                                         NO.      95-027
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                               1995


DONNA JAKOBSON,
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              Petitioner         and Appellant,                                    it;: 0 >;vaJ
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EARNEST HOLTHUSEN and THE
MONTANA DEPARTMENT OF PUBLIC                                         _,/::~ ii. I ,J
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HEALTH AND HUMAN SERVICES,                                     C?.E;<!: ,..~..,jl:;- ;__
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CHILD SUPPORT ENFORCEMENT DIVISION.                               G~Wf!~ ;;.r;!J'CAi&4
                                                                           .>r

              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


                                       Submitted          on Briefs:           September              7,   1995
                                                            Decided:          November           14,       1995
Filed:
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

                                                             2
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,

                                                         4
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


                                                                                             5
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

                                                                        6
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
