NO. 95-027 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

DONNA JAKOBSON, 

Petitioner and Appellant, "&-' y ‘2 

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EARNEST HOLTHUSEN and THE 

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HEALTH AND HUMAN SERVICES, 

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CHILD SUPPORT ENFORCEMENT DIVISION. G~Wf!~ .>r ;;.r;!J'CAi&4 

Respondents and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard R. Buley, Tipp & Buley, Missoula, Montana 

For Respondent: 

Paulette C. Ferguson, Missoula, Montana; John McRae, 

Dept. of Social & Rehabilitation Services, Child 

Support Enforcement Division, Missoula, Montana 

Filed: 

Submitted on Briefs: September 7, 1995 

Decided: November 14, 1995 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of this Court and by a report of its result 

to State Reporter Publishing Company and West Publishing Company. 

Appellant Donna Jakobson (Donna) moved the Fourth Judicial 

District Court, Missoula County, for return of certain "wrongfully 

held" funds collected by the respondent Child Support Enforcement 

Division (C.S.E.D.). At the same time, Donna further moved the 

District Court for an order "updating her money judgment" against 

her ex-husband, respondent Earnest Holthusen (Earnest). After a 

hearing, the District Court denied both motions and found that 

Donna had not presented any new evidence nor raised any new issues. 

The court then ordered Donna to pay fees, costs, and sanctions 

totalling $6,365.50. Donna appeals. 

We affirm. 

Donna and Earnest married in 1976 and divorced in 1980. They 

have two daughters. Since the time of their divorce, Donna and 

Earnest have been involved in repeated and protracted litigation 

over payment of child support. 

For several years following the divorce, Donna received Aid to 

Families with Dependant Children (A.F.D.C.) because Earnest failed 

to pay his court-ordered child support. In order to receive 

A.F.D.C. benefits, the C.S.E.D. required Donna to assign to it her 

right to collect the delinquent child support. When Earnest began 

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paying off his delinquent child-support debt, the C.S.E.D. retained 

the payments pursuant to the assignment Donna had executed, and 

used the money to reimburse the State for the A.F.D.C. benefits 

Donna had received. 

In an order dated April 22, 1992, the District Court found 

that the C.S.E.D. could lawfully retain delinquent child support if 

the mother has executed such an assignment. Donna appealed that 

finding, among others, to this Court. In In re the Marriage of 

Jakobson (1993), 259 Mont. 42, 854 P.2d 333, (Jakobson I), this 

Court affirmed the order of the District Court in its entirety. 

By 1994, the younger of the parties' two daughters was living 

with an aunt. Because of the change in this daughter's living 

arrangements, the C.S.E.D. began paying that child's portion of the 

child support to the aunt instead of to Donna. 

On August 25, 1994, Donna moved the District Court for an 

order requiring the C.S.E.D. to pay her $1,187 that she claimed it 

"wrongfully held." On the same day, she moved the court to "update 

her money judgment" against Earnest to add $1,308 in alleged unpaid 

support from 1991 and $1,500 in alleged unpaid health insurance 

from 1991 and 1992. After a hearing, the District Court found that 

Earnest was current in his child support obligations and that Donna 

had not raised any new issues or presented any new evidence. The 

court therefore denied her motions and ordered her to pay fees, 

costs, and sanctions. 

The sole issue on appeal is whether the District Court erred 

by ordering Donna to pay fees, costs, and sanctions. 

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Section 37-61-421, MCA, provides: 

An attorney or party to any court proceeding who, in the 

determination of the court, multiplies the proceedings in 

any case unreasonably and vexatiously may be required by 

the court to satisfy personally the excess costs, 

expenses, and attorney fees reasonably incurred because 

of such conduct. 

This Court will not disturb a district court's award of attorney's 

fees and costs absent a showing that the district court abused its 

discretion. In re Marriage of Rager (1994), 263 Mont. 361, 868 

P.2d 625; Tigart v. Thompson (1990), 244 Mont. 156, 796 P.2d 582. 

Rule 11, M.R.Civ.P. provides: 

A party who is not represented by an attorney shall sign 

the party's pleading, motion, or other paper . . . The 

signature of an attorney or party constitutes a 

certificate by the signer that the signer has read the 

pleading, motion, or other paper; that to the best of 

the signer's knowledge, information, and belief formed 

after reasonable inquiry it is well grounded in fact and 

is warranted by existing law or a good faith argument for 

the extension, modification, or reversal of existing law, 

and that it is not interposed for any improper purpose, 

such as to harass or to cause unnecessary delay or 

needless increase in the cost of litigation. 

A district court's legal conclusion that the facts constitute a 

violation of Rule 11 will be reversed only if the determination 

constitutes an abuse of discretion. D'Agostino v. Swanson (19901, 

240 Mont. 435, 446, 784 P.2d 919, 926. 

The basis for Donna's first motion, titled "Motion for Return 

of Funds Wrongfully Held by C.S.E.D.", is unclear. Earnest alleges 

this motion was an attempt to recoup the child support which the 

aunt received for the care of the younger daughter, but we are 

unable to positively establish from the record Donna's specific 

theory of recovery. This motion was not addressed at the hearing, 

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and Donna's brief on appeal refers to only one motion, 

characterizing it as "a motion to determine the amount of child 

support arrearage owed to her." 

While Donna's intent in filing this first motion is unclear, 

its effect was obvious. Because of the motion, the C.S.E.D. was 

required to involve itself in this matter again, and to appear and 

defend itself. 

Donna's second motion requested that the Court "update her 

judgment" to reflect certain money she alleged Earnest owed her 

from 1991 and 1992. Pursuant to this motion, the court held a 

hearing and required the C.S.E.D. to account for the money Earnest 

paid to it and to explain how the money was being disbursed. At 

the hearing, it was again established that Donna had assigned her 

right to delinquent support to the C.S.E.D. It was further 

established that Earnest was current in his support obligations. 

Like the District Court, we are unable to discover any new 

grounds by which Donna may claim that either the C.S.E.D. or 

Earnest owes her any more money. All the issues Donna raised in 

her motions were decided by Jakobson I. 

In Jakobson I, this Court held that when Donna signed the 

"Notice of Assignment of Rights" which allowed her to receive 

A.F.D.C., she transferred all rights she might have had in 

delinquent child support over to the State. Jakobson, 854 P.2d at 

334. Therefore, even if Earnest were still required to pay 

delinquent support, he would owe it to the C.S.E.D., not to Donna. 

Because this assignment was clearly established by Jakobson I, the 

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District Court concluded Donna's motion was not well-grounded in 

law. In addition, the C.S.E.D. presented testimony showing that 

Earnest is not delinquent in his support. For this reason, the 

District Court also concluded Donna's motion was not well-grounded 

in fact. These conclusions are supported by the facts in this 

case, and do not constitute an abuse of the district court's 

discretion. The Rule 11 sanctions imposed were justified. 

Further, the District Court awarded costs and fees to Earnest 

and the C.S.E.D. because, although Donna raised no new issues and 

presented no new evidence, the respondents were nevertheless 

required to expend time and money in order to defend themselves. 

It was not an abuse of discretion for the court to require Donna to 

pay these expenses. 

Finally, we note that Donna was given ample notice and warning 

by the District Court that continued frivolous or unfounded 

litigation would result in fees, costs, and sanctions being 

assessed against her. A 1991 order informed the parties that 

"[slhould either party . . frivolously bring further action 

before the Court, the party shall be subject to sanction by the 

court and an award of attorneys fees to the prevailing party." In 

March 1992, the parties were warned in open court that “from now on 

. . the party who prevails will have fees paid by the other side, 

and if it is a frivolous [motion] that comes before this Court, I 

will impose sanctions." In an April 1992 order, the court again 

warned the parties that "the party that prevails in any subsequent 

court action will have fees paid by the other party. The Court 

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will order sanctions if a frivolous proceeding is brought before 

the Court." And in June 1992, the court warned Donna bluntly: "you 

have been coming into court with frivolous motions contesting 

everything that does not please you in the slightest regard, and it 

is coming to a screeching halt." 

Donna was given ample notice that further frivolous or 

vexatious litigation would not be tolerated. Despite that notice, 

she brought two motions that attempted to relitigate the issues 

settled by Jakobson I. Although the motions had no basis in law ox 

in fact, Earnest and the C.S.E.D. nevertheless had to defend 

themselves, incurring expenses and wasting both their own and the 

District Court's time. The court did not abuse its discretion by 

ordering Donna to pay fees, costs, and sanctions. 

Affirmed. 

Justice