Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
[¶1] Aimee Martinson appeals from a district court order awarding her attorney fees and an order denying her motion for relief. She argues the court abused its discretion in denying part of her request for attorney fees and costs and vacating an ex parte order awarding her attorney fees. We affirm in part, reverse in part, and remand.
[¶2] Aimee and James Martinson were married in 2000, and have two minor children together. The Martinsons divorced in Burleigh County in 2006. The parties reached an agreement on child custody and visitation issues, and a judgment was entered incorporating the parties' stipulation. Aimee Martinson was awarded physical custody of the children, and James Martinson was awarded visitation. After the divorce, Aimee Martinson and the children moved to the Minneapolis, Minnesota area and James Martinson often traveled to the Minneapolis area to exercise visitation with the children.
[¶3] In April 2007, one of the parties' children told a school counselor that James Martinson had sexually abused the child. Both children later alleged James Martinson sexually abused them. The allegations were reported to Dakota County Social Services and the Bloomington Police Department and both began investigating the allegations.
[¶4] Aimee Martinson sought a protective order in Minnesota. On April 30, 2007, the Minnesota district court granted an emergency ex parte order for protection, prohibiting James Martinson from having any contact with Aimee Martinson and the children. A hearing on the order was continued to allow for further investigation.
[¶5] On August 9, 2007, Aimee Martinson moved for an ex parte interim order in North Dakota to prohibit James Martinson from having any contact with the children while the investigations continued. The ex parte order was granted on August 10, 2007. As part of the ex parte interim order, the court awarded Aimee Martinson an unspecified amount of attorney fees. Aimee Martinson submitted an affidavit showing attorney fees and costs in the amount of $17,043.44, including fees from the Minnesota proceedings and the North Dakota ex parte interim order. James Martinson requested a hearing on the ex parte interim order.
[¶6] After the North Dakota protection order was granted Aimee Martinson requested the Minnesota district court dismiss the Minnesota protection order because it was no longer necessary. The Minnesota protection order was dismissed on August 10, 2007.
[¶7] The Bloomington Police Department and Dakota County Social Services closed their investigations of the abuse allegations in fall 2007. The Bloomington Police Department determined the children had been interviewed too many times for their information to be consistent or reliable and the allegations were unsubstantiated. Dakota County Social Services issued its report, stating it could not find there was maltreatment because the children's statements were inconsistent and James Martinson denied the allegations. Dakota County Social Services also recommended the children remain in therapy to work on issues of sexual abuse and not have visitation with James Martinson until it is determined the visitation would not be detrimental to the children's therapy process.
[¶8] On November 29, 2007, Aimee Martinson moved to modify the divorce judgment in North Dakota, requesting visitation be modified and James Martinson not have visitation with the children until the children's therapist determines visitation would not be detrimental. James Martinson opposed the motion and requested a hearing. The hearing date was set and rescheduled several times.
[¶9] In April 2009, the parties reached an agreement on the visitation issue. The parties stipulated that their experts would select an independent mental health expert to evaluate the children and develop a plan to restore contact between the children and James Martinson, that a nanny would accompany the children on longer visits, and that the parties' experts would choose a new therapist for the children. The parties also agreed that the district court would resolve any financial issues, including who would be responsible for the costs and expenses of the proceedings and future visitation expenses.
[¶10] A hearing on the financial issues was held in April 2009, and the parties testified and submitted other evidence. Aimee Martinson requested she be awarded full attorney fees and costs. She also requested James Martinson be responsible for any future counseling expenses, all of the future fees for their expert witnesses, and all supervised visitation expenses. James Martinson opposed Aimee Martinson's request and requested the court award him attorney fees under N.D.C.C. § 14-09-24 for costs incurred fighting the willful and persistent denial of visitation rights.
[¶11] The district court entered an order on May 14, 2009, partially granting Aimee Martinson's request for attorney fees. The court awarded Aimee Martinson $15,735.97 for the attorney fees and costs incurred in obtaining the Minnesota protective order. The court denied Aimee Martinson's request for all other attorney fees and costs, finding there was no modification of the judgment and Aimee Martinson abandoned her motion. The court also vacated the award of attorney fees ordered in the ex parte interim order. The court denied James Martinson's request for attorney fees and costs, finding Aimee Martinson was not acting in a willful and persistent effort to preclude visitation without a basis in fact. The court also ordered the parties be equally liable for costs of any future counseling or therapy for the children. The court entered an order adopting the parties' stipulation modifying visitation on June 15, 2009.
[¶12] In July 2009, Aimee Martinson moved for relief from the order partially denying her request for attorney fees under N.D.R.Civ.P. 60(b), arguing the court incorrectly found she abandoned her motion to modify the judgment and based its decision on that erroneous finding. She requested the court reconsider her motion for attorney fees. On September 1, 2009, the court denied Aimee Martinson's motion for relief, finding her request for attorney fees was denied because she failed to provide a sufficient basis for the court to award attorney fees and its decision was not based on a mistaken finding. The court also found an injustice would result if the motion for relief was granted because James Martinson has relied upon the order and reconsidering Aimee Martinson's request for attorney fees and costs would delay reuniting the children with James Martinson.
[¶13] Aimee Martinson argues the district court abused its discretion by determining an award of attorney fees was not appropriate because she abandoned her motion to modify the judgment, by vacating the prior ex parte interim order awarding her ...