This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Sandra Dee Witte, n/k/a Sandra Dee Eadie, petitioner,
County of Olmsted, petitioner,
David Burnhard Witte,
Affirmed in part and remanded; motion granted
Gordon W. Shumaker, Judge
Olmsted County District Court
File No. F1931485
Lawrence D. Downing, 330 Wells Fargo Center, 21 First Street S.W., Rochester, MN 55902 (for respondent Eadie)
Thomas P. Kelly, Senior Assistant Olmsted County Attorney, Government Center, 151 S.E. 4th Street, Rochester, MN 55904 (for respondent County of Olmsted)
David B. Witte, P.O. Box 582552, Minneapolis, MN 55458 (appellant pro se)
Considered and decided by Harten, Presiding Judge, Willis, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
The district court issued orders granting respondent-mother permission to remove the parties’ minor children to Nebraska and prohibiting appellant-father from filing various motions. Appellant challenges those orders on appeal, arguing that the removal order was improperly issued after respondent had already left Minnesota with the children, and the order restricting further motions was issued in violation of court rules. Respondent has moved for an award of attorney fees on appeal. Because there was a proper basis for the removal order, we affirm, even though the timing of the order was irregular. Because the order restricting further motions was issued without complying with the procedural requirements of Minn. R. Civ. P. 11, we remand for the appropriate hearing. We grant respondent’s motion for an award of attorney fees.
In the parties’ 1995 marriage dissolution, the district court awarded sole legal and physical custody of the three minor children to respondent-mother. Through the years thereafter, until this court proceeding, appellant made numerous motions challenging the district court’s jurisdiction, alleging fraud by respondent, arguing that his due-process rights have been violated, and seeking to have the dissolution judgment re-opened, its provisions vacated, and the proceeding dismissed.
In June 2001, respondent moved for permission to change the children’s residence to Nebraska. Appellant opposed the motion. The district court did not hold an evidentiary hearing, heard arguments on the motion on October 2, 2001, and issued its order granting the motion on November 13, 2001. Respondent had already relocated to Nebraska before the October 2 hearing so that she could enroll the children in school in Nebraska.
While the motion to change the children’s residence was pending, appellant moved on October 15, 2001, to dismiss the dissolution proceeding and to vacate the judgment. Olmsted County responded to the motion with a “Letter Brief” in which the county characterized the motion as meritless and then suggested that the court restrict further motions:
Rather than insist on attorney’s fees, it is perhaps more appropriate to request that this Court require [appellant] to seek previous review and approval from the Court before filing any more motions relating to the issue of jurisdiction over his child support case.
After hearing appellant’s motion, the court issued an order on November 21, 2001, prohibiting appellant from further challenging the validity of his child-support obligation and requiring that, before he files or serves any future motion, he shall first present it to the court for review and shall obtain the court’s prior consent to proceed with the motion.
Appellant challenges the removal order and the order restricting motions.
By special term order of this court, we dismissed appellant’s challenges to the district court’s jurisdiction, noting that jurisdictional issues were decided twice in 2000 by the district court, and appellant failed to appeal those decisions. We thus limited the issues on this appeal to considerations of the district court’s removal order and the order restricting further motions.
D E C I S I O N
1. Removal of Children
Our review of removal and custody modification cases is limited. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). We determine only whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Id.
Respondent has sole legal and physical custody of the children. When a custodial parent petitions the court for permission to remove a child’s residence to another state, the court presumes that removal with the parent will be in the best interests of the child “and will grant permission to remove without an evidentiary hearing ‘[u]nless the party opposing the motion for removal makes a prima facie showing against removal.’” Geiger v. Geiger, 470 N.W.2d 704, 706 (Minn. App. 1991) (citation omitted), review denied (Minn. Aug. 1, 1991). We will not overturn the district court’s finding that appellant failed to establish a prima facie case unless the finding is clearly erroneous. Id. at 708.
The district court concluded that respondent had legitimate reasons for the move. The court found that the move to Nebraska would be economically beneficial for the family. The court also found that respondent’s family lives in Nebraska, and her mother, who is a real-estate agent, helped to find the family a home that is convenient to the children’s schools, as respondent cannot drive. Finally, the court found that the children are excited to move and that the parenting schedule can be modified to allow appellant significant time with his children. These findings are not clearly erroneous, and the district court did not abuse its discretion in finding that the move to Nebraska was for legitimate reasons.
Appellant asserts that he was entitled to an evidentiary hearing because respondent is interfering with his visitation rights by moving and, as a result, the children “have suffered great emotional and psychological harm and endangerment.” However, appellant provided no evidence showing how the move to Nebraska would be harmful to the children or would constitute an endangerment to them. See Silbaugh, 543 N.W.2d at 642 (bare allegations of alcohol use do not rise to the level of establishing endangerment to the child’s physical or emotional health). Appellant has made bare, conclusory allegations that the move would harm the children or is intended to interfere with his visitation rights. Thus, he failed to make out a prima facie case for an evidentiary hearing, and the district court did not abuse its discretion in granting respondent’s motion without an evidentiary hearing.
Finally, appellant argues that the district court erred in ratifying the move after respondent had already moved the children and in relying on Michalson v. Michalson, 263 Minn. 356, 116 N.W.2d 545 (1962), to support its decision.
The court in Michaelson found that the mother’s move to Japan with the child, without the father’s prior consent or a court order, did not suspend father’s child support obligation. Id. at 357, 359, 116 N.W.2d at 546, 548. The court in this case found Michaelson to be analogous and found that respondent had initially filed for removal of the children well before the scheduled move, but for reasons beyond her control, the motion could not be heard until after the move. The court also found that respondent moved the children so that they would be able to begin school in Nebraska with their peers. The court concluded that since the overriding concern in Minn. Stat. § 518.18 is the best interests of the children, and because it is presumed that she would be able to move the children anyway, there was no error in approving the move after it had occurred.
Michaelson is not persuasive in this case because it addresses child support and not the change of a child’s residence prior to court authorization. But more importantly, Minn. Stat. § 518.175, subd. 3 (Supp. 2001), governing the removal of children from the state, did not exist at the time of Michaelson. See 1971 Minn. Laws ch. 172, § 1 (amending Chapter 518 to include Minn. Stat. § 518.175).
Statutory construction is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). Minn. Stat. § 518.175, subd. 3, states that “[t]he parent with whom the child resides shall not move the residence of the child to another state except upon order of the court.” (Emphasis added). The term “shall” is “mandatory.” Minn. Stat. § 645.44, subd. 16 (2000). When words of law are clear and free of ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit. Minn. Stat. § 645.16 (2000). The district court erred in ratifying respondent’s move to Nebraska, citing the overriding concern of section 518.18, the best interests of the children. The plain language of Minn. Stat. § 518.175, subd. 3, clearly states that a party cannot move the residence of a child until an order of the court is obtained. See State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996) (when statute is unambiguous, we must apply its plain meaning).
Although the district court erred in failing to hold a hearing before the move occurred, there was a proper basis for the move. Therefore, the district court’s failure to hold a hearing was a harmless error and must be ignored under Minn. R. Civ. P. 61.
Finally, appellant argues that respondent violated Minn. Stat. §§ 609.25, 609.26 (2000) and that these violations show that respondent is an unfit parent. This issue was not considered by the district court and is therefore waived. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court will generally not consider matters not argued and considered in the court below).
2. Order Restricting Motions
Although the district court did not cite the authority on which it premised its November 21, 2001, order prohibiting appellant from making certain challenges and imposing restrictions on the filing of motions, authority may be found in both Minn. R. Civ. P. 11 and Minn. R. Gen. Pract. 9. The district court alluded to rule 11 but intimated that it applies only to lawyers. That rule governs any “attorney or unrepresented party” who files papers with the court. Minn. R. Civ. P. 11.02. Similarly, rule 9 allows the district court to sanction a “frivolous litigant.” Minn. R. Gen. Pract. 9.01.
Under rule 11, a litigant who presents pleadings, motions, or other papers to the court thereby certifies that claims and contentions reflected in the materials have proper legal and factual bases and are not made for an improper purpose. Id. The district court may impose sanctions on a litigant who violates the rule. Minn. R. Civ. P. 11.03.
Rule 9 defines “frivolous litigant” to include a person who repeatedly attempts to litigate finally-determined matters and who maintains claims not well grounded in fact or warranted by existing law. Minn. R. Gen. Pract. 9.06(b)(1) (3).
In the memorandum attached to the November 21, 2001, order, the district court reviewed the history of appellant’s challenges and objections to court orders in the parties’ marriage dissolution and ancillary proceedings. Referring to the “voluminous” materials appellant has filed over the years, the court noted that some of the issues appellant persists in challenging have become res judicata because they were finally determined and appellant did not challenge them through an appeal. The court also found appellant’s motions and challenges to be “repetitive and vexatious,” “so plainly unfounded and without colorable support in the law as to be frivolous,” and a “misuse and abuse” of the legal system, so that “extraordinary controls by the court” are now required.
We have carefully reviewed the history of this case and have been aided by the “Case History Summary” appellant attached to the appendix to his brief on appeal. That summary is just over 14 pages in length and describes activities beginning in December 1992, and ending February 19, 2002. Some of those activities refer to repeated challenges to the district court’s jurisdiction and to district court orders and rulings. Some of the challenges continued beyond the appeal times for matters finally determined by the district court.
We conclude that the district court did not err in finding that appellant has engaged in a practice and pattern of filing frivolous and vexatious motions and that such conduct is sanctionable.
Rule 11 and rule 9 provide authority for sanctioning a non-attorney who engages in frivolous and vexatious litigation, and the particular sanction the district court imposed here is fairly within the ambit of both rules. In fact, rule 9 provides that the court may impose “preconditions on a frivolous litigant’s service or filing of any new claims, motions or requests.” Minn. R. Gen. Pract. 9.01. But before sanctions may be imposed under either rule, certain procedural requirements must be satisfied.
Both rules require a separate motion for sanctions. Rule 11 states:
A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate Rule 11.02.
Minn. R. Civ. P. 11.03(a)(1).
Rule 9 provides:
All motions under this rule shall be made separately from other motions or requests, and shall be served as provided in the Rules of Civil Procedure * * * .
Minn. R. Gen. Pract. 9.01.
Under either rule, the court may order sanctions on its own initiative if a party does not make a motion. Minn. R. Civ. P. 11.03(a)(2); Minn. R. Gen. Pract. 9.01. But rule 11 requires the court to issue an order to show cause why the party to be sanctioned has not violated the rule, and rule 9 requires notice and hearing before sanctions may be imposed. Id.
There was no separate motion for either rule 11 or rule 9 sanctions here. Olmsted County merely suggested in its letter brief in response to appellant’s motions that sanctions might be levied.
We hold that the district court (1) had the authority to sanction appellant; (2) made adequate findings to demonstrate that appellant has engaged in sanctionable conduct; and (3) fashioned a sanction fairly and reasonably designed to deter the repetition of appellant’s sanctionable conduct, but that the procedural requirements of neither rule 11 nor rule 9 were fully satisfied. Appellant is entitled to a separate hearing on the issue of whether he has engaged in the conduct the court found sanctionable and on the appropriateness of the sanction the court imposed. See Minn. R. Civ. P. 11.03(b) (a sanction for a rule 11.02 violation “shall be limited to what is sufficient to deter repetition of such conduct”); Minn. R. Gen. Pract. 9.02(c) (“An order imposing preconditions on serving or filing new claims, motions, or requests shall only be entered with an express determination that no less severe sanction will sufficiently protect the rights of other litigants, the public, or the courts.”).
The issue of sanctions must be remanded. On remand, the district court should identify which rule it will proceed under and shall then follow the procedural requirements of that rule.
3. Attorney Fees on Appeal
Respondent has moved for attorney fees under Minn. Stat. § 518.14, subd. 1 (2000), arguing that she does not have the funds to defend the action, but appellant does, and that appellant has unreasonably contributed to the length and expense of the proceedings. Fees may be awarded at any time in the proceedings. Minn. Stat. § 518.14, subd. 1; LaChapelle v. Mitten, 607 N.W.2d 151, 167 (Minn. App. 2000), review denied (Minn. May 16, 2000). An award of attorney fees on appeal lies within our discretion. Id.
Generally, the award of attorney fees in dissolution cases is governed by Minn. Stat. § 518.14, subd. 1, which allows both need-based or conduct-based awards. Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001). A court shall award attorney fees necessary to enable a party to carry on a proceeding if (1) the fees are necessary for the good-faith assertion of her rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding; (2) the party from whom the fees are sought has the means to pay them; and (3) the party to whom the fees are awarded does not have the means to pay them. Minn. Stat. § 518.14, subd. 1. Respondent is defending the appeal brought by appellant, so she is making a good-faith assertion of her rights in this proceeding, and she is not contributing to any unnecessary length or expense in this appeal. Respondent does not have the means to pay her attorney fees.
But respondent has provided no evidence as to appellant’s ability to pay her attorney fees. Although she attests that he is able to make the trip to Nebraska once a month and pay for a hotel room, food, and activities for the children, this does not show that he is able to pay for her attorney fees. We also note that appellant is not currently employed. Independent of respondent’s attestations, there is nothing in the record indicating that appellant has the means to pay her fees. See Geske, 624 N.W.2d at 817 (award not fatal, even absent statutory findings, if the order reasonably implies that the statutory factors were considered and the court was familiar with the procedural history of the case and had access to the parties’ financial records); Berenberg v. Berenberg, 474 N.W.2d 843, 849 (Minn. App. 1991) (awarding $2,500 on appeal when parties both received $800,000 in marital property, but respondent had no income and received $600 in child support, and appellant had $1.3 million in nonmarital property), review denied (Minn. Nov. 13, 1991). Because there is no evidence showing that appellant has the means to pay respondent’s fees, this court denies her motion for need-based fees. See Minn. R. Civ. App. P. 139.06, subd. 1 (requiring motions for attorney fees on appeal to “include sufficient documentation to enable the appellate court to determine the appropriate amount of fees”).
However, conduct-based fees may be awarded regardless of respondent’s financial need or of appellant’s ability to pay. Geske, 624 N.W.2d at 818. Fees may be awarded against a party for unreasonably contributing to the length or expense of the proceeding. Minn. Stat. § 518.14, subd. 1. Although bad faith may increase the length or expense of a proceeding, it is not required for an award of conduct-based fees under Minn. Stat. § 518.14, subd. 1. Geske, 624 N.W.2d at 818. Based upon the record before this court, we grant respondent’s motion for conduct-based attorney fees, and direct that appellant pay respondent $5,000 for conduct-based attorney fees.
Affirmed in part and remanded; motion granted.