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Vanderscoff v. Vanderscoff

October 29, 2010

DAVID VANDERSCOFF, PLAINTIFF AND APPELLANT
v.
ELAINE VANDERSCOFF, DEFENDANT AND APPELLEE



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: Maring, Justice.

AFFIRMED

IN PART AND REVERSED IN PART.

Opinion of the Court by Maring, Justice.

[¶1] David Vanderscoff appeals from a district court order denying his motion for reconsideration of the court's order awarding Elaine Vanderscoff $88,113 in attorney's fees and costs. We conclude the district court abused its discretion in denying David Vanderscoff's motion for reconsideration. We affirm the court's order awarding Elaine Vanderscoff attorney's fees and costs for her motion for a money judgment, and we reverse the court's order awarding Elaine Vanderscoff attorney's fees and costs for David Vanderscoff's 2007 motion to modify spousal support and the subsequent appeal.

I.

[¶2] David and Elaine Vanderscoff divorced in 2005, and David Vanderscoff was required to pay $15,000 per month in spousal support under the terms of the divorce judgment. In 2007, David Vanderscoff moved to modify his spousal support obligation. The district court denied his motion and awarded Elaine Vanderscoff $2,000 in attorney's fees and costs. David Vanderscoff appealed. Elaine Vanderscoff cross-appealed, arguing the court erred in only awarding her $2,000 in attorney's fees and not allowing her to present a statement of her actual costs. In Vanderscoff v. Vanderscoff, 2009 ND 114, 767 N.W.2d 530, this Court summarily affirmed the district court's order and held the court did not abuse its discretion in awarding the $2,000 in attorney's fees.

[¶3] In September 2009, Elaine Vanderscoff moved for a money judgment for unpaid spousal support and for the $2,000 in attorney's fees the district court previously ordered. As part of her motion, Elaine Vanderscoff also requested "reasonable attorney's fees and costs in connection with this motion." David Vanderscoff moved to vacate the judgment to pay spousal support, arguing he could not afford to pay the ordered amount.

[¶4] On October 2, 2009, the district court denied David Vanderscoff's motion and granted Elaine Vanderscoff's motion for a money judgment for the unpaid spousal support. The court also awarded Elaine Vanderscoff attorney's fees and costs:

This Court also orders Mr. Vanderscoff to reimburse the defendant for attorney's fees and costs in the amounts of $73,316.00 for discovery fees and costs relating to the plaintiff's initial motion to amend judgment, $12,797.00 for fees and costs relating to the plaintiff's appeal to the North Dakota Supreme Court, and $2,000.00 for costs relating to Mr. Vanderscoff's current motion, totaling $88,113.00 fees and costs to be paid to Mrs. Vanderscoff. On October 9, 2009, a money judgment consistent with the court's order was entered.

[¶5] On November 17, 2009, David Vanderscoff moved for reconsideration, arguing attorney's fees and costs for the 2007 motion to modify spousal support are barred by the doctrine of res judicata and he should have been given an opportunity to rebut the amount of attorney's fees claimed for the appeal and the current motion. The court denied his motion, ruling it had discretion to award attorney's fees and costs under N.D.C.C. § 14-05-23 and the attorney's fees were not barred by res judicata.

II.

[¶6] David Vanderscoff argues the district court erred in denying his motion for reconsideration because the court's award of attorney's fees and costs to Elaine Vanderscoff for his 2007 motion to modify spousal support was barred by the doctrine of res judicata, and because the court abused its discretion in awarding her attorney's fees and costs for the first appeal without filing a motion for fees and without presenting evidence of the amount.

[¶7] We have said a motion for reconsideration may be treated as a motion to alter or amend a judgment under N.D.R.Civ.P. 59(j) or as a motion for relief from a judgment or order under N.D.R.Civ.P. 60(b). Dvorak v. Dvorak, 2001 ND 178, ¶ 9, 635 N.W.2d 135. Although David Vanderscoff did not specify under which rule he was moving for reconsideration, the district court treated his motion as a motion for relief under N.D.R.Civ.P. 60(b), and therefore we will review the court's decision ...


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