This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Lana Susan Higgins, petitioner,
Warren Nau Higgins, Jr.,
Filed September 3, 1996
Dakota County District Court
File No. F3-93-14712
Lana Susan Higgins, 12551 Everest Trail, Apple Valley, MN 55124 (Pro Se)
Warren Nau Higgins, Jr., 3840 Ballantrae Road, Apartment #10, Eagan, MN 55122 (Pro Se)
Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
The parties' marriage was dissolved in July 1994. Since then, appellant has brought numerous motions and four other appeals concerning post-dissolution matters. In July 1995, the district court issued an order directing that both parties must present future motions to Judge Richard Spicer prior to filing and service. Appellant now challenges the district court's February 16, 1996, order refusing to allow him to serve and file motions that the court deemed frivolous or repetitive and redundant of issues raised and ruled on in prior orders. We affirm.
The dissolution judgment of appellant Warren Nau Higgins, Jr., and respondent Lana Susan Higgins granted respondent physical custody of their two minor children and required appellant to pay child support. Appellant filed a motion to modify child support in January 1994, claiming that his income had decreased. Respondent moved for an order finding appellant in contempt for failing to make full and timely child support and child care reimbursement, for failing to reimburse her for his share of uninsured medical and dental expenses, for failing to satisfy outstanding tax liens and other tax liabilities, and for refusing to transfer to respondent the title to two cars. In an order filed March1995, the district court found appellant in contempt and denied his motions. Appellant filed an appeal of this order.
Appellant filed three motions in late May and June 1995, seeking vacation of the contempt provision in the March 17 order, sanctions against respondent and her attorney, appointment of counsel or in forma pauperis status for appellant, vacation of a Mayorder, and an evidentiary hearing. On June 16, 1995, the district court issued an order finding appellant had purged himself of contempt on various issues, awarding respondent $2,150 in attorney fees, and denying other relief that appellant had requested. Appellant appealed the June 16 order; we consolidated that appeal with the prior appeal. In an unpublished opinion, this court affirmed the March 17 and June 16 orders. Higgins v. Higgins, Nos. C1-95-786 and C8-95-1448 (Minn. App. Dec. 26, 1995), review denied (Minn. Mar.1996).
In response to motions by both parties, on July 6, 1995, the district court ordered, among other things, that "all motions prior to filing and/or service relating to this file shall first be presented to Judge Richard G. Spicer for review and consent." On September 21, 1995, the district court issued an order based on two additional motions by appellant. The court denied appellant's constitutional challenges and his claims for criminal and professional sanctions as being repetitive of prior claims previously ruled on by the court. Appellant filed an appeal from the July 6 and September 26 orders, but this court dismissed, because it was untimely as to the July 6 order and the September 26 order was not independently appealable. Higgins v. Higgins, No. C1-95-2313 (Minn. App. Jan. 23, 1996) (order op.), review denied (Minn. Mar. 19, 1996).
In February 1996, appellant served a motion on respondent and her attorney to reopen the orders of March 17, May 16, and June 16, 1995, and to have an evidentiary hearing after conducting discovery, including depositions. He also requested that the court award him attorney fees, vacate all prior awards of attorney fees to respondent, and impose sanctions and criminal charges against respondent, her attorney, her attorney's law firm, and several judges. He asked for a trial by jury.
In an order dated February 16, 1996, the district court denied appellant's motion for leave to file and serve his motions. The district court explained that many of the motions were repetitive or frivolous, and that family court was not the proper venue to assert criminal and ethical charges against respondent, her attorneys, or a judge.
Appellant then moved the court to reconsider and vacate its February 16 order. The court issued an order on March 7 denying appellant's motion, except for an issue related to unreimbursed medical expenses. Appellant filed an appeal from the February 16 order and later filed an appeal from the March 7 order, asking that the two appeals be consolidated. This court dismissed the second appeal, because the order regarding appellant's motion to vacate the February 16 order is not appealable as of right. Higgins v. Higgins, Nos. C6-96-616 and C1-96-720 (Minn. App. Apr. 24, 1996) (order op.). Thus, our review is limited to the order of February 16, 1996.
Appellant contends the district court violated his rights when it refused to grant him leave to file his motion. The district court may limit or preclude the initiation of vexatious litigation. See, e.g., State ex rel. Ryan v. Cahill, 253 Minn. 131, 134, 91 N.W.2d 144, 147 (1958) ("[i]t is well settled that the courts of this state will act to enjoin vexatious litigation"); Love v. Amsler, 441 N.W.2d 555, 560 (Minn. App. 1989) (requiring party to obtain judicial permission to file future lawsuit was "reasonable way to curb [the party's] * * * abuse of the system without unduly restricting his right of access to the courts"), review denied (Minn. Aug. 15, 1989); Liedtke v. Fillenworth, 372 N.W.2d 50, 52 (Minn. App. 1985) ("trial court acted within its discretion by enjoining appellant from continuing this series of vexatious lawsuits"), review denied (Minn. Sept. 13, 1985). The district court must "reasonably" apply a prospective restriction on litigation. Love, 441 N.W.2d at 560.
Appellant's repetitive motions regarding criminal and professional sanctions against respondent, her attorney, her attorney's law firm and various judges demonstrate the vexatious nature of this litigation. His repetitive motions to vacate prior orders, even after this court reviewed and affirmed several of those orders, further demonstrates the vexatious nature of his actions. The district court carefully reviewed appellant's motion and determined it raised repetitive or frivolous claims. In doing so, the court acted reasonably in applying its prior order that requires both appellant and respondent to seek leave from the court before either can file or serve further motions in family court.
Appellant sought to have the court vacate prior orders pursuant to Minn. R. Civ. P. 60 based, in part, on mistake, fraud, and unspecified newly discovered evidence. Appellant's motion contained a request to continue discovery, including depositions, almost one year after the court issued the orders appellant seeks to have vacated. He failed to list newly discovered evidence that would warrant reopening any prior orders. See Minn. R. Civ. P. 60.02 (court may relieve party from order or judgment if there is "[n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial pursuant to Rule 59.03"). These facts further demonstrate the vexatious nature of appellant's motion.
Under these circumstances, the district court acted reasonably and within its discretion when it denied appellant's request for leave to file and serve his motion.