Johnson v. Staiger

                    IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA

                                  

Courtney Johnson,                                             Plaintiff and Appellee
     v.
Joshua Staiger,                                         Defendant and Appellant



                                  No. 20250048

Appeal from the District Court of Morton County, South Central Judicial District,
the Honorable Pamela A. Nesvig, Judge.

AFFIRMED.

Opinion of the Court by Bahr, Justice.

Erica J. Shively, Bismarck, ND, for plaintiff and appellee.

Amanda J. Welder, Bismarck, ND, for defendant and appellant.
                                Johnson v. Staiger
                                  No. 20250048

Bahr, Justice.

[¶1] Joshua Staiger appeals from the district court’s second amended judgment,
order denying motion for reconsideration, and order denying modification.
Staiger argues the court erred by denying his motion to modify residential
responsibility. Staiger further argues the court erred by not making his requested
modifications to parenting time or the parenting plan. Finally, Staiger argues the
court erred in denying his motion for reconsideration and not ruling on his
motion for clarification. Johnson requests an award of attorney’s fees under
N.D.R.App.P. 38. We affirm the second amended judgment, the order denying
Staiger’s motion for reconsideration, and the order denying modification. We
deny Johnson’s request for attorney’s fees.

                                         I

[¶2] Staiger and Johnson were never married but have one child together, D.S.
(born 2020). The original judgment awarded primary residential responsibility
to Johnson subject to Staiger’s parenting time every other weekend and one
evening during the week opposite of his weekend.

[¶3] In April 2022, Johnson filed a motion to modify the parties’ parenting plan.
Johnson requested the district court restrict Staiger’s parenting time with a
graduated plan for increased visitation.

[¶4] The district court issued an amended judgment on July 6, 2023. The
amended judgment provided a graduated parenting plan for Staiger. Under the
amended judgment, Staiger was required to submit to alcohol testing through
Soberlink three times a day for one year. If Staiger tested positive for alcohol, his
parenting time started over at Step 1. The amended judgment provided, “Step 1
following a positive test result requires supervised visitation through the Family
Safety Center during the stated times for the first four of the six weeks in that
Step.” A missed test was presumed positive. In addition, Staiger was required to
continue working on “his mental health issues and behaviors that have been



                                         1
found to adversely impact D.S.,” and to provide proof to Johnson he is actively
engaged in his treatment programming.

[¶5] Staiger appealed the amended judgment. This Court dismissed the appeal
after Staiger filed a motion to dismiss appeal. To date, Staiger has not graduated
to Step 2 of the graduated parenting plan.

[¶6] In March 2024, Johnson was arrested for and pled guilty to a driving under
the influence (DUI) charge. D.S. was in the car with Johnson when she was
arrested after she bumped a vehicle in front of her at a stop light. Johnson’s
sentence required she participate in the 24/7 sobriety program. Johnson began
wearing an ankle monitor to detect alcohol in April 2024.

[¶7] After Johnson’s DUI charge, Staiger moved for primary residential
responsibility. In the alternative, Staiger requested the district court modify the
parenting plan to award equal parenting time, to award joint decision-making
responsibility, to remove the requirement for him to test on Soberlink at 12:30
p.m. on workdays, and to put in place reasonable safety measures to ensure
Johnson is unable to put D.S. in harm’s way.

[¶8] In November 2024, the district court denied Staiger’s request to change
primary residential responsibility. The court found Johnson’s DUI did not rise to
the level of a material change in circumstances that required modification of
primary residential responsibility. The court further found D.S.’s interests are
best served by Johnson continuing to have primary residential responsibility.

[¶9] The district court modified the parties’ parenting plan and entered a
second amended judgment. The second amended judgment removed the
requirement Staiger take a 12:30 p.m. test on his workdays. It required Johnson
to continue participating in the 24/7 sobriety program as ordered in her criminal
case; begin mental health services, as recommended by the Human Service Zone;
and to provide Staiger proof she is following through with recommended
therapy. It also made modifications, indicated in bold, to the parenting time
restrictions:




                                        2
      i)     Neither party shall drink ANY alcohol while they are
             providing care for D.S. and neither party may provide care for
             D.S. after consuming alcohol for a period of at least 8 hours.

      ii)    ....

      iii)   Neither parent shall transport the child if they are under the
             influence of alcohol or drugs, or if they have consumed
             alcohol within 8 hours of transport.

[¶10] Staiger filed a motion for reconsideration and a motion for clarification.
The district court denied Staiger’s motions.

                                         II

[¶11] Staiger argues the district court erred in not modifying residential
responsibility.

                                         A

[¶12] A district court’s decision on residential responsibility is a finding of fact
subject to the clearly erroneous standard of review. Kinden v. Kinden, 

, 

. “A finding of fact is clearly erroneous if it is induced by
an erroneous view of the law, if no evidence exists to support it, or if the
reviewing court, on the entire evidence, is left with a definite and firm conviction
a mistake has been made.” 

 (quoting Iakel-Garcia v. Anderson, 

,

). “Under the clearly erroneous standard of review, we do not
reweigh the evidence or reassess the credibility of witnesses, and we will not
retry a primary residential responsibility case or substitute our judgment for a
district court’s . . . decision merely because we might have reached a different
result.” 

 (quoting Iakel-Garcia, ¶ 6). “A choice between two permissible views
of the weight of the evidence is not clearly erroneous[.]” 

 (quoting Iakel-Garcia,
¶ 6).

[¶13] “Before modifying primary residential responsibility, N.D.C.C. § 14-09-
06.6(6)(a) requires the court find a material change in circumstances of the child
or the parties.” Weber v. Pennington, 

, 

. “A
material change in circumstances means important new facts that were unknown

                                         3
at the time of a prior custodial decree.” 

 (quoting Schroeder v. Schroeder, 

, 

). “To warrant modification, the material change in
circumstances must adversely affect the child or result in a general decline in the
child’s condition.” 

 (quoting Anderson v. Spitzer, 

, 

). “The court must first decide whether there has been a material change of
circumstances, and if the court finds there has been a material change, it must
then decide whether modification is necessary to serve the child’s best interests.”
Zittleman v. Bibler, 

, 

 (quoting Valeu v. Strube, 

, 

). If the court finds no material change in
circumstances, it is not required to analyze the best interest factors. Id. ¶ 18.

                                        B

[¶14] Staiger argues Johnson driving impaired is a material change of
circumstances. He argues Johnson “risked the safety of D.S. by involving him in
a drunken car accident.” Staiger further asserts Johnson driving impaired with
D.S. in the vehicle “put D.S. at risk and reflect a general decline in his welfare
while he is cared for by [Johnson].” Staiger also appears to argue his improved
circumstances is a material change of circumstances. He asserts he participates
in therapy, engages in aftercare, addresses treatment related needs, and practices
a lifestyle conducive to sobriety.

[¶15] The district court found Johnson’s DUI incident did not rise “to the level
of a material change in circumstances that would require modification of
primary residential responsibility.” The court explained it “is not condoning
Courtney’s decision to engage in this behavior.” Rather, it “is looking at the
impact on D.S. and his welfare.” The court found:

      It is significant that D.S. was uninjured as a result of the crash. No
      testimony or evidence was received by the Court that demonstrated
      any emotional harm to D.S. as a result of the crash or Courtney’s
      alcohol consumption. Other than argument by Joshua that this
      incident impacted D.S., the Court does not have any facts that
      demonstrate Courtney is prevented from providing D.S. with love,
      affection, guidance, and nurture. In addition, the Court has not
      received facts that show a decline in the child’s condition, or that
      D.S.’s educational or developmental needs are not being met. Joshua

                                        4
      has failed to prove this substantial burden warranting a
      modification of residential responsibility.

[¶16] Our cases show district courts may properly consider a parent’s alcohol
abuse and act of driving under the influence when determining whether a
material change of circumstances exists. However, our cases do not show an
isolated incident of a parent driving under the influence automatically mandates
a finding of a material change of circumstances.

[¶17] In Ramstad v. Biewer, 

, 

, this Court, in a
three-two opinion, affirmed a district court’s order finding a material change in
circumstances existed when Ramstad, a sober alcoholic at the time of the original
custody order, was admittedly currently drinking, had two DUI convictions
within eight months, did not seek treatment, stated he had no intention or desire
to stop drinking, and did not have his drinking under control. In addition to the
alcohol issue, there was evidence of domestic violence and an unstable living
environment that could be detrimental to the child mentally and physically. Id.
¶ 7. The court addressed the impacts the changes had on the child, finding the
“changes have so adversely affected [the child] that she was doing poorly in
school, regularly complained to her teacher of headaches, and asked to talk with
the guidance counselor at school after telling Ms. Garrett about witnessing her
father shove her mother up against the wall.” Id. ¶ 9. Even with these facts, two
justices dissented. Id. ¶¶ 31-38.

[¶18] In Ludwig v. Burchill, 

 (N.D. 1994), this Court, in a fourone opinion, affirmed a district court’s finding a material change in
circumstances existed in part based on Burchill’s DUI conviction and continued
drinking. Burchill argued “there was no evidence that his second DUI conviction
and his continued drinking adversely affected the child.” 

. The court
found Burchill failed to attend AA as ordered by the court, continued drinking,
and was convicted of a second DUI. 

. In addition to failing to treat his
alcoholism, the court found Burchill failed to adjust his night shift to the day shift
as expected and abdicated his parenting responsibilities. 

 The court also made
findings that Burchill’s alcohol dependence negatively affected his parenting




                                          5
skills and adversely effected the child. 

 Despite the district court’s findings,
one justice dissented. 

.

[¶19] Recently, in McCay v. McCay, 

, 

, we affirmed
a district court’s finding of a material change in circumstances when, after the
initial order, David McCay, the parent with primary residential responsibility,
was diagnosed with alcohol use disorder and cannabis use disorder, failed to
complete treatment, and had been charged with his fourth DUI offense. Further,
“[t]he district court found that David McCay has demonstrated a complete
disregard of, or inability to comply with, court orders to address his chemical
usage.” 

 The record also revealed that, after the initial judgment, “David
McCay was convicted of endangering the child,” “was repeatedly unemployed,
had moved, and had been repeatedly incarcerated[.]” 

 The court also made
findings the changes in circumstances adversely affected the child. Id. ¶¶ 12, 13.

[¶20] The district courts’ findings of material change in circumstances in the
cited cases include facts beyond an isolated incident of driving under the
influence. Also, the courts found the changed circumstances adversely affected
the child. Here, the court found Staiger failed to show the DUI incident adversely
affected D.S. or resulted in the general decline of his condition. It also found
Johnson completed an eight-hour education program through ADAPT, had been
wearing an ankle monitor to test alcohol since April 2024, and had not had a
positive test for alcohol. Cf. Jelsing v. Peterson, 

, 

(stating the district court did not “minimize” the parent’s conduct when it
“found the driving under the influence incident was isolated, [the parent] had
seen the error of her ways, and that type of conduct was not likely to reoccur”).

[¶21] Regarding Staiger’s alleged improved circumstances, this Court has stated
a material change in circumstances can exist “when the noncustodial parent’s
situation improves accompanied by a general decline in the child’s condition
with the other parent over the same time period.” Krueger v. Hau Tran, 

, 

. The district court found Staiger did not show a decline
in D.S.’s condition. Thus, even if Staiger’s circumstances improved, that would
not constitute a material change of circumstances warranting a modification of
residential responsibility.


                                         6
[¶22] The district court’s findings are supported by the record. While,
depending on the specific facts, a parent driving impaired with a child in the
vehicle may constitute a material change in circumstances, under the facts of this
case, the court’s finding there was not a material change in circumstances
requiring modification of primary residential responsibility is not clearly
erroneous.

                                         C

[¶23] Staiger argues the district court “erred in its best interest analysis.”

[¶24] After considering the evidence, the district court made specific findings on
the best interest factors. The court found factors (b), (d), (e), (j), and (l) favored
Johnson. It found the other factors were neutral or favored neither party. It then
found D.S.’s interests are best served by Johnson continuing to have primary
residential responsibility.

[¶25] Staiger does not specifically challenge the district court’s findings as to any
best interest factor. He does not identify or discuss a single factor. Rather, he
vaguely asserts the court’s restrictions on his parenting time do not serve D.S.’s
best interest. That argument relates to his request for modification of the
parenting plan, not his request to modify primary residential responsibility.

[¶26] Moreover, the district court did not need to address the best interest
factors because it found no material change of circumstances. The court only
needed to decide whether a change in primary residential responsibility served
the child’s best interest if it found a material change of circumstances. Zittleman,

.

[¶27] The district court’s decision on residential responsibility is not clearly
erroneous. We affirm the court’s order denying Staiger’s motion to modify
residential responsibility.

                                         III

[¶28] Staiger requested, in the alternative, the district court modify his parenting
time or certain provisions of the parenting plan. Specifically, in his brief, Staiger

                                          7
requested the court modify the parenting plan to award equal parenting time,
joint decision-making responsibility, remove the requirement for him to test on
Soberlink at 12:30 p.m. on workdays, and put in place reasonable safety
measures to ensure Johnson is unable to put D.S. in harm’s way.

                                          A

[¶29] “A party moving to modify parenting time must show that a material
change in circumstances has occurred since entry of the prior parenting time
order and that the modification is in the child’s best interests.” Fleck v. Fleck, 

, 

 (quoting Konkel v. Amb, 

, 

). “A district court’s decision on whether to modify parenting time is
a finding of fact reviewed under the clearly erroneous standard of review.” Id.
¶ 13. “Likewise, a district court’s determination on decisionmaking
responsibility is a finding of fact, reviewed under the clearly erroneous
standard.” Field v. Field, 

, 

.

                                          B

[¶30] Staiger argues the district court erred in requiring him to participate in
chemical testing. The court imposed the testing requirement and placed
restrictions on Staiger’s parenting time in the July 6, 2023 amended judgment.
Our review is limited to the November 19, 2024 second amended judgment. Fleck,

 (appellant’s arguments concerning the validity of the
parenting plan restrictions in an unappealed judgment constitute an
impermissible collateral attack); Lerfald v. Lerfald, 

, 

 (holding movant for modification of parenting time was not allowed
to challenge unappealed parenting time requirements).

[¶31] The second amended judgment modified the parenting plan by removing,
as requested by Staiger, the requirement he test at noon (12:30 p.m.) while he is
working. Staiger does not challenge that modification. The second amended
judgment also imposed restrictions on Johnson’s alcohol consumption with D.S.
Staiger challenges that modification.




                                          8
[¶32] In his brief in support of his motion to modify the parenting plan, Staiger
requested the district court put in place reasonable safety measures to ensure
Johnson is unable to put D.S. in harm’s way again. Based on Johnson’s “poor
choices and placing D.S. at risk,” the court imposed alcohol consumption
restrictions on Johnson. The court stated:

      Neither party will be permitted to care for D.S. if they have been
      using controlled substances or drinking alcohol. Courtney has to
      remain on the 24/7 program for a year, based upon her criminal
      conviction. If Courtney does test positive for alcohol, she must
      inform Joshua within 24 hours of the positive test through Our
      Family Wizard. Courtney must also begin mental health services, as
      recommended by the Human Service Zone. Courtney must provide
      Joshua proof that she is complying with this provision by informing
      Joshua of the provider and proof she has followed through with
      recommended therapy. Courtney must enroll in services within 30
      days from the date of this Order and engage in therapy as
      recommended. Proof of enrollment must be provided to Joshua
      within 40 days from this Order.

[¶33] The district court modified the parenting plan to provide:

      Courtney must continue to participate in the 24/7 sobriety program
      as ordered in her criminal case. If Courtney does test positive for
      alcohol, she must inform Joshua within 24 hours of the positive test
      through Our Family Wizard. Courtney must also begin mental
      health services, as recommended by the Human Service Zone.
      Courtney must provide Joshua proof that she is complying with this
      provision by informing Joshua of the provider and proof she has
      followed through with recommended therapy. Courtney must
      enroll in services within 30 days from the date of this Order and
      engage in therapy as recommended. Proof of enrollment must be
      provided to Joshua within 40 days from this Order.

[¶34] The district court further modified the parenting plan to provide:

      i)    Neither party shall drink ANY alcohol while they are
            providing care for D.S. and neither party may provide care for
            D.S. after consuming alcohol for a period of at least 8 hours.



                                       9
      ii)    ....

      iii)   Neither parent shall transport the child if they are under the
             influence of alcohol or drugs, or if they have consumed
             alcohol within 8 hours of transport.

[¶35] Staiger argues the conditions the district court imposed on Johnson are too
lenient compared to the conditions imposed on him. Staiger ignores the
significant distinctions between his alcohol, mental health, and behavior issues
and Johnson’s alcohol issues. The court discussed its reasons for imposing
restrictions on Staiger’s parenting time and imposing the graduated parenting
plan in its prior order. That order is not before this Court. Rather, the issue on
appeal are the restrictions the court imposed on Johnson. Staiger has not
demonstrated the court’s finding the restrictions it imposed on Johnson are
adequate to protect D.S. is clearly erroneous.

[¶36] The district court’s decision to provide limited modifications to the
parenting plan is not clearly erroneous. We affirm the court’s order modifying
the parenting plan.

                                        IV

[¶37] Staiger argues the district court erred in denying his motion for
reconsideration.

[¶38] North Dakota law does not formally recognize motions to reconsider.
Zepeda v. Cool, 

, 

. However, “if properly written
and argued, the district court may treat a motion for reconsideration as a motion
to alter or amend a judgment under N.D.R.Civ.P. 59(j) or a motion for relief from
a judgment under N.D.R.Civ.P. 60(b).” Wheeler v. Sayler, 

, 

. A district court’s denial of a Rule 59(j) or Rule 60(b) motion will not
be reversed on appeal unless the court abused its discretion. Schmidt v. Hageness,

, 

. “A district court abuses its discretion if it acts
in an arbitrary, unreasonable, or unconscionable manner; its decision is not the
product of a rational mental process leading to a reasoned determination; or it
misinterprets or misapplies the law.” 

 “An abuse of discretion is never
assumed and must be affirmatively established, and this Court will not reverse

                                        10
a district court’s decision merely because it is not the one it would have made
had it been deciding the motion.” Curtiss v. State, 

, 

 (quoting Anderson v. Baker, 

, 

).

[¶39] North Dakota Rules of Civil Procedure 59(j) allows a party to request the
district court to alter or amend its judgment to correct errors of law. Harris v.
Oasis Petroleum, Inc., 

, ¶ 10, 

. A Rule 59(j) motion does
not usually request a reexamination of issues of fact. A Rule 59(j) motion “can be
used to present previously unavailable evidence, but should not be used to
reexamine facts nor reconsider evidence already presented.” Schmidt, 

.

[¶40] North Dakota Rules of Civil Procedure 60(b) provides a court may relieve
a party from a final judgment if one or more of six reasons or grounds are met:
“1) mistake or neglect occurred; 2) newly discovered evidence that could not
have been discovered previously; 3) fraud; 4) the judgment is void; 5) the
judgment was based on an earlier judgment that has been reversed or vacated;
or 6) any other reason that justifies relief.” Schmidt, 

. “The party
asking for relief has the burden to show sufficient grounds for disturbing the
final judgment and relief will only be granted in exceptional circumstances.” 

                                        A

[¶41] Staiger argues the district court violated N.D.R.Ct. 3.2(a)(2) and denied
him “a fair opportunity to be heard.” He asserts the court issued its order
denying his motion for reconsideration before his reply brief was due. See Dietz
v. Dietz, 

, 

 (concluding the district court erred in
not allowing a party the opportunity to file a reply brief).

[¶42] The district court remedied its premature issuance of the order denying
reconsideration by considering Staiger’s reply brief. In its order denying
modification, the court stated it “reviewed the Defendant’s reply to his original
motion requesting the Court reconsider its order[.]” It then stated, “After having
reviewed the Defendant’s reply, no modification of the Court’s previous Order
is warranted.”



                                        11
[¶43] The district court did not deny Staiger the opportunity to be heard because
it considered Staiger’s reply brief to determine whether it impacted the court’s
decision.

                                        B

[¶44] In his motion, Staiger cited N.D.R.Civ.P. 60(b) as authority. Staiger’s brief
referenced both N.D.R.Civ.P. 59(j) and Rule 60(b). The only argument in Staiger’s
district court briefs regarding Rules 59(j) and 60(b) is that the motion was timely
under both rules. Staiger’s brief did not specify under which Rule 60(b) ground
he sought relief. His brief also did not state why he was entitled to relief under
either rule. Rather, he reviewed facts, submitted additional evidence, made
arguments, and then requested changes to the parenting plan.

[¶45] In its order denying motion for reconsideration, the district court noted
Staiger provided with his motion new information “never presented
previously.” The court explained it “lacks information to find these documents
were unavailable prior to the full hearing.” It then stated it “should not and will
not consider this new evidence as it is not appropriate.”

[¶46] Staiger’s motion did not identify an alleged error of law that needed to be
corrected under N.D.R.Civ.P. 59(j). It also relied on evidence already presented
or that he did not show was not available at trial. Werven v. Werven, 

, 

 (“A motion to amend a judgment may not be used to present
evidence that was available to be presented at trial.”). Staiger’s motion also did
not specify or argue an applicable ground for relief provided in N.D.R.Civ.P.
60(b), or why relief was appropriate under any ground provided in Rule 60(b).
See Richardson v. Richardson, 

, 

 (holding the
district court did not abuse its discretion in denying a motion for reconsideration
when the movant did not argue the grounds available for relief under either
N.D.R.Civ.P. 59(j) or N.D.R.Civ.P. 60(b)); Matter of Yates, 

, 

 (affirming the district court’s denial of requests for reconsideration
when petitioners did “not identify either Rule 59(j) or 60(b) in their requests for
reconsideration, nor [did] they otherwise specify applicable grounds for relief
from the orders as provided in Rule 60(b)”); Fleck v. Fleck, 

, 790


                                        12
(N.D. 1983) (“A mere recitation of the grounds set forth to Rule 60(b),
N.D.R.Civ.P., without specific details underlying such assertions, is not
sufficient to afford relief.”).

[¶47] Staiger fails to argue on appeal why he was entitled to relief under
N.D.R.Civ.P. 59(j) or N.D.R.Civ.P. 60(b). Staiger’s briefs do not cite Rule 59(j) or
Rule 60(b) in their tables of authorities. The only mention of Rules 59 and 60 in
Staiger’s briefs is that Rule 59 and Rule 60 may obviate the necessity of an appeal
and that Rule 59 is not a prerequisite for appellate review. Staiger’s briefs do not
identify an alleged error of law the district court should have corrected under
Rule 59(j). They also do not specify a ground for relief in Rule 60(b) or why the
district court should have granted relief under a specific ground provided in
Rule 60(b).

[¶48] Based on the arguments presented, Staiger has not demonstrated the
district court abused its discretion in denying his motion for reconsideration.

                                         V

[¶49] Staiger argues the district court did not rule on his motion for clarification.

[¶50] “Clarification of a judgment is appropriate when the judgment fails to
specify some particulars, and uncertainties in the decree arise from subsequent
events.” Matter of Curtiss A. Hogen Tr. B, 

, 

(quoting Hoverson v. Hoverson, 

, 

). We have
recognized motions for clarification “if there is an ambiguous provision in the
judgment that creates an actual controversy between the parties.” Neubauer v.
Neubauer, 

 (N.D. 1994). We review a denial of a motion for
clarification under the abuse of discretion standard. Ritter v. Ritter, 

, 

; Praus v. Praus, 

, 

.

[¶51] Contemporaneous with his motion for reconsideration, Staiger filed a
motion for clarification. He sought clarification because he requested specific
relief in his prior motion that the district court did not address. He also asserted
the parties disputed certain provisions of the parenting plan and requested the
court clarify the provisions. Johnson responded to Staiger’s motion asserting the


                                         13
issues were res judicata. She did not indicate any of the provisions of the second
amended judgment were ambiguous.

[¶52] In its order denying modification, the district court stated “no
modification of the Court’s previous order is warranted.” It further stated, “Any
disputes regarding the parenting plan must be resolved by utilizing the dispute
resolution procedure detailed in the parenting plan.”

[¶53] The district court did not specifically reference Staiger’s motion for
clarification in its order denying clarification. However, it addressed it by stating
Staiger had to resolve his purported disputes over the parenting plan by utilizing
the dispute resolution procedure in the parenting plan. The court did not abuse
its discretion in requiring the parties to utilize the dispute resolution procedure
in the second amended judgment to resolve disputes regarding the parenting
plan.

                                        VI

[¶54] Johnson argues this appeal is frivolous and requests attorney’s fees. She
argues the appeal is devoid of merit, that Staiger misrepresented the district
court’s findings, and he continues to relitigate the same issues. “An appeal is
frivolous if it is flagrantly groundless, devoid of merit, or demonstrates bad faith
in pursuing the litigation.” McCay, 

.

[¶55] Staiger’s appeal is not flagrantly groundless or devoid of merit, nor does
it demonstrate bad faith in pursuing the litigation. We deny Johnson’s request
for attorney’s fees on appeal.

                                       VII

[¶56] We affirm the district court’s second amended judgment, the order
denying motion for reconsideration, and the order denying modification. We
deny Johnson’s request for attorney’s fees.

[¶57] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers

                                         14
Jerod E. Tufte
Douglas A. Bahr




                  15