¶1concurring.
¶2[¶ 20] The award of attorney fees in a divorce action has long been held by this Court to be a matter for the discretion of the trial court. Mosher v. Mosher, 16 N.D. 269, 113 N.W. 99 (1907); N.D.C.C. § 14-05-23. It is a discretion I believe this Court, as an appellate court, ought to give free rein. Even when attorney fees are sought for an appeal to this Court, we have stated that although we have concurrent jurisdiction with the trial court to award attorney fees on appeal, the trial court is in the better position to rule on the motion for attorney fees. E.g., Heller v. Heller, 367 N.W.2d 179 (N.D.1985).
¶3[¶ 21] However, in the case of interference with visitation, the Legislature has deemed the issue to be so serious that the discretion of the trial court to award attorney fees has been curbed and, where there is willful and persistent denial of visitation rights by the custodial parent, the Legislature requires the trial judge to award reasonable attorney fees and costs. N.D.C.C. § 14-09-24. Ordinarily, the principal standards for an award of attorney fees are the need of one party and the ability to pay of the other party, e.g., Pozamsky v. Pozamsky, 494 N.W.2d 148 (N.D.1992), but under the statute, even that standard is not applicable where one party interferes with the visitation of the other party.
¶4[¶ 22] Here, I agree with the majority opinion that there was interference with visitation such as to require the award of attorney fees under N.D.C.C. § 14-09-24. It seems apparent the trial court does not wish to further alienate the parties by an award of attorney fees but is rather interested in building a positive relationship to the benefit of the child. But the statute does not allow for the exercise of such discretion either by the trial court or this Court on appeal. I regret we did not conclude that when this matter was before us in Sweeney v. Sweeney, 2002 ND 206, 654 N.W.2d 407. However, there the request for attorney fees was not only for interference with visitation but also for making bad faith, false accusations of harm to a child, under N.D.C.C. § 14-09-06.5. We could not clearly understand the trial court’s factual determinations and remanded for clarification. The majority now affirms the trial court’s findings that the accusations were not made in bad faith and awards no attorney fees under that section. I believe we have no choice but to order an award of attorney fees under N.D.C.C. § 14-09-24.
¶5[¶ 23] I concur in the majority opinion.
¶6Justice, concurring in the result.
¶7[¶ 25] I concur in the result. I write separately because I fear the reasoning of the majority opinion suggests more than is necessary by its reliance on school desegregation and bail cases in paragraph 15.
¶8[¶ 26] Section 14-09-24, N.D.C.C., is a statutory directive that imposes consequences in the form of attorney fees and costs on a custodial parent who willfully and persistently interferes with visitation rights of the noncustodial parent. I believe the majority opinion properly applies the statutory directive to the facts of this case. However, it is only a statutory directive and it is one the legislature could change tomorrow if the legislature felt that the purposes sought to be served were not well served by its continuing existence. Therefore, I do not join in any implication that the claim of noncustodial parents to get attorney fees and costs under N.D.C.C. § 14-09-24 rises to the level of the constitutional rights asserted in the federal *37cases or the California case cited in paragraph 15 of the majority opinion.
¶9[¶ 27] The requirement to impose attorney fees and costs is clearly directed in the statute.
The interpretation of a statute is a question of law for the court to decide. In construing statutes, our duty is to ascertain the Legislature’s intent. The Legislature’s intent initially must be sought from the language of the statute as a whole. We construe words in a statute in their plain, ordinary, and commonly understood sense. If the statutory language is clear and unambiguous, we do not disregard that language under the pretext of pursuing legislative intent, because the intent is presumed clear from the face of the statute.
¶10Singha v. N.D. State Board of Medical Examiners, 1998 ND 42, ¶ 16, 574 N.W.2d 838 (internal citations omitted); N.D.C.C. § 1-02-05.
¶11concurring in the result.
¶12[¶ 29] I concur in the result only. The majority opinion does not fully address the requirement of a finding of both “willful” and “persistent” interference with child visitation before awarding reasonable attorney’s fees and costs under N.D.C.C. § 14-09-24.
¶13[¶ 30] Willful “is a word of many meanings, with its construction often influenced by its context.” Black’s Law Dictionary 1599 (6th ed.1990) (citation omitted). “A willful act may be described as one done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently.” Id.
¶14[¶ 31] In the criminal context, N.D.C.C. § 12.1-02-02(1) provides that for the purposes of Title 12.1, N.D.C.C., the Criminal Code, a person engages in conduct:
e. “Willfully” if he engages in the conduct intentionally, knowingly, or recklessly.
¶15N.D.C.C. § 12.1-02-02(l)(e). Also defined in that section are the following:
a. “Intentionally” if, when he engages in the conduct, it is his purpose to do so.
b. “Knowingly” if, when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so.
c. “Recklessly” if he engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct, except that, as provided in section 12.1-04-02, awareness of the risk is not required where its absence is due to self-induced intoxication.
¶16N.D.C.C. § 12.1-02-02(l)(a), (b), and (c). We have said section 12.1-02-02 applies only to crimes or offenses described in Title 12.1. State v. Goetz, 312 N.W.2d 1, 11 (N.D.1981).
¶17[¶ 32] In the tort context, “willful misconduct” has been defined by our Court as “knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; ability to avoid resulting harm by ordinary care and diligence in the use of the means at hand; and the omission of such care and diligence to avert threatened danger when to an ordinary person it must be apparent that the result likely would prove disastrous to another.” Stokka v. Cass Cty. Elec. Coop., Inc., 373 N.W.2d 911, 916 (N.D.1985) (quoting Van Omum v. Otter Tail Power Co., 210 N.W.2d 188, 202 (N.D.1973)).
¶18*38[¶ 33] An employee may be held liable in the employee’s personal capacity for acts or omissions of the employee which constitute “reckless or grossly negligent conduct, or willful or wanton misconduct” under N.D.C.C. § 32-12.1-04(3). We have held, in this context, that “[w]illful and wanton actions are ‘[r]eekless, heedless, malicious; characterized by extreme recklessness or foolhardiness; recklessly disregardful of the rights or safety of others or of consequences.’ ” Nelson v. Gillette, 1997 ND 205, ¶ 27, 571 N.W.2d 332 (quoting Black’s Law Dictionary 1582 (6th ed.1990)).
¶19[¶ 34] In cases such as the one at bar, which requests a change of custody based on the custodial parent’s “willful and persistent” denial or interference with the noncustodial parent’s visitation rights, we have affirmed a trial court’s decision to modify custody where there is evidence of egregious violations of specific court ordered visitation, evidence of an intransigent attitude against visitation rights, and alienating behavior by the custodial parent. See Anderson v. Resler, 2000 ND 183, 618 N.W.2d 480; and Hendrickson v. Hendrickson, 2000 ND 1, 603 N.W.2d 896. We have emphasized that frustration of visitation alone does not constitute a sufficient change in circumstances to warrant modification of custody. Sweeney v. Sweeney, 2002 ND 206, ¶ 11, 654 N.W.2d 407. We have held that there must be a finding that the efforts to frustrate visitation had worked against the best interest of the child. Id.Therefore, in the context of “willful and persistent” denial or interference with visitation in a change of custody proceeding, we have considered a custodial parent’s intentions and motives for interfering with visitation.
¶20[¶ 35] The American Law Institute, in Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.19 (2002), recognizes that if a court finds a parent intentionally and “without good cause” interfered persistently with the other parent’s access to the child, the court should order an appropriate remedy, which may include an award of court costs and reasonable attorney’s fees. “Good cause is established when a parent reasonably thinks his or her actions or failures to act are necessary to protect the child or the parent, or when compliance is simply impossible.” Id. at cmt. e. “A parent may act in good faith even if the concern giving rise to the action turns out to be unfounded, as long as the action was reasonable at the time it was taken in light of the parent’s available information.” Id. See also A.L.I., Principals of the Law of Family Dissolution: Analysis and Recommendations § 2.11 (2002) (providing a “good-faith exception” to the imposition of limiting visitation provisions for a parent who interferes with access to the child).
¶21[¶ 36] In the present case, the trial court found in its March 28, 2001, findings of fact, conclusions of law, and order for judgment that there was no sexual abuse by the father of his son. It also found that although the mother justified her actions based on a perceived danger to the child from the father, no facts were presented that could serve as a basis for danger to the child from the father. Finally, the trial court found:
The Court has made several findings recounting how [the mother] has persistently interfered with the visitations of father and child since the child’s birth. It is not clear to the Court whether such actions are based upon an intentional plan of interference, or whether such activities relate to a degree of selfishness and/or overprotectiveness.
¶22In summary, the trial court found the conduct alleged had occurred, but that it was not abuse and the father was not a danger *39to his son. On remand, it further found that, because the incident of allowing the young son to touch his father’s private parts did occur, the mother’s allegation of sexual abuse was made in good faith.
¶23[¶ 37] I would recognize a good-faith defense to an award of costs and attorney’s fees when a parent fails to make a child accessible for visitation in order to protect the child from sexual or physical abuse by the other parent or when the action is taken in the good-faith belief that it is necessary for the child’s safety. I do believe, however, that a parent relying on a good cause defense must initiate legal proceedings as quickly as reasonably possible to have a court adjudicate whether the parent’s actions are justified. An interfering parent cannot continue to take self-help measures in these circumstances beyond what is reasonably necessary to protect the child.
¶24[¶ 38] I concur in the result of this case, because even if some of the mother’s actions were based on a good-faith belief that she needed to protect the safety of her child, there is evidence of other acts that amount to obstruction of visitation without good motive. I would, however, instruct the trial court on remand to award reasonable attorney’s fees and costs only for those actions which were both willful and persistent and not for those which the trial court finds were done in good faith to protect her child.
¶25[¶ 39] MARY MUEHLEN MARING