Lizakowski v. Lizakowski , 2021 ND 82 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 6, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 82Tonia Lyn Lizakowski, Plaintiff and Appellee
v.
Adam Jon Lizakowski, Defendant and Appellant
and
State of North Dakota, Statutory Real Party in Interest
No. 20200269
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Thomas R. Olson, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Jennifer E. Albaugh, Fargo, ND, for plaintiff and appellee; submitted on brief.
Kristin A. Overboe, Fargo, ND, for defendant and appellant.
Lizakowski v. Lizakowski
No. 20200269
VandeWalle, Justice.
[¶1] Adam Lizakowski appealed from an amended divorce judgment, arguing
the district court lacked subject matter jurisdiction, and erred in distributing
the marital property, awarding Tonia Lizakowski primary residential
responsibility, and awarding Tonia Lizakowski attorney’s fees. We summarily
affirm under N.D.R.App.P. 35.1(a)(2), (4), and (7), and award costs and
attorney’s fees.
I
[¶2] This is the second appeal of the parties’ divorce judgment. See
Lizakowski v. Lizakowski, 2019 ND 177, 930 N.W.2d 609. In the first appeal,
Adam Lizakowski similarly argued the district court erred in distributing the
marital property, awarding Tonia Lizakowski primary residential
responsibility, and awarding Tonia Lizakowski attorney’s fees. Id. at ¶ 1. At
oral argument in the first appeal, he asserted the district court lacked subject
matter jurisdiction. We affirmed the award of primary residential
responsibility to Tonia Lizakowski, id. at ¶ 16, reversed and remanded the
property distribution, id. at ¶ 12, and concluded the district court did not abuse
its discretion on attorney’s fees, id. at ¶ 22. However, in light of reversing the
property distribution, we stated that “the court may reconsider its award of
attorney’s fees on remand.” Id. at ¶ 23. On remand, the district court
recalculated and redistributed the marital property, and concluded its award
of attorney’s fees stood as previously ordered.
II
[¶3] Adam Lizakowski conceded at oral argument that subject matter
jurisdiction was raised in the first appeal. We rejected that argument in the
first appeal in general fashion. See Lizakowski, 2019 ND 177, ¶ 24 (stating that
“[w]e have considered the parties’ remaining arguments and conclude they are
either without merit or unnecessary to our decision”). Accordingly, we conclude
that implicit within our prior decision was the determination that the district
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court had subject matter jurisdiction, and Adam Lizakowski’s argument to the
contrary was without merit. The issue is now barred by the law of the case
doctrine. See Matter of Estate of Johnson, 2017 ND 162, ¶ 11, 897 N.W.2d 921(cleaned up) (stating that “[u]nder the law of the case doctrine, a party cannot
on a second appeal relitigate issues which were resolved by the Court in the
first appeal or which would have been resolved had they been properly
presented in the first appeal”); Lee v. Lee, 2007 ND 147, ¶ 10, 738 N.W.2d 479(applying the law of the case doctrine to the issue of subject matter
jurisdiction).
[¶4] Further, primary residential responsibility of the children was
addressed in the first appeal, and is barred by the law of the case doctrine. See
Matter of Estate of Johnson, 2017 ND 162, ¶ 11. We conclude the district court’s
property division on remand was not clearly erroneous, and the court did not
abuse its discretion in awarding Tonia Lizakowski attorney’s fees.
[¶5] Adam Lizakowski argues the Amended Findings of Fact, Conclusions of
Law and Order for Amended Judgment incorrectly provides that the parties
shall be equally responsible for certain student loans, even though the district
court ordered otherwise in its Order on Remand. That is the case. However,
the amended divorce judgment correctly provides in the “Marital Debt” section
that Tonia Lizakowski is liable for her student loans, without any portion
attributed to Adam Lizakowski. Because the language in the amended
judgment controls, no correction is needed, and reversal is unwarranted. See
Serr v. Serr, 2008 ND 56, ¶ 12, 746 N.W.2d 416 (stating that “if there is a
conflict between a judgment and an order for judgment, the judgment
controls”).
[¶6] We summarily affirm under N.D.R.App.P. 35.1(a)(2), (4), and (7).
III
[¶7] Tonia Lizakowski moved for reasonable costs and attorney’s fees under
N.D.R.App.P. 38, which provides, “If the court determines that an appeal is
frivolous, or that any party has been dilatory in prosecuting the appeal, it may
award just damages and single or double costs, including reasonable attorney’s
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fees.” We award Tonia Lizakowski double costs and attorney’s fees in the
amount of $500.
IV
[¶8] The amended divorce judgment is summarily affirmed, and Tonia
Lizakowski is awarded double costs and attorney’s fees in the amount of $500.
[¶9] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Jerod E. Tufte
Gail Hagerty, S.J.
Carol Ronning Kapsner, S.J
[¶10] The Honorable Gail Hagerty, S.J., and the Honorable Carol Ronning
Kapsner, S.J., sitting in place of Crothers, J., and McEvers, J., disqualified.
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