*1 ND 81 LYNCH, Danni Jane Danni Jane f/k/a Appellee Plaintiff and SWEENEY, Defendant

David James Appellant.

No. Dakota.

Supreme of North Court 7, 2007.

June

$5,000 in in attorney fees incurred a child custody dispute. and visitation We affirm. I Lynch, and Danni for- merly known as Danni married in Minnesota in and had one child 1991, in together. They divorced and Lynch granted custody of the child with Sweeney. reasonable visitation for Lynch and the child moved to North Dako- ta, moved to par- Utah. The difficulty ties had implementing the or- visitation, dered and after participating in mediation, Sweeney moved to enforce his In rights. visitation a Minnesota court entered a Judg- Second Amended establishing ment detailed visitation schedule. The Second Judg- Amended ment a foreign judgment was filed as North Dakota to allow enforcement where Lynch and the child lived.

[¶ 3] Between 1996 some visi- 1996, Lynch tation occurred. In moved to restrict visitation moved to enforce his In guardian appointed ad litem was to facili- supervise tate and visitation and to advise unsupervised whether visitation would be appropriate. guardian The ad litem with- drew, meeting after with the child and visits, supervising citing a few interference non-cooperation by Lynch and her family and friends. court evidentiary district held hearings September August 1998 and Nodland, Nodland, Irvin B. Irvin B. PC, Lynch alleged Sweeney abused the Bismarck, N.D., plaintiff appellee. child sought on Sweeney’s restrictions Neff, Neff, PC, L. Neff Charles Eiken & visitation. moved for a change of

Williston, N.D., defendant appel- custody and an award of costs and attor- lant. Lynch’s fees on the basis willful with interference visitation and WALLE,

VANDE Chief Justice. her allegations unsubstantiated of abuse. [¶ Sweeney appealed 1] David from a district court found there was no cred- district judgment him ible evidence of and also abuse awarding Sweeney attorney fees, in a course Lynch “engaged continued had limited, minimized, following findings: made the which conduct relationship with [Sweeney’s] obstructed Court, in Supreme opinion 2. The its Lynch The court decided [the child].” ND in 2005 693 N.W.2d mandat- not- custody, specifically should retain *3 attorney pursuant fees to NDCC 14- ed Lynch’s opportunity final ed that this was 09-24. Sweeney’s visi- and facilitate recognize to 3. NDCC mandates 09—04[sic] 14— Sweeney’s court tation denied if the reasonable fees Court attorney fees. motion for persis- finds there has been willful and appeals, parties filed cross by tent denial of visitation the custodial affirmed denial of the and this Court the parent. custody, reversed change motion to but Notwithstanding subsequent 4. trial findings for additional and remanded court, findings, trial in its court the or- for Sweeney’s request of redetermination March der of found actions Sweeney fees. v. Swee- costs and (based upon violative of 14-09-04[sic] ¶ 206, 1, 407 ney, ND Supreme Court interpretation). /”). N.D.C.C. (“Siveeney We held that requires § to award rea- 14-09-24 court attorneys Reasonable 5. re- non- fees to the sonable costs this which are to quired of section be if it has been parent custodial finds there by the must be reason- ordered Court persistent willful and of visitation denial They under all able circumstances. ¶ rights by parent. the custodial Id. at 18. prohibited, to must relate the issue the district court faded We concluded namely denial persistent willful and of about N.D.C.C. findings make whether issues, visitation. Other such as custo- triggered, § and remanded 14-09-24 was arrangements, or a host dy, travel of explicit to make find- the court more which in- other fees the non-custodian ings attorney fees and to award reasonable curred, not appear do reasonable for ¶ triggered. if at 21. the statute was Id. reimbursement. court Upon [¶ remand the district 6] nearly all of requests The movant triggering the factors had not been paid showing fees be without rele- Sweeney’s request met denied prohibited vance to the conduct. attorney fees under N.D.C.C. costs and $5,000.00 I find that the sum of is 6. Sweeney § this appealed, and 14-09-24. topic, it this reasonable as relates to finding Court concluded the district court’s responsible for the order custodian that had met was triggers not been same. clearly erroneous. ¶ ordering Lynch to 47, 17, Judgment was entered {‘Swee- ND N.W.2d 29 $5,000 fees, II”). in pay ney and remanded We reversed appealed. reason- with instructions the court award

able fees to ¶ II § 14-09-24. Id. at 18.

under N.D.C.C. remand, argues the district Following 8] our [¶ [¶ second 7] $49,470.45 in only in him attor- an erred Sweeney requested award of award he an of litiga- ney all the fees because costs and fees for $49,470.45 presented and the evidence he tion he between 1998 expenses incurred request. judgment supported his The court entered case; (5) A decision to attor of ceptance customary award (6) fee; ney the court’s discre whether is generally fees is the fee fixed or con- tion, (7) disputes ...; in child visitation tingent time limitations im- requires § a court 14-09-24 by N.D.C.C. or posed the client the circum- (8) award costs and stances; the amount involved and parent there to the when has obtained; (9) experience, results been willful denial visita reputation, ability attorneys; of the parent. tion the custodial Swee rights (10) (11) case; the undesirability of the I, 206, 18, 654 N.W.2d 407. professional nature and length findings court must The district make (12) client; relationship with the whether 14-09-24 has been awards similar cases. *4 triggered, findings up those will be Thom, City Bismarck v. 261 N.W.2d of they clearly are held unless erroneous. (N.D.1977). 640, may The court con- ¶ II, 47, 7, Sweeney 2005 ND 693 N.W.2d if sider other factors it states the reasons parent If finds the court the custodial justifications including for them in its engaged persistent in willful and denial of decision. Id.

visitation the court must the award non custodial at parent reasonable costs may [¶ 11] The court award a ¶ torney Id. at 15. fees. parent and attorney fees under 14-09-24 for the Although the court is re

[¶ 10] expenses fighting incurred the quired attorney if award reasonable fees persistent willful and of denial it persis finds has been willful there rights. The issues of of visitation, frustration visita tent denial of it is well estab change custody tion and of as a resulting lished that district courts are considered intertwined, remedy are often experts determining the what is a reason court has attorney discretion to award attorney able amount of fees fees and we will Here, proceedings. not reverse the those intertwined court’s decision about the however, the amount and district court found attorney Sweeney reasonableness of the fees absent a clear was not entitled to all abuse of discretion. the fees he CybrCollect, v. Dept. requested Inc. North because Dakota there were other issues of ¶ Inste., 146, 39, Fin. 2005 ND during 703 N.W.2d resolved the litigation, including 285. A court abuses its custody arrangements. discretion when it and travel unreasonable, arbitrary, acts in an or un judge who pre awarded the fees manner, misinterprets conscionable or if it sided over the very entire case Co., or misapplies the law. Gratech Ltd. v. with litigated, familiar the issues ¶ P.C., Eng’g, Wold 2007 ND therefore was position the best to exer N.W.2d 326. We have adopted the follow cise discretion in attorney fees ing guidelines for the court to follow when and to determine what was a reasonable awarding attorney fees: of attorney amount for the litigation fees

(1) to the the and labor related denial of visitation. required legal time on See distinguished work Gissel v. Kenmare Twp., as from 512 N.W.2d clerical (2) (N.D.1994). investigation; novelty diffi- district (3) culty questions; litigation pertain did not req- solely the skill to deni visitation, perform uisite to al of legal services and the supports evidence (4) properly; preclusion of other finding. court’s The court awarded employment by to ac- an due amount it found reasonable did not litigation that was conclude the court abuse its discre- on the amount based awarding attorney tion in fees. of visitation. related to denial Furthermore, [¶ 12] Ill of all the submitted evidence We affirm the district court’s [¶ 14] incurred between 1998 and 2005 with he award of fees. specifying out what fees were related di rectly to the denial of his visitation KAPSNER, CAROL RONNING generally “An award of fees must MARING, MARY MUEHLEN supported by upon be evidence which the CROTHERS, JJ., DANIEL J. concur. court can determine the fees are SANDSTROM, Justice, dissenting. v. legitimate.” reasonable and Whitmire Whitmire, 56, 14, 1999 ND 591 N.W.2d This case poster is the child for required a court is to award 126. When and willful interference with vis- statute, under a the movant by parent per- itation a custodial and for precise request must be more noncompliance sistent with the law fees because the fees must relate to the district court. See v. 407; denial of visitation and therefore the court *5 deciding has which attor less discretion 2005 ND 693 N.W.2d 29. We Here, ney award. the district court previously fees to have found the district court (“We discretion, explanation no other than was left with abused its id. at 17 Sweeney’s billing claim the entire of attor therefore conclude the trial court abused directly Sweeney’s fees since 1998 was related to in denying request its discretion the denial of visitation. The court was left fees under N.D.C.C. attempt 14-09-24.”), to again. § to award the entire sum or and it has done so prior proceedings. requires review for itself the The statute that the duty The court does not have or obli awarded be reasonable in these cases. gation through the evidence to nearly ferret 14-09-24. Out of $50,000 locate the actual amount of fees incurred v. parent seeking incurred for each issue. See Peterson to vindicate (N.D.1991). Zevr, legislatively guaranteed $5,000 rights, The district court could have awarded the district court awarded as fees, majority really of the but we entire sum “reasonable.” Does reasonably cannot conclude it abused its discretion in not believe that amount covers $5,000 court, doing may only not so. While not be the in district proceedings fees, Court, appeal actual amount one to this let alone two provide delineating failed to evidence three? appeals? Or fighting actual amount fees related to I would reverse and remand to a [¶ 17] the denial of his visitation T.F. judge. different See James Co. ¶¶ Vakoch, 18-19, ac- prove failed to Jochim, 298; tual amount of fees he incurred Holzer v. N.W.2d (N.D.1996). fighting rights, the denial of his visitation N.W.2d and the district court decided Dale Y. Sandstrom amount of fees based had dis- expertise. on its While the court amount, larger

cretion to award a arbitrary, capri- was not

court’s decision

cious, unreasonable, or and we therefore