NO. 95-027
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
DONNA JAKOBSON,
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EARNEST HOLTHUSEN and THE
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HEALTH AND HUMAN SERVICES, C?.E;? .,... 'cIuR~
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CHILD SUPPORT ENFORCEMENT DIVISION. G~Wf!~ ;;.r;!J'CAi&4
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Respondents and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard R. Buley, Tipp & Buley, Missoula, Montana
For Respondent:
Paulette C. Ferguson, Missoula, Montana; John McRae,
Dept. of Social & Rehabilitation Services, Child
Support Enforcement Division, Missoula, Montana
Submitted on Briefs: September 7, 1995
Decided: November 14, 1995
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of this Court and by a report of its result
to State Reporter Publishing Company and West Publishing Company.
Appellant Donna Jakobson (Donna) moved the Fourth Judicial
District Court, Missoula County, for return of certain "wrongfully
held" funds collected by the respondent Child Support Enforcement
Division (C.S.E.D.). At the same time, Donna further moved the
District Court for an order "updating her money judgment" against
her ex-husband, respondent Earnest Holthusen (Earnest). After a
hearing, the District Court denied both motions and found that
Donna had not presented any new evidence nor raised any new issues.
The court then ordered Donna to pay fees, costs, and sanctions
totalling $6,365.50. Donna appeals.
We affirm.
Donna and Earnest married in 1976 and divorced in 1980. They
have two daughters. Since the time of their divorce, Donna and
Earnest have been involved in repeated and protracted litigation
over payment of child support.
For several years following the divorce, Donna received Aid to
Families with Dependant Children (A.F.D.C.) because Earnest failed
to pay his court-ordered child support. In order to receive
A.F.D.C. benefits, the C.S.E.D. required Donna to assign to it her
right to collect the delinquent child support. When Earnest began
2
paying off his delinquent child-support debt, the C.S.E.D. retained
the payments pursuant to the assignment Donna had executed, and
used the money to reimburse the State for the A.F.D.C. benefits
Donna had received.
In an order dated April 22, 1992, the District Court found
that the C.S.E.D. could lawfully retain delinquent child support if
the mother has executed such an assignment. Donna appealed that
finding, among others, to this Court. In In re the Marriage of
Jakobson (1993), 259 Mont. 42, 854 P.2d 333, (Jakobson I), this
Court affirmed the order of the District Court in its entirety.
By 1994, the younger of the parties' two daughters was living
with an aunt. Because of the change in this daughter's living
arrangements, the C.S.E.D. began paying that child's portion of the
child support to the aunt instead of to Donna.
On August 25, 1994, Donna moved the District Court for an
order requiring the C.S.E.D. to pay her $1,187 that she claimed it
"wrongfully held." On the same day, she moved the court to "update
her money judgment" against Earnest to add $1,308 in alleged unpaid
support from 1991 and $1,500 in alleged unpaid health insurance
from 1991 and 1992. After a hearing, the District Court found that
Earnest was current in his child support obligations and that Donna
had not raised any new issues or presented any new evidence. The
court therefore denied her motions and ordered her to pay fees,
costs, and sanctions.
The sole issue on appeal is whether the District Court erred
by ordering Donna to pay fees, costs, and sanctions.
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Section 37-61-421, MCA, provides:
An attorney or party to any court proceeding who, in the
determination of the court, multiplies the proceedings in
any case unreasonably and vexatiously may be required by
the court to satisfy personally the excess costs,
expenses, and attorney fees reasonably incurred because
of such conduct.
This Court will not disturb a district court's award of attorney's
fees and costs absent a showing that the district court abused its
discretion. In re Marriage of Rager (1994), 263 Mont. 361, 868
P.2d 625; Tigart v. Thompson (1990), 244 Mont. 156, 796 P.2d 582.
Rule 11, M.R.Civ.P. provides:
A party who is not represented by an attorney shall sign
the party's pleading, motion, or other paper . . . The
signature of an attorney or party constitutes a
certificate by the signer that the signer has read the
pleading, motion, or other paper; that to the best of
the signer's knowledge, information, and belief formed
after reasonable inquiry it is well grounded in fact and
is warranted by existing law or a good faith argument for
the extension, modification, or reversal of existing law,
and that it is not interposed for any improper purpose,
such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation.
A district court's legal conclusion that the facts constitute a
violation of Rule 11 will be reversed only if the determination
constitutes an abuse of discretion. D'Agostino v. Swanson (19901,
240 Mont. 435, 446, 784 P.2d 919, 926.
The basis for Donna's first motion, titled "Motion for Return
of Funds Wrongfully Held by C.S.E.D.", is unclear. Earnest alleges
this motion was an attempt to recoup the child support which the
aunt received for the care of the younger daughter, but we are
unable to positively establish from the record Donna's specific
theory of recovery. This motion was not addressed at the hearing,
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and Donna's brief on appeal refers to only one motion,
characterizing it as "a motion to determine the amount of child
support arrearage owed to her."
While Donna's intent in filing this first motion is unclear,
its effect was obvious. Because of the motion, the C.S.E.D. was
required to involve itself in this matter again, and to appear and
defend itself.
Donna's second motion requested that the Court "update her
judgment" to reflect certain money she alleged Earnest owed her
from 1991 and 1992. Pursuant to this motion, the court held a
hearing and required the C.S.E.D. to account for the money Earnest
paid to it and to explain how the money was being disbursed. At
the hearing, it was again established that Donna had assigned her
right to delinquent support to the C.S.E.D. It was further
established that Earnest was current in his support obligations.
Like the District Court, we are unable to discover any new
grounds by which Donna may claim that either the C.S.E.D. or
Earnest owes her any more money. All the issues Donna raised in
her motions were decided by Jakobson I.
In Jakobson I, this Court held that when Donna signed the
"Notice of Assignment of Rights" which allowed her to receive
A.F.D.C., she transferred all rights she might have had in
delinquent child support over to the State. Jakobson, 854 P.2d at
334. Therefore, even if Earnest were still required to pay
delinquent support, he would owe it to the C.S.E.D., not to Donna.
Because this assignment was clearly established by Jakobson I, the
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District Court concluded Donna's motion was not well-grounded in
law. In addition, the C.S.E.D. presented testimony showing that
Earnest is not delinquent in his support. For this reason, the
District Court also concluded Donna's motion was not well-grounded
in fact. These conclusions are supported by the facts in this
case, and do not constitute an abuse of the district court's
discretion. The Rule 11 sanctions imposed were justified.
Further, the District Court awarded costs and fees to Earnest
and the C.S.E.D. because, although Donna raised no new issues and
presented no new evidence, the respondents were nevertheless
required to expend time and money in order to defend themselves.
It was not an abuse of discretion for the court to require Donna to
pay these expenses.
Finally, we note that Donna was given ample notice and warning
by the District Court that continued frivolous or unfounded
litigation would result in fees, costs, and sanctions being
assessed against her. A 1991 order informed the parties that
"[slhould either party . . frivolously bring further action
before the Court, the party shall be subject to sanction by the
court and an award of attorneys fees to the prevailing party." In
March 1992, the parties were warned in open court that “from now on
. . the party who prevails will have fees paid by the other side,
and if it is a frivolous [motion] that comes before this Court, I
will impose sanctions." In an April 1992 order, the court again
warned the parties that "the party that prevails in any subsequent
court action will have fees paid by the other party. The Court
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will order sanctions if a frivolous proceeding is brought before
the Court." And in June 1992, the court warned Donna bluntly: "you
have been coming into court with frivolous motions contesting
everything that does not please you in the slightest regard, and it
is coming to a screeching halt."
Donna was given ample notice that further frivolous or
vexatious litigation would not be tolerated. Despite that notice,
she brought two motions that attempted to relitigate the issues
settled by Jakobson I. Although the motions had no basis in law ox
in fact, Earnest and the C.S.E.D. nevertheless had to defend
themselves, incurring expenses and wasting both their own and the
District Court's time. The court did not abuse its discretion by
ordering Donna to pay fees, costs, and sanctions.
Affirmed.
Justice