author: ROSS, Judge.

text:
    Paulette PAHNKE, Individually and as Parent and Natural Guardian of Brittany Newman, Alyssa Newman and Michael Newman, Minors, Appellant, v. ANDERSON MOVING AND STORAGE, Respondent, Home Apartment Development, LLC, Respondent, County of Houston, et al., Respondents, City of La Crescent, et al., Respondents.
    No. A05-2401.
    Court of Appeals of Minnesota.
    Sept. 12, 2006.

      William L. French, Jeffrey A. Hanson, Hanson Law Firm, Rochester, MN, for appellants.
    Stephen G. Andersen, Ratwick Roszak & Maloney, P.A., Minneapolis, MN, for respondent Anderson Moving and Storage.
    Thomas A. Gilligan, Murnane Brandt, St. Paul, MN, for respondent Home Apartment Development, LLC.
    Dyan J. Ebert, James S. McAlpine, Quinlivan & Hughes, P.A., St. Cloud, MN, for respondents County of Houston, et. al.
    Jon K. Iverson, Susan M. Tindal, Iver-son Reuvers, LLC, Bloomington, MN, for respondents City of La Crescent, et. al.
    Considered and decided by ROSS, Presiding Judge; SHUMAKER, Judge; and WRIGHT, Judge.
   OPINION

ROSS, Judge.

Appellant Paulette Pahnke filed an action in district court alleging that law-enforcement officers committed various torts by violating Minnesota Statutes section 504B.365 when they executed a court order to remove her from an apartment that she was renting and did not allow her 24 hours to vacate. The district court granted the officers’ request for partial summary judgment based on official immunity, and it awarded partial summary judgment to their employers, respondents County of Houston and City of La Crescent, based on vicarious official immunity. The district court determined that disputed material facts prevent awarding the county summary judgment on Pahnke’s remaining claims. Pahnke appeals the district court’s award of partial summary judgment, and Houston County challenges the denial of complete summary judgment. Because the officers are immune from liability for executing the district court’s facially valid order, we affirm the district court’s decision to grant partial summary judgment. Because the district court denied summary judgment on the remaining claims based on existing fact questions, we dismiss the county’s challenge to that denial as nonappealable on interlocutory appeal.

FACTS

In September 2002, Paulette Pahnke rented an apartment from Home Apartment Development, LLC. Pahnke already owed Home Apartment $1,100 in unpaid rent from a previous lease, an amount that she agreed to pay in monthly increments of $200. But Pahnke did not pay $200 in September, and she did not pay her rent in October or November.

Home Apartment brought an unlawful-detainer action against Pahnke, which the district court heard in November 2002. Because Pahnke could not pay her outstanding balance to redeem the property, the court announced that it would issue a writ of recovery of premises and an order to vacate, stayed for seven days. See Minn.Stat. § 504B.345, subd. 1(d) (2004) (“[Ujpon a showing by the defendant that immediate restitution of the premises would work a substantial hardship upon the defendant or the defendant’s family, the court shall stay the writ of recovery of premises and order to vacate for a reasonable period, not to exceed seven days.”). The court expressly clarified that Pahnke had seven days to move.

Eight days later, Pahnke remained in the apartment, and the district court signed the writ of recovery and order to vacate. The language of that writ is the flash point of this dispute. It specifically “commanded [the sheriff] that, taking with [him] the force of the county, if necessary, [he] cause Paulette Pahnke to be immediately removed from the premises, and [Home Apartment] to recover the premises.” See id. § 504B.361, subd. 1(c) (2004) (providing that writ of recovery may state that the officer executing the order “cause [the tenant] to be immediately removed from the premises”). The Houston County sheriff delegated the execution duty to respondent Deputy Luke Sass, who asked respondent Bill Hargrove, a police officer in La Crescent, to assist. When the two officers arrived at Pahnke’s apartment, Pahnke and several children were celebrating Pahnke’s daughter’s birthday.

Pahnke alleges that she attempted to show Deputy Sass a tenants’ rights handbook that summarizes the law of eviction and to explain that he lacked authority to evict her immediately. The deputy testified in a deposition that because the writ and order expressly commanded removal “immediately,” he did not consider Pahnke’s handbook. Pahnke peacefully vacated the premises.

Pahnke brought this action in district court claiming violations of federal and state law based on the eviction. The defendants removed the action to federal district court, and the federal court dismissed the federal claims and remanded the matter to Minnesota district court. The deputy, county, police officer, and city moved for summary judgment, arguing that official immunity barred Pahnke’s claims. The district court agreed and granted summary judgment on all claims except claims of breach of contract and promissory estoppel against the county. Pahnke now appeals, challenging the grant of partial summary judgment. The county filed a notice of review and challenges the denial of summary judgment on the remaining claims.

ISSUES

I. Does immunity protect law-enforcement officers and their employers from liability when the officers execute a judicial order according to the order’s exact terms?
II. Is denial of summary judgment on grounds of governmental immunity appealable when the district court based its denial on the existence of disputed material facts?

ANALYSIS

I

On Pahnke’s appeal from summary judgment, this court asks whether there are genuine issues of material fact and whether the district court erred in applying the law. See State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The district court granted summary judgment to Deputy Sass and Officer Hargrove on the ground that they are protected from liability by official immunity and to the county and city on the ground that they are consequently protected from liability by vicarious official immunity. The district court also noted that even if the officers are not entitled to official immunity, their duty to render “unquestioning obedience” in executing the district court’s order protects them from liability. Pahnke’s appeal challenges those determinations, asserting that the district court misapplied the law and identifying disputed facts that she contends are material to the immunity decision.

Whether to apply official immunity is a question of law, which this court reviews de novo. Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn.2006). Official immunity shields a public official from personal liability when the official is “charged by law with duties which call for the exercise of his judgment or discretion ... unless he is guilty of a willful or malicious wrong.” Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn.1988) (quotation omitted). The purpose of the official-immunity doctrine is to protect public officials “from the fear of personal liability that might deter independent action and impair effective performance of their duties.” Id. at 678. To determine whether Deputy Sass and Officer Hargrove are protected by official immunity we must therefore identify the specific conduct at issue and then decide whether the conduct is a discretionary or ministerial act. See Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 656 (Minn.2004) (noting importance of identifying specific conduct at issue); Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn.1998) (distinguishing discretionary from ministerial acts).

The specific conduct Pahnke complained of is Deputy Sass’s order to leave her apartment immediately despite the fact that Pahnke presented him with notice of what she urges is her statutory right to a 24-hour deadline for removal. The district court found that both Sass and Har-grove served the notice and removed Pahnke from the apartment, and Officer Hargrove does not contend that this finding is erroneous. It is the immediacy of Pahnke’s removal by the officers in keeping with the literal direction of the writ and order — not the mere fact of removal— that gives rise to Pahnke’s cause of action. We must therefore decide whether Pahnke’s immediate removal consistent with the express declaration of the writ and order is the kind of discretionary act that warrants the protection of official immunity. See Anderson, 678 N.W.2d at 656.

A nondiscretionary, ministerial duty is one that is “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Id. at 659 (quotation omitted). Minnesota appellate courts have recently applied the distinction between discretionary and ministerial duties to various law-enforcement actions. See, e.g., Mumm v. Mornson, 708 N.W.2d 475, 492 (Minn.2006) (holding that policy requiring police officers to discontinue vehicular pursuit if they could establish offender’s identity imposed a ministerial duty and that officers did not have discretion to ignore the policy); Thompson, 707 N.W.2d at 675 (holding that policy requiring officers to use red lights and siren “in a continuous manner” during vehicular pursuit imposed a ministerial duty); Brown v. City of Bloomington, 706 N.W.2d 519, 523-24 (Minn.App.2005) (holding that officers’ decisions to use less-lethal ammunition and to fire more than one round were discretionary but that department’s procedure for making transition from lethal to less-lethal shells when loading weapon imposed a ministerial duty), review denied (Minn. Feb. 22, 2006); Hyatt v. Anoka Police Dep’t, 700 N.W.2d 502, 508 (Minn.App.2005) (holding that officers’ release of police dog to assist in arrest was discretionary act), review denied (Minn. Oct. 18, 2005); Fedke v. City of Chaska, 685 N.W.2d 725, 730 (Minn.App.2004) (holding that officer’s decision during training exercise to place an individual on the ground through a “controlled takedown” was discretionary act), review denied (Minn. Nov. 23, 2004).

We conclude that the officers’ duty was ministerial. Deputy Sass considered Pahnke’s immediate removal to be a duty that was absolute, certain, and imperative, rather than discretionary. The writ and order directed him to remove Pahnke “immediately,” and he testified that, based on the language in the writ and order, “I told her that the [writ and order] stated that she needed to leave immediately.... Immediately is pretty self-explanatory to me. It means right now.” The law obligates the sheriff — and in this case these responding officers by delegation — to execute the district court’s writ and order, which they interpreted to require immediate removal. See Minn.Stat. § 387.03 (2004) (requiring sheriff to execute all writs and orders issued by lawful authority). As Deputy Sass construed the text of the writ and order, directing Pahnke’s immediate removal was his ministerial duty.

On its face, Pahnke’s argument might be taken to admit that the officers had discretion regarding the timing of execution because she contends that the officers “could have taken any number of actions” while satisfying them duty. But Pahnke clarifies that “[t]he execution of this Writ did not require the use of discretion” and led to a ministerial act because it “leav[es] nothing to the discretion of the official.” This assertion, however, rests on her erroneous framing that “the real issue in this case is the apparent conflict between two statutes” — one that provides that an official executing a removal order shall demand that the tenant remove “within 24 hours,” and one that authorizes the official to “cause [the tenant] to be immediately removed from the premises.” Compare Minn.Stat. §§ 504B.365, subd. 1(a) (directing removal “within 24 hours”) with 504B.361, subd. 1(c) (authorizing removal “immediately”). The crux of Pahnke’s claim is that the officers erroneously interpreted two conflicting statutes that stand in what she calls “apparent conflict” with each other, and that the officers had a nondiscretionary, ministerial duty to execute the writ by ordering her removal within 24 hours.

Whether Pahnke is correct as a matter of law that the officers did not comply with the duty to order removal within 24 hours, or the respondents are correct that the officers did comply with their duty to order immediate removal, the immunity analysis is the same. Ordinarily, it is non compliance with a ministerial duty that bars official immunity. See Anderson, 678 N.W.2d at 659-60 (discussing cases arising from alleged failure to perform ministerial duty). But official immunity also does not shield an official from liability for a claim that the official has tortiously complied with a ministerial duty. “The ministerial-conduct bar to official immunity arises when ... a ministerial duty was either not performed or was performed negligently.” Id. Therefore, even under the county’s position that the officers were compliant with their duty, Pahnke’s claim is that the officers tortiously complied with their removal duty.

We are similarly not persuaded by respondents’ reliance on our decision in Johnson v. County of Dakota, 510 N.W.2d 237 (Minn.App.1994). In Johnson, we held that police officers who procured and executed a search warrant on allegedly tortious grounds were carrying out a discretionary duty. Id. at 240. But Johnson concerns materially dissimilar facts. There, officers participated in the allegedly faulty investigation that led to the warrant, which they also procured and executed. Here, the accused officers contributed nothing to procuring the writ, and their only alleged fault is carrying it out on its exact terms. Johnson is therefore inapposite. We conclude that the officers’ alleged tortious compliance with their ministerial removal duty is not the type of action that official immunity protects.

That official immunity does not protect the officers from liability does not end our consideration of whether their execution of the writ and order can subject them to liability. The district court also indicated that the officers should not be subjected to liability on the ground that they rendered their absolute obedience to the district court in executing its order. We agree.

Without dispute, the officers’ execution satisfied the literal language of the writ and order, and, despite their alleged misunderstanding of the possible statutory deadline for the removal, we conclude that the officers cannot be liable for their execution of the writ as a matter of law. In a series of cases dating back 130 years, the supreme court has recognized a form of immunity that arises from an officer’s obedience in executing judicial papers that require the officer to seize property or persons. In a claim against a sheriff for executing a writ that was allegedly juris-dietionally invalid, the court in 1876 determined that, because a writ directing the seizure and sale of a debtor’s property “was regular on its face,” it was “a full protection to the officer executing the process,” even if the authoring justice of the peace lacked jurisdiction to execute the writ. Orr v. Box, 22 Minn. 485, 486 (1876). Nine years later, the supreme court considered a similar claim regarding the execution of a judgment. It concluded that even if a judgment rested on fraudulent dealing between the parties, “[t]he judgment protects the officer from liability for doing what it commanded him to do,” and it held that the officer “incurred no liability for executing it according to its terms.” Hill v. Rasicot, 34 Minn. 270, 271, 25 N.W. 604, 605 (1885). Despite the assumed legal deficiency in the process, “[i]t was not for him to revise the judgment.” Id. In 1922, the supreme court considered the claim of an owner who challenged a constable’s seizure of his automobile. Whitney v. Welnitz, 153 Minn. 162, 190 N.W. 57 (1922). The court concluded that “[wjhere the writ appears regular in all respects the officer is not required to make inquiry into the sufficiency of the prior proceedings” and the officer therefore has “a full and perfect defense to the action.” Id. at 166, 190 N.W. at 58.

Twenty-one years later, the supreme court declared that “[i]t is the imperative duty of a sheriff to execute the process and orders of a court of competent jurisdiction.” Robinette v. Price, 214 Minn. 521, 525, 8 N.W.2d 800, 804 (1943). Relying on Whitney, the Robinette court defined broadly the immunity that arises from an officer’s compliance with a judge’s express order:

Unquestioning obedience, without power or right to review or to revise, being the duty of the officer, he is afforded upon grounds of public policy a commensurate protection against personal liability for acts done in the performance of such duty. A sheriff is protected and justified for acts done in executing the process and orders of a court having jurisdiction of the subject matter when the process is regular on its face.

Id. at 525-26, 8 N.W.2d at 804. The court later explained further that “[a] sheriff is protected from liability for acts done in executing the process and orders of a court having jurisdiction of the subject matter when the process is fair on its face.” Hoppe v. Klapperich, 224 Minn. 224, 238, 28 N.W.2d 780, 790 (1947). Finally, in 1971, the supreme court determined that the district court was compelled to dismiss three police officers from tort claims that challenged the officers’ alleged wrongful arrest and false imprisonment based on an arrest warrant that the subject claimed was fraudulently procured by other officers. Morgan v. McLaughlin, 290 Minn. 389, 391, 188 N.W.2d 829, 831 (1971). The court held that the officers were “performing an official duty in executing an arrest warrant which was valid on its face and was issued by a court having jurisdiction.” Id.

In each of these cases, the accused officer might have avoided the alleged wrongful execution had he looked beyond the judicial process into the law or underlying legal proceedings. Similarly here, even assuming Pahnke has accurately reconciled the two “apparently] eonflict[ing]” statutory provisions, the officers were not required to look beyond the face of the writ to interpret a common term that literally orders the officers to remove Pahnke immediately, rather than 24 hours later. The writ does not refer to section 504B.365 or otherwise offer any suggestion that the term “immediately” means “within 24 hours.” Like the officers in the Orr line of cases, Sass and Hargrove reasonably relied on the express direction of the court. Imposing liability would invite police second-guessing of judicial decrees. Rather, obeying the terms of execution affords an officer “a full and perfect defense.”

Pahnke asserts that the writ was not regular or valid on its face because its reference to “immediately” is not understandable “without reference to the controlling statute.” But deeming a writ “irregular” whenever one must look beyond it to discern the inapplicability of its plain terms would eviscerate the protection afforded to an officer by his reliance on a facially valid writ. Pahnke attempts to focus the immunity dispute on the interpretation of the two statutes, sections 504B.361, subdivision 1, and 504B.365, subdivision 1(a). This focus is misplaced. Pahnke first argues that the two statutes stand in “apparent conflict,” but at oral argument Pahnke’s counsel maintained that the two provisions unambiguously require an officer executing a writ to allow a tenant 24 hours to vacate. When read together, the statutes are facially unclear; one allows for immediate removal and the other for removal within 24 hours. Neither expressly defines “immediately,” and without limiting or clarifying language, section 305B.361 opens itself to the construction that “immediately” means instantly. See Black’s Law Dictionary 764 (8th ed.2004) (defining “immediate” as “[o]ccurring without delay” and “instant”); see also American Heritage Dictionary 877 (4th ed.2000) (defining “immediately” as “without delay” and “directly”). Pahnke urges that we reconcile the different temporal references by reading the two statutes together, so that the term “immediately” in section 504B.361, subdivision 1, is clarified by section 504B.365, subdivision 1, to mean “within 24 hours.” This statutory construction may be plausible, but it is not relevant to our immunity analysis as it regards execution of the writ.

The officers had an imperative duty to execute the writ, which was valid and clear on its face and issued by a court of competent jurisdiction, and they executed it on its explicit terms. See Minn.Stat. § 387.03 (requiring sheriffs to “execute all processes, writs, precepts, and orders issued or made by lawful authority”). The officers are therefore immune from tort liability for executing the writ in this manner.

Finally, Pahnke argues that because she tried to give Deputy Sass a 1998 document entitled “Tenants’ Rights in Minnesota,” which she contends would have put the officers on notice that “immediately” should not mean, literally, “immediately,” a fact question arises regarding whether malice should prevent immunity from attaching. We do not agree that Pahnke has identified a material fact dispute. Regarding the related concept of official immunity, “[t]he willful or malicious wrong exception ... does not impose liability merely because an official intentionally commits an act that a court or jury subsequently determines is wrong. Instead, the exception anticipates liability only when an official intentionally commits an act that he or she has reason to believe is prohibited.” Johnson, 510 N.W.2d at 240-41 (quotation omitted). Assuming a malice exception exists to bar the immunity that arises from an officer’s unquestioning obedience to a judicial order, Pahnke’s cited evidence does not constitute malice. The officers were not exhibiting malice by refusing to consider the tenant’s or the landlord’s representation of the law. It also is not malice to discount any representation that appears inconsistent with the duty to obey a court order on its own, facially valid terms.

Because the officers are entitled to immunity, we agree that, as their employers, the county and city are also entitled to vicarious immunity. Although Minnesota courts have not yet addressed vicarious liability as it applies to employers whose employees are not hable under the Orr line of cases, we find that the rationale extending immunity to employers in an official-immunity context is equally persuasive in this context.

Extending immunity to a governmental employer is a policy question, and when an employee is found to have official immunity, claims against a municipal employer are generally dismissed. Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn.1992). Vicarious official immunity protects a government entity from liability based on official immunity because of the inconsistency that would result from imposing liability on a government employer for the same acts for which an employee receives immunity. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn.1998). Absent vicarious immunity, imposing liability on an employer would still require analysis and judgments about the employee’s actions. Pletan, 494 N.W.2d at 42. This scrutiny would defeat the purpose of immunity, which is to protect an employee “executing the process and orders of a court having jurisdiction ... when the process is fair on its face.” See Hoppe, 28 N.W.2d at 790 (stating rationale of immunity when executing court order); see also Pletan, 494 N.W.2d at 42 (noting that lack of vicarious immunity in official-immunity context defeats purpose of official immunity because liability analysis would still require scrutiny of employee’s actions). We therefore hold that the district court appropriately dismissed the related claims against the county and city.

II

The district court denied the county’s motion for summary judgment on the contract and promissory estoppel claims, concluding that “whether a contract existed and whether promissory estoppel is appropriate are [fact] questions for the jury.” The county challenges the denial, arguing that Pahnke failed to establish a factual basis for the claims.

The appeal of the denial is not properly before us. Although an order denying a motion for summary judgment based on governmental immunity from suit is appealable, Anderson v. City of Hopkins, 393 N.W.2d 363, 364 (Minn.1986), the denial of summary judgment on these claims was based on the existence of disputed facts, not on governmental immunity. Determining whether there is a factual basis for the claims “is unrelated to official immunity and is, therefore, not ap-pealable in an interlocutory appeal.” Carter v. Cole, 526 N.W.2d 209, 214 (Minn.App.1995) (dismissing police officer’s challenge to district court’s denial of summary judgment because the denial was unrelated to legal questions on official immunity), affd mem., 539 N.W.2d 241 (Minn.1995). We therefore dismiss the county’s interlocutory appeal from the district court’s denial of its motion.

DECISION

Although Deputy Sass and Officer Har-grove performed a ministerial function in executing a court order directing Pahnke’s immediate removal from her apartment, the officers are immune from civil liability because they executed the order according to its facially valid terms. Because the officers are immune from liability, their employers, Houston County and La Crescent, are entitled to vicarious immunity. The district court therefore properly entered partial summary judgment for Deputy Sass, Officer Hargrove, the county, and the city. The county’s appeal from denial of summary judgment on the remaining grounds, however, is not properly before the court on interlocutory appeal because the district court denied summary judgment based on disputed material facts rather than absence of immunity.

Affirmed in part, appeal dismissed in part.

      . We do not address the respondents' other non-immunity arguments made in support of summary judgment.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2006 ND 189
    Mark TIBERT and Suzi Tibert, and Melvin Tibert and Cathy Tibert, Plaintiffs and Appellants v. The CITY OF MINTO, through its governing body, and incorporated political subdivision, Defendant and Appellee.
    No. 20050393.
    Supreme Court of North Dakota.
    Aug. 28, 2006.

      David C. Thompson, David C. Thompson, P.C., Grand Forks, ND, for plaintiffs and appellants.
    Ronald F. Fischer (argued), Pearson Christensen & Clapp, P.L.L.P., Grand Forks, ND, and Nicholas B. Hall (on brief), Grafton, ND, for defendant and ap-pellee.
   SANDSTROM, Justice.

[¶ 1] Mark Tibert, Suzi Tibert, Melvin Tibert, and Cathy Tibert appealed from a final order of the district court affirming the City of Minto’s decision to grant a building permit to Minto Grain, LLC, for the construction of three temporary grain storage structures. We affirm, concluding the City’s approval of the building permit was not arbitrary, capricious, or unreasonable, and is supported by substantial evidence.

I

[¶ 2] A tract of land known as Kilowatt Drive is a dirt and gravel road that runs along the eastern portion of Minto Grain’s property, formerly owned by BNSF Railway, and borders the Tiberts’ property in Minto. The road has been the focus of a substantial amount of boundary and title litigation. See Nowling v. BNSF Ry., 2002 ND 104, 646 N.W.2d 719; Tibert v. City of Minto, 2004 ND 97, 679 N.W.2d 440; Minto Grain, LLC v. Tibert, 2004 ND 107, 681 N.W.2d 70; Tibert v. Minto Grain, LLC, 2004 ND 133, 682 N.W.2d 294; and Tibert v. Slominski, 2005 ND 34, 692 N.W.2d 133.

[¶ 3] Relevant to this appeal is an October 30, 2002, “EASEMENT for INGRESS and EGRESS” executed by Bill Slominski, president of Minto Grain, as the grantor, to the City of Minto, as the grantee, concerning the 80-foob-wide roadway. In the document, Minto Grain and the City acknowledged that the roadway “exists to service commerce needs upon the railroad, including the distribution of agricultural goods, and was established for that purpose”; that the City “has permissively used the roadway for several years as a roadway for access purposes of its residents”; that Minto Grain “desires to improve its property and business, to include the widening of the roadway” and to “preserve its property for the needs of commerce along the rail, and limit the permissive non-commercial use by the public”; and that the City “desires to foster commerce along the rail, limit the non-commercial use of the roadway by the public, and provide general access to residences now located east of the roadway.” The easement provides:

NOW THEREFORE for the sum of One Dollar and other valuable consideration, the GRANTOR hereby grants to the GRANTEE a limited easement consisting of a right of ingress and egress over and across the premises above described for the purposes stated herein, in perpetuity, revoking all prior agreements, to have and to hold said right of ingress and egress, subject to the following:
1) GRANTOR shall continue to own and control the roadway, and utilize said roadway for its commercial purposes, including the facilitation of the safe passage of trucks to and from the rail.
2) GRANTOR reserves the right to limit access upon the roadway, police the roadway, and to promulgate rules and regulations upon the roadway in a manner to foster a safe and orderly operation of the roadway and the commercial enterprises existing thereupon, now or in the future.
B) GRANTEE shall have the right and authority to utilize the roadway for access to city utilities, and to provide reasonable access to the city residences east of the roadway. Access shall be defined as a general or simple right of ingress and egress. No alterations will be allowed upon the roadway without the permission of the GRANTOR, and any private crossing adjoining the roadway must meet the grade of the roadway. No additional crossings or driveways may connect to the roadway without the prior consent and approval of GRANTOR. Access may be impeded from time to time due to truck traffic, accidents, road improvement projects or other reasonable and legitimate commercial purposes or natural occurrences. GRANTOR will not unreasonably delay or hinder the ingress and egress rights herein. If, under the control of GRANTOR, any portion of the roadway has to be closed, alternative routes will be provided. Any temporary closure will ordinarily not exceed 24 hours.
4) GRANTOR and GRANTEE agree that it is not the intention herein to create a public street, but rather to provide the GRANTEE the limited right to ingress and egress over and across the property in a manner which will not impede the progress, safety or operation of the commercial enterprises privately located thereupon.
5) All rights and obligations herein shall inure to the assigns of the GRANTOR. The GRANTEE shall have no authority or right to assign the rights and obligations herein to any private party, entity, governmental agency, or any other, without the prior consent of the GRANTOR. Nothing herein shall be construed to create private real property rights in any party other than the GRANTEE and GRANTOR. This shall constitute the entire agreement of the parties.

[¶ 4] In June 2003, Slominski, on behalf of Minto Grain, applied for a building permit from the City to construct temporary grain storage structures on his property, including Kilowatt Drive, at an estimated cost of $9,696. On June 24, 2003, the Minto Planning and Zoning Committee met to consider the application. Melvin Tibert and Suzi Tibert appeared to oppose the application. The Committee approved the application and forwarded it to the Minto City Council for its consideration. No minutes were kept of the Committee’s meeting. On July 7, 2003, the City Council met and considered Minto Grain’s application. Melvin Tibert and Mark Tibert appeared to oppose the application. Following discussion, the City Council approved the application, allowing Minto Grain to:

Construct temporary grain storage units. Metal rings w/dirt floors & tarp roofs. May construct up to 3 units. Stay 4' from property lines and abide by all court rulings.

[¶ 5] On July 9, 2003, Suzi Tibert sent a letter to the chairman of the Planning and Zoning Committee requesting a copy of the minutes of its June 24, 2003, meeting. She received only a copy of the application for the building permit and proceeded to request an Attorney General’s opinion under N.D.C.C. § 44-04-21.1, asking whether the Committee violated N.D.C.C. § 44-04-21 by not taking proper minutes of its meeting. The Tiberts then appealed the City Council’s decision approving the building permit to district court. On November 3, 2003, the Attorney General issued an open records and meetings opinion declaring that the Committee “violated N.D.C.C. § 44-04-21(2) by failing to take minutes of the June 24, 2003, meeting,” and ordering the Committee to “create minutes” of the meeting and provide Suzi Tibert copies of the minutes “within seven days of the date this opinion is issued.” N.D. Op. Atty. Gen. 2003-0-18. The Committee timely complied with the Attorney General’s order. On September 20, 2005, the district court affirmed the City Council’s decision to grant the building permit to Minto Grain.

6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 28-34-01. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01, 28-27-02, and 28-34-01.

II

[¶ 7] The Tiberts argue that the City Council erred in granting Minto Grain’s application for a building permit.

[¶ 8] In an appeal from the decision of a local governing body under N.D.C.C. § 28-34-01, our scope of review is the same as the district court’s review and is very limited. Pic v. City of Grafton, 1998 ND 202, ¶¶6, 8, 586 N.W.2d 159. Our function is to independently determine the propriety of the decision, without according any special deference to the district court’s decision, and unless the local governing body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence to support the decision, it must be affirmed. Graber v. Logan County Water Res. Bd., 1999 ND 168, ¶ 7, 598 N.W.2d 846. A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation. Klindt v. Pembina County Water Res. Bd., 2005 ND 106, ¶ 12, 697 N.W.2d 339.

[¶ 9] The Tiberts essentially contend that the City Council acted arbitrarily, capriciously, and unreasonably in granting the building permit because it allows Min-to Grain to build the structures on Kilowatt Drive in violation of the October 30, 2002, easement granted to the City of Min-to. The Tiberts’ argument ignores the plain language of the easement.

[¶ 10] The easement grants the City of Minto “a right of ingress and egress over and across” Kilowatt Drive and the right and authority “to provide reasonable access to the city residences east of the roadway.” “Access” is defined in the document “as a general or simple right of ingress and egress.” The terms “ingress” and “egress” express the right “to enter, leave, and reenter the land in question.” Black’s Law Dictionary 798 (8th ed. 2004). Under the easement, if there is no interference with the right of ingress and egress, Minto Grain is allowed to build structures that encroach upon Kilowatt Drive. See generally Burleigh County Water Res. Dist. v. Burleigh County, 510 N.W.2d 624, 628 (N.D.1994) (“The public’s easement is limited to the right to travel, and does not include an absolute right to an object-free zone for the complete length and width of the section line.”); Hjelle v. J.C. Snyder & Sons, 133 N.W.2d 625, 630 (N.D.1965) (“The mere showing that the light post and fence were situated on the highway right of way is not proof that they obstructed or injured the highway right of way.”). Moreover, the easement specifically allows Minto Grain to impede access “from time to time due to ... legitimate commercial purposes” so long as it does “not unreasonably delay or hinder the ingress and egress rights herein.”

[¶ 11] Although the record reflects that temporary grain storage units will either be built upon or encroach upon Kilowatt Drive, the Tiberts have pointed to no evidence that the City’s “general or simple right of ingress and egress” will be impeded by Minto Grain’s proposed structures. At the June 24, 2003, meeting of the Planning and Zoning Committee, Slominski stated: “Bottom line is, the easement with the City says access will not be denied to their property and if their [sic] isn’t enough room for a road there, there won’t be a bin. Simple as that.” In response to a question about one of the structures being 105 feet in diameter, Slominski similarly assured the City Council members at the July 7, 2003, hearing that ingress and egress would not be impeded: “Trucks will still go by, cars will still go by if it’s 105 feet wide. Whatever is necessary to facilitate ingress, egress, and provide for traffic.” The Council approved the building permit subject to the following restrictions: “Stay 4' from property lines and abide by all court rulings.”

[¶ 12] Upon our review of the record, we conclude that the City Council’s approval of Minto Grain’s building permit is not arbitrary, capricious, or unreasonable, and is supported by substantial evidence.

Ill

[¶ 13] The Tiberts argue the City Council erred in granting the building permit because the Planning and Zoning Committee failed to prepare written minutes of its meeting prior to the Council’s consideration of the application. The Ti-berts do not argue that the Committee’s violation of the open meetings and records law voided the proceedings. See In re Annexation of Part of Donnybrook Pub. Sch. Dist. No. 24, 365 N.W.2d 514, 519 (N.D.1985) (failure of a county committee to take a recorded roll call vote on an annexation petition in violation of N.D.C.C. § 44-04-21 was “not an adequate reason for the State Board to deny an annexation petition or to remand the matter to the county committee for rehearing”). Rather, the Tiberts assert the Committee’s failure to prepare the written minutes for the benefit of the Council members before the Council acted on the application renders the Council’s approval arbitrary, capricious, and unreasonable.

[¶ 14] With respect to Minto Grain’s application for a building permit, the Committee’s minutes subsequently prepared in response to the Attorney General’s order state:

Minto Grain, LLC applied to build temporary grain storage. After a lengthy discussion and several comments and questions from the board and comments from those attending the meeting, there was a motion and second to approve. The vote was 5 in favor and 1 abstaining (Dvorak).

The Tiberts do not contend that the Committee’s subsequently prepared written minutes fail to comply with N.D.C.C. § 44-04-21(2) or with the Attorney General’s order.

[¶ 15] The record establishes that the availability of the Committee’s written minutes could not have affected the Council’s consideration of Minto Grain’s building permit application. At the beginning of the July 7, 2003, meeting, Council member Nellie Shutt, who is also a member of the Planning and Zoning Committee and attended its June 24, 2003, meeting, informed the other Council members of the Committee’s approval of the permit. The Council was obviously aware that the Committee had approved the application, which is essentially the only information the written minutes convey. We conclude the absence of the written minutes did not render the Council’s decision on the building permit application arbitrary, capricious, or unreasonable.

IV

[¶ 16] We affirm the district court’s order.

[¶ 17] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., and JAMES M. BEKKEN, District Judge, concur.

[¶ 18] The Honorable JAMES M. BEKKEN, District Judge, sitting in place of CROTHERS, J„ disqualified.


author: CROTHERS, Justice.

text:
    2006 ND 181
    Jean L. HAGEL, Plaintiff and Appellant v. Scott B. HAGEL, Defendant and Appellee.
    No. 20050434.
    Supreme Court of North Dakota.
    Aug. 21, 2006.

      Joseph F. Larson II (on brief), Larson Law Firm, Jamestown, N.D., for plaintiff and appellant.
    Scott B. Hagel, defendant and appellee; no appearance.
   CROTHERS, Justice.

[¶ 1] Jean L. Hagel appeals from a divorce judgment challenging the district court’s determination of the onset date of Scott B. Hagel’s child support obligation and its denial of her request for spousal support. We reverse and remand for the district court to reconsider the onset date of child support and the request for spousal support and to provide adequate explanations of its decisions on those matters, and we otherwise affirm the judgment.

I

[¶ 2] The parties were married in Jamestown in 1983. They have a son born in 1986 and a daughter born in 1988. Scott Hagel has been employed at Newman Signs since 1979 and has worked as a construction supervisor for the past 10 years. During the construction season, he is gone from home for the work week. Jean Hagel is a high school graduate who has worked at several jobs in the Jamestown area during the course of the marriage, mainly as a secretary and cashier. In 1989 the family moved to a farmstead near Ypsilanti where Scott Hagel raised cows. The couple separated in May 2001, and Jean Hagel left the farm with the children and moved to Jamestown. The children, for the most part, resided with Jean Hagel in Jamestown and attended school there during the separation.

[¶ 3] Jean Hagel commenced this divorce action in March 2004. The district court originally issued an interim order granting Jean Hagel primary physical custody of the son and joint physical custody of the daughter, but the order was amended in May 2004 by stipulation of the parties to grant Jean Hagel temporary primary physical custody of both children. Jean Hagel sought child support commencing on the date the parties separated, May 15, 2001, and in December 2004, the court ordered that Scott Hagel pay $864 per month for child support commencing April 1, 2004, with credit for $2,133 he had paid since that date. The court reserved “decision on the onset date of child support and what, if any, child support should be paid by Defendant from and after May 15, 2001.”

[¶ 4] Following a trial, the district court in August 2005 awarded Jean Hagel primary physical custody of the daughter and ordered that Scott Hagel pay $1,090 per month child support beginning March 2005, when the divorce trial was held, through May 2005, when the son graduated from high school. The court ordered the child support amount reduced to $701 per month beginning in June 2005. The court refused to order Scott Hagel to pay child support from the date of the parties’ separation, May 15, 2001, through April 1, 2004, the date his child support obligation commenced under the interim order. The court awarded an equal amount of the approximately $142,000 net marital estate to each party, with Jean Hagel receiving mainly cash and Scott Hagel receiving mainly the income producing property. Although the court found Jean Hagel was a disadvantaged spouse, the court did not award her spousal support, but ordered that Scott Hagel pay $5,000 for her attorney fees.

II

[¶ 5] Jean Hagel argues the district court erred in failing to require Scott Ha-gel to pay child support during the parties’ almost three-year separation period preceding the divorce action.

[¶ 6] Throughout the interim proceedings and the divorce trial, Jean Hagel sought child support for the separation period under N.D.C.C. §§ 14-08-01, 14-08.1-01, and 14-09-08. Section 14-08-01(2), N.D.C.C., authorizes any married person to bring an action against the person’s spouse to provide for “[t]he support of minor children by said husband or wife living with the party bringing suit.” Section 14-09-08, N.D.C.C., places a duty upon parents to “give their children support and education suitable to the child’s circumstances,” and provides that a “court may compel either or both of the parents to provide for the support of their children.” Section 14-08.1-01, N.D.C.C., provides:

A person legally responsible for the support of a child under the age of eighteen years who is not subject to any subsisting court order for the support of the child and who fails to provide support, subsistence, education, or other necessary care for the child, regardless of whether the child is not or was not in destitute circumstances, is liable for the reasonable value of physical and custodial care or support which has been furnished to the child by any person, institution, agency, or county social service board. Any payment of public assistance money made to or for the benefit of any dependent child creates a presumption that such payment equals the reasonable value of physical and custodial care or support.

These statutes govern when there is an obligation to support, there is no court-ordered child support, and no support has been paid by the obligated person. See Linrud v. Linrud, 552 N.W.2d 342, 346 (N.D.1996). In determining a reasonable amount of reimbursement under these statutes, a court may, but is not required to, consider the Child Support Guidelines to estimate the appropriate amount a noncustodial parent should provide for the ongoing support and care of the child. Krug v. Carlson, 2000 ND 157, ¶ 10, 615 N.W.2d 564.

[¶ 7] We have said a district court’s decision whether to award past child support is discretionary and will not be overturned on appeal unless the court has abused its discretion. See Brandner v. Brandner, 2005 ND 111, ¶ 21, 698 N.W.2d 259; McDowell v. McDowell, 2003 ND 174, ¶ 27, 670 N.W.2d 876; Richter v. Houser, 1999 ND 147, ¶ 17, 598 N.W.2d 193. However, under some circumstances, a failure to award interim child support may constitute error as a matter of law. See Ackerman v. Ackerman, 1999 ND 135, ¶¶ 20-21, 596 N.W.2d 332; cf. McDowell, 2003 ND 174, ¶ 28, 670 N.W.2d 876 (amount of child support is set from date of motion to modify, “absent a good reason for not doing so”). Although Jean Hagel argues the abuse of discretion standard no longer applies because of the legislature’s 1999 repeal of N.D.C.C. § 14-09-14 and amendment of N.D.C.C. § 14-17-14(4), see 1999 N.D. Sess. Laws ch. 141, §§ 12, 25, section 14-09-08, N.D.C.C., continues to provide that a court “may compel” a parent to provide support, and N.D.C.C. § 14 — 17— 14(4) is part of the Uniform Parentage Act which is not applicable in this case. See Krug, 2000 ND 157, ¶ 5 n. 1, 615 N.W.2d 564. The word “may” is usually employed to imply permissive, optional, or discre-tional, and not mandatory, action or conduct. City of Devils Lake v. Corrigan, 1999 ND 16, ¶ 12, 589 N.W.2d 579.

[¶ 8] In denying the request for child support during the parties’ separation, the district court said:

23.
The Court reserved its ruling on the onset date of the child support obligation of Scott. The parties separated in May, 2001, and Jean commenced this divorce action in March, 2004. The Court ordered Scott to pay child support of $864 as of April, 2004, in the Second Amended Interim Order. Scott made minimal effort to support the children during the period of separation. He gave them some cash, made minimal payments to Jean, assisted with car payments, and purchased some clothing. Jean also transferred $900 to her account for living expenses.
24.
The Court has the discretion to set the date of the commencement of the child support obligation. Wigginton v. Wigginton, 2005 ND 31, ¶ 13, 692 N.W.2d 108. It shall be the order of the Court that the child support obligation of Scott is retroactive to the month of the commencement of this action (March, 2004).

[¶ 9] A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law. Kramer v. Kramer, 2006 ND 64, ¶ 20, 711 N.W.2d 164. The facts recited by the court support an award of child support during the parties’ separation. The only reason given by the court to deny the request is that it had “discretion” to set the date of the commencement of the child support obligation. A court’s discretionary authority does not in itself establish that its decision is the product of a rational mental process leading to a reasoned decision. When, as here, the district court provides no indication of the evidentiary and theoretical basis for its decision and the basis is not otherwise ascertainable in the record, we are left to speculate whether factors were properly considered and the law was properly applied, leaving us unable to perform our appellate function. Clark v. Clark, 2005 ND 176, ¶ 9, 704 N.W.2d 847. We therefore must reverse the court’s decision denying child support during the parties’ three-year separation and remand for reconsideration and a reasoned explanation of the court’s ruling.

Ill

[¶ 10] Jean Hagel argues the district court erred in denying her request for spousal support.

[¶ 11] In Ulsaker v. White, 2006 ND 133, ¶ 20, 717 N.W.2d 567, we recently explained:

Section 14-05-24.1, N.D.C.C., provides, “Making into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time.” An award of spousal support is to be based on consideration of the Ruff-Fischer guidelines. Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157; Staley v. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182. A separate finding that a spouse is “disadvantaged” is not necessary for an award of spousal support. Sack v. Sack, 2006 ND 57, ¶¶ 11-12, 711 N.W.2d 157. We have recognized that a difference in earning power should be considered when determining spousal support. Sommers v. Sommers, 2003 ND 77, ¶ 17, 660 N.W.2d 586. Property division and spousal support ordinarily must be examined and dealt with together. Id. at ¶ 15.

Spousal support determinations are findings of fact, and the district court’s decision on spousal support will not be set aside unless it is clearly erroneous. Kostelecky v. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made. Thompson v. Olson, 2006 ND 54, ¶ 10, 711 N.W.2d 226.

[¶ 12] The parties were each 44 years old at the time of the divorce trial and were in a long-term marriage. They have no apparent health problems. Jean Hagel raised the children and maintained the household while working full-time, and Scott Hagel pursued his career with Newman Signs. Historically, Jean Hagel has earned from employment roughly one-half of what Scott Hagel has earned. During 2004, Jean Hagel earned $30,079 and Scott Hagel earned $58,463.40, an amount which included $8,331.98 in imputed income. The court divided the net marital estate of $142,000 equally, awarding Jean Hagel mostly cash and Scott Hagel the income producing property.

[¶ 13] In its decision, issued before this Court’s ruling in Sack v. Sack, 2006 ND 57, ¶¶ 11-12, 711 N.W.2d 157, the district court specifically found that Jean Hagel “meets the definition of a disadvantaged spouse.” The court acknowledged our case law establishing that spousal support determinations must be made in light of the needs of the spouse seeking support and of the supporting spouse’s needs and ability to pay and that support can be denied if no need for support is established, or the supporting spouse shows no ability to pay. See, e.g., McDowell v. McDowell, 2001 ND 176, ¶¶ 13, 17, 635 N.W.2d 139. The court found that because “Jean’s income is limited, while Scott has both employment and a trucking business,” and “Jean does not have the ability to pay her entire attorney’s fees, and Scott does,” it ordered Scott Hagel to pay Jean Hagel $5,000 of her attorney fees. In denying the request for spousal support, the court reasoned:

Much of the award to Scott is property that may be income producing, while the award to Jean is mostly cash which she will have available to her. The Court considered this in making the property and debt distribution, and does not award spousal support to Jean.

[¶ 14] The court appears to have found Jean Hagel has a need for support, i.e. that she was “disadvantaged,” and that Scott Hagel has the ability to pay support. These findings seem to support spousal support in some amount. Yet, the court also appears to have denied the request for spousal support because Jean Hagel’s equal property distribution “is mostly cash which she will have available to her.” However, this Court has often said a spouse is not required to deplete a property distribution in order to live. See, e.g., Sommers v. Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586; Fox v. Fox, 1999 ND 68, ¶ 24, 592 N.W.2d 541. We therefore reverse the district court’s decision denying Jean Hagel’s request for spousal support and remand for reconsideration or explanation rectifying the apparently conflicting holdings of the court. Because property division and spousal support are intertwined, the court may also reconsider its property division on remand. See Striefel v. Striefel, 2004 ND 210, ¶ 17, 689 N.W.2d 415.

IV

[¶ 15] We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

[¶ 16] GERALD W. VANDE WALLE, C.J., DONALD L. JORGENSEN, D.J., MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., CONCUR.

[¶ 17] The Honorable DONALD L. JORGENSEN, D.J., sitting in place of SANDSTROM, J., disqualified.


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 182
    Dean Alan CLARK, Plaintiff and Appellant v. Jean Marie Crandall CLARK, Defendant and Appellee.
    No. 20050436.
    Supreme Court of North Dakota.
    Aug. 21, 2006.

      Jerilynn Brantner Adams/"'Vogel Law Firm, Fargo, N.D., for plaintiff and appellant.
    Tracey R. Lindberg, Tracey R. Lind-berg Law Firm, Breckenridge, MN, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Dean Alan Clark appealed from an amended judgment and decree awarding Jean Marie Crandall Clark primary physical custody of their two minor sons and ordering him to pay child support. We conclude the district court did not err in granting Jean Clark physical custody of the children, but erred as a matter of law in computing Dean Clark’s child support obligation. We affirm in part, reverse in part, and remand for recalculation of the child support obligation accompanied by an explanation of how the amount was determined.

I

[¶ 2] The parties were married in 1989 and lived in Lidgerwood. The,couple’s two sons were born in 1991 and 1995. The parties divorced in 2001 and were awarded joint physical custody of the children, with custody of the boys rotating between the parties on a week-by-week basis. For child support the parties were ordered to each pay $250 per month to a joint account until the youngest child turned 18 or graduated from high school, whichever occurred later. Dean Clark w:as awarded the couple’s farm property and Jean Clark was awarded her Lidgerwood home.

[¶ 3] The children began residing with Jean Clark in Lidgerwood during the school year beginning in August 2003, with Dean Clark having them every other weekend. In October 2004, Jean Clark filed a motion requesting an order voiding the divorce judgment, amending the physical custody provisions of the judgment to provide her sole physical custody of the children, or formally modifying the exchange schedule for the children. Dean Clark responded by insisting on a return to the weekly custodial exchange and by filing a motion seeking sole physical custody of the children. On March 3, 2005, a custody investigator was appointed by stipulation of the parties.

[¶ 4] On July 17, 2005, the custody investigator served her report on the parties. The custody investigator recommended that Jean Clark be granted sole physical custody of the children with visitation for Dean Clark during the school year and rotating custody during the summer months. Dean Clark sought a continuance of the scheduled August 15, 2005, hearing on the motions, and a judicial referee granted a continuance until September 19, 2005. Dean Clark supplemented his expert witness interrogatories on September 7 and 8, 2005, by naming two additional expert witnesses, Krislea Wegner and Nancy Hein-Kolo. The opinions and reports of those experts were served on Jean Clark on September 14, 2005. Jean Clark moved to exclude the testimony because of untimely disclosure and unfair surprise. Dean Clark moved to bar the testimony of Jean Clark’s proposed rebuttal expert witness, Dr. Stephen Timm. The referee granted both parties’ motions in limine to exclude the expert testimony and denied Dean Clark’s request for another continuance. The referee also denied Dean Clark’s request to have the children testify.

[¶ 5] Following the September 19-21', 2005, hearing, the referee modified the custody provisions of the divorce decree by awarding Jean Clark physical custody of the children. The referee granted Dean Clark visitation on alternating weekends and one evening a week during the school year, and ordered that each party have the children for alternating two-week time periods during the summer. The referee also ordered that Dean Clark pay $3,487 per month in child support. Upon Dean Clark’s request for review, the district court adopted the referee’s findings of fact and conclusions of law, and an amended judgment was entered.

II

[¶ 6] Dean Clark argues the referee erred in excluding the affidavits and testimony of his expert witnesses, which he claims would have contradicted the custody investigator’s report and recommendations. Dean Clark contends the referee, at the very least, should have granted his request for another continuance.

[¶ 7] The decision to admit expert testimony rests within the discretion of the district court and will not be reversed in the absence of a showing of abuse of discretion. Rittenour v. Gibson, 2003 ND 14, ¶ 29, 656 N.W.2d 691. We also will not reverse a district court’s decision to deny a continuance absent an abuse of discretion by the court. Paulson v. Paulson, 2005 ND 72, ¶ 16, 694 N.W.2d 681. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process. Flatt ex rel. Flatt v. Kantak, 2004 ND 173, ¶ 15, 687 N.W.2d 208.

[¶ 8] Under the discovery provisions of N.D.R.Civ.P. 26(e):

(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to
(B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person’s testimony.

The purpose of Rule 26(e) is to eliminate surprise and allow the opposing party a fair opportunity to meet the evidence at trial. Myer v. Rygg, 2001 ND 123, ¶ 21, 630 N.W.2d 62; Kjonaas v. Kjonaas, 1999 ND 50, ¶ 16, 590 N.W.2d 440. In Dewitz by Nuestel v. Emery, 508 N.W.2d 334, 339 (N.D.1993), this Court explained:

Rule 26[ (e)] does not establish a fixed time prior to trial within which interrogatories must be supplemented so as to be seasonable. The determination as to seasonableness is necessarily a case by case determination, within the sound discretion of the trial judge. To be seasonable, however, the supplemental response must be made a reasonable time before trial taking into account the purpose of the rule which is the elimination of surprise at trial.

A district court has discretionary authority in determining appropriate sanctions for a party’s failure to timely supplement interrogatories by disclosing the identity of an expert witness and the substance of the expert’s testimony. See Peek v. Berning, 2001 ND 34, ¶ 25, 622 N.W.2d 186.

[¶ 9] Dean Clark served supplemental responses naming his expert witnesses on September 7 and 8, 2005, about 12 days before the scheduled hearing. Dean Clark did not reveal the substance of their opinions until late in the afternoon of September 14, 2005, only five days before the hearing. The referee had already granted Dean Clark one continuance of the hearing. In excluding the testimony of Dean Clark’s expert witnesses and Jean Clark’s rebuttal expert witness, and in denying Dean Clark’s request for another continuance, the referee relied on a “combination of factors,” explaining:

Because of the time frame involved, because this matter has been pending for almost a year now, and because of my belief that it is in the best interests of these children that we get the matter resolved as efficiently as possible, I am not going to — and there wasn’t a request for — I’m not going to continue the matter and I am going to exclude the reports of Dr. Hein-Kolo and Dr. Wegner and Dr. Timm. Dr. Timm’s report — or testimony probably would not be relevant to anything without the previous two and that is because of the fact that there simply was not adequate time to prepare and I don’t fault Mr. Timm. I’m not trying to point any fingers here. I am absolutely convinced that on the day [Dean Clark’s trial attorney] got these reports, he sent these reports to opposing counsel. But, as I indicated to counsel in chambers, I also have significant questions that these reports are going to produce anything to us that hasn’t already been alleged and has been or will be testified to.
[Dean Clark’s trial attorney] responded as soon as he had the information, but the experts didn’t get the information, didn’t get the report to him, until the 13 or the 14 or somewhere in that range. And, as [Jean Clark’s attorney] points out, it would have been impossible to depose the witnesses before — or not impossible but certainly less than fruitful to depose the witnesses before those reports were in. So those [sic] combination of factors have led to my decision to exclude as indicated.

[¶ 10] Although we have said the preferred remedy for any late disclosure is a continuance rather than an exclusion of expert testimony, see Reimche v. Reimche, 1997 ND 138, ¶ 9, 566 N.W.2d 790, the referee reasoned that the proceedings had been pending for nearly one year and another continuance would not be in the children’s best interests. The referee’s decision to exclude the expert witnesses and deny the request for continuance is not arbitrary, unreasonable, or unconscionable, and is the product of a rational mental process. We conclude the referee did not abuse his discretion.

Ill

[¶ 11] Dean Clark argues the referee erred in excluding the testimony of the children without first assessing their ability to express a preference regarding child custody.

[¶ 12] Under N.D.C.C. § 14-09-06.2(l)(i), one of the factors a court must consider in deciding child custody is “[t]he reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” We have recognized there is a legislative policy that children of sufficient age and maturity “can and do make significant decisions in their lives, which courts must consider in determining children’s custody preferences, and in making custody decisions.” Reineke v. Reineke, 2003 ND 167, ¶ 17, 670 N.W.2d 841. We have also observed that, “[a]lthough age is not the exclusive indicator of a child’s maturity and capacity to make an intelligent choice, generally, a child’s preference is entitled to more weight as he or she grows older,” and that “it would be foolhardy to ignore the input of an older teenager’s firmly held preference in the resolution of his or her custody.” Barstad v. Barstad, 499 N.W.2d 584, 588 (N.D.1993). This Court has further held that “[a] mature child’s preference should be considered by the trial court as a change in circumstances if there are persuasive reasons for that preference, persuasive enough to result in a change in custody.” Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 10, 562 N.W.2d 390; see also Volz v. Peterson, 2003 ND 139, ¶ 11, 667 N.W.2d 637. We review a district court’s decision whether to allow children to testify about their custody preference under the abuse of discretion standard. See Reineke, at ¶ 16.

[¶ 13] In Reineke, 2003 ND 167, ¶ 18, 670 N.W.2d 841, a majority of this Court held the district court abused its discretion in refusing to allow 14- and 17-year-old children to testify “without first assessing whether the children were of sufficient intelligence, understanding, and experience to express a preference.” However, acknowledging that under N.D.R.Civ.P. 61 “no error in either the admission or the exclusion of evidence ... is ground for ... disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice,” we declined to reverse the district court’s decision:

Although we have concluded the trial court abused its discretion in refusing to allow the children to testify without such an assessment, we do not reverse the court’s custody determination, because the court assumed the daughter preferred to live with her father in making its determination, and, under the trial court’s analysis, consideration of the statutory factors overwhelmingly favored [the mother].

Reineke, at ¶ 19.

[¶ 14] In this case, the children were 10 and 14 years old at the time of the hearing. The referee excluded their testimony without first assessing their ability to express a preference on child custody, reasoning:

In listening to the testimony, these two young fellas have been interviewed at least four times by the custody investigator. I’m not sure whether there were more. They have been interviewed by Ms. Ellingson. I believe if I have that name right. They have been interviewed by Dr. Wegner if I have that name right. The indication from the custody investigator was that it took her some effort and a fair amount of time to gain the confidence of these boys so that they would — I’m searching for the word — open up and so that she could obtain what she thought was credible information from them. I believe both parties have testified that at least one of these young men tends to be pretty quiet. I think the term shy has been used.
There are allegations, and this is not a finding by the Court, that one or both parents may have discussed this action with these kids. And it is my opinion that I’m fairly certain what I would hear from them if I did speak with them — I’m fairly certain that it would take more time than we could put into this to establish any sort of rapport with these guys if at this point in these proceedings they were inclined to open up to the Court at all. And I’m of the opinion that if the poignant question is put to these gentlemen as to their preference, they can’t win no matter what their answer is. And my obligation here is to look out for the best interests of these children. I think the probative value of any conversation the Court might have even without the presence of the parents is greatly outweighed by the potential detriment to these kids. I don’t think any new information would be gathered from them. So I’m going to decline to interview them.

[¶ 15] The referee should have interviewed the children. Although the court indicated it was applying the N.D.R.Ev. 403 balancing test in excluding the testimony, the referee’s finding of potential detriment to the children is based on conjecture. Without interviewing the children, the referee could not know how testifying about their custody preferences would affect the children. Merely assuming that a child’s testimony in a custody dispute will be potentially detrimental to the child renders the reasonable-preference-of-the-child factor inoperative and undermines the legislative policy that children of sufficient age and maturity are entitled to express their preference. See Reineke, 2003 ND 167, ¶ 17, 670 N.W.2d 841.

[¶ 16] Nevertheless, as in Reineke, 2003 ND 167, ¶ 19, 670 N.W.2d 841, we do not reverse the custody decision, because the referee and the parties clearly knew the custody preferences of these children. The custody investigator testified the children expressed interest in living with their father. The referee explicitly found that the reasonable-preference-of-the-child factor favored Dean Clark, but “the degree of the children’s involvement in their parents’ disputes brings the weight of their expressed preference into question.” We conclude the referee’s failure to interview the children provides no ground to disturb the custody decision.

IV

[¶ 17] Dean Clark argues the referee erred in modifying the physical custody provisions of the divorce judgment because no significant change of circumstances had occurred since the judgment was entered.

[¶ 18] Under N.D.C.C. § 14-09-06.6(6), a court may modify a prior custody order after two years from the date of entry of an order establishing custody if:

a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

The party seeking to modify a custody order bears the burden of showing that a change of custody is required. Hanson v. Hanson, 2005 ND 82, ¶8, 695 N.W.2d 205. A district court’s decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review. Sweeney v. Sweeney, 2002 ND 206, ¶ 10, 654 N.W.2d 407. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Id.

[¶ 19] The referee found “a material and significant change in the circumstances of the parties” based on the following:

10. The court finds that during the school year preceding the commencement of this action, the boys were in the primary care and custody of [Jean Clark], and that such an arrangement provided for stability and continuity for the children. The custody investigator interviewed references and contacts provided by both parties, and the references, including a reference provided by Dean Clark, confirmed that the minor children resided with Jean Clark during the school year. The Court further finds that such an arrangement was made pursuant to the agreement of [Dean Clark], and that as such, the primary residential structure of the minor children had changed for a significant period, prior to the commencement of this motion.
11. Following the commencement of this motion, [Dean Clark] insisted that the parties continue to exchange the children on a week to week basis. During the time that [Dean Clark] had custodial time with the children, the Court finds that he did not encourage and facilitate a positive relationship between the children and their mother, Jean Clark. As provided in the testimony/affidavits of [Jean Clark], her messages and telephone calls to the children were not always returned. For example, during cross examination, [Dean Clark] admitted that when [Jean Clark] attempted to call to see how the youngest son was doing when [he] had stayed out of school due to illness, rather than allowing her to talk to [him], he told her to, “Go to H* * ⅜ ” at least twice in response to her requests to speak to the child.
12. The custody investigator determined that the children have heard their father’s significant other downgrade and denigrate [Jean Clark] in their presence, and that such conduct is allowed by [Dean Clark].
13. Although the parties are to divide the summers, the conduct of [Dean Clark] resulted in Jean Clark only having the children for about four weekends during the summer.
14. Other instances in which [Jean Clark’s] contact with the children was artificially limited included [Dean Clark’s] retention of the children until late in the day on Mother’s Day, 2005.

[¶ 20] The parties’ original divorce judgment provided for rotating custody. We have said that rotating custody arrangements are in a child’s best interests only if the parents are able to cooperate and set aside their differences and conflicts in their role as parents. See Peek, 2001 ND 34, ¶ 22, 622 N.W.2d 186; Jarvis v. Jarvis, 1998 ND 163, ¶ 36, 584 N.W.2d 84. Obviously, this rotating custody arrangement was no longer workable, as evidenced by the parties’ lack of cooperation and their subsequent competing motions to amend the original judgment to provide for sole physical custody of the children. The primary physical care of the children had changed to Jean Clark for a period longer than six months, a factor that would support modification of a custody order even within the two-year period under N.D.C.C. § 14-09-06.6(3) and (5). Although Dean Clark argues the referee erroneously disregarded his testimony and evidence, the district court is the determiner of credibility issues in a bench trial and we do not second guess the district court on its credibility determinations. Manning v. Manning, 2006 ND 67, ¶ 17, 711 N.W.2d 149. We conclude the referee’s finding that a material and significant change of circumstances warranting modification of custody had occurred is not clearly erroneous.

V

[¶ 21] Dean Clark argues the referee’s findings on the best-interests factors under N.D.C.C. § 14-09-06.2 are clearly erroneous. A district court’s custody decision under the best-interest-of-the-child analysis is subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). See Edwardson v. Lauer, 2004 ND 218, ¶4, 689 N.W.2d 407; Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196.

[¶ 22] The referee, as well as the district court on review, made specific findings on each of the best-interest factors. The referee found factor (b) favored Jean Clark because she “has always been more involved in education issues, ... has worked harder to impress upon the boys the importance of education,” and “has the greater disposition to continue working on these areas.” The referee found factors (d) and (e) favored Jean Clark because of the period of time the children had resided with her and the break in continuity caused by Dean Clark’s demands for a return to rotating custody and interference with the visitation schedule. The referee found factor (h) favored Jean Clark because, although the youngest child was a “good student who is competitive regarding his academics,” the older child began experiencing “behavior issues” at school after a return to the rotating custody arrangement, and because Jean Clark has a more “consistent history of being involved with the children’s extracurricular activities and devoting her time to the same.” The court found factor (k) favored Jean Clark because Dean Clark’s girlfriend disparaged the children’s mother in their presence. The referee found only factor (i), the reasonable preference of the children, favored Dean Clark. The referee and the court found the other factors favored neither party.

[¶ 23] The record evidence supports the findings on the best-interest factors, and we conclude the referee’s finding that a modification of custody was required in the best interests of the children is not clearly erroneous.

VI

[¶ 24] Dean Clark argues the referee erred as a matter of law in calculating his child support obligation and in failing to set forth how he arrived at his net income for child support purposes.

[¶ 25] Child support determinations involve varying standards of review depending on the issue appealed. Bertsch v. Bertsch, 2006 ND 31, ¶ 6, 710 N.W.2d 113. We apply a de novo standard of review for questions of law, a clearly erroneous standard of review for questions of fact, and an abuse of discretion standard of review for discretionary matters. Oien v. Oien, 2005 ND 205, ¶ 8, 706 N.W.2d 81. In Berge v. Berge, 2006 ND 46, ¶ 8, 710 N.W.2d 417, we recently explained:

Under N.D. Admin. Code § 75-02[-]04.1-02(10), “[e]ach child support order must include a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined.” Because a proper finding of net income is essential to determine the correct amount of child support under the child support guidelines, we have said that, as a matter of law, a trial court must clearly set forth how it arrived at the amount of income and the level of support. See, e.g., Bladow [v. Bladow], 2005 ND 142, ¶ 19, 701 N.W.2d 903; Olson v. Olson, 2002 ND 30, ¶ 12, 639 N.W.2d 701; Heinz v. Heinz, 2001 ND 147, ¶ 17, 632 N.W.2d 443; Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450; Buchholz v. Buchholz, 1999 ND 36, ¶ 12, 590 N.W.2d 215; Berg v. Ullman ex rel. Ullman, 1998 ND 74, ¶ 18, 576 N.W.2d 218. When a trial court does not clearly state how it calculated the amount of child support, this Court will reverse and remand for an explanation even if the record contains adequate evidence for the trial court to make a precise finding. See Buchholz, at ¶¶ 12, 17; Wolf v. Wolf, 557 N.W.2d 742, 744 (N.D.1996); see also Heley v. Heley, 506 N.W.2d 715, 721 (N.D.1993) (“A mere recitation that the guidelines have been considered in arriving at the amount of a child support obligation is insufficient to show compliance with the guidelines”); Spilovoy v. Spilovoy, 488 N.W.2d 873, 877 (N.D.1992) (same).

[¶ 26] The referee found that “Dean Clark owns a business operated as an S-corporation, and earns from the business a net income of $14,781.24 per month.” Based on this finding, the referee ordered that Dean Clark pay $3,487 per month in child support commencing October 1, 2005. Upon Dean Clark’s objection in his request for review, the district court ruled “[t]he testimony of Dean and Leonard Sliwo[]ski establishes that Dean’s net income was $14,781.24, as found by the Referee.” Neither the referee nor the district court clearly explained how Dean Clark’s child support obligation was calculated.

[¶ 27] Jean Clark argues the child support amount is supported by Dean Clark’s tax returns, her calculation worksheets, and the testimony of Sliwoski, her expert witness. Even if we assume the referee and the court adopted Jean Clark’s calculations, those calculations appear to have added depreciation deductions from the tax returns back into Dean Clark’s net income and appear inconsistent with Sliwoski’s testimony and affidavits. After the 1999 amendments to the child support guidelines, “[a] trial court cannot include depreciation deductions in income when determining an obligor’s child support obligation.” Kobs v. Jacobson, 2005 ND 222, ¶ 11, 707 N.W.2d 803; see also Torgerson v. Torgerson, 2003 ND 150, ¶¶ 14-20, 669 N.W.2d 98. Although Jean Clark argues Dean Clark deducted inappropriate personal purchases in contravention of Internal Revenue Service regulations, “[without ordering the parties to present more information and making specific findings of fact, a trial court cannot arbitrarily ignore the guidelines simply because it feels the obligor’s tax returns do not adequately reflect the obligor’s income.” Kobs, at ¶ 8.

[¶ 28] We conclude the referee and the district court erred as a matter of law in setting Dean Clark’s child support obligation, and we remand for the preparation of the factual findings necessary to support a child support award. See Berge, 2006 ND 46, ¶ 9, 710 N.W.2d 417.

VII

[¶ 29] We affirm the part of the amended judgment granting Jean Clark physical custody of the children, reverse the part on child support, and remand for recalculation of Dean Clark’s child support obligation accompanied by an explanation of how the amount was determined.

[¶ 30] WILLIAM F. HODNY, S.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

[¶ 31] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.