Good Faith Negates Rule 11 Sanction

The North Dakota Supreme Court has reversed the imposition of Rule 11 sanctions in a divorce matter, holding that the district court’s finding that the sought relief was frivolous was error

Colby Fowler retained Gjesdahl Law to represent him in a divorce from his wife, Madylene Fowler. Colby Fowler through Gjesdahl Law filed an application for an order to show cause finding Madylene Fowler in contempt of court for violating the requirements of a summons when she would not return from out of state to North Dakota with the couple’s minor child. The district court denied the motion, found it frivolous, and sanctioned Gjesdahl Law under N.D.R.Civ.P. 11(b)(2). The sanction required Gjesdahl Law to pay $1,200 in attorney’s fees to Madylene Fowler’s attorneys. This timely appeal followed.

Facts

Madylene Fowler left North Dakota with the couple’s minor child in October 2023. She told Colby Fowler she was going to visit family in Idaho for a few weeks. Madylene Fowler later stated she would not be returning to North Dakota. She was served with the summons for divorce in December 2023. Madylene Fowler stayed in Idaho with the couple’s minor child after being served the summons. Colby Fowler claims Madylene Fowler violated the directives in the summons by failing to return to North Dakota with the couple’s minor child after being served. The summons served by Colby Fowler included the restraining provision contained in N.D.R.Ct. 8.4(a)(1): “Except for temporary periods, neither spouse may remove any of their minor children from North Dakota without the written consent of the other spouse or order of the court.” The summons concluded with the statement, “IF EITHER SPOUSE VIOLATES ANY OF THESE PROVISIONS, THAT SPOUSE MAY BE IN CONTEMPT OF COURT.” (Emphasis in original.)

The district court relied on our holding in Sayler v. Sayler, which held a parent who relocates prior to the commencement of proceedings does not need a court’s permission under N.D.C.C. § 14-09-07 to remain in the new location with the children. 2023 ND 156, ¶ 14, 994 N.W.2d 351. While we do not have a case on point for the situation present here, we are not prepared to conclude the claim was frivolous. Rather, whether one can be held in contempt of a summons for actions that occur prior to the summons being served but continuing into the present action is a question that is a good faith argument for an extension of the Sayler case.

Because the argument is grounded in a good faith extension of the current interpretation of law, the district court abused its discretion by deeming the action frivolous and ordering sanctions against Gjesdahl Law under N.D.R.Civ.P. 11(b)(2).

(Mike Frisch)