Lynch v. Sweeney

2007 ND 81, 732 N.W.2d 377, 2007 N.D. LEXIS 80, 2007 WL 1632802
CourtNorth Dakota Supreme Court
DecidedJune 7, 2007
Docket20060104
StatusPublished
Cited by4 cases

This text of 2007 ND 81 (Lynch v. Sweeney) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lynch v. Sweeney, 2007 ND 81, 732 N.W.2d 377, 2007 N.D. LEXIS 80, 2007 WL 1632802 (N.D. 2007).

Opinions

VANDE WALLE, Chief Justice.

[¶ 1] David Sweeney appealed from a district court judgment awarding him $5,000 in attorney fees incurred in a child custody and visitation dispute. We affirm.

I

[¶ 2] Sweeney and Danni Lynch, formerly known as Danni Sweeney, married in Minnesota in 1989 and had one child together. They divorced in 1991, and Lynch was granted custody of the child with reasonable visitation for Sweeney. Lynch and the child moved to North Dakota, and Sweeney moved to Utah. The parties had difficulty implementing the ordered visitation, and after participating in mediation, Sweeney moved to enforce his visitation rights. In 1994, a Minnesota court entered a Second Amended Judgment establishing a detailed visitation schedule. The Second Amended Judgment was filed as a foreign judgment in North Dakota to allow enforcement where Lynch and the child lived.

[¶ 3] Between 1994 and 1996 some visitation occurred. In 1996, Lynch moved to restrict visitation and Sweeney moved to enforce his visitation rights. In 1997, a guardian ad litem was appointed to facilitate and supervise visitation and to advise whether unsupervised visitation would be appropriate. The guardian ad litem withdrew, after meeting with the child and supervising a few visits, citing interference and non-cooperation by Lynch and her family and friends.

[¶ 4] The district court held evidentiary hearings in September 1998 and August 2000. Lynch alleged Sweeney abused the child and sought restrictions on Sweeney’s visitation. Sweeney moved for a change of custody and an award of costs and attorney fees on the basis of Lynch’s willful and persistent interference with visitation and her unsubstantiated allegations of abuse. The district court found there was no credible evidence of abuse and also found [379]*379Lynch had “engaged in a continued course of conduct which minimized, limited, and obstructed [Sweeney’s] relationship with [the child].” The court decided Lynch should retain custody, but specifically noted that this was Lynch’s final opportunity to recognize and facilitate Sweeney’s visitation rights. The court denied Sweeney’s motion for attorney fees.

[¶ 5] The parties filed cross appeals, and this Court affirmed the denial of the motion to change custody, but reversed and remanded for additional findings and a redetermination of Sweeney’s request for costs and attorney fees. Sweeney v. Sweeney, 2002 ND 206, ¶ 1, 654 N.W.2d 407 (“Siveeney /”). We held that N.D.C.C. § 14-09-24 requires a court to award reasonable costs and attorney fees to the noncustodial parent if it finds there has been willful and persistent denial of visitation rights by the custodial parent. Id. at ¶ 18. We concluded the district court faded to make findings about whether N.D.C.C. § 14-09-24 was triggered, and remanded for the court to make more explicit findings and to award reasonable attorney fees if the statute was triggered. Id. at ¶ 21.

[¶ 6] Upon remand the district court found the triggering factors had not been met and denied Sweeney’s request for costs and attorney fees under N.D.C.C. § 14-09-24. Sweeney appealed, and this Court concluded the district court’s finding that the triggers had not been met was clearly erroneous. Sweeney v. Sweeney, 2005 ND 47, ¶ 17, 693 N.W.2d 29 {‘Sweeney II”). We reversed and remanded with instructions the court award reasonable costs and attorney fees to Sweeney under N.D.C.C. § 14-09-24. Id. at ¶ 18.

[¶ 7] Following our second remand, Sweeney requested an award of $49,470.45 in costs and attorney fees for all the litigation expenses he incurred between 1998 and 2005. The court entered judgment awarding Sweeney $5,000 in attorney fees, and made the following findings:

2. The Supreme Court, in its opinion in 2005 ND 47, 693 N.W.2d 29, mandated attorney fees pursuant to NDCC 14-09-24.
3. NDCC 14 — 09—04[sic] mandates reasonable attorney fees if the Court finds there has been willful and persistent denial of visitation by the custodial parent.
4. Notwithstanding subsequent trial court findings, the trial court, in its order of March 28, 2001, found actions violative of 14-09-04[sic] (based upon Supreme Court interpretation).
5. Reasonable attorneys fees required of this section which are to be ordered by the Court must be reasonable under all circumstances. They must relate to the issue prohibited, namely willful and persistent denial of visitation. Other issues, such as custody, travel arrangements, or a host of other fees which the non-custodian incurred, do not appear reasonable for reimbursement.
The movant requests nearly all of his fees be paid without showing the relevance to the prohibited conduct.
6. I find that the sum of $5,000.00 is reasonable as it relates to this topic, and order the custodian responsible for the same.

Judgment was entered ordering Lynch to pay $5,000 in attorney fees, and Sweeney appealed.

II

[¶ 8] Sweeney argues the district court erred in awarding him only $5,000 in attorney fees because he requested an award of $49,470.45 and the evidence he presented supported his request.

[380]*380[¶ 9] A decision to award attorney fees is generally in the court’s discretion, but in child visitation disputes N.D.C.C. § 14-09-24 requires a court award reasonable costs and attorney fees to the noncustodial parent when there has been willful and persistent denial of visitation rights by the custodial parent. Sweeney I, 2002 ND 206, ¶ 18, 654 N.W.2d 407. The district court must make findings whether N.D.C.C. § 14-09-24 has been triggered, and those findings will be upheld unless they are clearly erroneous. Sweeney II, 2005 ND 47, ¶ 7, 693 N.W.2d 29. If the court finds the custodial parent engaged in willful and persistent denial of visitation the court must award the noncustodial parent reasonable costs and attorney fees. Id. at ¶ 15.

[¶ 10] Although the court is required to award reasonable attorney fees if it finds there has been willful and persistent denial of visitation, it is well established that district courts are considered experts in determining what is a reasonable amount of attorney fees and we will not reverse the court’s decision about the amount and reasonableness of the attorney fees absent a clear abuse of discretion. CybrCollect, Inc. v. North Dakota Dept. of Fin. Inste., 2005 ND 146, ¶ 39, 703 N.W.2d 285. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or if it misinterprets or misapplies the law. Gratech Co., Ltd. v. Wold Eng’g, P.C., 2007 ND 46, ¶ 18, 729 N.W.2d 326. We have adopted the following guidelines for the court to follow when awarding attorney fees:

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Cite This Page — Counsel Stack

Bluebook (online)
2007 ND 81, 732 N.W.2d 377, 2007 N.D. LEXIS 80, 2007 WL 1632802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynch-v-sweeney-nd-2007.