concurring and dissenting.
[¶ 14] I respectfully concur in the majority opinion with the exception of part III from which I dissent.
[¶ 15] Virgil Laib’s appeal is frivolous under Rule 38, N.D.RApp.P. In June 2007, Virgil Laib made a motion for an award of retroactive child support starting with the date he obtained temporary custody of the children forward. The district court denied that motion. Virgil Laib appealed that order to this Court, but did not raise the issue of the court’s denial of child support. See Laib v. Laib, 2008 ND 129, 751 N.W.2d 228. In June 2009, he brought the same motion, which was denied by the district court. Our Court now affirms the district court on the grounds of res judica-ta. Under Rule 38, N.D.R.App.P., Virgil Laib’s appeal is flagrantly meritless, and I would award Lisa Laib attorney’s fees and remand for the district court to determine the amount.
[¶ 16] Mary Muehlen Maring