NO. 95-027 IN THE SUPREMECOURTOFTHE STATE OFMONTANA 1995

DONNAJAKOBSON,

Petitioner and Appellant, "&-' y‘2 &;7i:" ', y,-.".:r-'..,ai

it;: .i0 $8 v. 4 >;vaJ i;:;:::/1‘$1935 EARNEST HOLTHUSEN and THE MONTANADEPARTMENT OFPUBLIC _,/,*ii. I,J HEALTH ANDHUMANSERVICES, f _,,,, ::~.~.~.+;~~:y.::;~d C?.E;<!: <I>? ,i~::.l;..: .,... :..._ .., ,..~ ..,jl:;- ,,., ;__ 'cIuR~ CHILD SUPPORT ENFORCEMENTDIVISION. 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 EdMcLean, Judge presiding.

COUNSELOFRECORD:

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, 1995Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995Internal Operating Rules, the following decision shall not be cited asprecedent andshall bepublished byits filing asapublic document with the Clerk of this Court andbyareport of its result to State Reporter Publishing CompanyandWest 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 sametime, Donna further moved the District Court for anorder "updating her moneyjudgment" against her ex-husband, respondent Earnest Holthusen (Earnest). After a hearing, the District Court denied both motions and found that Donnahadnot presented anynewevidence nor raised anynewissues. The court then ordered Donna to pay fees, costs, and sanctions totalling $6,365.50. Donnaappeals. Weaffirm. DonnaandEarnest married in 1976anddivorced in 1980. They have two daughters. Since the time of their divorce, Donna and Earnest have been involved in repeated andprotracted litigation

over payment of child support. For several years following the divorce, Donnareceived 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 Donnato assign to it her right to collect the delinquent child support. WhenEarnest began 2paying 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." Onthe 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 ahearing, 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.

3Section 37-61-421, MCA,provides:

Anattorney or party to anycourt proceeding who, in the determination of the court, multiplies the proceedings in anycase unreasonably andvexatiously mayberequired by the court to satisfy personally the excess costs, expenses, andattorney fees reasonably incurred because of such conduct. This Court will not disturb adistrict court's award of attorney's fees andcosts absent ashowing that the district court abused its discretion. In re Marriage of Rager (1994), 263 Mont. 361, 868 P.2d 625; Tigart v. Thompson (1990), 244Mont. 156, 796P.2d 582. Rule 11, M.R.Civ.P. provides: Aparty whois not represented byanattorney 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, andbelief formed after reasonable inquiry it is well grounded in fact and is warranted byexisting lawor agoodfaith argument for the extension, modification, or reversal of existing law, andthat 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. Adistrict court's legal conclusion that the facts constitute a violation of Rule 11will be reversed only if the determination constitutes anabuseof discretion. D'Agostino v. Swanson (19901, 240Mont. 435, 446, 784P.2d 919, 926. Thebasis for Donna's first motion, titled "Motion for Return of FundsWrongfully Held byC.S.E.D.", is unclear. Earnest alleges this motion wasanattempt to recoup the child support which the aunt received for the care of the younger daughter, but weare unable to positively establish from the record Donna's specific theory of recovery. This motion wasnot addressed at the hearing,

4and 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, hewould owe it to the C.S.E.D., not to Donna. Because this assignment was clearly established by Jakobson I, the

5District 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 wasnot 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. TheRule 11sanctions imposed were justified. Further, the District Court awarded costs andfees to Earnest andthe C.S.E.D. because, although Donnaraised nonewissues and presented no new evidence, the respondents were nevertheless required to expend time and money in order to defend themselves. It wasnot anabuseof discretion for the court to require Donnato pay these expenses. Finally, wenote that Donnawasgiven ample notice andwarning 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 andanaward of attorneys fees to the prevailing party." In March 1992, the parties werewarned in opencourt that “from nowon

. .the party whoprevails will have fees paid bythe other side, and if it is afrivolous [motion] that comes before this Court, I will impose sanctions." In anApril 1992order, the court again warned the parties that "the party that prevails in anysubsequent court action will have fees paid by the other party. TheCourt

6will order sanctions if afrivolous proceeding is brought before

the Court." Andin June 1992, the court warned Donnabluntly: "you have been coming into court with frivolous motions contesting everything that doesnot please you in the slightest regard, andit is coming to ascreeching halt." Donna was given ample notice that further frivolous or vexatious litigation would not betolerated. Despite that notice, she brought two motions that attempted to relitigate the issues settled byJakobson I. Although the motions hadnobasis in law ox in fact, Earnest and the C.S.E.D. nevertheless had to defend themselves, incurring expenses andwasting both their ownandthe District Court's time. Thecourt did not abuse its discretion by ordering Donnato pay fees, costs, andsanctions. Affirmed.

Justice