Pitsenbarger v. PitsenbargerCivil No. 11280

Gierke, Justice.

Jeffrey Pitsenbarger appeals from a judgment, dated June 27, 1986, modifying the spousal support provisions of an original divorce decree. The judgment is affirmed under Rule 35.1(a)(2), N.D.R.App.P.

Dana Pitsenbarger has filed a cross-appeal from the denial of her request for attorney fees incurred for a prior appeal in this case. The trial court's decision regarding an award of attorney fees is within its discretion and will not be disturbed on appeal unless the appealing party affirmatively establishes that the trial court abused its discretion. Bagan v. Bagan, 382 N.W.2d 645 (N.D. 1986); Heller v. Heller, 367 N.W.2d 179 (N.D. 1985). Upon reviewing the record, we conclude that the trial court did not abuse its discretion in denying Dana's request for attorney fees on the prior appeal. our determination on this issue does not, however, preclude the trial court from awarding Dana attorney fees for this appeal, and we remand for consideration of that matter by the trial court.

H.F. Gierke III
Herbert L. Meschke
Gerald W. VandeWalle
Ralph J. Erickstad, C.J.
Vernon R. Pederson, S.J.

Pederson, S. J., sitting in place of Levine, J., disqualified.