BERGER v. BERGER (2026)

[¶1] Donna Berger appeals from a district court order granting Eugene Berger's motion to compel compliance with the judgment. Donna Berger argues res judicata or collateral estoppel bars the district court from considering the motion. We conclude res judicata barred the district court from considering Eugene Berger's motion to compel, reverse the district court order granting the motion to compel, and remand for the district court to reconsider Donna Berger's request for attorney's fees.

I

[¶2] Donna and Eugene Berger were married in 1996 and divorced in 2022. The parties entered a stipulated marital dissolution agreement, which included a property equalization payment. The equalization payment required Donna Berger to pay Eugene Berger $1,275 per month for five years, followed by $1,375 per month for 15 years, paid by Donna Berger's North Dakota Public Employees Retirement System (NDPERS) pension. In July 2024, Eugene Berger moved to modify the property distribution because NDPERS could not accommodate the split-payment structure. In his brief, he asked the district court to modify the payments to $1,421 monthly for 20 years. Donna Berger argued she complied with the judgment by establishing alternative direct payments to Eugene Berger. In its December 2024 order denying the motion, the court determined Donna Berger complied with the judgment by “sign[ing] direct deposit forms allowing the pension amounts to go directly from NDPERs to [Eugene Berger].” Eugene Berger did not appeal.

[¶3] In March 2025, Eugene Berger moved to compel compliance with the judgment, claiming the alternative payment arrangement was insufficient because it did not include irrevocable payments. The case was reassigned because the previous judge retired. Donna Berger opposed the motion and requested attorney's fees, arguing res judicata or, alternatively, collateral estoppel. After a hearing, the district court found the motion to compel distinguishable from the motion to modify the judgment and therefore concluded the second motion was not barred by res judicata or collateral estoppel. The court further found the alternative payments did not comply with the judgment because the payments were revocable, while the judgment required the payments to be irrevocable. The court granted the motion to compel and denied Donna Berger's request for attorney's fees. Donna Berger appeals.

II

[¶4] Donna Berger argues Eugene Berger's motion to compel is barred by res judicata and collateral estoppel because the district court denied his earlier motion to modify the judgment regarding the same claims. “The applicability of res judicata or collateral estoppel is a question of law, fully reviewable on appeal.” Ungar v. N.D. State Univ., 2006 ND 185, ¶ 10, 721 N.W.2d 16.

[¶5] Res judicata prevents the “relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies.” ICON HD, LLC v. Nat'l Sports Opportunity Partners, LLC, 2025 ND 95, ¶ 6, 20 N.W.3d 711 (quoting Kulczyk v. Tioga Ready Mix Co., 2017 ND 218, ¶ 10, 902 N.W.2d 485). “Res judicata applies even if subsequent claims are based upon a different legal theory.” Fettig v. Est. of Fettig, 2019 ND 261, ¶ 16, 934 N.W.2d 547 (quoting Riverwood Com. Park, L.L.C. v. Standard Oil Co., 2007 ND 36, ¶ 13, 729 N.W.2d 101). In Fettig, this Court stated:

A judgment on the merits in the first action between the same parties constitutes a bar to the subsequent action based upon the same claim or claims or cause of action, not only as to matters in issue but as to all matters essentially connected with the subject of the action which might have been litigated in the first action.

Id. ¶ 18 (quoting Perdue v. Knudson, 179 N.W.2d 416, 422 (N.D. 1970)). Res judicata “prevents parties and those in privity with them from raising legal theories, claims for relief, or defenses which could have been raised in the prior litigation, even though such claims were never actually litigated in the prior case.” Id. ¶ 16 (quoting Riverwood, ¶ 14).

[¶6] In July 2024, Eugene Berger moved to modify the property distribution. Under N.D.C.C. § 14-05-24(3), “[t]he court may redistribute property and debts in a postjudgment proceeding if ․ the party fails to comply with the terms of a court order distributing property and debts.” The district court, ruling in favor of Donna Berger, determined:

The Judgment stipulated to by the parties in this case specifically contemplated a back-up plan if NDPERs was unable to structure the payments as the parties agreed. The Judgment then required [Donna Berger] to arrange for automatic payment authorizations from her bank account for the payments to be issued to [Eugene Berger]. [Donna Berger] followed this provision and signed direct deposit forms allowing the pension amounts to go directly from NDPERs to [Eugene Berger].

[¶7] Eugene Berger did not appeal. The December 2024 district court order denying Eugene Berger's motion to modify the judgment was valid, final, and conclusive on the issue of whether the alternative payment plan complied with the judgment. The court specifically determined “the Court simply cannot find that [Donna Berger] has failed to comply with the Court's order distributing property and debts.”

[¶8] In March 2025, Eugene Berger moved to compel compliance with the judgment. In his motion, Eugene Berger relied on the same facts and a portion of the original judgment that required the parties to sign all necessary documentation to ensure compliance with the judgment if NDPERS was unable to facilitate the contemplated payment scheme. Eugene Berger acknowledged the “factual background of this case is outlined extensively in the Brief in Support of” his motion to modify property distribution. He alleged only continuing violation of the judgment, arguing “[t]he judgment orders that ‘the parties shall execute any necessary documentation to effectuate Paragraphs 28-29, including a stipulation to amend the judgment.’ ․ To date, Donna has refused to do so.”

[¶9] Although two judges evaluated the two motions, and although the motions rely on different theories and statutes, both rely on the same legal determination regarding whether Donna Berger complied with the judgment. Both motions originate from Eugene Berger's claims that Donna Berger violated the judgment. Under each motion, as a threshold matter, the district court must determine whether Donna Berger complied with the judgment. Absent new facts arising after the initial motion, res judicata should have prevented reconsideration of Donna Berger's compliance in the second motion. In granting the second motion, the court addressed the term “irrevocable” in the original judgment, determined Donna Berger failed to execute documents to create an irrevocable alternative payment plan, and determined she did not comply with the judgment. In the initial motion, the court resolved the issue of compliance by determining establishment of the alternative direct payments constituted compliance. Without any new facts, Eugene Berger's dissatisfaction about whether the alternative payments complied with the judgment due to their revocable nature required resolution in the initial motion hearing or by appealing the court's determination following that hearing.

[¶10] Following de novo review, we conclude res judicata barred the district court from considering Eugene Berger's motion to compel. Because we conclude res judicata bars Eugene Berger's motion to compel, we need not address the issue of collateral estoppel.

III

[¶11] Donna Berger argues the district court should have awarded attorney's fees based on Eugene Berger's successive motions. She cites N.D.C.C. § 14-05-23, which allows the court to order the payment of attorney's fees in a pending divorce proceeding. “A district court's decision on attorney's fees is reviewed under the abuse of discretion standard.” Dogbe v. Dogbe, 2023 ND 133, ¶ 13, 993 N.W.2d 491 (quoting Sorum v. State, 2020 ND 175, ¶ 57, 947 N.W.2d 382). A court abuses its discretion when it “acts in an arbitrary, unreasonable, or unconscionable manner or when it misapplies the law.” Id. (quoting Sorum, ¶ 14). A district court has broad discretion in determining an award of attorney's fees. Schrodt v. Schrodt, 2022 ND 64, ¶ 28, 971 N.W.2d 861. Because the court denied the attorney's fee request by concluding res judicata did not bar the successive motion to compel, and because we conclude otherwise, we reverse and remand for the court to consider whether an of award attorney's fees is appropriate.

IV

[¶12] We conclude res judicata barred the district court from considering Eugene Berger's motion to compel. We reverse the district court order granting the motion to compel, and remand for the district court to reconsider Donna Berger's request for attorney's fees.

Friese, Justice.

[¶13] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese