign judgment Williston, Lynch and enforcement where living. the child were 1997,- guardian ad litem was the child to facilitate and appointed for supervise visitation and to advise whether P.C., Bismarck, N.D., Nodland, Irvin B. appro- visitations would be unsupervised plaintiff appellee. for and meeting After with the child and priate. visits, guardian few ad supervising a Neff, Neff, Neff, L. Eiken & Charles withdrew, and citing litem interference P.C., Williston, N.D., for defendant and family non-cooperation by Lynch and her appellant. and friends. SANDSTROM, Justice. -evidentiary The trial court held [¶4] August hearings September Sweeney appealed from a David’ on Lynch sought restrictions Swee- judgment, upon entered re- district ney’s with the child. visitation Court, request denying his mand change custody and an award sought attorney litigation costs and fees. We attorney fees on the basis of of costs and the trial court abused its discretion hold Lynch’s persistent interference willful denying Sweeney’s request for costs and al- visitation, and her unsubstantiated with 14-09-24, fees, attorney under N.D.C.C. by Sweeney against legations abuse (Sweeney) Lynch for her against Danni child. Sweeney’s denial of willful and Lynch re- The trial court decided with their child. We visitation custody, specif- the court entry should retain but verse and remand for Lynch’s final ically noted that this was costs and fees to Const, opportunity recognize jurisdiction facilitate Court has under N.D. Sweeney’s rights. parties The VI, 6,§ art. §§ and N.D.C.C. 28-27-01 appeals. filed cross This Court affirmed and 28-27-02.
the denial of the motion change custody,
but reversed and remanded for additional
II
findings
redetermination of Swee-
appeal,
[¶ 7] On
Sweeney asserts the
ney’s request for costs and attorney fees:
trial court
in refusing
erred
to award him
14-09-06.5,
[U]nder N.D.C.C.
a trial
against
fees
Lynch
court must award reasonable attorney’s
§§
14-09-06.5 and 14-09-24. On
fees and court
if
costs
it finds that an
appeal, this Court will not overturn a trial
*4
allegation of harm to the child is false
court’s decision regarding attorney fees
and
not
good
was
made in
faith. Under
unless
appellant
affirmatively estab
14-09-24,
N.D.C.C.
a trial court must
lishes the trial court abused its discretion.
award reasonable attorney’s fees and
Hendrickson,
See Hendrickson v.
1999 ND
costs if it finds there has been willful
¶
37,
14, 590
220.
N.W.2d
The court’s
and
denial of visitation rights
underlying findings of fact will
upheld
be
by
parent.
the custodial
clearly
unless
erroneous
under
52(a).
N.D.R.Civ.P.
In re Estate
Glee
If
triggering
factors in the stat-
¶
son,
211, 21,
2002 ND
utes are the court must award and costs reasonable attorney’s fees. A The court failed to make findings on 14-09-06.5, Section factors, triggering but par- awarded N.D.C.C., provides: sanction, tial as a costs taking into con- Allegation of harm to child—Effect. If sideration ability Danni’s pay. It is the court finds allegation that an unclear from these findings and conclu- harm by to a child parent one against sions whether the court correctly ap- the other is false and not in good made plied appropriate legal standards faith, the court shall order parent determining whether to award costs making allegation the false pay court attorney’s fees under the statutes. costs and reasonable attorney’s fees in- Accordingly, we reverse the denial of by curred parent other in respond- attorney’s fees and the award of costs ing allegation. to the and remand for the trial court to make explicit more findings and to award rea- statute, Under this when the court finds a attorney’s sonable fees and costs in ac- parent has made allegations that the other cordance with the statute if trigger- parent has caused harm to a child and ing factors are present. allegations those were not good made in faith, ¶¶ court must order the v. Sweeney, 18, 2002 ND making allegations the false pay court 407. Upon N.W.2d remand the trial costs and fees in- determined the triggering factors curred the other parent had not in responding been met again refused to to the allegations. Sweeney, ND fees under either statute. ¶ 18, 654 407. N.W.2d [¶ 6] The district jurisdiction court had Const, VI, N.D. 8,§ art. 28, 2001, [¶ 9] On March the trial court 27-05-06. The appeal was made the following findings relevant timely 4(a). under N.D.R.App.P. This this issue: good allegation raised found that the was made allegations new As to these 52(a), that David this Court faith. N.D.R.Civ.P. Danni with Under child], the evi- sexually [the abused have a trial find- Court will not reverse court’s that one by Danni was presented dence ing clearly of fact unless it is erroneous. a shower took [the child] ¶ time David 105, 6, 2003 ND Hogan Hogan, shower, during [the said together where clearly A finding of fact is N.W.2d curiosity touch David’s did out of child] induced-by if it an erroneous erroneous event was recounted penis, which law, if no view of the there is evidence finds that to Danni. The Court David it, if, support after review of the evi- establish'any sexual such event does dence, has a definite and firm this Court child], and ac- by David -of [the abuse conviction a mistake has been made. Id. finds David has not cordingly, this Court Because an incident of sexual nature did any sexual abuse any at time committed occur, finding conclude the trial court’s we involving child]. [the Lynch’s allegation of abuse was made good clearly faith is not erroneous. We allega- person who made Danni was conclude, therefore, further the trial court *5 in engaged ... that David had tions refusing its discretion in to did not abuse and men- sexually inappropriate conduct § 14- attorney fees under N.D.C.C.' child], all of involving tal harm [the 09-06.5. to the increased which did contribute protracted nature of this expenses and B
litigation. 14-09-24, N.D.C.C., remand, Section upon In its order finding rele- following provides: made the
trial court vant to this issue: Attorney’s with Interference visitation — the voluminous files do review of [A] and tools. fees-—Enforcement remedies allega- significant'reference forth to set any In in which child visita- proceeding by David tions of harm to [the child] dispute between the properly tion is Court, question Sweeney. To this child, the court shall award parents of a a non-issue. Notwithstand- was is at- parent the noncustodial reasonable by the Court ing general some reference if torney’s and costs the court de- fees contrary, specifi- orders to the prior per- has willful and termines there been harm to cally “allegation find that no of rights by the denial of visitation sistent parent against child one the oth- respect with to the parent custodial contemplated by er” was made remedy any use child. The 14-09-06.5, NDCC sup- a available to enforce child is Lynch alleged Sweeney appropriate to port order and which by allowing young child harmed their enforce visitation. privates while the boy to touch his father’s statute, the trial court must Under this togeth a taking two of them were shower attorney fees and costs award reasonable occur The court found the conduct did er. if it determines to the noncustodial or not constitute sexual abuse but did willful and denial there has been making harm the child. its subse to parent. custodial finding trigger that there was no quent ¶ 18, 654 N.W.2d Sweeney, 2002 ND fees under the award of costs 14-09-06.5, implicitly the court 28, 2001, On March shown.” The court explained the rationale following findings court made the relevant its underlying decision to not award Swee- to this issue: ney costs or fees: Court This finds that since the birth Trial courts do not exist vacuums. mother, Danni, has en- They are consequences aware of the in a continued course of gaged conduct decisions, their whether decision will minimized, limited,
which and obstructed fixing result in a situation or making it relationship with [the child]. David’s worse. failing Such conduct included to allow This Court is that the aware current child; David reasonable access remedy place has had the desired failure to follow the visitation orders of occurring; result. Visitation is the child court; failing im- Minnesota getting opportunity plement visitation orders this Court. benefit from parents, contact with both Although justifies Danni her actions each of whom significant positives has perceived danger to based on the child feelings offer. The hard between the father, from the there have been no parties have pushed been aside each could presented facts which serve as parent sufficiently to allow the desired fear of danger. basis for and required result. The addition aof significant party burden to one or the When visitations between David and stage other at this of the relationship occur, did child] Danni often [the intrud- already would tend exacerbate del- directly calls, indirectly phone ed with icate situation. present, or other observers devices *6 Trial courts often must balance the conveyed may which have impres- the effects of the decision. Although we are sion that the [the child] to visits were law, not to ignore free the we are enti- or dangerous, displeasing to Danni. findings tled to make factual which are current The child’s attitude the towards consistent with making a situation work. consistent a father with successful conveyance message. of that 14-09-24, [¶ 15] Section N.D.C.C., mandates that the court award it [Although appears that significant attorney fees and costs when for grounds change exist custody, persistent there has been “willful and deni changing custody at decline this time rights” al of by visitation a custodial par order to allow Danni a final opportunity ent. Despite previous its findings that obligations to fulfill her under the law as Lynch pursued had a “continued course of require custodial which her to limited, minimized, conduct which and ob facilitate, enforce, recognize, and rather Sweeney’s structed” relationship with the obstruct, than the visitation held comply the court refused to with the by with the David child. statute’s mandate to award costs Notwithstanding prior attorney those explanation fees. The court’s findings, court, upon remand for to refusing attorney award fees under Court, this Sweeney’s denied request this for statute not that triggering the fac costs attorney fees tors of persistent willful and denial of visi 14-09-24, § stating: occurred, Court at “the tation had not but rather that time not does find that triggering pro- parties’ the the relationship improved had visions of NDCC 14-09-24 have the court jeopardize been did want to the
35 stances, regard bur- without fear and without significant “a by imposing situation public personal consequences. The court’s statement clamor or Lynch. den” on findings make factual P. parte CaLApp. it is “entitled to Ex 90 that Ruef making (1908). a situa- are consistent with which that trial the tion work” demonstrates A trial court cannot enter find- backwards to reach a working court was ings reviewing so to “tie the court’s findings factual using and was its result Bergstrom Bergstrom, hands.” so, misap- By doing the court get there. (N.D.1980). Although the N.W.2d its mandate plied ignored the statute conclusory finding trial court made a that attorney reasonable costs and award triggering provisions the of N.D.C.C. denial of fees willful and when met, had not the court’s 14-09-24 been expla- has occurred. The court’s prior specific findings that there had been clearly quite for its decision shows nation interference with visitation and continued if it court believed that followed it at- subsequent explanation its that was attorney fees to law and awarded costs and tempting upsetting to avoid “delicate Sweeney, parties might not continue severely the court’s situation” discredits relationship as the cooperate and their conclusory finding triggers were could further deteriorate. parents child’s not met. clear, language of a statute is When reviewing After the record and language un- ignore the court cannot explanation trial for its decision court’s pursuing spirit its pretext der the remand, left a firm and upon we are with legis- objectives adhering other than finding definite convictioh that the court’s law’s expressed lative intent as triggers were not met for 1-02-05; terms. N.D.C.C. unambiguous costs and fees under N.D.C.C. Comp. v. North Dakota Workers Skiek § 14-09-24 was induced an erroneous Bureau, 85, ¶12, 2002 ND 643 N.W.2d clearly of the law and is erroneous. view the trial court have had 721. While trial therefore conclude the We intentions, ignore it cannot the law good denying Sweeney’s abused its discretion might parties out of fear that one or both request for costs and fees under *7 respond unfavorably inappropriately or act § N.D.C.C. 14-09-24. in proper of the court’s decision as result attorney awarding costs and fees under Ill Cooper, Aaron v. 257
the statute. See
(8th
1,
33,
Cir.),
affd, 358 U.S.
78
hold the trial court did
[¶ 18]
F.2d
38
We
(1958) (a
1399, 1401,
5,
denying Sweeney’s
3 L.Ed.2d
19
in
S.Ct.
abuse its discretion
person may
attorney
not be denied enforcement of
under
request for costs and
fees
hold,
of
rights
§
to which he is entitled because
14-09-06.5.
further
N.D.C.C.
We
in defiance of however,
action taken or threatened
that
the trial court abused its
rights);
Parish Sch. Bd. v.
such
Orleans
to award costs and
refusing
discretion
(5th Cir.1957) (the
Bush,
fact
14-09-24,
the of the court to follow in all cases under all circum- concurs. is written WALLE, Justice, concur-
VANDE
Chief
that
conclude
when this matter
before
was
ring.
Sweeney,
us
v.
ND
However,
N.W.2d
there the re-
attorney
The award of
fees in a
20]
[¶
quest
attorney
only
for
fees was not
for
action
held
long
divorce
has
been
this
interference with visitation but also for
to be a matter for
discretion of
Court
the
faith,
making bad
false accusations of
Mosher,
trial court.
the
Mosher v.
harm ato
under N.D.C.C.
14-09-
(1907);
N.D.
torney fees intentionally, knowingly, or reck- duct the statute. lessly. ques- a statute is a interpretation of The to decide. law for the court tion of 12.1-02-02(l)(e). Also defined N.D.C.C. statutes, duty is to ascer- our construing following: in that section are the Leg- The Legislature’s intent. tain the if, “Intentionally” engages when he a. sought initially must be islature’s intent conduct, it to do so. purpose in the is his as a of the statute language from the if, in “Knowingly” engages he b. when words a statute whole. We construe conduct, or has a firm he knows commonly ordinary, and plain, in their belief, unaccompanied substantial statutory If the lan- understood sense. so, doubt, or doing that he is whether unambiguous, we do guage is clear and purpose not it is his to do so. language under the disregard “Recklessly” engages if he in the c. intent, legislative be- pursuing pretext clearly unjusti- conduct conscious and clear from presumed the intent is cause of a likeli- disregard fiable substantial face of the statute. hood of the existence of the relevant N.D. Board Medical Singha v. State risks, disregard involving such facts ¶
Examiners, 42, 16, 574 N.W.2d 1998 ND acceptable from stan- gross deviation (internal omitted); N.D.C.C. citations conduct, that, provid- except dards of § 1-02-05. 12.1-04-02, awareness of ed section MARING, J„ MARY MUEHLEN required is not where its ab- the risk concurs. to self-induced intoxication. sence is due Justice, MARING, concurring in the re- (c). 12.1-02-02(l)(a), (b), sult. applies section 12.1-02-02 We have said only. in the The I concur result only to crimes or offenses described fully majority opinion does not address Goetz, 12.1. 312 N.W.2d Title State finding of both “willful” requirement of a (N.D.1981). child interference with “persistent” context, mis- In the tort “willful at- awarding reasonable
visitation before defined our Court as conduct” has been and costs under N.D.C.C. torney’s fees requiring of a situation “knowledge § 14-09-24. ordinary diligence care and exercise of many “is a word of mean- Willful another; ability to avoid injury to avert its often influenced ings, with construction ordinary care and dili- resulting harm Dictionary Black’s Law by its context.” hand; means at in the use of the gence ed.1990) (citation omitted). (6th “A diligence care and and the omission of such act be described as one done willful danger when to to avert threatened intentionally, knowingly, purposely, apparent ordinary person it must be *9 excuse, distinguished justifiable as without likely prove would disastrous the result carelessly, thoughtlessly, from an act done Cty. Elec. Co- v. Cass another.” Stokka inadvertently.” heedlessly, or Id. (N.D.1985) Inc., 911, 916 op., 373 N.W.2d context, Tail Power (quoting Van Omum v. Otter In criminal [¶ 31] (N.D.1973)). Co., 12.1-02-02(1) 202 210 provides § that for N.W.2d N.D.C.C. 38 employee may (2002), An be held liable 2.19 recognizes
[¶ 33]
that
if a court
personal
employee’s
capacity
in the
parent
intentionally
finds a
and “without
employee
of the
acts or omissions
which good cause” interfered persistently with
grossly
or
negligent
constitute “reckless
parent’s
the other
access to the
conduct, or willful or wanton misconduct”
court should
an appropriate remedy,
order
32-12.1-04(3).
We have which
include an award of court costs
context,
held, in
attorney’s
“[w]illful
and reasonable
fees.
“Good
‘[r]eekless, heedless,
are
wanton actions
cause is established
a parent
when
reason-
malicious;
characterized
extreme reck-
ably thinks his or her actions or
failures
foolhardiness; recklessly
lessness or
disre-
necessary
act are
protect
or
child
gardful
safety
of the
or
of
parent,
others or
compliance
when
simply
”
Gillette,
consequences.’
of
Nelson v.
impossible.” Id. at cmt. e. “A parent may
¶
205, 27,
1997 ND
571 N.W.2d
(quot-
act in
faith
good
even if the
giving
concern
(6th
ing
Dictionary
Black’s Law
rise to the action turns out to be unfound-
ed.1990)).
ed,
long
as the action was reasonable at
light
the time it was taken in
par-
of the
bar,
In cases such as the one at
ent’s available information.” Id. See also
requests
change
custody
which
of
based
A.L.I., Principals
Family
Law
of
of
on
parent’s
per-
the custodial
“willful and
Dissolution: Analysis and Recommenda-
sistent” denial or interference with the
(2002)
§ 2.11
(providing “good-faith
tions
parent’s
rights,
noncustodial
visitation
we
exception”
imposition
of limiting
have affirmed a trial court’s decision to
provisions
visitation
for a
in-
who
modify custody where
there
evidence of
child).
terferes with access to the
egregious
specific
violations of
court or-
visitation,
case,
dered
evidence of an
In
present
intransi-
gent
against
rights,
28, 2001,
attitude
court found
its March
findings
fact,
alienating
law,
behavior
the custodial
of
par-
conclusions of
and order for
Resler,
ent. See Anderson v.
judgment
2000 ND
that there was no sexual abuse
480;
N.W.2d
Hendrickson v.
the father of his son. It also found that
Hendrickson,
2000 ND
although
justified
fees when a No. 20040158. to protect accessible for visitation order Supreme Court North Dakota. physical from sexual or abuse the child parent or when the action is the other March 2005. good-faith belief that it is
taken Rehearing April Denied necessary safety. the child’s I do be- for lieve, however, parent relying that a on a legal pro- initiate
good cause defense must reasonably possible
ceedings quickly as adjudicate
to have a court whether justified. An
parent’s actions are interfer- take self-
ing parent cannot continue to
help measures these circumstances be-
yond reasonably necessary pro- what is
tect the child. I concur in the result of this
case, if because even some of the mother’s good-faith on a
actions were based belief protect safety
that she needed to
her evidence of other acts there is
that amount to obstruction of visitation would, however, good
without motive. the trial court on remand to award
instruct attorney’s only fees and costs which were willful those actions both persistent and not for those which the good
trial court finds were done in faith to
protect her child. MARY MUEHLEN MARING