text:
    2004 ND 4
    FARGO GLASS AND PAINT CO., Plaintiff and Appellant v. Charles C. RANDALL personally and d/b/a P-R Floor Covering Company, Defendant and Appellee.
    No. 20030196.
    Supreme Court of North Dakota.
    Jan. 14, 2004.

      Clifton G. Rodenburg, Johnson, Roden-burg & Lauinger, Fargo, N.D., for plaintiff and appellant; submitted on briefs.
    Charles C. Randall, pro se, Grand Forks, N.D., defendant and appellee; submitted on briefs.
   VANDE WALLE, Chief Justice.

[¶ 1] Fargo Glass and Paint Company (“Fargo Glass”) appealed from an order granting a motion for correction of judgment in its collection action against Charles C. Randall. We conclude the district court erred in correcting the judgment under N.D.R.CÍV.P. 60(a), and we reverse and remand for further proceedings.

I

[¶ 2] In January 2001, Fargo Glass sued Randall, personally and doing business as P-R Floor Covering Company, to recover $5,789.40 plus interest for the balance due for flooring and related products. Randall answered, claiming that he had neither ordered nor received certain materials and that the amount due failed to reflect credit for defective materials he did receive. In March 2001, Fargo Glass served Randall with requests for admissions, including admissions that Fargo Glass sold the materials to “P & R Floor Covering,” Randall “has assumed all of the assets and liabilities of P & R Floor Covering,” and that “[tjhere are no facts upon which ... Randall relies as a basis for any defense in this action.” In May 2001, after Randall failed to respond to the request for admissions within 30 days under N.D.R.Civ.P. 36(a), Fargo Glass moved for summary judgment based on the admissions. Randall responded to the motion with an affidavit, claiming he was owed credit on some invoices, was charged the wrong amount on others, and was owed a credit for rebate coupons. In July 2001, the district court ruled the requests for admissions were deemed admitted and granted summary judgment in favor of Fargo Glass and against “Randall personally and dba P-R Floor Covering Company” for $5,321.86 plus interest and costs.

[¶ 3] In August 2001, Randall moved for correction of the judgment under N.D.R.Civ.P. 60(a). Randall submitted an affidavit in support of the motion, in which he stated:

I affirm to the Court that I personally have never done business as “P-R Floor Covering Company.” I am an officer and employee of P-R Company, Inc., a North Dakota corporation that has done business as “P-R Floor Covering Company.” With regard to Plaintiffs claims in this case, P-R Company, Inc., and not me personally, incurred the debts on which Plaintiff bases its claims. Therefore, P-R Company, Inc., and not me, is the responsible Judgment debtor in this case.

In February 2002, the district court granted Randall’s motion. The court concluded “the pleadings and admissions on file in this action together with the affidavits submitted in support thereof show that Defendant Randall never did business as ‘P-R Floor Covering Company,’ ” and “nowhere in the pleadings and admissions on file together with the affidavits submitted in support thereof does Plaintiff prove that Defendant executed any personal guaranty in which he assumed liability for the accounts payable of P-R Company, Inc.” The court ordered the July 2001 judgment “be corrected to reflect the proper responsible party, P-R Company, Inc. and not against Defendant Charles C. Randall personally.”

II

[¶ 4] Fargo Glass argues the district court erred in altering the judgment under N.D.R.Civ.P. 60(a).

[¶ 5] Under N.D.R.Civ.P. 60(a), “[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversights or omission may be corrected by the court: (1) at any time on its own initiative; or (2) on the motion of any party.” In First Western Bank v. Wickman, 513 N.W.2d 62, 64 (N.D.1994), we explained:

This Court has clearly held that Rule 60(a) is not a substitute for an appeal on the merits.
“Generally, Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what originally was pronounced. We believe it clear that Rule 60(a) was not designed to affect substantive portions of a judgment or order, nor to act as a substitute for appeal. The rule is appropriately utilized only for ‘the correction of irregularities which becloud but do not impugn [the judgment].’ United States v. Stuart, 392 F.2d 60, 62 (3d Cir.1968). The problem is essentially one of characterization. Kelley v. Bank Building and Equipment Corporation of America, 453 F.2d 774, 778 (10th Cir.1972). It must be determined ‘whether a substantive change or amendment was made or whether the amended conclusions and judgment were in the nature of corrections.’ Kelley, supra.
“A court may correct, pursuant to Rule 60(a), errors created by oversight or omission that cause the judgment to fail to reflect what was intended at the time of trial. However, Rule 60(a) is not a vehicle for relitigat-ing matters that have already been litigated and decided, nor to change what has been deliberately done.” (Citations, footnote omitted.)
Gruebele v. Gruebele, 338 N.W.2d 805, 811-12 (N.D.1983); see also Volk v. Volk, 435 N.W.2d 690, 692 (N.D.1989).

[¶ 6] The district court had no authority under N.D.R.Civ.P. 60(a) to change the liable party from Randall in his personal capacity to “P-R Company, Inc.” There is no “clerical mistake” in a judgment if it accurately reflects uncon-troverted evidence in the proceedings. See Wickman, 513 N.W.2d at 64. Here, the unanswered request for admissions, which were deemed admitted by the district court and served as the basis for the summary judgment, established the liable party as “Randall personally and dba P-R Floor Covering Company.” Rule 60(a) cannot be used to introduce a new party to an action. The court, under the guise of correcting a clerical error, could not change the party liable for the judgment to a new and different corporate entity.

[¶ 7] The district court did not consider Randall’s motion under Rule 60(b), even though the “Rule 60(a)” motion was accompanied by an affidavit raising matters that were not raised during the summary judgment proceedings. Rule 60(b) provides in part:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment or order in any action or proceeding for the following reasons: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged, or a previous judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. The motion must be made within a reasonable time, and for reasons (i), (ii), and (iii) not more than one year after notice that the judgment or order was entered in the action or proceeding if the opposing party appeared, but not more than one year after a judgment by default has been entered.

This Court has stated its preference for the use of the N.D.R.Civ.P. 60(b) procedure for relief from judgment, rather than the Rule 60(a) procedure, when a party seeks to change a previously entered judgment. See Disciplinary Action Against Wilson, 461 N.W.2d 105, 109 (N.D.1990); Production Credit Ass’n v. Obrigewitch, 443 N.W.2d 304, 309 (N.D.1989); Volk, 435 N.W.2d at 692, Gruebele, 338 N.W.2d at 812.

[¶ 8] Although Fargo Glass argues that Randall is not entitled to relief under Rule 60(b), resolution of that question on appeal is inappropriate because it requires examination of factual matters not addressed or considered by the district court. “Because the trial court ordinarily has presided over the proceedings leading to the challenged judgment and because of the trial court’s fact-finding capabilities, we have said the trial court is in a much better position than an appellate court, which must rely on a cold record, to pass upon the issues presented in a Rule 60(b) motion.” Lewis v. N.D. Workers Comp. Bureau, 2000 ND 77, ¶ 10, 609 N.W.2d 445. Consequently, we remand to the district court for consideration of Randall’s motion under Rule 60(b) standards.

Ill

[¶ 9] The order is reversed and the case is remanded for further proceedings.

[¶ 10] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2004 ND 8
    In the Interest of W.O. Prairie at St. John’s, Petitioner and Appellee. v. W.D.O., Respondent and Appellant.
    No. 20030358.
    Supreme Court of North Dakota.
    Jan. 14, 2004.

      Robin Huseby, State’s Attorney, Valley City, N.D., for petitioner and appellee.
    Timothy P. Hill, Hill Law Office, Fargo, N.D., for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] W.O. appeals from a district court order dated December 4, 2003, revoking an Order for Less Restrictive Treatment and requiring W.O. to be hospitalized for the remainder of his treatment period. We dismiss the appeal as moot.

I.

[¶ 2] On October 21, 2003, W.O. was involuntarily committed to psychiatric facilities at Prairie at St. John’s in Fargo, North Dakota. On November 18, 2003, the district court issued an Order for Less Restrictive Treatment allowing W.O. to receive care in Jamestown and continue partial hospitalization at Prairie at St. John’s. On December 2, 2003, the district court amended the November 18, 2003, order based on a stipulation between the parties. The amended order allowed W.O. to return to his home in Valley City and receive care in Fargo on Mondays, Wednesdays, and Fridays. On Tuesdays and Thursdays, W.O. was to report to treatment programs available in Jamestown or Valley City.

[¶ 3] On November 28, 2003, a Valley City resident notified the Barnes County Sheriff that W.O. was driving erratically between the trees in the caller’s shelter belt. Sergeant Mark Peterson and Sheriff McClaflin went to investigate. At their arrival, W.O. pulled his vehicle beside the officers’ vehicle. Peterson asked W.O. to step out of his vehicle. Peterson reported W.O. appeared intoxicated because his speech was slurred. W.O. told Peterson he had been drinking and should not have been driving, and he was relieved when the officers arrived at the scene. Officer Peterson asked W.O. if he had been taking his medication and W.O. replied, “no.”

[¶ 4] Officer Peterson attempted to perform field sobriety tests on W.O., but W.O. was unable to complete the tests, claiming he could not recite the alphabet nor could he count backwards. The officer did not detect the smell of alcohol on W.O.’s breath, although W.O. stated that Chardonnay “comes out of the sky” and he just “sucks it in.” The officer performed a breath test, which registered a blood alcohol content of .002%. The officer transported W.O. to the Law Enforcement Center, drafted an emergency petition to commit W.O., and then transported him to Prairie at St. John’s.

[¶ 5] While traveling to Prairie at St. John’s, W.O. told Officer Peterson that the technology in his new vehicle was so good that he could drive through other vehicles without getting hurt. The officer asked W.O. if he meant the vehicle had sensors on it so that the driver did not run into objects. W.O. responded by telling the officer that he could drive through an oncoming Greyhound bus without getting hurt. W.O. also told the officer he could drive off the road at highway speeds and the car would not roll over.

[¶ 6] W.O. was examined by staff at Prairie at St. John’s when he was admitted. The examiner’s report included accounts that W.O. had been in Pamida with his dog and that he was “raising ‘Cain.’ ” The report also stated W.O. was driving around Valley City sometime in November with the top down on his convertible and a dead deer in the back seat. The report also stated W.O. violated a restraining order numerous times because he believed the order had been dropped.

[¶ 7] On November 29, 2003, Dr. Edward Kelly examined W.O. and found that he was not yet sufficiently mentally stable to care for himself. On the same day, Susan Rau, a licensed social worker, petitioned the district court for involuntary commitment.

[¶ 8] On December 4, 2003, the district court heard evidence and found W.O. did not comply with the Order for Less Restrictive Treatment. The district court ordered the Less Restrictive Treatment Order terminated and W.O. hospitalized for the remainder of his 90-day treatment to end on January 18, 2004.

[¶ 9] On December 9, 2003, W.O. filed this appeal. W.O. argues the district court improperly revoked the Order for Less Restrictive Treatment because the evidence did not establish W.O. was not complying with the treatment order or that the treatment order was insufficient to prevent injury to W.O. or others. On December 17, 2003, the district court issued an Amended Order for Less Restrictive Treatment. The amended order was identical to the order dated December 2, 2003, allowing W.O. to attend day treatment at Prairie at St. John’s on Mondays, Wednesdays, and Fridays and to attend alternative programs in Jamestown on Tuesdays and Thursdays.

II.

[¶ 10] “Before reaching the merits of an appeal, we consider the threshold issue of mootness.” Fercho v. Remmick, 2003 ND 85, ¶ 7, 662 N.W.2d 259 (citing Simpson v. Chicago Pneumatic Tool Co., 2003 ND 31, ¶ 7, 657 N.W.2d 261). This Court does not render advisory opinions, and will dismiss appeals if the issue becomes moot. Sposato v. Sposato, 1997 ND 207, ¶ 8, 570 N.W.2d 212. There must be an actual controversy before this Court in order for it to properly adjudicate. Id. (citing Bies v. Obregon, 1997 ND 18, ¶ 9, 558 N.W.2d 855). If certain events have occurred which makes it impossible for the Court to issue relief, or when the lapse of time has made the issue moot, then no actual controversy exists. Sposato, at ¶ 8. Under N.D.R.App.P. 42, a party has a duty to notify the Court when an issue may be moot due to a change in circumstance and explain why the appeal should or should not be dismissed.

[¶ 11] “This Court will determine a moot issue, rather than dismiss the appeal, only if the controversy is one of great public interest and involves the authority and power of public officials or if the matter is capable of repetition, yet evading review.” Sposato, at ¶ 9 (quoting Ashley Educ. Ass’n v. Ashley Pub. Sch. Dist., 556 N.W.2d 666, 668 (N.D.1996)). W.O. argues this case is capable of repetition; therefore, this Court should issue an opinion on the issues.

[¶ 12] Mootness in this case arises from an event which took place after the district court’s revocation of the Order for Less Restrictive Treatment, but before oral argument on appeal. This is an appeal from a revocation of an Order for Less Restrictive Treatment. A later Order for Less Restrictive Treatment was issued by the district court on December 17, 2003, which was in substance the same as the order issued on December 2, 2003. W.O. is not contesting the content of the Order for Less Restrictive Treatment issued by the district court on either date; he argues the Order revoking the Less Restrictive Treatment was improper.

[¶ 13] In oral arguments, W.O. conceded the Amended Order issued December 17, 2003, was identical to the one issued December 2, 2003. The conditions imposed on W.O. by the December 17, 2003, order, including its termination date, were the same as those imposed by the previous order, which W.O. does not contest. W.O. is now in a program of less restrictive treatment and is no longer confined to the psychiatric facility at Prairie at St. John’s. Therefore, this Court is unable to provide any meaningful relief by deciding whether there was sufficient evidence that W.O. had violated the initial Order for Less Restrictive Treatment, or whether W.O. posed a threat to himself or others necessary for the revocation of the first Order for Less Restrictive Treatment. The facts of this case are unique to W.O. and only applicable to the circumstances existing at the time an order is issued governing his treatment. If the district court revokes the current order, W.O. is not prevented from appealing that decision.

[¶ 14] Because W.O. is now subject to an order identical to one he concededly does not contest, we conclude no actual controversy exists and this appeal is moot.

[¶ 15] The appeal is dismissed.

[¶ 16] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.


author: MARING, Justice.

text:
    2004 ND 9
    Galen NAGEL, Plaintiff and Appellant v. CITY OF BISMARCK, Defendant and Appellee.
    No. 20030265.
    Supreme Court of North Dakota.
    Jan. 14, 2004.
    Rehearing Denied Feb. 25, 2004.

      Michael Geiermann, Schulz Lervick Geiermann & Bergeson Law Offices, Bismarck, N.D., for plaintiff and appellant.
    Charles L. Chapman, Chapman and Chapman, Bismarck, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Galen Nagel appeals a judgment dismissing his petition for a writ of mandamus to require the City of Bismarck and the Bismarck Police Department to reinstate him as a police officer. We affirm.

I

[¶2] The police department employed Nagel from December 16,1994, to September 16, 2002. During his employment, the police department disciplined Nagel twice in 1999 and once in 2001.

[¶ 3] The discipline that is the subject of this appeal resulted from an investigation on four possible charges in the fall of 2001. The Internal Review Board of the police department found a basis for two charges of inappropriate conduct, and after review, the Chief of Police agreed with the Board’s conclusion. In the first incident, Nagel was disrespectful to two non-police department women conducting in-service training. In the second incident, Nagel made disrespectful remarks accusing a lieutenant and the police department administrators overall, of being liars.

[¶ 4] On January 25, 2002, the Chief of Police suspended Nagel for 160 hours and ordered him to successfully complete a fitness-for-duty examination. Nagel appealed his discipline to the Civil Service Commission (“Commission”). Nagel requested that Dr. Michael Campion, a clinical psychologist, conduct the examination, and the Chief of Police agreed. Dr. Cam-pion had experience conducting police officer evaluations for the police department in St. Paul, Minnesota. Dr. Campion conducted the fitness-for-duty examination on March 28, 2002, prior to the Commission hearing Nagel’s appeal.

[¶ 5] On April 2, 2002, the Commission heard Nagel’s suspension appeal. The Commission dismissed Nagel’s appeal with prejudice and concluded the general orders in the police department policy manual stating, “[discipline may be administered in a corrective or punitive manner” and “[t]he Chief of Police will make a determination as to whether or not suspension or a more severe form of discipline appears appropriate,” do not prohibit the police department from imposing both corrective and punitive discipline.

[¶ 6] On July 31, 2002, Dr. Campion issued his report and concluded, “[i]t is the examiner’s opinion based on the information available at the time of assessment and with a reasonable degree of psychological certainty, that Officer Nagel is unfit for duty with the Bismarck, North Dakota Police Department as a department officer.” On August 27, 2002, Nagel’s attorney sent Dr. Campion a letter asking if he had any “recommendations for treatment for Officer Nagel so that he may return to his employment in the Bismarck Police Department.” The Chief of Police also requested this information. Dr. Campion responded on September 10, 2002, and stated, “Officer Nagel’s prognosis is guarded, therefore, counseling is not recommended as a condition for continual employment on the Bismarck Police Department.”

[¶ 7] The Chief of Police terminated Nagel on September 16, 2002. The Chief of Police cites Bismarck Municipal Ordinance 9-06-02(3) as authority to terminate Nagel, which states, “[a]n employee may be subject to disciplinary action for conduct impairing their performance or that of the city government, including, but not limited to: ... [inability to get along with fellow employees or the citizenry resulting in interference with the performance of duties of any employee.”

[¶ 8] Nagel filed a timely appeal of his termination to the Commission. The Commission concluded Nagel’s termination did not discipline him twice for the same conduct. The Commission also reiterated that the general orders in the police department policy manual do not prohibit the police department from imposing both corrective and punitive discipline. In addition, the Commission concluded Bismarck Municipal Ordinance 9-06-05 did not apply to Nagel’s termination for cause under 9-06-02. The Commission ordered Nagel’s appeal dismissed and concluded Nagel’s termination was justified based on prior discipline problems, current discipline, and the fitness-for-duty examination.

[¶ 9] Nagel filed a petition for a writ of mandamus on February 20, 2003, which the trial court dismissed on August 14, 2003. It concluded that the Chief of Police had authority to impose both corrective and punitive discipline as part of the same order, that 9-06-05 did not apply to this termination, that the police department did not discipline Nagel twice for the same conduct, that Nagel’s termination was part of the discipline originally imposed on January 25, 2002, that successful completion of the fitness-for-duty examination was a condition of Nagel’s return to duty, and that Nagel does not have a clear legal right to a writ of mandamus. Nagel appeals the Judgment of Dismissal to this Court.

II

[¶ 10] Absent an abuse of discretion, this Court will not overturn a trial court’s denial of a petition for a writ of mandamus. Smith v. Burleigh County Bd. of Comm’rs, 1998 ND 105, ¶ 9, 578 N.W.2d 533. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Opdahl v.. Zeeland Pub. Sch. Dist. No. 4, 512 N.W.2d 444, 446 (N.D.1994). In this case, the trial court did not abuse its discretion when it denied Nagel’s petition for a writ of mandamus.

[¶ 11] A party seeking a writ of mandamus bears the burden of demonstrating a clear legal right to the performance of the particular acts sought to be compelled by the writ. Krabseth v. Moore, 1997 ND 224, ¶ 6, 571 N.W.2d 146. In addition, a party seeking a writ of mandamus must have no other plain, speedy, and adequate remedy in the ordinary course of the law. Smith, 1998 ND 105, ¶ 9, 578 N.W.2d 533 (quoting Tooley v. Aim, 515 N.W.2d 137, 140 (N.D.1994)). Mandamus is unavailable if an appeal is authorized from an adverse decision. Smith, at ¶ 9.

[¶ 12] An appeal is not authorized from the Commission’s decision regarding Nagel’s termination because the Commission’s decision is final. Bismarck Municipal Ordinance 9-06-04(6). Nagel claims the Chief of Police failed to follow city ordinances governing termination of city employees. Nagel argues the police department violated procedures outlined in city ordinances and general orders. We conclude petitioning the trial court for a writ of mandamus is procedurally appropriate. See Blomquist v. Clague, 290 N.W.2d 235, 236-37 (N.D.1980); Rudnick v. City of Jamestown, 463 N.W.2d 632, 637 (N.D.1990).

Ill

[¶ 13] Nagel claims the city failed to follow Bismarck Municipal Ordinance 9-06-05 and police department general orders when it terminated him. Nagel claims the police department violated police department general orders by punishing him twice for the same conduct. In addition, he argues the city was required to follow Bismarck Municipal Ordinance 9-06-05 because Dr. Campion determined he was unfit to be a police officer for the police department.

A

[¶ 14] We have never addressed whether a city may suspend a city employee and then dismiss him for the same conduct. Under the facts of this case, it is unnecessary to decide that issue because Nagel’s termination was a result of his failure to successfully complete a fitness-for-duty examination which was part of his original discipline. In her notice of suspension, the Chief of Police stated:

In addition to [160 hours of suspension] as a result of both violations you will submit to a fitness for duty exam as follows:
E. You are hereby ordered to sign medical releases authorizing the physician/medical professional to release a summary of his/her findings following the psychological evaluation and the fact of your participation in any recommended treatment and/or therapy and your successful or unsuccessful completion of the same. This is to ensure that I receive a summary of the psychological evaluation and am able to monitor your involvement in any treatment or therapy recommended by the selected physician/medical professional.
F. You are hereby order[ed] to follow through with any and all programs recommended by the physician/medical professional.
G. Failing to follow through with these orders will be grounds for additional disciplinary action up to and including termination.

In a letter to Nagel, dated May 2, 2002, the Chief of Police states, “[y]ou will remain on Administrative Leave until such time that I receive a final report on your fitness for duty exam. You will be notified by my office once you have been cleared for duty.”

[¶ 15] We conclude, in Nagel’s suspension notice, the Chief of Police made it a condition for reinstatement that Nagel not only complete a fitness-for-duty examination, but be found fit for duty. She informs Nagel that failure to follow though with the order can result in termination. Therefore, his ultimate termination was not a second punishment for the same conduct, but a result of his failure to comply with the original discipline order. When Dr. Campion found Nagel unfit for duty and concluded that -counseling was not recommended for continued employment, Nagel failed to successfully complete the original discipline order. At that point, the Chief of Police had cause to terminate Nagel based on ordinance 9-06-02(3), Dr. Campion’s reports, and Nagel’s past discipline problems.

[¶ 16] Nagel relies heavily on authority from other jurisdictions to support his argument the city may not terminate a city employee for conduct for which he has already been suspended. Siler v. City of Harrisburg, 54 Pa.Cmwlth. 303, 422 A.2d 704 (1980); In Re Ditko’s Appeal, 385 Pa. 435, 123 A.2d 718 (1956); Messina v. City of Chicago, 145 Ill.App.3d 549, 99 Ill.Dec. 493, 495 N.E.2d 1228 (1986); Rochon v. Rodriguez, 293 Ill.App.3d 952, 228 Ill.Dec. 416, 689 N.E.2d 288 (1997); James v. Sewerage and Water Board of New Orleans, 505 So.2d 119 (La.Ct.App.1987); State Department of Transportation v. State Career Service Commission, 366 So.2d 473 (Fla.Dist.Ct.App.1979); and Ladnier v. City of Biloxi, 749 So.2d 139 (Miss.Ct.App.1999). However, the facts of those cases are distinguishable from the instant case. Those city employees were not required to successfully complete a fitness-for-duty examination as part of their original discipline, and the matter was closed with the suspension. Further, the city employees were given no indication that further discipline may follow their suspensions for failure to comply with the discipline order. Here, Nagel was informed that further discipline may follow his suspension if he did not successfully complete a fitness-for-duty examination. Accordingly, the cases cited by Nagel are not applicable to the facts of this case.

B

[¶ 17] Nagel argues the police department had to satisfy Bismarck Municipal Ordinance 9-06-05 before terminating him because Dr. Campion’s report concluded he was unfit to be a police officer to a reasonable degree of psychological certainty. He argues that this determination triggers the provisions of Bismarck Municipal Ordinance 9-06-05.

[¶ 18] We conclude Bismarck Municipal Ordinance 9-06-05 does not apply to Na-gel’s termination. Chapter 9-06 of the Bismarck Municipal Ordinances, “Employee Separation and Discipline,” governs city employee termination. Bismarck Municipal Ordinance 9-06-05 states:

Compulsory Retirement. An appointing authority may dismiss or involuntarily retire a full-time employee who is physically or mentally unable to perform the duties of the employee’s position. The appointing authority may direct any employee to submit to an examination of the city health officer and two other physicians named by the personnel director for the purpose of determining if the employee is physically or mentally unable to perform the duties of the employee’s position. Refusal to be examined shall be deemed grounds for suspension, demotion or dismissal. Upon the concurring report of at least two physicians that the employee is physically or mentally unable to perform his or her duties, the employee may [be] dismissed or involuntarily retired. The employee may appeal the action pursuant to section 9-06-04.

Bismarck Municipal Ordinance 9-06-05 (emphasis added).

[¶ 19] The title of this ordinance is “Compulsory Retirement” and states that “[a]n appointing authority may dismiss or involuntarily retire.... ” This ordinance is permissive and applies to city employees who become physically or mentally unfit to perform job duties due to an actual physical or mental disability rather than a person who has been found unfit for the job due to personality traits such as Nagel’s. Dr. Campion’s report does not mention a mental disability, but general personality traits, i.e., disrespectful to authority, uncooperative, not fitting for a law enforcement officer. The Chief of Police’s termination of Nagel was a matter of discipline, not an involuntary retirement or termination for a mental or physical disability.

[¶ 20] In her letter informing Nagel of his termination, the Chief of Police relied on Bismarck Municipal Ordinance 9-06-02(3), Dr. Campion’s report, and Nagel’s past discipline problems. Bismarck Municipal Ordinance 9-06-02(3) provides that “[a]n employee may be subject to disciplinary action for conduct impairing their performance or that of the city government, including, but not limited to: ... inability to get along with fellow employees or the citizenry resulting in interference with the performance of duties of any employee.” Dr. Campion’s report states:

His peer’ and supervisor responses to the NPASS suggest remarkable concerns with regards to his personality traits as an officer, as well as his ability to function as a team player. His responses as noted from his taped interviews suggest an individual who is argumentative, accusatory, disrespectful of department authority, and uncooperative. There appears to be an arrogant disrespectfulness in his verbal behavior and tone on the tapes. His test results suggest work difficulties, lack of social sensitivity, antisocial attitudes, behavioral patterns regarding integrity concerns, lack of work ethic, and problems with inconsiderate behavior. Officer Nagel’s response to the assessment process of the fitness for duty was consistent with other clinical data, which indicated ob-structional behavior and a sense that he is “above the system.”

Dr. Campion’s report supports Nagel’s termination under Bismarck Municipal Ordinance 9-06-02(3). Dr. Campion concluded Nagel was uncooperative, was disrespectful of department authority, lacked social sensitivity, and had antisocial attitudes. These statements support the police department’s conclusion that Nagel had an “[ijnability to get along with fellow employees or the citizenry resulting in interference with the performance of duties of any employee.”

[¶ 21] Nagel admits the police department could have terminated him for his conduct instead of placing him on suspension. However, the Chief of Police gave Nagel a chance to become fit for duty by allowing him to successfully complete a fitness-for-duty examination or become fit for duty through treatment or therapy recommended by Dr. Campion. Further, in her letter to Nagel, dated May 2, 2002, the Chief of Police states, “[y]ou will remain on Administrative Leave until such time that I receive a final report on your fitness for duty exam. You will be notified by my office once you have been cleared for duty.” Nagel had to be found fit for duty to return to his position. .

[¶ 22] Nagel has the burden to establish a clear legal right to a writ of mandamus. Krabseth, 1997 ND 224, ¶ 6, 571 N.W.2d 146. He requests reinstatement and a second doctor’s opinion that he was mentally unfit for duty to satisfy Bismarck Municipal Ordinance 9-06-05. Nagel has not satisfied his burden to show he has a clear legal right to have Bismarck Municipal Ordinance 9-06-05 applied in his case rather than Bismarck Municipal Ordinance 9-06-02(3), and he is not entitled to a petition for a writ of mandamus.

IV

[¶ 23] We conclude Nagel’s remaining arguments are without merit. We hold the trial court did not abuse its discretion when it denied Nagel’s petition for a writ of mandamus, and we affirm the trial court’s judgment dismissing the petition.

[¶ 24] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ., concur.


author: MEIERHENRY, Justice. SABERS, Justice

text:
    2003 SD 146
    Terri Holts SCHABAUER, Plaintiff and Appellee, v. Alexander Michael Alois SCHABAUER, Defendant and Appellant.
    No. 22637.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 6, 2003.
    Decided Dec. 17, 2003.

      Linda Lea Viken of Viken Law Firm, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Patricia A. Meyers and Jeremiah Luebbe of Costello, Porter, Hill, Heister-kamp, Bushnell & Carpenter, Rapid City, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Alexander Schabauer (Alex) appeals the alimony provisions in his divorce decree from Terri Schabauer (Terri). We reverse and remand.

FACTS

[¶ 2.] Alex and Terri were married in 1989 and subsequently had two children, now ages nine and eleven.’ For most of the marriage, the couple lived in Rapid City where Alex worked as a cardiologist specializing in vascular medicine. Terri served primarily as a homemaker and mother although she did have some intermittent part-time employment as a social worker.

[¶ 3.] As time went on, the demands of Alex’s heavy patient load began to take a toll on his time and his marriage. Alex eventually hired &■ nurse practitioner to assist him in his work, but training her only increased the demands on his time. Moreover, the time Alex spent with the assistant and his wishes to socialize and spend time with her outside of work caused Terri to suspect that they were having an affair.

[¶ 4.] In late 2001, the parties separated and Terri commenced a separate maintenance action against Alex. Alex counterclaimed for divorce. The case was tried on September 5 and 6, 2002. On September 26, the trial court entered findings of fact, conclusions of law and a divorce decree granting Terri a divorce on the grounds of extreme cruelty. The parties entered into a shared parenting arrangement under SDCL 25-7-6.14 and the divorce decree imposed a net monthly child support obligation on Alex of $1,473 including tuition for private school and daycare expenses for a YMCA program. The marital property was evenly distributed and each party was awarded assets valued at $222,330. As part of the property distribution, the marital home was to be sold and the first $134,335 in net sale proceeds was to be awarded to Terri. Remaining proceeds were to be divided evenly between the parties. The divorce decree also contained the following provision on alimony: “that [Alex] shall pay [Terri] $2,450.00 a month alimony for twelve years unless [Terri] shall sooner remarry or die[.]” Alex appeals.

ISSUE

[¶ 5.] Did the trial court abuse its discretion in its alimony award?

[¶ 6.] Alex argues that the trial court erred in its alimony award. The standards for reviewing alimony awards are well established:

Our standard of review for the trial court’s alimony determination is abuse of discretion. “In determining whether there was an abuse of discretion, we ask, ‘whether a judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion’.” We will not set aside the trial court’s findings of fact unless they are clearly erroneous.
A party requesting alimony has the burden of proving [a] need for support and that [a] former spouse “has sufficient means and abilities to provide for part or all of that need.” The factors that must be considered in determining the need for, amount and duration of alimony are: (1) length of the marriage; (2) respective earning capacity of the parties; (3) their respective age, health and physical condition; (4) their station in life or social standing; and (5) relative fault in the divorce.

Dejong v. Dejong, 2003 SD 77, ¶¶ 5-7, 666 N.W.2d 464, 467-68 (citations omitted).

[¶ 7.] The trial court entered the following findings on the factors applicable to determining alimony:

Length of the Marriage

[¶ 8.] The court found that the parties were married for thirteen years and were in an exclusive dating relationship for a number of years before that.

Respective Earning Capacity of the Parties

[¶ 9.] The court found that, as a doctor, Alex generated annual income of a quarter of a million dollars or more. In addition, the court found that Alex was the beneficiary of significant family investments held by his parents over which he had no control. The court declined to treat these investments as marital property subject to division.

[¶ 10.] The court found that Terri, with her master’s degree in social work and her minor in archeology, was capable of earning less than one-fifth of the income earned by Alex. The record reflects that, in the fall of 2001, Terri began working for the State Archeology Research Center for $9.25 an hour or a gross of approximately $19,240 per year.

The Age, Health and Physical Condition of the Parties

[¶ 11.] The record reflects that both parties are approximately thirty-seven years of age. The court found that although both parties had minor ailments or disabilities, they were not factors affecting the alimony award.

The Parties’ Station in Life or Social Standing

[¶ 12.] The court found that the parties lived in a marital home valued at a quarter of a million dollars and that them standard of living had steadily increased with their income. The court found maintenance of Terri’s standard of living an important factor in the alimony award observing that, unless a substantial award was made, Terri would be unable to maintain any semblance of her former lifestyle and that her declining lifestyle would be “readily apparent to the children.”

The Parties’ Relative Fault in the Divorce

[¶ 13.] Fault was also a consideration in the alimony award. The trial court found Alex at fault in the breakdown of the marital relationship based upon the low priority he placed on the marriage and family life and based upon his inability or unwillingness to change. Although the trial court did not find any infidelity on Alex’s part, it did find that, in essence, he abandoned the marriage by his course of conduct and with actions that raised a reasonable suspicion of marital misconduct.

[¶ 14.] There is ample eviden-tiary support in the record for all of the trial court’s findings of fact. The findings concerning the length of the marriage, the respective earning capacity of the parties, the maintenance of their stations in life or social standing and their relative fault in the termination of the marriage support the award of alimony to Terri. Aex argues that an abuse of discretion is established when Terri’s alimony is compared with awards in similar cases. However, when considering alimony awards, we review each case on its own facts and will not reverse absent an abuse of discretion. Johnson v. Johnson, 471 N.W.2d 156, 162 (S.D.1991).

[¶ 15.] Aex argues that the following finding of fact establishes that the trial court impermissibly awarded alimony as a form of child support:

Relationship between Aimony and Child Support. This is not a standard or factor which has been addressed by South Dakota decisions directly. However as a matter of fiscal reality, it is an extremely important factor. The statutes pertaining to child support particularly address greater than guideline income by providing that the Court shall set support at an appropriate level considering the actual needs and standards of living of the children. The Court finds that either a significant alimony award or a substantial child support deviation is necessary for [Terri] to meet the chil-drens’ needs and maintain the lifestyle to which they are accustomed and which they will readily enjoy with [Aex], If granted in terms of child support, the payments would not be tax deductible while as alimony they are a tax (and medicare) deduction for [Aex] and a taxable income to [Terri]. At [Aex’s] tax bracket, each thousand dollars of child support has an additional tax and medicare burden of approximately four hundred dollars. Whereas, if the thousand dollars is paid as alimony, [Aex] will not pay the additional four hundred dollars, and [Terri’s] taxes will not include medicare or social security and will be at a markedly lower tax rate. The court’s analysis of the relative disposable incomes of the parties establishes that the stability of income established by an alimony award will have marked tax advantages for the parties and provide a more evenly balanced and stable basis for adjusting child support during the childrens’ minority years. Essentially, the Court finds that the use of alimony allows [Terri] to maintain, not improve, her standard of living and to, include the children therein. It seems the far more equitable approach even without consideration of the marked tax savings it generates.

[¶ 16.] This finding clearly reflects the trial court’s linkage of the issues of alimony and child support because of the tax advantages of one award over the other. The linkage of the two issues is also apparent in the trial court’s finding that:

Based upon the foregoing and the evidence relating to the cost of living and expenses associated with all aspects of the post divorce lifestyles of the parties, the Court determines that an alimony award of [$2,450] per month for a period of twelve years is essential for [Terri] to maintain her social standing, standard of living, and to allow the children to have the same standard of living in both homes, (emphasis added).

[¶ 17.] This Court has long cautioned against confusing alimony and child support awards. The issue arose before this Court in Price v. Price, 278 N.W.2d 455 (S.D.1979). In Price, this Court condemned the inequities in the property division, alimony and child support awards in that case, but did not reverse on the basis of the inequities alone. Rather, the Court proceeded to separately review the property division and child support awards based upon the factors and considerations applicable to each. It was in the context of its review of the child support award that the Court also considered the propriety of the trial court’s linkage of alimony and child support in directing that, as each child reached the age of majority, the husband’s alimony obligation should be reduced by $100 per month. On that issue, this Court wrote that:

Although we recognize that awarding alimony and child support payments are in the trial court’s discretion, we must stress that alimony and child support are separate concepts. Child support provides for the maintenance of the children while alimony represents a suitable allowance to a party for his/her support. The amount of the alimony award should not be governed by the number of minor children that are in the household, rather the amount should reflect what is required after an analysis of the factors presented in [Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977)] for a suitable allowance to plaintiff. Inasmuch as the alimony award fluctuated with the child support, we must remand the alimony award to the trial court for further consideration based solely upon a suitable allowance to plaintiff independent of the child support consideration. We must also remand the child support award to the trial court for similar reasons, i.e., it appears that the trial court did not primarily consider the maintenance of the minor children in setting the amount of child support at $100 per month per minor child and then, in the alternative, set the amount at $50 per month per minor child accompanied with decreases in alimony of $100 per month as each child reached the age of majority. Each question must be considered separately, and defendant’s parental responsibility to provide for the maintenance of his children on the basis of the Guindon factors should not be interwoven with his marital obligation to plaintiff to provide a suitable allowance for her support.

Price, 278 N.W.2d at 458-59 (some citations omitted)(emphasis added). See also Watson-Wojewski v. Wojewski, 2000 SD 132, ¶ 21, 617 N.W.2d 666, 671 (on claim that part of child support award was de facto alimony, held that the child support statutes do not authorize an alimony windfall contained in the rhetoric of child support).

[¶ 18.] The alimony and child support awards here violate the principles set forth in Price. The amount of Terri’s alimony should not have been governed by the presence of children in her household or their needs and standard of living. Rather, the amount should have reflected what was required for a suitable allowance to Terri based upon an analysis of the factors applicable to awarding alimony. Similarly, the trial court did not primarily consider the maintenance of the children or their actual needs and standard of living in setting Alex’s child support obligation. See SDCL 25-7-6.9 (where parents’ combined income is above child support schedule, establishment of support obligation must reflect consideration of children’s actual needs and standard of living). Alimony and child support must be considered separately, and Alex’s parental responsibility to provide for the maintenance of his children on the basis of the factors applicable to setting child support should not have been interwoven with his marital obligation to provide a suitable allowance for Terri’s support. Compounding the problem here was the trial court’s focus on the tax considerations involved in alimony and child support awards. Yet, tax considerations are not a recognized factor in awarding alimony or child support.

[¶ 19.] Terri argues that this Court’s recent decision in Peterson v. Peterson, 2000 SD 58, 610 N.W.2d 69 links the issues of child support and alimony. In Peterson, this Court held that a recipient spouse’s alimony must be included as part of his or her income and must be deducted from the payor spouse’s income in calculating child support according to the statutory guidelines contained in SDCL eh 25-7. This is far different than increasing alimony as a form of child support because of tax considerations as was done here. In addition, our acceptance of the linkage or combination of alimony and child support would actually make compliance with Peterson more difficult. Courts would be required to determine the portion of a combined alimony/child support award that should be considered as income to the recipient spouse and as a deduction by the payor spouse in calculating child support. Use of the total alimony award containing sums actually intended for the support of the children would falsely inflate the income of the recipient in the. child support equation in violation of the economic realities stressed by the dissent. Thus, the dissent’s advocacy of linked or combined alimony/child support awards leads to potential results that are administratively problematic.

[¶ 20.] Another administrative problem posed by the linkage of alimony and child support arises from the role fault plays in the alimony determination. As previously set forth, the parties’ relative fault in the termination of the marriage is an appropriate factor to consider in awarding alimony. Dejong, supra. It is not, however, an appropriate factor to consider in awarding child support. The obligation to support a child is not premised on one party or the other’s fault in the events leading to the termination of the marriage. Linking or combining alimony and child support in the same award would permit the issue of fault to creep into the child support determination. This is not acceptable.

[¶ 21.] Based upon the foregoing, the alimony and child support awards must be reversed and remanded for reevaluation in conformity with both Price and Peterson. On remand, the trial court should calculate a suitable allowance for alimony for Terri independent of any child support consideration and based solely upon the factors applicable to determining alimony. Price, supra. Once alimony is determined, the trial court must calculate child support in accord with the applicable guidelines and statutory requirements with appropriate adjustments to the parties’ incomes for the amount of alimony in accord with Peterson, supra. The trial court’s reevaluation must be based upon the appropriate factors applicable to the particular award under consideration.

Appellate Attorney’s Fees

[¶22.] Terri’s counsel has filed a motion for an award of appellate attorney’s fees accompanied by an itemized statement of costs incurred and legal services rendered per Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985). The motion is denied.

[¶ 23.] Reversed and remanded.

[¶ 24.] GILBERTSON, Chief Justice, and ZINTER, Justice, concur.

[¶ 25.] SABERS, Justice, dissents.

[¶ 26.] KONENKAMP, Justice, disqualified.

SABERS, Justice

(dissenting).

[¶ 27.] The trial court awarded wife $2,450 per month in alimony for 12 years. This is an annual total of $29,400. The husband’s annual income exceeds $250,000 and the majority opinion wholly fails to show where the trial court erred. The reason is obvious-the trial court did not err.

[¶ 28.] In fact, the majority opinion does not even claim that annual alimony of $29,400 out of an annual income exceeding $250,000 is excessive. Nor can the majority opinion legitimately fault the trial court for failing to consider the pertinent factors delineated by this Court for determination of alimony awards. See majority opinion ¶¶ 8-14 (detailing the findings of fact and finding, “[t]here is ample evidentiary support in the record for all of the trial court’s findings of fact.”) Instead, the majority opinion faults the trial court for considering tax consequences and the relationship between alimony and child support. However, as the trial court noted, the relationship between alimony and child support is an extremely important factor as a matter of fiscal reality.

[¶ 29.] Our decision in Peterson demonstrates the necessary interplay between child support and alimony in its holding that the alimony recipient must count the alimony as income in determining child support. Peterson v. Peterson, 2000 SD 58, 610 N.W.2d 69. There can be no argument that the level of alimony directly affects the level of child support. The consequences of this interplay are felt by both payor and payee in every case.

[¶ 30.] The majority opinion comes to the conclusion that the trial court should be reversed by stretching the holding and giving undue weight to certain language in Price v. Price 278 N.W.2d 455 (S.D.1979). This over-reliance on Price leads to the holding that essentially, trial courts are barred from considering economic reality in the determination of child support and alimony awards. It is helpful to understand both the factual basis and the actual holding of Price.

[¶ 31.] In Price, the trial court awarded the wife approximately 3% of the marital property and custody of three minor children. Price, 278 N.W.2d at 458. The court gave the marital home and the remainder of the marital property to the husband. Husband’s take home pay was approximately $1,000 per month and he had approximately $4,000 in retirement benefits and another $4,000 in a savings account. Wife had no home, no cash, debts of approximately $800 since marital separation and was earning approximately $50 per week. With this minimal income, she was left with the impossible task of housing, feeding and educating the three children. The trial court gave the husband the option of paying a lump sum property settlement, plus child support, or alimony and child support. To his benefit, the husband chose to pay alimony and child support. The court awarded wife $400 per month alimony which would decrease by $100 per month as each child reached majority. We held:

The amount of the alimony award should not be governed by the number of minor children that are in the household, rather the amount should reflect what is required after an analysis of the factors prescribed in Guindon v. Guindon, for a suitable allowance to plaintiff. Inasmuch as the alimony award fluctuated with the child support, we must remand the alimony award to the trial court for further consideration based solely upon a suitable allowance to plaintiff independent of the child support considerations.

Price, 278 N.W.2d at 459 (emphasis supplied). We also remanded the child support award because the court did not primarily consider the needs of the children in setting the child support award. We held:

[Defendant’s parental responsibility to provide for the maintenance of his children on the basis of the Guindon factors should not be interwoven with his marital obligation to plaintiff to provide a suitable allowance for her support.

Id. In short, the trial court in Price abused its discretion by failing to take into consideration any of the applicable factors for determining alimony. The trial court effectively denied wife any alimony by awarding an amount conditioned on the number of children remaining in her home.

[¶ 32.] The present case is distinguishable from Price. First, in Price, there was an undeniably unjust property division, alimony and child support award. Second, Price was reversed and remanded because the purported alimony fluctuated with the child support. Third, at the time Price came before this Court, the statutory child support guidelines had not been created. Fourth, in Price, the trial court ignored economic reality and gave husband an option of how to pay the appallingly small award to the wife. Finally, the trial court in this case made careful findings with regard to every factor this Court has promulgated for alimony determinations.

[¶ 33.] The majority opinion. implies that Price stands for the proposition that the trial court is not permitted to mention child support and alimony in the same breath by bemoaning the “linkage” of the child support and alimony issues. This is a misapprehension of the case, which held that the amount of alimony received by the spouse should not be contingent on the number of children in the home. Here, the trial court’s decision was based on analysis of the applicable alimony factors and consideration of the tax consequences for husband. The court’s specific findings on each factor remove the premise for the majority opinion’s conclusion that the trial court abused its discretion by failing to consider the appropriate factors.

[¶ 34.] The majority opinion also cites Watson-Wojewski v. Wojewski in support of its holding. Watson-Wojewski, 2000 SD 132, 617 N.W.2d 666. In Watson-Wojewski, this Court reversed a child support award in excess of $4,000 per month because the budget submitted by the custodial parent included items that were solely for her benefit, rather than for the benefit of the child. We also noted that the trial court failed to make specific findings regarding the child’s actual needs and standard of living. Neither error is present in this case. Here, the trial court made specific findings regarding alimony and child support and there is no indication that the child support award is being used as a back door to an otherwise taper-missible alimony award.

[¶ 35.] The majority opinion goes on to note that the trial court compounded its purported error by focusing on tax considerations and supports its holding of error by asserting that “tax considerations are not a recognized factor in awarding alimony or child support.” Majority opinion, ¶ 18. The factors courts must consider in determining alimony are vital to equitable alimony awards. However, those factors are of no use when they are used to obstruct solid economic analysis. This is especially so when the trial court’s economic analysis leads to no error. By implication, the majority opinion holds that the trial court is not permitted to consider anything outside the factors we’ve enumerated in the past. This holding defies both logic and reality. Trial courts should not be prevented from undertaking legitimate analysis of the financial ramifications for each party in their alimony awards. Furthermore, it is clear that the trial court did not base its decision solely on the tax consequences. The trial court noted:

The court finds that the use of alimony allows [Terri] to maintain, not improve, her standard of living and include the children therein. It seems the far more equitable approach even without consideration of the marked tax savings it generates.

(emphasis supplied.)

[¶ 36.] The majority opinion does a disservice to the parties and trial court by simply reversing the trial court without any indication that the amount of alimony is either unreasonably high or unreasonably low. In doing so, the majority opinion gives no guidance to the trial court other than to make it clear that the court may not 1) consider the tax ramifications of the alimony and child support awards; or 2) mention child support and alimony in the same sentence. Maybe there should be a law that requires an appellate court to set forth a reasonable sum for alimony when reversing.

[¶ 37.] This holding returns the calculation of alimony by trial courts to the middle ages. It rejects any consideration of a practical, intelligent analysis of the real economic situation of the parties and lends support to a “stab in the dark” or “shoot from the hip” philosophy. I reject this approach, or lack of approach, and dissent.

[¶ 38.] There is no showing of error. There is no abuse of discretion. We should affirm the trial court and award the wife $2,000 in attorney fees.

      . With regard to shared parenting, SDCL 25-7-6.14 provides in pertinent part:
      [S]hared responsibility means a parenting plan whereby each parent provides a suitable home for the child of the parties, the court order allows the child to spend at least one hundred twenty days in a calendar year in each home, and the parents share the duties, responsibilities, and expenses of parenting.

        . We also noted that "the indirect financial benefit a custodial spouse receives cannot serve as a justification for denial of support to children whose actual needs and standard of living warrant a particular award.” Watson-Wojewski, 2000 SD 132, ¶ 21, 617 N.W.2d at 671 (additional citation omitted). The majority opinion's concern that the trial court based its decision on the standard of living of the children and the wife is not warranted given our consistent statements that the former spouse and the children’s standard of living are primary considerations in alimony and child support awards.
      This concern is further invalidated when one considers the reality that a child support award will always indirectly affect the custodial parent’s standard of living and an alimony award will always indirectly affect the children's standard of living. There is nothing inherently wrong with this reality.

      . Nor would a holding that the alimony is unreasonably high be warranted by the facts. Based on the award, wife will pay income taxes on her alimony and husband can deduct the entire amount from his income for federal tax purposes. In fact, according to the trial court's calculations, the $29,400 paid by husband in alimony would actually cost him $17,640 as a result of deductions for federal income and Medicare taxes. This annual amount is clearly reasonable when compared with husband’s pre-tax annual income exceeding $250,000.


author: KONENKAMP, Justice.

text:
    2003 SD 145
    CITY OF FREDERICK, South Dakota, Appellant, v. Gary SCHLOSSER and South Dakota Department of Labor Unemployment Insurance Division, Appellees.
    No. 22754.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 6, 2003.
    Decided Dec. 17, 2003.
    Jason A. Campbell of Spiry & Frohling, Britton, SD, for appellant.

      Drew C. Johnson, Special Assistant Attorney General, Department of Labor, Aberdeen, SD, for appellee, South Dakota Department of Labor Unemployment Insurance Division.
   KONENKAMP, Justice.

[¶ 1.] In this appeal, we must determine whether any portion of unemployment benefits are chargeable to a concurrent employer whose employee works both part-time and “on call” for additional work. Because we conclude that the Department of Labor (DOL) misconstrued ARSD 47:06:04:05 and that the employer was chargeable for some benefits but not the amount determined by the Department, we reverse and remand.

Background

[¶ 2.] Gary Schlosser began working for the City of Frederick in 1996. The city is classified as a reimbursing employer. Schlosser performs two distinct sets of duties. First, he works part-time on a routine basis. As consideration for performance of these duties, he is guaranteed wages of $1500 per year.

[¶ 3.] Second, he performs additional duties for the city. As consideration for these duties he is paid $7.50 per hour. There is no dispute that Schlosser’s agreement with the city remains in place. The amount of additional duties that Schlosser performs fluctuates with the seasons. He flushes the city fire hydrants every spring and fall. Dependent on the weather, he may flush the hydrants later or earlier. Nevertheless, the duties must be performed bi-annually, and he collects relatively the same amount of income whenever those duties are performed. The city also employs Schlosser to mow during the summer. He mows the baseball field, the city parks, ditches, and lagoons. Naturally, those activities are dependent on the weather, but must be performed seasonally. The performance of these additional duties generally causes a spike in the number of additional hours Schlosser spends working in the summer months.

[¶ 4.] Third, Schlosser provides additional services when the need arises. These duties include: clearing city sewer lines when they become blocked, fixing broken water mains and sewer lines, replacing damaged meters, road repairs, curb and gutter repairs, and other general maintenance functions. Although weather conditions can affect the performance of these duties, many other factors may also contribute to the necessity of these duties. Thus, these responsibilities may or may not arise annually and are not scheduled. They are simply performed when necessary.

[¶ 5.] In 1999, while continuing his employment with the city, Schlosser also began working for an asphalt company. He was employed by that company until November 2001, at which time he was laid off. As a result of losing his job at the asphalt company, he filed a claim for unemployment insurance benefits. In response to a DOL Determination Notice stating that Schlosser’s benefits were fully chargeable to the City of Frederick, the city requested a hearing. The City claimed it should not be charged for any of Schlosser’s benefits because it was a concurrent employer. As a result of that hearing, the administrative law judge (ALJ) concluded that the city was a concurrent employer in regard to those duties for which Schlosser was paid the guaranteed amount of $1500. The ALJ also concluded that all other additional duties for which Schlosser was paid $7.50 an hour were on-call duties, and therefore, the city was chargeable for those amounts. Without elaboration, the circuit court affirmed.

[¶ 6.] The City of Frederick appeals on four separate issues. We consolidate those issues into a single question: Whether the ALJ erred in concluding that only $1,500 per year of Schlosser’s income from the city should be treated as coming from concurrent employment?

Analysis and Decision

[¶ 7.] Our review of administrative appeals is governed by SDCL 1-26-36, which provides:

The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
1. In violation of constitutional or statutory provisions;
2. In excess of the statutory authority of the agency;
3. Made upon unlawful procedure;
4. Affected by other error of law;
5. Clearly erroneous in light of the entire evidence in the record; or
6. Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
A court shall enter its own findings of fact and conclusions of law or may affirm the findings and conclusions entered by the agency as part of its judgment. The circuit court may award costs in the amount and manner specified in chapter 15-17.

Under our standard of review, we give no deference to the legal conclusions rendered by either the ALJ or the circuit court. Kurtz v. SCI, 1998 SD 37, ¶ 9, 576 N.W.2d 878, 882 (citation omitted). Interpretation of statutes and administrative rules present a question of law, and thus they are fully renewable. Esling v. Krambeck, 2003 SD 59, ¶ 6, 663 N.W.2d 671, 675.

[¶ 8.] ARSD 47:06:04:05 provides:

If a claimant is currently working for a base period employer at the time a new claim for benefits is filed, the claimant’s weekly benefit amount and minimum base period wages, as required by SDCL 61-6-7, shall be computed using total base period wages from all base period employers. The claimant’s maximum benefit amoimt does not include, and the current employer is not chargeable for, benefits based on wages from the cmrent employer if the employer continues to provide employment to the same extent as ivas provided during the base period and the employment provided is not “on-call” employment for which no work schedule is established. Employment which provides generally the same ivork schedule on a continuing basis but offers employees the option of accepting available work is not “on-call” employment.
If the claimant later separates from the current employer or the employer fails to provide employment to the same extent as provided during the base period, benefits based on such employment shall be included in the maximum benefit amount and employer charges shall be determined under SDCL 61-5-29 or 61-5-29.1.

(Emphasis added.) See generally SDCL 61-6-6 to 61-6-8.

[¶ 9.] We begin our analysis by noting that the administrative rules do not prohibit a finding that an employer may be classified as both concurrent and non-concurrent. The rules do not suggest that an employer must be either chargeable for all benefits or not chargeable for any benefits. It is the calculation of benefits a claimant is entitled to that is significant here.

[¶ 10.] We must next ascertain whether the ALJ correctly determined what portion of benefits may be charged against the city. This requires a more detailed look into the pertinent language of ARSD 47:06:04:05. The rule provides that a current employer may not be charged for “benefits based on wages from the current employer.” There are two conditions that must be met for an employer to qualify for this exemption. Under the first condition, an employer must continue “to provide employment to the same extent as was provided during the base period.” Under the second condition, the employment may not be “ ‘on-call’ employment for which no work schedule is established.” The first condition must exist, and the second condition must not exist.

[¶ 11.] While we believe the first condition requires no further analysis, the second condition is not as straightforward. The second condition only applies if both elements of the condition are met. First, the employment must be “on-call.” Second, if a work schedule is established for the “on-call” employment, the condition will not apply. The rule does not attempt to define “on-call” employment. Rather, it provides only what “on-call” employment is not. Such a distinction is of little help in determining what “on-call” employment is. Likewise, the rule gives no further guidance on what might constitute an established work schedule. Thus, it is left to us to bring some meaning to the terms within the rule.

[¶ 12.] We think it is reasonable to assume that duties conducted in the course of an employment relationship that are performed on an “as needed” basis can be fairly classified as “on-call” employment. Further, we believe that an employer may show that a work schedule exists, despite the fact that the day on which the work is to be done is not specified. We accept that a work schedule may exist although the execution of those duties depends on other factors, such as the weather. It suffices if those duties are regularly scheduled or seasonally required.

[¶ 13.] The ALJ concluded, “Any wages and earning from the [city] that exceed [guaranteed wages] should be treated as wages earned from on-call employment and the [city] can presently be charged despite the continuing employment relationship.” In support of this conclusion, the ALJ found:

The Claimant flushes the city fire hydrants each spring and fall and is paid an hourly wage for this activity. The Claimant mows the city parks, ditches, and lagoons throughout the warmer months as needed. It varies when these duties are carried out. The flushing of the hydrants takes place every year, twice a year, and is relatively the same amount of income, but the dates are affected by weather. The mowing varies greatly as to when and how much depending on various factors such as the weather (how wet and how warm it is). The Claimant is also clearly an on-call employee for the Employer and performs various duties throughout the year when needed at a rate of $7.50 per hour. For example: clearing city sewer lines when they become blocked, fixing broken water mains and sewer lines, replacing damaged meters, road repair, curb and gutter repair, and various other city maintenance type jobs.
Some months the Claimant only makes his guaranteed wages, others he may more than double his wages through his on-call employment with the Employer.

In coming to this conclusion, the ALJ reasoned that the guaranteed wages were “easily separable [from the hourly wages] and should be treated as coming from concurrent employment.” Hence, the ALJ chose to draw a defining line between hourly wages and guaranteed wages.

[¶ 14.] While we agree that some duties performed for which an hourly wage is earned could be classified as on-call duties, we reject the ALJ’s conclusion that only those duties performed for which Schlos-ser received a guaranteed wage could be classified as being scheduled. Apparently, the ALJ thought that unless dates for duties were specified, a work schedule was not in place. A schedule of work may be established even though that schedule necessarily depends on the weather. A work schedule may be annual or weekly depending on the circumstances.

[¶ 15.] In addition, the ALJ placed too much emphasis on the disparity of Schlos-ser’s wages between summer and winter months. The majority of Schlosser’s “as needed” duties are performed in the summer, not the winter. This is to be expected. Had Schlosser’s additional duties included snow removal in the winter months, which he testified was not part of his responsibilities, the disparity would have been much less. But adding additional duties in the winter would do nothing to change the nature of the duties performed in the summer. Using the ALJ’s rationale, including snow removal duties would have resulted in adding those wages to the amount chargeable to the city. There is no requirement that a claimant’s wages be equally distributed throughout the year. We agree that certain of Schlosser’s “as needed” duties were not scheduled. Those duties depended on many factors, and may or may not be required annually or seasonally. Therefore, there could be no schedule. A clogged sewer line and a water main break are not scheduled events. It is the maintenance for these types of events that are chargeable as “on call” duties under the rule.

[¶ 16.] Our decision is based on the policy that an employer who contributes to the unemployed status of a claimant should rightfully be responsible for the payment of unemployment benefits. There is simply no reason for the city to be chargeable for duties that must be performed and that Schlosser will perform. Schlosser flushes the city fire hydrants twice per year. The grass on the city’s property will grow, and Schlosser will mow it. The schedule for when Schlosser flushes the hydrants and mows the grass necessarily depends on the weather, but a schedule exists. This policy is further reflected in ARSD 47:06:04:01 and 47:06:04:03. Under those provisions, a seasonal employer is not chargeable for benefits if a claimant’s unemployed status occurs outside of that season in which the employer normally employs the claimant. However, if the claimant’s unemployed status occurs during those seasons in which the claimant is normally employed by the seasonal employer, then the seasonal employer is chargeable.

[¶ 17.] Our decision does not preclude a later finding by the DOL that an employer has failed “to provide employment to the same extent as provided during the base period.” The second paragraph of ARSD 47:06:04:05 provides for such a later finding. Here, at least some of those additional duties performed by Schlosser are scheduled. Therefore, we reverse the decision in that it concluded that all employment for which Schlosser received hourly wages was not scheduled and remand for further proceedings.

[¶ 18.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

       "Base period,” is defined by statute as “the first four out of the last five completed calendar quarters immediately preceding an individual’s benefit year.” SDCL 61-1-1(2). "Benefit year,” is defined as “the one-year period beginning with the day on which a claimant files a valid new claim for benefits, or the one-year period beginning with the day on which a claimant files a valid new claim after the termination of his last preceding benefit year.” SDCL 61-1-1(3).


author: PER CURIAM.

text:
    2003 SD 147
    STATE of South Dakota, Plaintiff and Appellee, v. Debra F. SULLIVAN, Defendant and Appellant.
    No. 22840.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 17, 2003.
    Decided Dec. 17, 2003.

      Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Bryan T. Andersen, Office of Public Defender, Rapid City, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Debra Sullivan appeals her convictions for resisting arrest and obstructing a law enforcement officer. We affirm in part and reverse in part.

FACTS

[¶2.] On the night of July 21, 2002, four juveniles (two boys and two girls) were violating their curfew and causing a minor disturbance at a trailer park in rural Pennington County just outside the city limits of Box Elder. When the juveniles ignored requests to quiet down, one of the trailer park residents contacted law enforcement to disperse them. Pennington County Deputy Sheriff Robert Robertson was dispatched to the scene, and Box Elder Police Officer Andrew Devault proceeded to assist him.

[¶ 3.] Officer Devault was the first officer on the scene. The group of juveniles began to scatter as soon as they saw him. Deputy Robertson arrived at about that time, got out of his vehicle, identified himself and repeatedly instructed the juveniles to stop. The two girls complied while one of the boys fled the scene. The other boy, M.S., began yelling at Officer Devault stating that he would not talk with Deputy Robertson. M.S. continued his screaming and yelling despite instructions from De-vault that he had to speak with Robertson because it was “his call.” At about that time, M.S.’s mother, Debra Sullivan, sped into the trailer park in her car. Sullivan came to an abrupt stop and jumped out of the vehicle leaving the motor running and the driver’s door open. She immediately began yelling at Robertson, telling him that he could not speak to her son. At the same time, M.S. was continuing his yelling and screaming as he ran to the rear door on the driver’s side of his mother’s vehicle. Sullivan then stood between Deputy Robertson and her son and extended her arms and legs out to physically obstruct Robertson and prevent him from speaking with M.S. All the while Sullivan was yelling at Robertson, telling him that he could not speak to M.S., but that Officer Devault could.

[¶ 4.] Deputy Robertson twice informed Sullivan that he wanted to speak to M.S. and that if she did not step aside he would arrest her for obstructing a law enforcement officer. At that point, M.S. “bolted” toward the back of his mother’s car where Officer Devault detained him. Robertson then informed Sullivan that she was under arrest. Rather than submitting, Sullivan jumped back into her car through the open driver’s door and locked her arms by wrapping them through the steering wheel. Robertson was concerned that Sullivan was going to put the car into gear and hurt someone. He was also concerned that Sullivan was attempting to elude him. He reached into the vehicle and restrained Sullivan’s left arm in a wrist lock. Robertson then informed Sullivan “numerous, numerous times ... to get out of the vehicle and to stop resisting[.]” Sullivan continued to pull away from Robertson and to use her foot to work her way further inside her vehicle. After the two had struggled for several minutes, Robertson used “pressure point techniques” on Sullivan’s sternum to forcefully extract her from the vehicle as she continued her screaming, yelling and lacking. Once Sullivan was out of the vehicle, Robertson handcuffed her and placed her under arrest for resisting arrest.

[¶ 5.] As a result of these events, Sullivan was charged with one count of resisting arrest and one count of obstructing a law enforcement officer. A jury trial was held in magistrate court on October 31, 2002. At the close of the State’s case and at the close of all the evidence, Sullivan’s counsel moved for a judgment of acquittal on both counts based upon insufficiency of the evidence. The motions were denied and guilty verdicts were returned on both counts. The magistrate later sentenced Sullivan to a suspended sentence of 120 days in the county jail on each count with the two sentences to run concurrently. Sullivan appealed her convictions to the circuit court, which affirmed in an order entered April 3, 2003. Sullivan now appeals to this Court.

ISSUE

[¶ 6.] Did the trial court err in denying Sullivan’s motions for a judgment of acquittal?

[¶ 7.] Sullivan argues that the trial court erred in denying her acquittal motions.

In reviewing a [trial] court’s decision to deny a motion for judgment of acquittal, we inquire whether the State presented sufficient evidence on which the jury could reasonably find the defendant guilty of the crime charged. More specifically, we ask if there was sufficient evidence in the record that, if believed, would be adequate to sustain a conviction beyond a reasonable doubt. In a sufficiency challenge, we will set aside a jury verdict only when “the evidence and the reasonable inferences to be drawn therefrom fail to sustain a rational theory of guilt.” We will not resolve conflicts in the testimony, pass on the credibility of witnesses, or weigh the evidence.

State v. Guthrie, 2001 SD 61, ¶ 47, 627 N.W.2d 401, 420-21 (citations omitted).

[¶ 8.] Sullivan argues that the trial court erred in denying her acquittal motion on the resisting arrest charge because no evidence was presented that she used physical force or violence against Deputy Robertson during the events leading to her arrest.

[¶ 9.] Sullivan was charged with resisting arrest under SDCL 22-11-4(1) which provides in pertinent part:

Any person who intentionally prevents or attempts to prevent a law enforcement officer ... acting under color of his authority, from effecting an arrest of the actor ... by:
(1) Threatening to use physical force or violence against the law enforcement officer ...
is guilty of resisting arrest. Resisting arrest is a Class 1 misdemeanor.

[¶ 10.] In reviewing subdivisions (1) and (2) of this statute in Hall v. City of Watertown ex rel. Police, 2001 SD 137, n. 2, 636 N.W.2d 686, 688, this Court noted that, “defendants can be guilty of resisting arrest only if they (1) intend to do so and either (2a) threaten to use force or violence or (2b) create a risk of physical injury.” (emphasis original). However, the creation of a risk of physical injury was not at issue in this case because that element arises out of subdivision (2) of SDCL 22-11-4 and Sullivan was only charged under subdivision (1), the threat of force or violence provision. Thus, in order to convict Sullivan, the State was required to prove that she intended to resist arrest and that she threatened to use force or violence. Hall, supra. However, no evidence of a threat to use force or violence was presented in this case.

[¶ 11.] A “threat” is defined as, “1. An expression of an intention to inflict pain, injury, evil, or punishment. 2. An indication of impending danger or harm.” The American Heritage College Dictionary 1411 (3d ed.2000). See also State v. Ducheneaux, 2003 SD 131, ¶ 9, 671 N.W.2d 841, 844 (statutory language is given its plain, ordinary and popular meaning). To “threaten” is “1. To express a threat against. 2. To be a source of danger to; menace. 3. To give signs or warning of; portend. 4. To announce the possibility of in a threat. — intr. 1. To express or use threats. 2. To indicate danger or harm.” Id.

[¶ 12.] The facts of this case reveal no expressions, indications, signs, warnings or announcements by Sullivan of any intention to inflict pain, injury, evil, punishment, danger, menace or harm on Robertson. The evidence only reflects that Sullivan was trying to get away from Robertson and was struggling with him in actual resistance to his attempts to take her into custody. Actual resistance, however, is not the actionable element of resisting arrest as defined by SDCL 22-11-4(1). Rather, it requires the threat of force or violence as discussed above.

[¶ 13.] This is not to suggest that physical acts by an arrestee can never constitute a threat under SDCL 22-11-4(1). It is not difficult to envision situations where an arrestee raises his arms in a fighting stance, actually swings at the officer, or gives some other indication of resistance that also indicates a threat to use force or violence. In such situations, the arrestee’s actions could be tantamount to a threat of force or violence. However, in this particular case, Sullivan’s actions never rose to that level. Robertson himself testified on direct examination that there was no threat of force or violence:

Q And what was she doing while you were sweeping her out of the vehicle?
A Screaming and yelling and kicking.
Q Okay, and at any point in time, did she make any contact with you by screaming, yelling, or kicking?
A The yelling, of course, it hurt my ears.
Q Sure.
A But the kicking, I don’t recall her actually making any contact with me.
Q Okay. Was she kicking directly at you?
A No, it was more of a — what’s the best way to explain it, it wasn’t an offensive or defensive maneuver, but a struggling-type maneuver.
Q Okay, and what about when she was in the ear, you made a comment that she was kicking while she was in the car, was she kicking directly at you at that time?
A At that time, not kicking directly at me, what she was doing was kicking her leg, her free leg in an attempt to try to push inward toward the inside of the vehicle and away from me, as she was pulling her arm.
Q Okay, was there a point in time when she was kicking or swinging, hitting of that nature directly at you?
A No, there was not.

[¶ 14.] Robertson expressly conceded that there was no threat of force or violence in his cross-examination:

Q And, and you just gave us that, and again nothing in the report and I believe you testified that Debra wasn’t kicking at you, she was simply kicking the floor of the car or something else to try and get leverage?
A She was kicking her feet and actively resisting.
Q But you previously testified that Debra didn’t threaten to use physical force or violence against yourself or anyone else at this point?
A No, she was just actively resisting. (emphasis and footnote added)

[¶ 15.] No other State witness testified differently than Robertson with regard to the absence of a threat of force by Sullivan. Thus, the State cannot claim any better version of the facts than testified to by Robertson. See State v. Frey, 440 N.W.2d 721, 727 (S.D.1989)(defendant not entitled to any better version of facts than he himself testifies to). According to Robertson’s testimony, while Sullivan might have actively resisted arrest, her conduct did not constitute a threat of force or violence against him or any other person. Thus, as discussed above, Sullivan’s simple resistance was not, by itself, sufficient to constitute resisting arrest under SDCL 22-11-4(1). The element of a threat of force or violence was lacking, and the trial court should have granted Sullivan’s motion for a judgment of acquittal on the resisting arrest charge.

[¶ 16.] The State argues that Sullivan’s act of grasping her steering wheel constituted “resisting force of pulling away from the officer” and that this met the required element of force in the resisting arrest statute. In support of its contention, the State cites the Ohio case of Garfield Hts. v. Simpson, 82 Ohio App.3d 286, 611 N.E.2d 892 (1992). In Garfield Hts., the Ohio Court of Appeals held that a defendant’s act of physically seizing his steering wheel met the element of force required by that state’s resisting arrest statute. However, the Ohio law on resisting arrest was different than SDCL 22-11-4(1). In the Ohio case, the elements of resisting arrest required the actor to, “recklessly or by force resist or interfere with the lawful arrest of oneself or another.” Garfield Hts., 611 N.E.2d at 895. Thus, mere forceful resistance was sufficient to constitute resisting arrest. No additional threat of force was required as it is under SDCL 22-11-4(1). While active resistance or forceful resistance of arrest might fulfill traditional notions of what constitutes resisting arrest or might meet the elements of Ohio law, they are not sufficient for a conviction under the threat element of SDCL 22-11-4(1).

[¶ 17.] Again, this is not to state that Sullivan’s actions could not have been prosecuted under any provision of law. It appears that a charge under subdivision (2) of SDCL 22-11-4 would have been appropriate. Under that subdivision, a showing of a threat of force was not necessary. Instead, the jury could have considered whether Sullivan’s struggle with Robertson behind the wheel of a running motor vehicle created “a substantial risk of causing physical injury” to Robertson or other persons under SDCL 22-11-4(2). However, the State did not charge Sullivan under SDCL 22-11-4(2). That failure was fatal to Sullivan’s conviction for resisting arrest under the facts of this case, and the trial court erred in denying Sullivan’s motion for a judgment of acquittal on that charge.

[¶ 18.] Sullivan also contends that the trial court erred in denying her acquittal motion on the obstructing a law enforcement officer charge. She argues that the evidence failed to show that Deputy Robertson was acting under color of his official authority when she prevented him from talking to her son.

[¶ 19.] Sullivan was charged with obstructing a law enforcement officer under SDCL 22-11-6, which provides in pertinent part:

[A]ny person who, by threatening to use violence, force or physical interference or obstacle, intentionally obstructs, impairs or hinders the enforcement of the criminal laws or the preservation of the peace by a law enforcement officer ... acting under color of his official authority ... is guilty of obstructing a law enforcement officer.... Obstructing a law enforcement officer ... is a Class 1 misdemeanor, (emphasis added).

[¶ 20.] Sullivan contends that Robertson was not acting under color of his official authority when she prevented him from talking to her son because her son had already made it clear that he did not want to talk to Robertson. However, Sullivan failed to cite any authority for this argument, and this Court could consider it waived for that reason alone. See State v. Banks, 387 N.W.2d 19, 24 (S.D.1986)(failure to cite supporting authority waives issue on appeal).

[¶ 21.] Even if Sullivan’s argument was properly presented, it is unsupported by settled law. This Court most recently outlined the principles applicable to a law enforcement officer’s investigative stop of a citizen in State v. Hodges, 2001 SD 93, 631 N.W.2d 206. In Hodges, the Court clearly indicated that, in an everyday encounter, a citizen has the right to choose not to speak with an officer, to decline to listen to the officer, and to go about his or her business just as the citizen would do with any other person. However, the Court also indicated that reasonable, objective grounds to suspect a violation of law may justify a brief detention of an individual in order to determine identity or to maintain the status quo while more information is obtained. The Court further recognized that, “circumstances surrounding an unprovoked flight may provide an officer with a reasonable suspicion for further investigation.” Hodges, 2001 SD 93 at ¶ 15, 631 N.W.2d at 210 (citing Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)).

[¶22.] All of these factors were present here. A complaint that juveniles were causing a disturbance at a trailer court was lodged with law enforcement. Consequently, Deputy Robertson was dispatched to the scene to investigate, and the juveniles disbursed immediately upon Robertson’s arrival. This complaint and the unprovoked flight clearly provided Robertson with reason to suspect that a violation of law might have occurred. Under these circumstances, Robertson had the authority to briefly detain the juveniles to determine their identities and maintain the status quo while he obtained more information. Thus, Robertson’s attempts to speak to Sullivan’s son were clearly taken under color of his official authority notwithstanding the son’s expressions of unwillingness to speak to Robertson. The trial court did not err in denying Sullivan’s acquittal motion for obstructing a law enforcement officer.

[¶ 23.] Affirmed in part and reversed in part.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, participating.

      . SDCL 22-11-4(2) provides: Any person who intentionally prevents or attempts to prevent a law enforcement officer or jailer acting under color of his authority, from effecting an arrest of the actor or another, by:

      (2) Using any other means which creates a substantial risk of causing physical injury to the law enforcement officer, jailer or any other person;
      is guilty of resisting arrest. Resisting arrest is a Class 1 misdemeanor.

      . The State’s attempt to address the threat element falls short. The State defines a threat as "overt actions calculated or serving to make a person fearful" and asserts that Sullivan's kicks and struggle were "certainly threatening.” See The American Heritage College Dictionary 1265 (2d ed.l985)("threaten” defined). However, Robertson never testified that they were threatening or made him fearful or that they appeared to be calculated to make him fearful. Rather, he testified that her actions were neither offensive nor defensive, but mere active resistance.


text:
    2003 SD 144
    STATE of South Dakota, Plaintiff and Appellant, v. William Loc REATH, Defendant and Appellee.
    No. 23048.
    Supreme Court of South Dakota.
    Considered Dec. 11, 2003.
    Decided Dec. 17, 2003.

      David R. Nelson, Minnehaha County State’s Attorney, Paul M. Bengford, Deputy State’s Attorney, Sioux Falls, SD, for plaintiff and appellant.
    John Hinrichs of Office of Minnehaha County Public Defender, Sioux Falls, SD, for defendant and appellee.
   PER CURIAM.

[¶ 1.] In this criminal case, the State attempts to appeal from a judgment of acquittal entered by the trial court following the close of the State’s case-in-chief. Because this Court is without jurisdiction to hear an appeal from a judgment of acquittal, the appeal is dismissed.

FACTS AND PROCEDURE

[¶ 2.] William Loc Reath was charged with possession of a forged instrument with intent to defraud in violation of SDCL 22-39-38 and forgery in violation of SDCL 22-39-36. The trial court entered an “order for dismissal judgment of acquittal” in this matter on November 14, 2003. That order indicates that a jury was empaneled and the State presented its case-in-chief. At the conclusion of the State’s case, the defendant moved for a judgment of acquittal. The trial court granted the motion on the basis that the State presented insufficient evidence to sustain a conviction. See SDCL 23A-23-1 (Rule 29(a)). The State filed a notice of appeal on November 21, 2003, from the order granting the judgment of acquittal.

ISSUE

[¶ 3.] Whether the State may appeal a judgment of acquittal.

[¶ 4.] It is well settled that “the right of appeal is purely statutory. It is not conferred by the Constitution, and can be exercised only by the party to whom it is given.” State v. Stunkard, 28 S.D. 311, 133 N.W. 253, 254 (S.D.1911). “This Court has only ‘such appellate jurisdiction as may be provided by the legislature. The right to appeal is statutory and does not exist in the absence of a statute permitting it.’ ” Dale v. City of Sioux Falls, 2003 SD 124, ¶ 6, 670 N.W.2d 892, 894 (citations omitted). “This Court is also required to take notice of jurisdictional questions whether presented by the parties or not.” Id.

[¶ 5.] The relevant statutory authority concerning an appeal by the prosecution in a criminal trial is as follows:

SDCL 23A-32-4 provides:

Appeal by prosecution from dismissal, arrest of judgment, new trial or deviation from mandatory sentence — Subsequent prosecution.
An appeal by a prosecuting attorney in a criminal case may be taken to the Supreme Court, as a matter of right, from a judgment, or order of a circuit court sustaining a motion to dismiss an indictment or information on statutory grounds or otherwise, or granting a motion for arrest of judgment or a motion for a new trial, or an order finding mitigating circumstances to exist in deviating from the mandatory sentencing provisions of § 22-42-2; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense, except where the dismissal is affirmed by the Supreme Court.

SDCL 23A-32-5 provides:

Appeal by prosecution from suppression evidence or dismissal of complaint — Time for taking appeal — Appeal as from intermediate order.
An appeal by a prosecuting attorney may be taken to the Supreme Court from:
(1) an order of a circuit court or a magistrate suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding;
(2) an order of a circuit court or a magistrate sustaining a motion to dismiss a complaint on statutory grounds or otherwise.
An appeal under this section may not be taken after a defendant has been put in jeopardy and is not a matter of right but of sound judicial discretion. Appeals from such orders shall be taken in the same manner as intermediate appeals in subdivision 15-26A-3(6). No appeal taken under this section shall delay any trial unless a stay be granted in the discretion of the Supreme Court.

[¶ 6.] With a jury having been empanelled, SDCL 23A-32-5 cannot apply to this appeal because the defendant was placed in jeopardy. State v. Catch The Bear, 352 N.W.2d 637, 638 (S.D.1984). Furthermore, the State is not attempting an intermediate appeal but an appeal as a matter of right. Consequently, the State must meet the requirements of SDCL 23A-32-4 to appeal the trial court’s decision. However, by its plain terms, SDCL 23A-32-4 applies to orders dismissing an indictment or information on statutory grounds or otherwise, an arrest of judgment, or a grant of a new trial. Nowhere in the statutory authority is an appeal from a judgment of acquittal authorized. SDCL ch. 23A-32.

[¶ 7.] This Court has squarely addressed this issue in State v. Olson, 334 N.W.2d 49, 50 (S.D.1983), and determined that it was without appellate jurisdiction to review the trial court’s grant of a judgment of acquittal. In response to the State’s position in Olson that the phrase “on statutory grounds or otherwise” contained in SDCL 23A-32-4 authorized such an appeal, the Court stated:

We find that we are unable to agree with the State’s interpretation of this amendment [SDCL 23A-32-4], The phrase “on statutory grounds or otherwise” does not expand the State’s right to appeal. On the contrary, these words simply refer to the grounds on which the trial court grants a “motion to dismiss an indictment or information.” Although we see serious problems with the action taken by the trial court in this case, we must conclude SDCL 2SA-32-4. does not give us jurisdiction to review this acquittal of aggravated assault and conviction of simple assault.

Id. (emphasis added). Consequently, the Olson court dismissed the State’s attempted appeal from the judgment of acquittal on the basis that “if the legislature has not provided us with jurisdiction of a criminal appeal, we are without power to hear the case.” Id. The Olson rationale controls this attempted appeal from the judgment of acquittal determining that there was insufficient evidence presented to convict Reath of the charged offenses.

[¶ 8.] Appeal dismissed.

[¶ 9.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.