author: MEYER, Justice.

text:
    MAHONEY & HAGBERG, a Professional Association, n/k/a Mahoney & Emerson, a Professional Association, and Mahoney & Emerson, Ltd., Appellant, v. Tracy L. NEWGARD, Respondent, Sean A. Shiff, et al., Defendants.
    No. A05-1523.
    Supreme Court of Minnesota.
    March 29, 2007.

      Michael C. Mahoney, Mahoney & Foster, Ltd., Wayzata, MN, for Appellant.
    Michael J. Ford, Heidi N. Thoennes, Quinlivan & Hughes, P.A., St. Cloud, MN, for Respondent.
   OPINION

MEYER, Justice.

The law firm of appellant Mahoney & Hagberg seeks reversal of an opinion of the court of appeals affirming the dismissal of appellant’s claims against respondent Tracy Newgard, one of its former secretaries, for breach of confidentiality. At issue is whether Newgard’s revelations, made in an affidavit in litigation brought by a third party against the law firm, are encompassed by absolute privilege. We affirm the decision of the court of appeals.

Stephanie Boldt, daughter of Stephen Hagberg, and Margaret Burns, daughter of Michael Mahoney, formed Professional. Administration Corporation (PAC) to provide secretarial support for their fathers’ law firm, appellant Mahoney & Hagberg. PAC was administratively dissolved in 2000, and Boldt, Burns, and a third individual, Gina Miller, then formed Professional Administration, LLC (PAL) to provide the same services to appellant. PAL’s contract with Mahoney & Hagberg called for PAL to receive 25% of the firm’s revenues. After Mahoney & Hagberg won a $9 million verdict, Stephanie Boldt sued Burns, PAC, and PAL for her share, claiming she had been improperly forced out of PAL.

Newgard had worked, under the auspices of PAC and PAL, for the law firm from June 1999 to February 2003, and had a judgment against PAL for unpaid wages of nearly $7,000. In addition, while at the firm Newgard had worked primarily for Steven Hagberg, who had since left the firm in a dispute with attorney Mahoney.

This lawsuit arises from statements made by Newgard in an affidavit executed and filed as part of the lawsuit between Boldt and her former business partner, Burns. After Boldt’s complaint was filed in the Boldt v. Burns litigation, Boldt’s attorney drafted an affidavit signed by Tracy Newgard. When Boldt’s attorney obtained the affidavit, he informed New-gard that if she did not voluntarily speak with him, she would be deposed and be ordered to disclose the same information.

Newgard decided to provide an affidavit in which she discussed her understanding of the organizational structure of PAC and PAL, actions taken by Michael Mahoney on behalf of Mahoney & Hagberg clients, and names of film clients. She alleged improper and possibly illegal conduct on the part of Michael Mahoney and others in the firm. For example, Newgard averred that attorney Mahoney had told her he had created “approximately 50” companies for one of his clients “as a means to funnel money through in order to avoid paying so much money in taxes.” Newgard said Ma-honey had asked her to incorporate the companies, and that she had done so only on Mahoney’s assurances that she would be replaced by the officers of the companies once the articles of incorporation were filed. Newgard averred that Mahoney then asked her to call the IRS and say she was an officer of the companies, apparently in order to get tax identification numbers for the companies. Newgard averred that when she refused, Mahoney and other lawyers in the firm called the IRS and lied about being officers of the companies in order to get the required tax numbers. Newgard also averred that she had overheard attorney Mahoney advising a client (specifically named in the affidavit) to transfer some of her personal debts to her corporation in order to improve her credit score and thereby qualify for a mortgage. Finally, Newgard averred that attorney Mahoney had transferred ownership of a travel agency to that same client, without the knowledge or approval of its owners.

Mahoney & Hagberg, n/k/a Mahoney & Emerson, Professional Association, and Mahoney <& Emerson, Ltd. (collectively “appellant”) sued Newgard claiming her affidavit was a breach of client and firm confidences, a breach of fiduciary duty, an invasion of privacy and a civil conspiracy, and seeking injunctive relief and damages. Appellant alleged that Newgard was conspiring with attorney Hagberg “to do as much harm and damage as possible” to appellant. Newgard filed a motion to dismiss, claiming that she was immune from suit because her affidavit, which was published in the course of a judicial proceeding, was absolutely privileged. The district court, without addressing Newgard’s absolute privilege claim, denied Newgard’s motion to dismiss, on grounds that appellant’s complaint adequately stated claims against Newgard.

Newgard appealed the denial of the motion to dismiss, and the court of appeals agreed with her. The court of appeals began its analysis by citing Matthis v. Kennedy, 243 Minn. 219, 227-28, 67 N.W.2d 413, 419 (1954), for the general principle that a party who files a pleading or affidavit in a judicial proceeding has absolute immunity, even for statements that are defamatory and malicious, “if they relate to the subject of inquiry.” Mahoney & Hagberg v. Newgard, 712 N.W.2d 215, 219 (Minn.App.2006). The court of appeals specifically noted that “the statement at issue must have some relation to or connection with ’an issue in the case, although that connection need not amount to legal relevance.” Id. The court of appeals noted that virtually all assertions of absolute privilege decided by Minnesota’s courts involved claims of défa-mation. Id. No Minnesota court had yet applied absolute privilege to other types of tort claims, but the court of appeals relied on cases from other jurisdictions to hold that petitioner’s claims against respondent Newberg were barred to the extent they arose from appellant’s participation in the judicial process. Id. at 220. The court reversed the district court’s denial of Newgard’s motion to dismiss because Newgard’s statements were relevant to the proceeding and absolute privilege barred the appellant’s suit against New-gard. Id. at 221. Appellant sought further relief.

I.

This case involves an appeal from a motion to dismiss and, therefore, the only issue before this court is whether there is a sufficient legal claim for relief. See Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). Questions of law are reviewed de novo. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003). An individual claiming absolute privilege bears the burden of proof. See Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn.1997).

Statements, even if defamatory, may be protected by absolute privilege in a defamation lawsuit if the statement is (1) made by a judge, judicial officer, attorney, or witness; (2) made at a judicial or quasi-judicial proceeding; and (3) the statement at issue is relevant to the subject matter of the litigation. Matthis, 243 Minn. at 224, 67 N.W.2d at 417. When absolute privilege applies, the speaker is completely shielded from liability for her statements, even statements that are intentionally false or made with malice. Id. at 223, 67 N.W.2d at 416. In the context of judicial proceedings, absolute privilege encourages frank testimony by witnesses, by enabling them to testify without fear of civil liability for their statements. See id. at 225, 67 N.W.2d at 418; Restatement (Second) of Torts § 588, cmt. a (1977) (“The function of witnesses is of fundamental importance in the administration of justice. The final judgment of the tribunal must be based upon the facts as shown by their testimony, and it is necessary therefore that a full disclosure not be hampered by fear of private suits for defamation.”). But the applicability of absolute privilege is limited. Matthis, 243 Minn. at 223, 67 N.W.2d at 417. This court will not apply absolute privilege unless the “administration of justice requires complete immunity from being called to account for language used.” Id.; see also Bol v. Cole, 561 N.W.2d 143, 149 (Minn.1997) (“For absolute privilege to apply, the public interest served must be one of paramount importance, such that it is entitled to protection even at the expense of failing to compensate harm to the defamed person’s reputation.”).

Absolute privilege extends to statements published prior to the judicial proceeding, but in order for the privilege to apply, such statements must have some relation to the judicial proceeding. See Matthis, 243 Minn. at 226-28, 67 N.W.2d at 418-19; Restatement (Second) of Torts § 586, cmt. a (“The publication of defamatory matter by an attorney is protected not only when made in the institution of the proceedings or in the conduct of litigation before a judicial tribunal, but in conferences and other communications preliminary to the proceeding.”). Voluntary witness testimony given in a deposition or affidavit published prior to a judicial proceeding is also protected by absolute privilege. W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 114, at 816-17 (5th ed.1984).

In the context of absolute privilege, statements may be relevant, and therefore protected, if the statements “have reference and relation to the subject matter of the action and [they are] connected therewith!.] In other words, does it have reference to or relation to or connection with the case before the court?” Matthis, 243 Minn. at 225, 67 N.W.2d at 418. The relevance of a statement to litigation is a question of law, and any doubts as to relevance of a statement “must be resolved in favor of finding the statements pertinent.” Jenson v. Olson, 273 Minn. 390, 393, 141 N.W.2d 488, 490 (1966).

The amended complaint in the Boldt v. Bums litigation asserts counts for declaratory relief, breach of contract, breach of fiduciary duty, promissory estop-pel, equitable relief under Minn.Stat. § 302A.751 (2006) and Minn.Stat. § 322B.833 (2006), unjust enrichment, and a demand for accounting for both PAC and PAL. The amended complaint makes two references regarding Mahoney’s behavior. First, Boldt alleges that “Burns and Miller, aided by Mahoney, prepared and signed revised corporate records for PAL that purport to exclude Boldt as an owner of PAL and give 100% of PAL to Burns and Miller. Upon information and belief, the revised corporate records were backdated to make them appear legitimate.” Second, Boldt claims that “Burns’ above-described wrongful conduct was at the direction of or in concert with Mahoney, who has a history of engaging in unlawful and unethical conduct that is similar to the conduct complained of herein.”

Newgard’s affidavit states:

9. With regard to' another case that Mahoney was handling about two years ago, Mahoney told me he created approximately 60 companies for one of his clients who wanted to use the companies as a means to funnel money through in order to avoid paying so much money in taxes. Mahoney told me to incorporate these companies for him. I told him that I was concerned about this, since I did not want to be the Incorporator, and I knew nothing about the same. He told me that my name would only be listed as the Incorporator until the Articles of Incorporation were formed, at which time, my name would be replaced by the Officers of the companies. So, I incorporated the companies, relying on Maho-ney’s experience and knowledge. Maho-ney then asked me if I would call the IRS and say that I was an officer of these companies. However, I felt very uncomfortable with Mahoney’s request and I told him that I could not lie to the IRS, as I was not. an officer of the companies. That made him very angry with me, and his face turned bright red and he started yelling at me because I would not do what he asked of me. Because I would not do this, Mahoney, Burns, and Miller then had to make several phone calls to the IRS and state that they were officers of the companies in order to get federal identification numbers for all of the companies because they needed the numbers by that afternoon.
10. * * * Miller stated to me that she was the owner and manager of Shamrock. * * * One time, I heard Miller and Mahoney discussing the fact that Miller had applied, but was turned down, for a home mortgage because she had too much debt. As a result, Miller’s credit score was not high enough to qualify. Mahoney suggested a plan to improve Miller’s credit score by having Miller transfer some of her personal debt to Shamrock to make it appear as a legitimate business debt and to make it appear that Miller had less personal debt. Mahoney stated that this would make Miller’s credit score appear better. I believe that Miller went along with Mahoney’s plan and transferred some of her personal debt to Shamrock. Miller then applied and was approved for a mortgage.

Newgard maintains that her entire affidavit was pertinent to and related to the Boldt v. Burns litigation. Specifically, Newgard contends that paragraph nine is relevant to Boldt’s allegation that Maho-ney had encouraged wrongful conduct against her and that Mahoney had a history of unlawful and unethical conduct and that paragraph ten is pertinent because it establishes Miller’s ownership status in PAL.

Appellant contends that the court of appeals did not. examine Newgard’s statements in relation to the Boldt v. Burns litigation. It argues that eight of the eleven paragraphs in Newgard’s affidavit are wholly irrelevant. Specifically, appellant notes that paragraph nine references the formation of corporate entities, and paragraphs ten and eleven discuss individuals and corporations not parties to the Boldt v. Bums litigation.

Absolute privilege is not designed to provide blanket protection for any statement made within the course of litigation. Matthis requires that the statement made be relevant in order to receive protection. But we also do not expect nonparty witnesses to understand which of their statements may be relevant to the litigation. Absolute privilege exists to encourage witnesses to engage in open dialogue without the fear of facing civil liability for their acts. See Bol, 561 N.W.2d at 148; Matthis, 243 Minn. at 225, 67 N.W.2d at 418. Therefore, in the context of absolute privilege, relevance is defined broadly, not limiting the privilege to statements that are “legally relevant” but permitting all statements that have reference, relation, or connection to the case. Matthis, 243 Minn. at 225, 67 N.W.2d at 418.

In this case we must determine whether Newgard’s statements were relevant to the Boldt v. Burns litigation, which was the suit for which Newgard’s affidavit was prepared. Paragraphs 38 and 43 of Boldt’s complaint allege that Mahoney aided Burns in backdating corporate records and that Burns’ wrongful conduct toward Boldt was done at the direction of Mahoney, who had previously engaged in unlawful and unethical conduct. Newgard’s statements in paragraphs nine and ten of her affidavit suggest that Mahoney had encouraged Miller to transfer personal debts to a corporation owned by her, incorporated numerous corporations to help a client avoid tax liability, and obtained tax identification numbers without completing the proper paperwork.

As we stated in Matthis, we do not determine whether a statement is relevant by asking whether Newgard’s statements are “legally relevant.” Rather, we look to see if the statement has a connection to the case before the court, keeping in mind that any doubts about the relevance of the statement are resolved in favor of relevancy and pertinency. Matthis, 243 Minn. at 225, 67 N.W.2d at 418. We do not need to determine whether these statements are true; we only need to determine if New-gard’s statements were related to Boldt’s allegations that Mahoney assisted Burns in excluding Boldt from PAC and PAL. New-gard’s affidavit suggests that Mahoney may have previously engaged in potentially improper conduct and encouraged or assisted others in doing the same. We disagree with Newgard’s contention that paragraph ten of her affidavit is relevant for the purpose of establishing Miller’s ownership interest in PAL. Even under the broad standard of relevance utilized in cases of absolute privilege, we do not believe that Miller’s actions with regard to Shamrock are relevant for establishing Miller’s ownership interest in PAL. But we do conclude that, like paragraph nine of Newgard’s affidavit, paragraph ten is relevant to establish that Mahoney may have engaged in unethical and unlawful conduct and that he had assisted Burns in doing the same. Therefore, we conclude that Newgard’s statements have reference and relation to the subject matter of the Boldt v. Burns litigation and that they are relevant.

II.

We must next determine if appellant’s claims against Newgard are the types of claims barred by absolute privilege. Appellant contends that absolute privilege should not apply in this situation because Newgard breached the attorney-client privilege and the public policy interests in protecting the attorney-client privilege should supersede the public policy interest in encouraging witnesses to participate in the judicial process.

We have said that public policy favors the application of absolute privilege because absolute privilege seeks to encourage witnesses to participate in judicial proceedings so that the search for truth may be fruitful. Matthis, 243 Minn. at 223, 67 N.W.2d at 417; see also Briscoe v. LaHue, 460 U.S. 325, 332-33, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (“ ‘[T]he claims of the individual must yield to the dictates of public policy, which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible.’ ”) (quoting Calkins v. Sumner, 13 Wis. 193, 197 (1860)). If public policy dictates that testimony by a witness is protected by absolute privilege as against a defamation claim, the same policy may be served through application of the privilege to bar all legal claims based on that same testimony.

Before applying absolute privilege, we look to see if there are competing policy interests that would counsel against application of the privilege. See Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawai’i 149, 73 P.3d 687, 697 (2003) (noting that the general public interest in encouraging zealous advocacy as part of the search for truth “is counterbalanced by the need to adequately punish and discourage [litigation] misconduct”). A separate duty of a witness to remain silent, grounded for example in the attorney-client privilege, might be a reason the public policy analysis would weigh against application of the absolute privilege doctrine. We have no such situation here. Although count I in the complaint is titled “breach of confidences,” there is nothing in Newgard’s affidavit that can properly be viewed as information protected by the attorney-client privilege. See Kobluk v. Univ. of Minn., 574 N.W.2d 436, 440-42 (Minn.1998) (noting that not all information communicated to an attorney is protected by attorney-client privilege, but only that information which is communicated for the purpose of obtaining legal advice). Thus, Newgard’s duty to protect confidential client information is not at issue here.

Instead, we must determine whether Newgard’s statements sound in defamation. We have held that absolute privilege applies to defamatory statements made by witnesses in judicial proceedings and that absolute privilege protects witnesses from lawsuits based on statements made during judicial proceedings. Jenson, 273 Minn. at 393, 141 N.W.2d at 490. Absolute privilege also bars claims sounding in defamation — that is claims where the injury stemmed from and grew out of the defamation. See Zagaros v. Erickson, 558 N.W.2d 516, 523 (Minn.App.1997) (applying witness immunity where the negligence claim was so intertwined with defamatory statements that the court did not expect the jury to distinguish between the two); Freier v. Indep. Sch. Dist. No. 197, 356 N.W.2d 724, 733 (Minn.App.1984) (holding that “defamation and emotional distress are merely two different labels for the same alleged tort in this case, and that the doctrine of absolute privilege applies with equal force to both claims.”); Pinto v. Internationale Set Inc., 650 F.Supp. 306, 309 (D.Minn.1986) (“[I]n Minnesota, a plaintiff cannot elude the absolute privilege by relabeling a claim that sounds in defamation.”); cf. Wild v. Rarig, 302 Minn. 419, 446-47, 234 N.W.2d 775, 793 (1975) (concluding that where a wrongful interference with business relationships claim stemmed from and grew out of the defamation as in a defamation claim, both actions were governed by the statute of limitations for defamation).

Appellant argues that absolute privilege may only be applied in defamation cases, and since none of appellant’s claims sound in defamation, the privilege is precluded here. Newgard maintains that absolute privilege should be broadly applied and should not be limited only to claims sounding in defamation.

In its complaint against Newgard, the appellant alleges that Newgard “conspired * * ⅜ to do as much harm and damage as possible to [appellant]” and that New-gard’s affidavit contains “false statements.” The appellant alleges that these “false statements” are

1) specific statements regarding a client’s communication and instructions to set up a series of corporations that Newgard falsely claims was to engage in funneling money through a series of companies to avoid taxes; 2) specific statements about a client’s communications regarding credit cards; and 3) a client’s specific communications and information regarding issues of ownership interests of that client.

(Emphasis added.) In their invasion of privacy and civil conspiracy claims, appellant further alleges that Newgard “placed [the firm] in a false and defaming position in the public.” (Emphasis added.)

Defamation is a statement that (1) is false, (2) communicated to someone other than the plaintiff, and (3) harms the plaintiffs reputation or esteem in the community. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980). Although appellant frames its claims as breach of confidences, invasion of privacy, and civil conspiracy, the basis of appellant’s complaint is that Newgard made false statements when she knew that those statements would harm the firm. Regardless of the label, appellant’s claims are in essence defamation claims; they are claims that arise as a consequence of New-gard’s purported defamatory statements. Since we determine that appellant’s claims for breach of confidences, invasion of privacy, and civil conspiracy sound in defamation, we need not reach the question of whether absolute privilege applies to claims not sounding in defamation, and we find that absolute privilege operates to bar all of the claims at issue on this appeal.

The decision of the court of appeals is affirmed.

      . The complaint also alleged that Newgard wrongfully obtained $2,000 of the firm's money. The court of appeals concluded that absolute privilege did not apply to the monetary claim, and this issue is not before the court.

      . Newgard actually used the phrase “judicial immunity.” However, “absolute privilege and immunity are often used interchangeably * ⅝ * kut ^gy are jjjffej-ejjt legai concepts and should not be confused. Perhaps the reason absolute privilege is sometimes referred to as an immunity is because it has the effect of making the publisher of a defamatory statement immune from suit.” Bol v. Cole, 561 N.W.2d 143, 147 (Minn.1997). Both parties and the court of appeals have utilized the term "judicial immunity” or "witness immunity.” Matthis v. Kennedy, 243 Minn. 219, 67 N.W.2d 413 (1954), utilizes the term "absolute privilege,” and we will refer to it as such.


source: Caselaw Access Project

author: MARING, Justice. KAPSNER, Justice,

license: Public Domain

text:
    2007 ND 46
    GRATECH COMPANY, LTD., Plaintiff, Appellant and Cross-Appellee v. WOLD ENGINEERING, P.C., Defendant, Appellee and Cross-Appellant.
    No. 20060272.
    Supreme Court of North Dakota.
    March 27, 2007.

      Ronald G. Schmidt of Schmidt, Schroyer, Moreno, Lee & Bachand, P.C., Rapid City, S.D., for plaintiff, appellant and cross-appellee.
    Collin P. Dobrovolny of McGee, Hankla, Backes & Dobrovolny, Minot, N.D., for defendant, appellee and cross-appellant.
   MARING, Justice.

[¶ 1] Gratech Company, Ltd., (“Gra-tech”) appeals the district court’s judgment confirming an arbitration award in favor of Wold Engineering, P.C., (“Wold”) and against Gratech. Wold cross-appeals that part of the district court’s judgment denying it attorney’s fees. We hold that the district court’s order confirming the arbitration award was proper because the arbitration award was neither completely irrational nor evidenced a manifest disregard for the law. We hold that a district court must provide its rationale for its decision on a request for attorney’s fees so that this Court can properly review whether there was an abuse of discretion. Therefore, we affirm the district court’s judgment confirming an arbitration award in favor of Wold, and reverse and remand that part of the judgment denying Wold attorney’s fees for the district court to explain its reasoning.

I

[¶ 2] Gratech entered into a contract with the North Dakota Department of Transportation (“NDDOT”) on August 18, 1997, to work on U.S. Highway 281 in Rolette County. Wold entered into a subcontract with the NDDOT on April 9,1998, to perform engineering work on the U.S. Highway 281 project.

[¶ 3] Gratech encountered poor soil conditions, which required additional sub-cutting, plowing, discing, and drying of the soil. Gratech requested additional compensation from the NDDOT. When the NDDOT denied Gratech’s claim for additional compensation, Gratech filed a demand for arbitration. The arbitration panel concluded Gratech’s failure to file a written notice of claim precluded arbitration of all but one of Gratech’s claims against the NDDOT. This Court, in Gratech Co. v. North Dakota Dep’t of Transp., 2004 ND 61, 676 N.W.2d 781, affirmed a judgment dismissing Gratech’s application to vacate the arbitration panel’s decision. In Gratech Co. v. North Dakota Dep’t of Transp., Gratech asked this Court to adopt a de novo standard of review for questions of law in a statutorily-mandated arbitration. Id. at ¶¶ 10, 12. This Court decided it was unnecessary to resolve the issue because the arbitration panel correctly decided the issue regardless of the standard used. Id. at ¶ 13.

[¶ 4] In a complaint against Wold dated April 11, 2002, Gratech alleged breach of duty, bad faith, misconstruction of a contract, negligent misrepresentation, and deceit. Gratech, in its complaint, claimed Wold, contrary to the contract, classified plowing, discing, and drying as unplanned subcuts, or incidental work, and refused to pay for them. Purportedly unknown to Gratech, at the beginning of the project Wold classified the unstable soils encountered during the project as unsuitable. Gratech contended Wold threatened liquidated damages if the project was not completed on time, even though Wold knew of the conditions that delayed the project. Gratech claimed Wold ordered and directed a substantial amount of uncompensated extra work.

[¶ 5] Wold answered on May 16, 2002, seeking dismissal of Gratech’s complaint, attorney’s fees, and a jury trial. On February 18, 2003, Wold moved for summary judgment, claiming Gratech’s claims were barred by res judicata or collateral estop-pel, or alternatively, Gratech was required to arbitrate all claims. Gratech moved for partial summary judgment on liability. The district court granted Wold’s motion and denied Gratech’s motion. In Gratech Co. v. Wold Engineering, P.C., 2003 ND 200, ¶ 25, 672 N.W.2d 672, this Court held that N.D.C.C. § 24-02-26 required Gra-tech to arbitrate its claims against Wold.

[¶ 6] Subsequently, Gratech filed a demand for arbitration against Wold. On April 7, 2005, Wold moved for summary disposition of the arbitration proceedings based on res judicata, collateral estoppel, statute of limitations, and exclusivity of remedy. The motion was denied by the arbitrator, although he found Wold had satisfied the second, third, and fourth elements of collateral estoppel. The arbitrator determined the first element of collateral estoppel had not been established, as a matter of law and, therefore, required an evidentiary hearing. Following a four day hearing, on January 11, 2006, the arbitrator awarded Gratech nothing on its claims against Wold, but awarded Wold costs. In his explanation of the award, the arbitrator stated that the claim was barred by res judicata and collateral estoppel. The arbitrator found that “the facts giving rise to Gratech’s claim in the first arbitration against ND/DOT are the same in this, the second arbitration.”

[¶ 7] On January 13, 2006, Gratech moved to vacate the arbitration award and sought a new arbitrator. Wold moved to have the arbitration award confirmed. On September 13, 2006, the district court denied Gratech’s motion to vacate the arbitration award. The district court entered judgment confirming the arbitrator’s award in favor of Wold, but denying Wold’s request for attorney’s fees. Gra-tech appeals the district court’s judgment confirming the arbitration award and Wold cross-appeals that part of the district court’s judgment denying it attorney’s fees.

II

[¶ 8] Gratech argues the district court’s judgment confirming the arbitration award in favor of Wold should be reversed and the arbitration award vacated because the arbitration award was completely irrational, or alternatively, evidences a manifest disregard for the law. This Court has said before, “without a transcript, we would not be able to conduct a meaningful review of the ... factual findings.” Superpumper, Inc. v. Nerland Oil, Inc., 2003 ND 33, ¶ 17, 657 N.W.2d 250. “The appellant assumes the consequences and the risk for the failure to file a complete transcript. If the record on appeal does not allow for a meaningful and intelligent review of alleged error, we will decline review of the issue.” Id. This Court, in Superpumper, reviewed the issue under the limited record, because a transcript was not provided. Id. at ¶ 18. In this case, there is not a transcript of the arbitration proceeding. Gratech, as the appellant, assumed the consequences and risk for failing to file a complete transcript. This Court’s ability to administer a meaningful and intelligent review is severely-hindered by the incomplete record available on appeal. This Court, therefore, reviews the issues under the limited record provided.

[¶ 9] Gratech relies on N.D.C.C. § 32-29.3-23 to support its claim that the arbitration award should be vacated.

1. Upon motion to the court by a party to an arbitration proceeding, the court shall vacate an award made in the arbitration proceeding if:
d. An arbitrator exceeded the arbitrator’s powers;
3 .... If the award is vacated on a ground stated in subdivision ... d ... of subsection 1, the rehearing may be before the arbitrator who made the award or the arbitrator’s successor.

N.D.C.C. § 32-29.3-23.

[¶ 10] In Nelson Paving Co. v. Hjelle, 207 N.W.2d 225, 234 (N.D.1973), this Court, after considering decisions from other jurisdictions, adopted the rule that an arbitration award will not be vacated unless the award is completely irrational. An arbitration award is only vacated “if it is completely irrational, in that the decision is either mistaken on its face or so mistaken as to result in real injustice or constructive fraud. An arbitrator’s mistake as to fact or law is not a sufficient ground for overturning an arbitration award.” John T. Jones Construction Co. v. City of Grand Forks, 2003 ND 109, ¶ 9, 665 N.W.2d 698 (citation omitted). “Arbitrators, acting under the authority granted to them by a contract or statute, unless expressly limited by the terms of the contract or statute, are the judges of both the law and the facts.” State v. Gratech Co., 2003 ND 7, ¶ 12, 655 N.W.2d 417.

[¶ 11] In Scherbenske Excavating, Inc. v. North Dakota State Highway Dep’t, 365 N.W.2d 485, 487-88 (N.D.1985), this Court discussed the completely irrational standard by reviewing other courts’ analyses. “ ‘As long as the award “draws its essence” from the contract, and is based upon a “passably plausible” interpretation of the contract, it is within the arbitrator’s authority and our review must end.’ ” Id. at 487 (quoting Rhode Island Council 94 v. State, 456 A.2d 771, 773 (R.I.1983)). “Yet another explanation of the completely irrational standard of review is that an arbitrator exceeds his powers when he gives a completely irrational construction to the agreement in dispute, thereby effectively creating a new contract between the parties.” Scherbenske, 365 N.W.2d at 487-88 (citing Sweeney v. Herman Mgmt., Inc., 85 A.D.2d 34, 447 N.Y.S.2d 164, 168 (N.Y.App.Div.1982)). “[T]he definitive constituents of a completely irrational award cannot be formulated in the abstract but, ... can best be developed on a case-by-case basis.” Scherbenske, 365 N.W.2d at 488.

Obviously, the effect of applying the clearly irrational standard of review is to give to the arbitrators every benefit of every doubt. It affords them the widest latitude to exercise their authority and arrive at their decision without the customary restraints of traditional judicial review. It is but a reflection of the strong public policy favoring the arbitration process. We find no reasons compelling or persuasive enough to warrant revising the completely irrational standard of review and therefore we decline to overrule or modify Nelson Paving.

Scherbenske, 365 N.W.2d at 489.

[¶ 12] The Court of Appeals for the Eighth Circuit has adopted an expanded standard of review. “We have allowed that, beyond the grounds for vacation provided in the [Federal Arbitration Act], an award will only be set aside where it is completely irrational or evidences a manifest disregard for the law.” Hoffman v. Cargill Inc., 236 F.3d 458, 461 (8th Cir.2001). “These extra-statutory standards are extremely narrow: An arbitration decision may only be said to be irrational where it fails to draw its essence from the agreement, and an arbitration decision only manifests disregard for the law where the arbitrators clearly identify the applicable, governing law and then proceed to ignore it.” Id. at 461-62. “Any disregard must be made clearly to appear.... ” Lincoln Nat’l Life Ins. Co. v. Payne, 374 F.3d 672, 674 (8th Cir.2004). “[T]here must be some evidence in the record, other than the result, that the arbitrators were aware of the law and intentionally disregarded it.” Id. at 675. “Manifest disregard requires something more than a mere error of law. If an arbitrator, for example, stated the law, acknowledged that he was rendering a decision contrary to law, and said that he was doing so because he thought the law unfair, that would be an instance of ‘manifest disregard.’ ” Id.

[¶ 13] “Arbitration is not a perfect system of justice, nor [is it] designed to be.” Hoffman, 236 F.3d at 462. “Where arbitration is contemplated the courts are not equipped to provide the same judicial review given to structured judgments defined by procedural rules and legal principles. Parties should be aware that they get what they bargain for and that arbitration is far different from adjudication.” Id.

[¶ 14] Gratech argues the arbitrator manifestly disregarded the law on collateral estoppel. “Collateral estoppel bars relitigation of issues which were necessarily litigated and decided, or which by implication must have been litigated and decided, in a prior action.” Riverwood Commercial Park v. Standard Oil Co., 2007 ND 36, ¶ 20. “Historically, collateral estoppel was limited by the principle of mutuality, which means that a judgment can operate as collateral estoppel only where all the parties to the proceeding in which the judgment is relied upon were bound by the judgment.” Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 384 (N.D.1992). “Although the principle of mutuality has been abandoned in numerous jurisdictions, this Court has applied the mutuality rule as a prerequisite to the application of collateral estoppel.” Id. (citation omitted).

Four tests must be met before collateral estoppel will bar relitigation of a fact or issue involved in an earlier lawsuit: (1) Was the issue decided in the prior adjudication identical to the one presented in the action in question?; (2) Was there a final judgment on the merits?; (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?; and (4) Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue?

Id.

“[0]nly parties or their privies may take advantage of or be bound by the former judgment.” Id. “In general, privity exists if a person is so identified in interest with another that he represents the same legal right.” Id. “Fundamental fairness underlies any determination of privity.” Id.

[¶ 15] Gratech contends we should adopt the standard of review adopted by the Court of Appeals for the Eighth Circuit. This case is not one in which this Court needs to address a change in the applicable standard of review because under either the completely irrational standard or the manifest disregard for the law standard, we would affirm the district court’s judgment confirming the arbitration award in favor of Wold. First, the arbitrator did not act in a completely irrational manner. The arbitration award was not so mistaken that it resulted in real injustice or constructive fraud. Further, the arbitrator’s decision did not evidence a manifest disregard for the law. The arbitrator stated the correct law and applied it as he understood it. There is nothing in the record we have that evidences the arbitrator knew the law and intentionally disregarded the law. Even if the arbitrator was mistaken as to the application of the law of collateral estoppel, it would not meet either standard. We therefore leave for another day the decision whether to adopt the manifest disregard for the law standard when the question is one of law. Additionally, in Gratech Co. v. Wold Engineering, P.C., 2003 ND 200, 672 N.W.2d 672, this Court remanded under the completely irrational standard.

Ill

[¶ 16] Wold cross-appeals, arguing that the district court improperly denied its request for attorney’s fees without any explanation. Wold contends that the district court’s judgment should be remanded as it pertains to attorney’s fees so that the district court can provide an explanation for its decision to deny attorney’s fees, or if appropriate, award attorney’s fees.

[¶ 17] A successful litigant is not entitled to attorney’s fees unless they are expressly authorized by statute or by agreement of the parties. In re Estate of Lutz, 2000 ND 226, ¶ 33, 620 N.W.2d 589; see N.D.C.C. § 32-29.3-21(2). Wold moved for attorney’s fees under N.D.C.C. § 32-29.3-25(3), which establishes the awarding of attorney’s fees under the Uniform Arbitration Act:

•On application of a prevailing party to a contested judicial proceeding under section 32-29.3-22, 32-29.3-23, or 32-29.3-24, the court may add reasonable attorney’s fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment confirming, vacating without directing a rehearing, modifying, or correcting an award.

This section specifically provides that a district court may award attorney’s fees incurred in a judicial proceeding. In this case, the district court had the discretion to award or not award attorney’s fees to Wold.

[¶ 18] This Court reviews a district court’s decision regarding attorney’s fees under the abuse of discretion standard. City of Medora v. Golberg, 1997 ND 190, ¶ 18, 569 N.W.2d 257. A district court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner, or if it misinterprets or misapplies the law. Id.

[¶ 19] Whether this Court reviews the reasonableness of attorney’s fees under Rule 52 of the North Dakota Rules of Civil Procedure or under the abuse of discretion standard, facts are required. City of Bismarck v. Thom, 261 N.W.2d 640, 647 (N.D.1977). “Where no evidence [is] introduced and where the trial court [makes] no specific findings of fact to support its determination on attorney fees, it is impossible for this Court on appeal to appropriately review the decision (determination) of the trial court.” Id. In Farmland Mut. Ins. Co. v. Farmers Elevator, Inc., 404 N.W.2d 473, 479 (N.D.1987), the trial court did not provide reasons for its award of attorney’s fees. This Court remanded the issue of attorney’s fees “for the trial court to make a redetermination which [was] based upon an expressed rationale.” Id.

[¶ 20] Here, the district court made no findings of fact to support its denial of attorney’s fees. Without an explanation, this Court is unable to determine whether the district court abused its discretion in denying Wold attorney’s fees because the district court has not provided a rationale for its decision. Therefore, the district court’s order denying Wold attorney’s fees is remanded so the court can redetermine attorney’s fees based on an expressed rationale. See Farmland Mut. Ins. Co., 404 N.W.2d at 479.

IV

[¶ 21] We affirm the district court’s judgment confirming the arbitration award in favor of Wold and reverse and remand for a redetermination of attorney’s fees based on an expressed rationale.

[¶ 22]STEVEN L. MARQUART, D.J., and DANIEL J. CROTHERS, J.

[¶ 23] The Honorable STEVEN L. MARQUART, D.J., sitting in place of Chief Justice GERALD W. VANDE WALLE, disqualified.

KAPSNER, Justice,

concurring in part and dissenting in part.

[¶24] I join in the majority’s affir-mance of the district court’s judgment confirming the arbitrator’s award. I would also affirm the district court’s denial of attorney fees. Section 32-29.3-25(3), N.D.C.C., provides:

On application of a prevailing party to a contested judicial proceeding under section 32-29.3-22, 32-29.3-23, or 32-29.3-24, the court may add reasonable attorney’s fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment confirming, vacating without directing a rehearing, modifying, or correcting an award.

The award of attorney fees to a prevailing party is not mandatory, but discretionary, under this statute. In the cases cited by the majority, attorney fees were awarded in litigation, either for unexplained or inappropriate reasons, or the awards were measured by inappropriate standards. City of Medora v. Golberg, 1997 ND 190, ¶ 22, 569 N.W.2d 257; Farmland Mut. Ins. Co. v. Farmers Elevator, Inc., 404 N.W.2d 473, 479 (N.D.1987); City of Bismarck v. Thom, 261 N.W.2d 640, 647 (N.D.1977). Here, the court awarded no attorney fees. The matter was before the court only as the culmination of an arbitration proceeding. There are two significant differences. First, no award was made so there can be no explanation as to why an award was made or how the amount of the award was computed. Second, this is essentially an arbitration matter. It makes little sense to impose strict litigation standards only in the concluding phases when parties have used an alternative method as the primary means to resolve their dispute, especially when we review the arbitration award under the completely irrational standard of review.

[¶ 25]DALE V. SANDSTROM, J., agrees.


author: GILBERTSON, Chief Justice.

text:
    2007 SD 17
    Ed SAZAMA, Plaintiff, Respondent and Appellant, v. STATE of South Dakota, ex rel., Dawn MUILENBERG, Defendant, Petitioner and Appellee.
    No. 23959.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2006.
    Decided Feb. 21, 2007.

      Thomas E. Alberts, Avon, South Dakota, Attorney for plaintiff, respondent and appellant.
    Lawrence E. Long, Attorney General, Pierre, South Dakota, Douglas R. Kettering, Special Assistant Attorney General, Yankton, South Dakota, Attorneys for defendant, petitioner and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Ed Sazama (Sazama) appeals a judgment of contempt for failure to pay child support. Sazama also appeals an order imposing ten days in jail for each month that he fails to pay child support upon the filing of an affidavit of failure to pay. We affirm in part and reverse and remand in part.

FACTS AND PROCEDURE

[¶ 2.] Sazama and Dawn Muilenberg (Muilenberg) had two children during their relationship. After the breakup of their relationship in 1997, a court order dated March 4, 1998, decreed that the children would reside with Muilenberg and Sazama was ordered to pay child support in the amount of $386.00 per month beginning November 1, 1997. The order also required Sazama to pay $256.00 per month for child care expenses and an additional $50.00 per month in arrearages.

[¶ 3.] After the 1997 breakup, Sazama moved to Colorado and obtained employment. His wages were garnished to pay the child support order until 2000 when he was injured and was no longer working. Sazama became homeless and lived on the streets in Colorado until he moved back to South Dakota sometime in 2002. Upon returning to South Dakota, he remained homeless and lived on the streets in Yank-ton for approximately eighteen months until he moved in with his girlfriend. He lived with his girlfriend for approximately another eighteen months prior to this appeal. Sazama claims to be an alcoholic and unable to control his drinking.

[¶ 4.] Muilenberg moved from South Dakota to Nebraska to be closer to her family after the child support judgment and order were entered. She did receive some child support from Sazama while living in Nebraska. However, by the time of the contempt proceeding, Sazama had paid a total of $2,624.88 in 1997; $589.55 in 2001; $255.20 in 2002; and $126.00 in 2004 in child support, and had arrearages totaling $49,224.81 while Muilenberg was domiciled in Nebraska. Muilenberg returned to South Dakota in 2003. Child Support Enforcement records indicate Sazama failed to make any payments during the eight months Muilenberg lived in South Dakota before filing the present action.

[¶ 5.] In August 2005, the State of South Dakota began contempt proceedings against Sazama, who was served with an order to show cause based on an affidavit of arrearages executed by Joan Gudahl, Officer of Child Support Enforcement (Gu-dahl). The affidavit showed that Sazama had accrued child support arrearages in the amount of $62,064.81 from September 1, 1996 through August 2005. Child Support Enforcement records indicated that Sazama failed to make any payments for the support of his children commencing July 2003 through August 2005.

[¶ 6.] Counsel was appointed for Saza-ma, and a hearing was held on the matter on November 9, 2005. Sazama testified that he had begun working for BP Painting on October 10, 2005, and prior to that had done yard work and odd jobs for cash in 2004 and 2005. He also testified that he had applied for and been denied Social Security disability income, which was denied due to the agency’s assessment that he had some ability to work. Sazama further testified he was aware he had a child support obligation payable to Muilenberg and believed it to be somewhere in the range of $300 per month, although he testified the State of Colorado had garnished approximately $200 per week during his employment in 1999 and 2000. Sazama presented no legal excuse for his failure to pay child support during the time he was employed or unemployed. Instead, he conceded that he did not make any attempt at payment after leaving Colorado, offering as his reason that he did not know where Muilenberg was living.

[¶ 7.] The circuit court found Sazama was aware of the child support order, failed to comply with the order, and had no legal excuse for non-compliance. It also found he had the ability to provide for his children but failed to do so, and found him in contempt of court for failure to pay child support. The circuit court sentenced Sa-zama to ten days in the Bon Homme County Jail beginning the first of each month if he failed to pay the child support for the previous month. It entered a judgment effective through October 27, 2005, in the amount of $62,783.63 and informed Sazama he could purge himself of the contempt by making his required monthly payments as determined based on his monthly income. The court also noted that it believed Saza-ma was using his alcoholism as an excuse not to work, and that he needed to seek assistance with his addiction and maintain employment. The circuit court entered findings of fact and conclusions of law consistent with its oral rulings.

[¶ 8.] Sazama appeals, raising three issues for this Court’s review:

1. Whether the circuit court had jurisdiction of the civil contempt proceedings when the affidavit in support of the show cause order did not include the necessary jurisdictional allegations.
2. Whether the circuit court erred when it found Sazama had knowledge of an order, the ability to comply with the order, and that he had willfully or contumaciously disobeyed the order.
3. Whether the circuit court’s order setting the penalty for continued disobedience violated Sazama’s due process rights when the penalty imposed did not provide a method for Sazama to purge himself of the contempt.

STANDARD OF REVIEW

[¶ 9.] “The issue of jurisdiction may be raised at any time and is reviewed by this [C]ourt de novo.” Wold Family Farms, Inc. v. Heartland Organic Foods, Inc., 2003 SD 45, ¶ 12, 661 N.W.2d 719, 723 (citing Devitt v. Hayes, 1996 SD 71, ¶ 6, 551 N.W.2d 298, 300). A circuit court’s remedy or punishment for contempt of court is reviewed under the abuse of discretion standard. Id. (citing Harksen v. Peska, 2001 SD 75, ¶ 10, 630 N.W.2d 98, 101). However, when a claim asserts a violation of a constitutional right, our standard of review is de novo. State v. Ball, 2004 SD 9, ¶ 21, 675 N.W.2d 192, 199 (citing State v. Hodges, 2001 SD 93, ¶ 8, 631 N.W.2d 206, 209). “We review the circuit court’s conclusions of law under the de novo standard.” A-G-E Corp. v. State, 2006 SD 66, ¶ 13, 719 N.W.2d 780, 785 (citations omitted). We review the circuit court’s findings of fact under the clearly erroneous standard. Keller v. Keller, 2003 SD 36, ¶ 8, 660 N.W.2d 619, 622 (quoting Harksen, 2001 SD 75, ¶ 9, 630 N.W.2d at 101).

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the circuit court had jurisdiction of the civil contempt proceedings when the affidavit in support of the show cause order did not include the necessary jurisdictional allegations.

[¶ 11.] Our prior decisions have treated the failure to precisely plead all factual elements of contempt as a “jurisdictional” defect; ie., one that deprives the court of subject matter jurisdiction. Our seminal case of Thomerson v. Thomerson, underscored this premise stating that “[u]nless every material fact constituting the alleged violation is stated in the affidavit, the court has no jurisdiction.” 387 N.W.2d 509, 513 (S.D.1986) (citation omitted). Thomer-son’s statement comes from a line of authorities originating in 1871. In our view these cases are inconsistent with current understandings of notice pleading and subject matter jurisdiction. Having reconsidered this matter, we now discontinue the practice of attaching “jurisdictional” consequences to technical pleading deficiencies in pleadings seeking civil contempt.

[¶ 12.] Thomerson is based upon Simmons v. Simmons, 66 S.D. 76, 80, 278 N.W. 537, 539 (1938) (citing In re Solberg, 51 S.D. 246, 213 N.W. 9 (1927); Freeman v. City of Huron, 8 S.D. 435, 66 N.W. 928 (1896); State v. Sweetland, 3 S.D. 503, 54 N.W. 415 (1893)). The jurisdictional language at issue originated in Sweetland’s statement that the affidavit must “ ‘show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized....’” 3 S.D. at 506, 54 N.W. at 416 (quoting Batchelder v. Moore, 42 Cal. 412, 414-15 (1871)) (citations omitted). The cases following Sweetland expanded this jurisdictional language to require that every material fact constituting the alleged contempt must be in the affidavit or the court has no jurisdiction. Thomerson, 387 N.W.2d at 513 (citation omitted).

[¶ 13.] However, this jurisdictional analysis does not reflect modern notice pleading jurisprudence. Under SDCL 15-6-8(a), pleadings need only contain “(1) [a] short and plain statement of the claim showing that the pleader is entitled to relief; and (2)[a] demand for judgment. ...” Thus, “‘[u]nder the Rules[,] a case consists not in the pleadings, but the evidence, for which the pleadings furnish the basis. Cases are generally to be tried on the proofs rather than the pleadings.’ ” 5 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1182 (quoting De Loach v. Crowley’s Inc., 128 F.2d 378, 380 (5th Cir.1942)). That is because:

[T]he function of a pleading in [current] practice is to inform the opposing party and the court of the nature of the claims and defenses being asserted by the pleader and, in case of an affirmative pleading, the relief being demanded. ... The rules reflect a realization that the supposed effectiveness of pleadings in narrowing and defining the issues-a conception that characterized the common law and code procedural systems-is largely a myth, this function being more effectively performed by discovery, summary judgment, and pretrial conferences.

Id. (emphasis added). Thus, under modern pleading practice, pleadings need only reflect the nature of the claim asserted and the relief requested.

[¶ 14.] Similarly, subject matter jurisdiction is only dependent upon the nature of the proceeding and the relief sought. Subject matter jurisdiction is:

“a court’s competence to hear and determine cases of the general class to which proceedings in question belong; the power to deal with the general subject involved in the action ... deals with the court’s competence to hear a particular category of cases.”

State ex rel. Joseph v. Redwing, 429 N.W.2d 49, 51 (S.D.1988) (involving a case of contempt) (citation omitted). Thus, subject matter jurisdiction is not determined by technical pleading requirements but by “ ‘[t]he subject, or matter presented for consideration; the thing in dispute; the right which one party claims as against the other, as the right to divorce; ... [the njature of cause of action, and of relief sought....’” Redwing, 429 N.W.2d at 51 (citation omitted). Because South Dakota circuit courts are courts of general jurisdiction, they have the power to hear the class or category of cases seeking contempt for the contumacious failure to comply with child support orders. As this Court noted over 100 years ago, the “power ... to coerce obedience to [an] order of the ... court ... exists by reason of the inherent powers of that court, and not by reason of any express statutory authority.” In re Taber, 13 S.D. 62, 67, 82 N.W. 398, 400 (1900). Further, this power to hear cases of contempt includes the power to coerce compliance through punishment. There can be “ ‘no doubt that the power to punish for contempt is an inherent one, for, independent of legislation, it exists, and has always existed, in the courts of England and America.’ ” State v. Shumaker, 200 Ind. 623, 157 N.E. 769, 775 (1927) (quotation and citations omitted). For these reasons, the circuit court unquestionably had subject matter jurisdiction to consider this case involving civil contempt. See Redwing, 429 N.W.2d at 51.

[¶ 15.] Today’s decision, like that in an analogous case involving a criminal action recognizes that a jurisdictional inquiry in this context is not the correct one. In State ex rel. Engebritson v. Circuit Court for Grant and Day Counties, 69 S.D. 454, 457, 11 N.W.2d 659, 660 (1943), a defendant contended that a defective pleading (a failure to plead an essential element of a crime) deprived the court of subject matter jurisdiction. In rejecting that contention, this Court recognized:

The inquiry in such case is not whether the complaint contains such specific allegations as would make it good on demurrer or motion in arrest, but whether it describes a class of offenses of which the court has jurisdiction and alleges the respondent to be guilty.

Id. at 459, 11 N.W.2d at 661 (quoting Ex parte Turner, 92 Vt. 210, 102 A. 943, 946 (1918)) (citing In re Coy, 127 U.S. 731, 8 S.Ct. 1263, 32 L.Ed. 274 (1888)).

[¶ 16.] We recognize this distinction between pleading deficiencies and the subject matter jurisdiction of the circuit court in cases of contempt. We will now discontinue use of the “jurisdictional” language of Thomerson and its underlying authorities. Instead, we will only require that an affidavit or complaint simply relate sufficient facts to show that the nature of the case and the relief sought are matters involving indirect civil contempt. Of course, upon proper motion, a defectively pleaded affidavit is subject to dismissal for failure to state a claim. However, we will now cease to recognize technical pleading defects as generally jurisdictional in the sense that they deprive the circuit court of the power to consider the case.

[¶ 17.] Recognition of the distinction is significant in this case because Sazama appeared and tried the case on the merits without objecting to the sufficiency of the affidavit. Because Sazama acknowledges that his general appearance and failure to challenge the affidavit waives non-jurisdictional issues on appeal, he contends his pleading argument is jurisdictional. In so asserting, Sazama attempts to challenge an otherwise factually sufficient affidavit through an avenue of attack that is always available since a circuit court’s subject matter jurisdiction may be considered at any time. See supra ¶ 9 (citing Wold Family Farms, Inc., 2003 SD 45, ¶ 12, 661 N.W.2d at 723). However, as this opinion elucidates, technical defects in pleading all facts material to the alleged violation do not deprive the circuit court of subject matter jurisdiction to hear the case. In this case, the affidavit unquestionably established that the nature of the case and relief sought involved civil contempt, a class or category of cases over which the circuit court had the power to act. Therefore, Sazama’s pleading issues do not involve the circuit court’s subject matter jurisdiction. Because Sazama appeared generally and participated in the trial on the merits without objecting to the pleadings, he is now precluded from appealing non-jurisdictional pleading defects not raised below. See Taber, 13 S.D. at 71, 82 N.W. at 401 (noting that because an appellant made a general appearance in a contempt proceeding, he was not in position to assert that the court was without jurisdiction on appeal).

[¶ 18.] For all of the foregoing reasons, we now change our view of jurisdiction and technical pleading defects. We hereby limit the jurisdictional language in Wold Family Farms, Inc., 2003 SD 45, ¶ 20, 661 N.W.2d at 725; Thomerson, 387 N.W.2d at 513; Simmons, 66 S.D. at 80, 278 N.W. at 539; Solberg, 51 S.D. at 248, 213 N.W. at 10; Freeman, 8 S.D. at 439, 66 N.W. at 929; and Sweetland, 3 S.D. at 506-07, 54 N.W. at 416. Therefore, we decline to consider issue one alleging an insufficiency in the factual allegations of this affidavit.

[¶ 19.] 2. Whether the circuit court erred when it found Sazama had knowledge of an order, the ability to comply with the order, and that he had willfully or contumaciously disobeyed the order.

[¶ 20.] The duty to provide for one’s children is a parent’s first duty. Taecker v. Taecker, 527 N.W.2d 295, 298 (S.D.1995) (citing Donohue v. Getman, 432 N.W.2d 281 (S.D.1988)); see also SDCL 25-7-6.1. When a defendant advances the defense of inability to pay under the terms of a child support order, the burden of proof is on the defendant to establish the inability to fully comply and that any compliance was to the fullest extent possible. Id. (citing Talbert v. Talbert, 290 N.W.2d 862, 863 (S.D.1980); Bailey v. Bailey, 77 S.D. 546, 95 N.W.2d 533, 535 (S.D.1959)). “Self serving testimony alone is insufficient and corroboration is necessary to establish a defense that a party cannot pay [child support].” Thomerson, 387 N.W.2d at 513 (citing Rousseau v. Gesinger, 330 N.W.2d 522, 524 (S.D.1983) (noting the corroboration principle in a case where the defendant’s claim that the existence of factors, precluding his ability to pay alimony as ordered, were unsupported by any evidence)).

[¶ 21.]The circuit court found Sa-zama’s unemployment and alcoholism were voluntary conditions for which he had not sought treatment and assistance. The court also found that the denial of Social Security disability income was indicative of Sazama’s ability to work despite his claims to the contrary. Therefore, it concluded that Sazama’s inability to pay was voluntarily induced and found him to be in contempt of the 1997 child support order. The circuit court did not err when it concluded that Sazama was in willful and contumacious disobedience of the order.

[¶ 22.] 3. Whether the circuit court’s order setting the penalty for continued disobedience violated Sazama’s due process rights when the penalty imposed did not provide a method for Sazama to purge himself of the contempt.

[¶ 23.]Contempt can be classified as either criminal or civil in nature. Wold Family Farms, Inc., 2003 SD 45, ¶ 14, 661 N.W.2d at 723 (quoting Thomerson, 387 N.W.2d at 512). The purpose of the civil contempt proceeding is to force a party “to comply with orders and decrees issued by a court in a civil action for the benefit of an opposing party.” Id. (citation omitted). The nature of the sanction in a civil contempt proceeding is intended to be coercive in nature, as it seeks to compel “the person to act in accordance with the court’s order[,]” rather than to punish for past conduct. Id. (citation omitted).

[¶ 24.]In contrast, “[c]riminal contempt is a crime in an ordinary sense.” Int’l Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 2556, 129 L.Ed.2d 642 (1994) (quoting Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968)). Criminal contempt arises from spoken words or acts committed in the presence of the court during a proceeding, or when the court is in recess or adjourned that serve to “subvert, embarrass, or prevent the administration of justice.” Wold Family Farms, Inc., 2003 SD 45, ¶ 14, 661 N.W.2d at 723 (quoting Thomerson, 387 N.W.2d at 512). In a criminal contempt proceeding, the court imposes sanctions that serve to punish the contemnor for a past transgression against the authority or dignity of the court. Id. (citation omitted). Such criminal sanctions trigger constitutional protections, including the right to a jury trial when fixed, retrospective imprisonment is imposed, implicating liberty interests, or non-compensatory fines are imposed that the contemnor is unable to purge. Int’l Union, United Mine Workers of America, 512 U.S. at 829, 114 S.Ct. at 2558, 129 L.Ed.2d 642 (citations omitted).

[¶ 25.]Despite the obvious distinction in purpose, a civil contempt proceeding can result in incarceration when the contemnor refuses to comply with an order or decree of the circuit court, entered for the benefit of the opposing party. Wold Family Farms, Inc., 2003 SD 45, ¶ 14, 661 N.W.2d at 723 (quoting Thomerson, 387 N.W.2d at 512); see also Int’l Union, United Mine Workers of America, 512 U.S. at 829, 114 S.Ct. at 2558, 129 L.Ed.2d 642. However, for the incarceration to be coercive and the contempt proceeding to maintain a civil character, the incarceration cannot be for a definite period and can only be imposed on the contemnor until such time as he complies with the order or he demonstrates that compliance is impossible. Wold Family Farms, Inc., 2003 SD 45, ¶ 16, 661 N.W.2d at 724 (citing Thomerson, 387 N.W.2d at 514; Karras v. Gan non, 345 N.W.2d 854, 856 (S.D.1984)); see also Int’l Union, United Mine Workers of America, 512 U.S. at 828, 114 S.Ct. at 2558, 129 L.Ed.2d 642 (citations omitted).

[¶ 26.]Determining when the sanctions imposed in a contempt proceeding trigger the constitutional safeguards applicable in criminal proceedings can be a difficult task. Int’l Union, United Mine Workers of Am., 512 U.S. at 827, 114 S.Ct. at 2557, 129 L.Ed.2d 642. This is because civil and criminal sanctions may bear a superficial resemblance. Id. The analysis must extend beyond the intended or stated purpose of the court in imposing the sanctions and must include an examination of the character of the sanctions and the relief from the sanctions that is available to the contemnor. Id. at 828, 512 U.S. 821, 114 S.Ct. at 2557, 129 L.Ed.2d 642 (citations omitted).

[¶ 27.]A sanction will be civil and remedial in nature if it “coerces the defendant into compliance with the court’s order, or compensates the complainant for losses sustained.” Id. at 829, 114 S.Ct. at 2558, 129 L.Ed.2d 642 (citing United States v. Mine Workers, 330 U.S. 258, 303-04, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947)). Thus, the contemnor is said to “ ‘earr[y] the keys of his prison in his own pocket.’ ” Id. at 828, 114 S.Ct. at 2558, 129 L.Ed.2d 642 (quoting Campers v. Buck’s Stove & Range Co., 221 U.S. 418, 442, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911) (quoting In re Nevitt, 117 F. 448, 451 (8th Cir.1902))). However, “a fixed sentence of imprisonment is punitive and criminal in nature if it is imposed retrospectively for a ‘completed act of disobedience.’ ” Id. at 828, 114 S.Ct. 2552, 129 L.Ed.2d 642 (quoting Gompers, 221 U.S. at 443, 31 S.Ct. at 498, 55 L.Ed. 797) (emphasis added). In such instances, the contemnor is unable to avoid or shorten the confinement through later compliance, that is, the contemnor has no ability to purge the contempt. Id. Because the punishment is retrospective, it cannot have a forward looking coercive effect and is thus a criminal sanction for which constitutional safeguards must be followed. See id.

[¶28.] In the instant case, the order was imposed in a civil contempt proceeding. However, the court ordered that upon failing to pay child support in any given month, Sazama was required to serve the first ten days of the following month in the county jail. Sazama could not purge himself and be released even if he paid the prior month’s support shortly before or while he was incarcerated for the previous month’s violation. Therefore once imposed, the ten-day jail sentence has no coercive effect and cannot motivate Sa-zama to pay the previous month’s child support obligation. In addition, the ten-day jail sentence does not compensate Muilenberg for the monthly child support obligation. Consequently, the sanction imposed upon Sazama is criminal in nature rather than civil or coercive, and invokes the procedural safeguards relevant to criminal sanctions, including the right to trial.

[¶ 29.] Accordingly, we reverse the order of the circuit court and remand for the imposition of a civil sanction that is coercive in nature and from which Sazama may purge himself prior to its imposition. In the alternative, if the circuit court seeks to impose the same or a similar non-coercive sanction, we order the court to do so in compliance with the procedural due process requirements of a criminal trial.

[¶ 30.] Affirmed in part and reversed and remanded in part for further proceedings consistent with this opinion.

[¶ 31.JSABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . The South Dakota Child Support Enforcement records show nothing from July 2003 through August 2005, although the circuit court’s findings of fact reflect the $126.00 payment in 2004.

      . It can certainly be argued that Sweetland's quoted language did not require that every factual element of contempt must be pleaded for the court-to have subject matter jurisdiction to hear the case. In our view, this quoted language should only be taken to mean that the complaint must set forth sufficient facts to show that the nature of the case is one over which the court has the power to act. However, the quoted Sweetland language was expanded to unequivocally state that ''[ujnless every material fact constituting the alleged violation is stated in the affidavit, the court has no jurisdiction.” Thomerson, 387 N.W.2d at 513 (citation omitted). Stretched to this extent, Sweetland’s language is of dubious precedential value because it relies upon Batchelder, a California case interpreting a California statute that specifically required “an affidavit of the facts constituting the contempt....” 42 Cal. at 415. South Dakota has no comparable statutory requirement. In fact, as explained infra ¶ 17, South Dakota courts have inherent subject matter jurisdiction in cases of contempt.

      . For example, in Freeman, the affidavit failed to state a case of contempt, and the case was dismissed using jurisdictional language. 8 S.D. at 435, 66 N.W. at 929. However, in affirming the dismissal, Freeman extended Sweetland's language stating: "the court did not have jurisdiction to inquire into [the defendant’s] conduct, unless every material fact constituting the alleged violation is stated in the affidavit upon which the contempt proceeding is based.” 8 S.D. at 439, 66 N.W. at 929 (citing Sweetland, 3 S.D. 503, 54 N.W. 415).

        Solberg, which was based on Freeman (and Sweetland), continued this unduly expansive extrapolation. Like Freeman, Solberg stated "that the court has no jurisdiction to inquire into the conduct of parties charged with contempt, ‘unless every material fact constituting the alleged violation is stated in the affidavit upon which the contempt proceeding is based.' " 51 S.D. at 248, 213 N.W. at 10, 11 (citations omitted). Simmons merely reiterated the language of Freeman and Solberg. See, 66 S.D. at 80, 278 N.W. at 539.
      With regard to Solberg, it must be noted, that the contemnor had been arrested without any affidavit, complaint, or document invoking the court's jurisdiction. 51 S.D. at 247-48, 213 N.W. at 10. Therefore, the Court was merely stating that some jurisdictional document was required when the contempt was not committed in the presence of the court. The actual holding of the case was:
      Where the acts constituting the contempt are committed in the immediate presence of the court no affidavit or sworn complaint charging the acts is required, for the judge has personal knowledge of the acts. But where the acts relied upon as constituting the contempt are not committed in the presence of the court, such affidavit or sworn complaint is necessary to give the court jurisdiction to proceed in the matter.

        Id. at 248, 213 N.W. at 10.

      . See Christians v. Christians, 2001 SD 142, ¶ 45, 637 N.W.2d 377, 386 (Konenkamp, J., concurring specially) (citing SD Const Art V section 1) (stating that South Dakota's circuit courts have “general jurisdiction to hear all civil actions”).

      . The defendant argued:
      [I]n substance ... that the circuit court of Grant County was without authority to render judgment under this information purporting to charge petitioner with the crime. In support of his position, petitioner contend[ed] that the information fail[ed] to state a public offense in that an essential element of the crime of perjury [was] the materiality of the false testimony and it [was] contended the information show[ed] that the false testimony was not material to the question at issue in the trial where the false testimony was given.

        Engebritson, 69 S.D. at 457, 11 N.W.2d at 660.


author: SABERS, Justice.

text:
    2007 SD 20
    STATE of South Dakota, Plaintiff and Appellee, v. Nathaniel CRAWFORD, Defendant and Appellant.
    Nos. 24077, 24088.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2007.
    Decided Feb. 28, 2007.

      Lawrence E. Long, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    John R. Hinrichs, Office of the Minne-haha, County Public Defender, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Nathaniel Crawford (Crawford) was found guilty by a jury of aiding and abetting distribution of a controlled substance. He was acquitted on possession of a controlled substance. After the trial court sentenced him to eight years in the penitentiary, he appealed. We affirm.

FACTS

[¶ 2.] In 2004, there was a concerted effort by local law enforcement officers and Division of Criminal Investigation (DCI) agents to stop drug activity in southeastern South Dakota. This case derives from an investigation of drug activity in and around Yankton, SD.

[¶ 3.] DCI was using a confidential informant named Robert Jarmon (Jarmon). On March 22 and 23, 2004, the officers observed a woman named “Angel” sell marijuana to Jarmon during two preplanned, controlled buys. During these two “buys,” a man named Nate Steele (Steele) was with Angel.

[¶ 4.] A week later, Jarmon arranged to buy marijuana and methamphetamine from Angel. Law enforcement officers observed Angel and a man, subsequently identified as Marco Antonio Garcia (Garcia), arrive in a four-door Buick and sell the drugs to Jarmon. After running the license plates, the officers discovered the Buick belonged to Crawford and his girlfriend, Tina Lovaas.

[¶ 5.] Officers showed Jarmon a photograph of Crawford’s driver’s license and Jarmon incorrectly identified Crawford as the man with Angel during the latest buy. The officers did not know who Angel was, but suspected Angeline Crissey (Crissey). Officers showed Jarmon a photo of Crissey and he incorrectly identified Crissey as the woman from whom he bought drugs.

[¶ 6.] Officers interviewed Steele, who was with Angel on the two initial buys. Steele initially denied he knew Angel’s last name. After subsequent investigation revealed he was involved with Angel, he confessed that her real name was Nina Angelina Augusta Huff (Angel).

[¶ 7.] At the time, Angel was on probation for theft of government funds. She was living in a halfway house after she suffered a relapse while on probation. Angel’s probation officer, Mareen Jensen, arranged a meeting between Huff and officers investigating the drug sales with Jar-mon.

[¶ 8.] During that interview, Angel admitted she and Garcia sold drugs to Jar-mon. She also told officers that she and Garcia were short of drugs to sell Jarmon and Crawford supplied some methamphetamine for them to sell. Angel alleged Crawford let her and Garcia borrow his Buick to travel from Sioux Falls to Yank-ton to sell the drugs.

[¶ 9.] Based on this information, Crawford was arrested. He was indicted on one count of aiding and abetting distribution of a controlled substance (methamphetamine) and one count of possession of a controlled substance (methamphetamine). A habitual offender information was also filed.

[¶ 10.] During trial, Crawford called Garcia to testify on his behalf. Garcia exercised his Fifth Amendment privilege against self-incrimination and refused to answer any questions regarding the Yank-ton drug investigation or Crawford’s alleged involvement in the case. Crawford then sought to introduce Garcia’s statements made during a phone interview with Mary Baker, a paralegal working for Crawford’s counsel, through exceptions to the hearsay rule, SDCL 19-16-32 (Rule 804(b)(3)) and SDCL 19-16-35 (Rule 804(b)(6)). The circuit court found Garcia was unavailable and in the interest of justice he allowed Baker to testify to some, but not all of Garcia’s prior statements.

[¶ 11.] After closing arguments, Crawford made an oral motion for a mistrial. He alleged the State engaged in prosecuto-rial misconduct and its comments during closing and rebuttal “exceed[ed] the evidence that had been presented.... ” The trial court found that “there were no errors made during the closing arguments that would rise to a level that would cause the [c]ourt to declare a mistrial” and denied the motion.

[¶ 12.] The jury convicted Crawford of one count of aiding and abetting distribution of a controlled substance, but acquitted him of one count of possession of a controlled substance. After the verdict, Crawford pleaded guilty to being a habitual offender. The trial judge sentenced him to eight years in the penitentiary. Crawford appeals and raises the following issues:

1. Whether the trial court violated Crawford’s right to compulsory process by excluding some of Garcia’s out of court statements.
2. Whether the State committed prose-cutorial misconduct during closing argument and the trial court erred in denying Crawford’s motion for a mistrial.

STANDARD OF REVIEW

[¶ 13.] “The trial court’s eviden-tiary rulings are presumed to be correct.” State v. Boston, 2003 SD 71, ¶ 14, 665 N.W.2d 100, 105. We review evidentiary rulings for abuse of discretion. Id. (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129) (additional citations omitted). The defendant must first demonstrate error and then show that error was prejudicial. Id. (citing State ex rel. Dep’t of Transp. v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263) (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976)). The test for abuse of discretion is “whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.” Huber v. Dep’t of Pub. Safety, 2006 SD 96, ¶ 22, 724 N.W.2d 175, 180 (additional citation omitted).

[¶ 14.] The ■ trial court has the discretion to determine whether a motion for a new trial should be granted. State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15 (additional citations omitted). This Court will not disturb a trial court’s denial of a mistrial unless there is a clear showing of abuse of discretion. Id.

[¶ 15.] 1. Whether the trial court violated Crawford’s right to compulsory process by excluding some of Garcia’s out of court statements.

[¶ 16.] The right of compulsory process is guaranteed by the Sixth Amendment to the United States Constitution. The Sixth Amendment provides, in relevant part, “In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor....” The South Dakota Constitution guarantees the same right in Article VI, section 7. Crawford argues that the trial court violated his right of compulsory process by prohibiting Baker from testifying to some of Garcia’s out of court statements. However, no right is limitless, and it “may ... bow to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973) (additional citation omitted). See also State v. Dale, 439 N.W.2d 98, 104 (S.D.1989). Almost one hundred years ago, this Court recognized that “[a defendant] is entitled, under reasonable regulations, to process for witnesses .... ” State v. Wilcox, 21 S.D. 532, 114 N.W. 687 (1908) (emphasis added).

[¶ 17.] Crawford cites Washington v. Texas in support of his argument that his right to compulsory process was violated. 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967). In Washington, the United States Supreme Court decided the defendant’s right to compulsory process was denied because the State arbitrarily denied him the right to have a witness testify who had relevant and material testimony. Id. See United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73, 102 S.Ct. 3440, 3449-50, 73 L.Ed.2d 1193 (1982) (the government may not deport witnesses who have material and relevant testimony); Fountaine v. State, 460 So.2d 553, 555 (Fla.App.2d Dist.1984) (recognizing the right to compulsory process only requires that the government may not prevent an otherwise willing defense witness from testifying), petition for review denied, 464 So.2d 554 (Fla.1985).

[¶ 18.] This case is distinguishable from Washington. In this case, the State did not prevent the defendant from calling the witness. Indeed, Crawford did call Garcia to the stand. Garcia chose to exercise his Fifth Amendment privilege against self-incrimination. Crawford’s “right to compulsory process does not include the right to compel a witness to waive his or her Fifth Amendment privilege against self incrimination.” See United States v. Robaina, 39 F.3d 858, 862 (8th Cir.1994) (citing Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972)).

[¶ 19.] The Fifth Circuit has held that a defendant’s right to compulsory process is fulfilled when the witness is physically present in court. United States v. Griffin, 66 F.3d 68, 70 (5th Cir.1995) (citing United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.1974), cert denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974)). The court explained,

The Sixth Amendment requires that a witness be brought to court, but it does not require that he take the stand after refusing to testify. Once a witness appears in court and refuses to testify, a defendant’s compulsory process rights are exhausted. It is irrelevant whether the witness’s refusal is grounded in a valid Fifth Amendment privilege, an invalid privilege, or something else entirely. The defendants’ Sixth Amendment rights were satisfied as soon as the [witness] appeared in court and refused to testify....

Id., 66 F.3d at 70 (internal citations omitted). In this case, Crawford’s right to compulsory process was fulfilled when the circuit court issued a subpoena for Garcia and Garcia was physically available in the courtroom. The fact that Garcia invoked his Fifth Amendment right does not violate Crawford’s right to compulsory process. “[A]n accused’s right to compulsory process must give way to the witness’ Fifth Amendment privilege.... ” United States v. Follin, 979 F.2d 369, 374 (5th Cir.1992) (quoting United States v. Boyett, 923 F.2d 378, 379 (5th Cir.1991)), cert denied, 502 U.S. 809, 112 S.Ct. 53, 116 L.Ed.2d 30 (1991). See State v. Montgomery, 467 So.2d 387, 392 n.6 (Fla.App.3 Dist.1985).

[¶20.] Finally, the fact that the trial court excluded some of the statements because they did not fall within an exception does not create a compulsory process violation. As previously stated, the right to compulsory process is not absolute. “A defendant ‘must comply -with established rules of procedure and evidence designed to assure both fairness and reliability..." Hawkins v. Costello, 460 F.3d 238, 243 (2d Cir.2006) (quoting Chambers, 410 U.S. at 302, 93 S.Ct. at 1049, 35 L.Ed.2d 297). Crawford “does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” See id. (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)). See also Wilcox, 21 S.D. at 534-36, 114 N.W. at 688 (finding a defendant had the right to process subject to reasonable regulations). In order for Crawford to get the statements admitted, he must demonstrate the trial court abused its discretion in excluding the statements and the error prejudiced him. See Boston, 2003 SD 71, ¶ 14, 665 N.W.2d at 105 (additional citations omitted).

[¶ 21.] Crawford attempts to cast his argument as a constitutional violation in order to obtain a de novo review of the trial court’s evidentiary decision. However, there was not a compulsory process violation. Therefore, the standard of review for the evidentiary issue is abuse of discretion. See id.

[¶ 22.] We have considered the eviden-tiary and remaining issues and find them to be without merit. Therefore, we affirm.

[¶ 23.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Angel testified she had gone out with friends to drink and smoke pot. She informed her probation officer who put her in the halfway house.

        . The South Dakota Constitution provides, in relevant part, "In all criminal prosecutions the accused shall have the right ... to have compulsory process served for obtaining witnesses in his behalf....” Art. VI, § 7.

      . Crawford also argues our decision in State v. Dale demonstrates his right to compulsory process was violated. 439 N.W.2d 98 (S.D.1989). There, the court refused to subpoena some of Dale’s witnesses and we affirmed because the witnesses did not have material and favorable testimony for the defense. Id. at 104-05. This case is also distinguishable from Dale because neither the State nor the circuit court prevented any of Crawford's witnesses from testifying.

      . Several other jurisdictions have held the same way. See also United States v. Gloria, 494 F.2d at 478, 480 (5th Cir.1974), cert denied, 419 U.S. 995, 95 S.Ct. 306, 42 L.Ed.2d 267 (1974); United States v. Johnson, 488 F.2d 1206, 1211 (1stCir.1973); United States v. Beye, 445 F.2d 1037, 1038 (9th Cir.1971); Bowles v. United States, 439 F.2d 536, 541-42 (D.C.Cir.1970) (en banc), cert denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971).

      . Crawford interprets “reasonable regulation’’ to mean the rules of evidence can be used to procure testimony of an unavailable declarant in order to protect his right to compulsory process. This is incorrect for two reasons. First, as illustrated above, the right to compulsory process ends upon compelling the witness to be physically available in the court and the rules of evidence are not a mechanism that fulfills the right to compulsoty process. Second, the rules of evidence are not "reasonable regulations” within the meaning of Wilcox. We interpret “under reasonable regulation” to mean the right of compulsory process is subject to reasonable regulations. For example, if the witness is out of state and not subject to the state’s subpoena power (as was the case in Wilcox) then the defendant’s right to compulsory process is restricted under the reasonable regulation of the state’s subpoena power. Wilcox, 21 S.D. at 534-36, 114 N.W. at 688 (“State process cannot operate beyond state boundaries. So the absolute right under discussion does not exist with respect to a witness whose attendance cannot be compelled”).