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Aimee M. Martinson v. James W. Martinson

August 18, 2011

AIMEE M. MARTINSON,
PLAINTIFF AND APPELLANT
v.
JAMES W. MARTINSON, 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: Kapsner, Justice.

N.D. Supreme CourtMartinson v. Martinson,

2011 ND 156

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Dissent filed.

REVERSED AND REMANDED.

Opinion of the Court by Kapsner, Justice.

[¶1] Aimee Martinson appealed from an order upon remand denying her additional attorney fees and costs in connection with her motions for a protective order and to modify the visitation provisions of a divorce judgment. We reverse and remand, concluding the district court failed to comply with the directions in our prior opinion remanding the case.

I

[¶2] Aimee and James Martinson divorced in North Dakota in 2006. The divorce judgment incorporated the parties' stipulation, which awarded Aimee Martinson physical custody of the parties' two minor children, awarded James Martinson visitation, and allowed Aimee Martinson to move with the children to Minnesota.

[¶3] In 2007, the children alleged they had been sexually abused by James Martinson. The allegations were reported to Minnesota law enforcement and social services agencies, which began investigations. On April 30, 2007, Aimee Martinson sought and received a protective order from a Minnesota district court prohibiting James Martinson from having any contact with her or the children.

[¶4] On August 9, 2007, while the Minnesota investigations continued, Aimee Martinson moved for an ex parte interim order in North Dakota prohibiting James Martinson from having any contact with the children. The order was entered on August 10, 2007, and the Minnesota order was dismissed. In the ex parte interim order, the North Dakota district court directed that Aimee Martinson "is awarded her attorney fees in having to bring this action to protect the children" and directed her attorney to "submit an affidavit setting forth the amount of attorney fees requested." Aimee Martinson subsequently submitted an affidavit requesting $17,043.44 in attorney fees and costs for bringing the Minnesota and North Dakota proceedings.

[¶5] The Minnesota authorities completed their investigations in the fall of 2007. The Bloomington Police Department determined the allegations were unsubstantiated, and Dakota County Social Services determined it could not find maltreatment of the children. Both agencies noted the children's statements had been inconsistent.

[ΒΆ6] After the investigations were completed Aimee Martinson moved to modify the divorce judgment, requesting that James Martinson not have visitation until the children's therapist determined visitation would not be detrimental to them. James Martinson opposed the motion and requested a hearing, which was rescheduled several times. In April 2009 the parties reached an agreement on visitation, stipulating that their respective experts would choose a "reunification therapist" to develop a plan to restore contact between James Martinson and the children, a nanny would accompany the children on longer visits, the parties' experts ...


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