author: CROTHERS, Justice. MARING, Justice,

text:
    2007 ND 33
    James Steven WAGNER, Plaintiff, Appellee and Cross-Appellant, v. Marilee Gay WAGNER, Defendant, Appellant and Cross-Appellee.
    No. 20060124.
    Supreme Court of North Dakota.
    March 2, 2007.

      Maureen Holman, Serkland Law Firm, Fargo, N.D., for plaintiff, appellee, and cross-appellant.
    James R. Brothers, Wold Johnson, P.C., Fargo, N.D., for defendant, appellant and cross-appellee.
   CROTHERS, Justice.

[¶ 1] Marilee Wagner appeals and James Wagner cross-appeals from a divorce judgment dividing their marital estate and awarding Marilee Wagner spousal support. We conclude the district court’s award of rehabilitative spousal support to Marilee Wagner is not clearly erroneous. We affirm the judgment and dismiss the cross-appeal.

I

[¶ 2] Marilee and James Wagner were married in 1979 and have four children together. James Wagner sued Marilee Wagner for divorce in February 2005. At the time of the trial, only the parties’ two youngest children were minors. Marilee Wagner has a bachelor’s degree and completed five years of a Ph.D. psychology program after the parties were married, but she discontinued her education to start a family. Marilee Wagner was 48 years old at the time of trial and had not been employed outside the home since the parties’ first child was born. James Wagner attended medical school after the parties were married and obtained a medical degree. James Wagner was 48 years old at the time of trial and was a vascular surgeon, earning between $200,000 to $340,000 per year.

[¶ 3] After a trial, the district court granted the parties a divorce, distributed the parties’ marital estate, granted Marilee Wagner custody of the parties’ two minor children, awarded Marilee Wagner child support, and awarded Marilee Wagner rehabilitative spousal support. Marilee Wagner received a net property award of $765,057.50, which included the marital residence worth $310,000, financial assets including $132,255 in a money market account and $30,000 in bonds, $279,085 in a retirement account, vehicles, and household goods. James Wagner received a net property award of $566,870.50, which included $78,880 in business assets, $188,339.50 in financial assets, $279,085 in a retirement account, vehicles, and household goods. There was evidence Marilee Wagner took approximately $200,000 from the parties’ money market account in the months before the trial. The court found she was unable to account for some of the missing money, and awarded her any of the missing funds she had in her possession. The court found Marilee Wagner is a disadvantaged spouse and awarded her $5,000 per month in rehabilitative spousal support for five years. The court ordered James Wagner to pay $3,543 per month in child support.

II

[¶ 4] Marilee Wagner argues the district court’s spousal support decision is clearly erroneous. She claims she will not be able to adequately rehabilitate herself within five years considering the disparity in the parties’ incomes, the duration of the marriage, her station in life, and the standard of living she became accustomed to during the marriage. She argues she should have been awarded permanent spousal support.

[¶ 5] A spousal support determination is a finding of fact which will not be reversed on appeal unless it is clearly erroneous. Staley v. Staley, 2004 ND 195, ¶ 7, 688 N.W.2d 182. A finding of fact is clearly erroneous “when the award is induced by an erroneous view of the law, there is no evidence to support it, or this Court is convinced, based on the entire record, a mistake has been made.” Id. Absent a finding that the spousal support award is clearly erroneous, we will not reverse a district court’s award merely because we may have viewed the evidence differently. Id.

[¶ 6] In making a spousal support determination, a district court must consider the Ruff-Fischer guidelines for both the amount and the duration of the support. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182. The factors include:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Id. The district court is not required to make specific findings on each factor, but we must be able to understand the rationale for the court’s decision. Id. The district court is no longer required to make a separate finding that a spouse is “disadvantaged.” Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157.

[¶ 7] The district court considered the Ruff-Fischer guidelines and made findings about the relevant factors:

18. [James Wagner] is a medical doctor practicing in the area of vascular surgery.
14.[Marilee Wagner] has a college degree earned in 1979 from Concordia College in biology and psychology. Following her graduation from Concordia College she pursued a PhD in psychology from the University of Minnesota for more than 5 years but did not complete the program. She has not worked outside of the home since the birth of the parties’ first child.
15. Marilee is intelligent, articulate and in apparent good health. She has not sought employment since the parties separated. She is capable of employment and is capable of further education which will enable her to achieve adequate or appropriate self-support.
16. Marilee presented no plan for rehabilitation and has requested that she receive half of whatever James earns, for life.
17. Marilee’s estimate of her monthly expenses greatly exceeds the expenses of the parties prior to separation and does not accurately reflect the actual costs of the household which no longer includes a monthly mortgage payment, the same having been paid-in-full.
18. Marilee, during the course of the divorce, dissipated marital assets contrary to the restraining order provisions of the divorce summons and is unable to account for all of the money that she spent.
19. James’ income has been trending downwards.

The court found Marilee Wagner disadvantaged by the marriage and in need of rehabilitative spousal support. The court awarded Marilee Wagner $5,000 per month in spousal support for five years, explaining:

Marilee is Forty-nine (49) years of age, educated and in apparent good health. The spousal support and favorable property distribution is adequate for her to rehabilitate herself within 60 months from the date of this Order. The Court has considered her needs and the ability of James to pay. This is an equitable determination of spousal support and will enable Marilee to achieve adequate self support.

[¶ 8] Marilee Wagner claims the district court’s support award is clearly erroneous because she should have been awarded permanent spousal support. Permanent spousal support is appropriate “when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.” Staley, 2004 ND 195, ¶ 16, 688 N.W.2d 182. “[PJermanent spousal support is awarded to provide traditional maintenance for a spouse incapable of adequate rehabilitation or self-support.” Greenwood v. Greenwood, 1999 ND 126, ¶ 9, 596 N.W.2d 317. “Rehabilitative spousal support is awarded to equalize the burdens of divorce or to restore an economically disadvantaged spouse to independent status by providing a disadvantaged spouse an opportunity to acquire an education, training, work skills, or experience to become self-supporting.” Id. (citations omitted).

[¶ 9] The district court’s findings adequately explained the rationale for its decision. Marilee Wagner is 49 years old, educated, and in good health. She testified her monthly living expenses were approximately $9,000 per month, but the district court found that amount greatly exceeded the expenses of the parties prior to separation, which James Wagner testified were $5,500 to $6,000 per month and did not accurately reflect the costs of the household, which no longer included a mortgage payment. “A relevant factor in setting the amount of support for a disadvantaged spouse is the distribution of marital property and the liquidity or income-producing nature of the property distributed to the disadvantaged spouse.” Schiff v. Schiff, 2000 ND 113, ¶ 42, 611 N.W.2d 191. Marilee Wagner received a net property award of more than $765,000 which, despite her dissipation of the marital estate, was approximately $200,000 more than James Wagner was awarded. Marilee Wagner’s property award included a house worth $310,000, approximately $130,000 from a money market account, $30,000 in bonds, and approximately $280,000 in a retirement account. Marilee Wagner was awarded a large portion of the marital estate, and the property she received can be used to generate income. Marilee Wagner testified she wanted a career. Considering Marilee Wagner’s education, she has the ability to start a career and increase her income after further education or training. The court found the property distribution and rehabilitative spousal support would enable Marilee Wagner to rehabilitate herself and achieve adequate self support. The evidence supports the court’s findings.

[¶ 10] Moreover, Marilee Wagner did not present any evidence that she cannot be rehabilitated. She testified she is capable of working and she would like a career, but she failed to present evidence of her plan to rehabilitate herself or what her future earnings could be. Based on the evidence presented, the court awarded rehabilitative spousal support finding Mar-ilee Wagner could achieve adequate self support. We rarely reverse a district court’s decision to award rehabilitative support and remand for the court to consider permanent support; we do so only when the evidence does not support the court’s finding that the spouse could be adequately rehabilitated. See Riehl v. Riehl, 1999 ND 107, ¶¶ 14-17, 595 N.W.2d 10 (rehabilitative support reversed because property division and support did not address the burdens of the marriage); Wald v. Wald, 556 N.W.2d 291, 296-97 (N.D.1996) (reverse to consider permanent support due to disparity in parties’ earning power, unlikely wife will greatly increase her earning ability, major income producing asset awarded to husband, and wife’s serious ongoing health problems). Here, there is adequate evidence Marilee Wagner could be adequately rehabilitated.

[¶ 11] We conclude the district court’s award of rehabilitative spousal support is not clearly erroneous under the facts in this case. The evidence supports the court’s findings, and we are not convinced a mistake was made. We are also mindful the district court retains jurisdiction under N.D.C.C. § 14-05-24.1 to modify the award and make it permanent if there is a material change in circumstances. See Staley, 2004 ND 195, ¶ 17, 688 N.W.2d 182.

Ill

[¶ 12] James Wagner cross-appeals from the district court’s judgment arguing the property division should be reversed if the spousal support award is reversed because the spousal support and property division issues are so intertwined they must be decided together. James Wagner requested his cross-appeal be dismissed if the spousal support award is affirmed. Because we affirm the spousal support award, we dismiss James Wagner’s cross-appeal.

rv

[¶ 13] We affirm the judgment and dismiss the cross-appeal.

[¶ 14] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, J., concur.

[¶ 15] The Honorable BENNY A. GRAFF, S.J., sitting in place of SANDSTROM, J., disqualified.

MARING, Justice,

dissenting.

[¶ 16] I respectfully dissent. I believe the failure of the trial court to award permanent spousal support is clearly erroneous. I am of the opinion Marilee Wagner should have received permanent spousal support in addition to rehabilitative spousal support, and I would reverse and remand to the trial court for an appropriate award of permanent spousal support.

I

[¶ 17] The trial court properly awarded Marilee Wagner rehabilitative spousal support. Rehabilitative spousal support is appropriate for Marilee Wagner because her primary role during the marriage was that of a homemaker, and she has not been in the workforce for over twenty years. Therefore, she needs to pursue obtaining work skills and ultimately employment. Rehabilitative spousal support “is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of divorce by increasing the disadvantaged spouse’s earning capacity.” Riehl v. Riehl, 1999 ND 107, ¶ 12, 595 N.W.2d 10 (citations omitted). One approach to awarding spousal support is the minimalist doctrine, which is meant to educate and retrain the recipient to minimal self-sufficiency. Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶ 15, 563 N.W.2d 377. This Court has rejected the minimalist doctrine in favor of an equitable approach, which attempts “to enable the disadvantaged spouse to obtain ‘adequate’ self-support after considering the standard of living established during the marriage, the duration of the marriage, the parties’ earning capacities, the value of the property and other Rujf-Fischer factors.” Id.

[¶ 18] In Riehl, the husband argued that five years of rehabilitative spousal support was sufficient to adequately rehabilitate his wife because after five years, his wife would be educated, able to support herself, and able to meet her needs. 1999 ND 107, ¶ 15, 563 N.W.2d 377. This Court rejected that argument and reversed and remanded to the trial court for consideration of a longer period of spousal support factoring in the wife’s job-entry process, the parties’ disparate earning capabilities and standard of living, and the husband’s ability to pay. Id. at ¶ 20. In the present case, the trial court awarded Marilee Wagner rehabilitative spousal support of $5,000 a month for five years. This award of rehabilitative spousal support does not aim “to mitigate marital disadvantage caused by the impact at divorce of an economic role assumed during marriage.” Id. at ¶ 15. There is no evidence to support the trial court’s finding Marilee Wagner can “adequately” support herself in five years.

[¶ 19] In five years, Marilee Wagner will be fifty-four years old. She has received $132,255 in a money market account and $30,000 in bonds, but these will not yield significant interest income. Additionally, this Court has said that “a spouse is not required to deplete a property distribution in order to live.” Hagel v. Hagel, 2006 ND 181, ¶ 14, 721 N.W.2d 1. Marilee Wagner’s home is not an income-producing asset, and the only other assets awarded to her were part of a retirement account, vehicles, and household goods. During the next five years, James Wagner will continue to earn between $200,000 and $340,000 per year. Marilee Wagner has a psychology degree, which she obtained twenty-seven years ago. She will never earn more than a small fraction of what James Wagner earns as a vascular surgeon on a yearly basis. I believe the period of spousal support in this case does not adequately address the burdens of the divorce. See Riehl, at ¶ 17. The huge disparity in income between the parties makes rehabilitative spousal support alone inadequate in this case. The trial court in this case should consider whether, in addition to rehabilitative support, permanent spousal support is also necessary.

II

[¶ 20] In Hagel, we explained: “Section 14-05-24.1, N.D.C.C., provides, ‘taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time.’ ” 2006 ND 181, ¶ 11, 721 N.W.2d 1 (quoting Ulsaker v. White, 2006 ND 133, ¶20, 717 N.W.2d 567). Permanent spousal support “is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities she lost in the course of the marriage.” Riehl, 1999 ND 107, 1118, 595 N.W.2d 10; see Kautzman v. Kautzman, 1998 ND 192, ¶¶ 19-20, 585 N.W.2d 561 (holding permanent spousal support was appropriate when the wife’s earning capacity would never approach the husband’s and the parties enjoyed a “very comfortable standard of living”); Donarski v. Donarski 1998 ND 128, ¶8, 581 N.W.2d 130 (holding a wife’s “limited marketable job skills” and the “substantial disparity in income between the parties” justified an award of permanent spousal support). “Even when the disadvantaged spouse is capable of rehabilitation we have recognized permanent spousal support may be appropriate to equitably share the overall reduction in the parties’ separate standard of living.” Riehl, at ¶ 18 (citing Weir v. Weir, 374 N.W.2d 858, 864 (N.D.1985) (holding permanent support was appropriate because the disadvantaged spouse was likely to have a much lower income-producing capacity than her spouse, which earning capacity she helped obtain)). I believe the trial court’s failure to award Marilee Wagner permanent spousal support was clearly erroneous, because the facts of this case present a classic case for permanent spousal support.

[¶ 21] A proper application of the Ruff-Fischer guidelines mandates permanent spousal support in this case. Ruff-Fischer factors include: the parties’ ages, their earning abilities, the duration of the marriage, their stations in life, the circumstances and necessities of the parties, and their financial situations as shown by property ownership, its value at the time, and its income-producing capacity. Staley v. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182. Marilee Wagner was forty-eight years old at the time of the divorce. The parties had been married for twenty-six years. Marilee Wagner had aspirations of becoming a medical doctor, but in deference to her husband’s desire to become a medical doctor, she instead obtained a degree in psychology. Due to the parties’ choice to start a family, Marilee Wagner was unable to complete her Ph.D. in psychology. Marilee Wagner stayed at home with the parties’ children for over twenty years. It is highly unlikely Marilee Wagner will obtain employment that will close the huge disparity in earning capacity between her and James Wagner. Marilee Wagner’s role at home during the marriage greatly contributed to James Wagner’s successful career as a vascular surgeon. This career led to a high standard of living for the parties. Other than any employment Mar-ilee Wagner obtains, the only income she will have will be minimal interest income from her liquid assets.

[¶ 22] Permanent spousal support may be awarded where the marriage has been of long duration and the dependent spouse is of such an age that adequate rehabilitation is unlikely. Sommer v. Sommer, 2001 ND 191, ¶¶ 14-15, 636 N.W.2d 423 (holding permanent spousal support was appropriate because of the parties’ long marriage, the wife’s limited ability to work full time, and the vast disparity in income and earning potential between the parties). Adequate rehabilitation for Marilee Wagner, at forty-nine years old, is highly unlikely considering her age, that she has been out of the job market for over twenty years, and the specialized nature of her knowledge.

[¶ 23] “[W]hen there is substantial disparity between the spouses’ incomes that cannot be readily adjusted by property division or rehabilitative support, it may be appropriate for the court to award indefinite permanent support to maintain the disadvantaged spouse.” Fox v. Fox, 1999 ND 68, ¶ 21, 592 N.W.2d 541. “Permanent spousal is ordered to maintain a somewhat comparable standard of living for a spouse who is incapable of adequate rehabilitation.” Kautzman, 1998 ND 192, ¶ 19, 585 N.W.2d 561 (citations omitted). The large disparity in earning capabilities between the parties, Marilee Wagner’s age, lack of work history, minimal income-producing assets, and past standard of living all mandate an award of permanent spousal support.

Ill

[¶ 24] As we explained in Van Klo-otwyk, any person who attempts to begin a career at Marilee Wagner’s stage in life, after deferring meaningful work and education for over twenty years “in order to support her husband’s pursuit of his own career, a career the fruits of which she will no longer share, is presumptively disadvantaged by her divorce.” See Van Klootwyk, 1997 ND 88, ¶ 26, 563 N.W.2d 377 (Neumann, J., concurring specially). I would reverse and remand for the trial court to set an appropriate award of permanent spousal support based on the Ruff-Fischer guidelines.

[¶ 25] BENNY A. GRAFF, S.J., concurs.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2007 ND 37
    In the Interest of R.W.S., aka R.B.H., Child. Tyrone Turner, Petitioner and Appellee, v. R.W.S., aka R.B.H., Child, Respondent and Appellant and L.V., Mother, Respondent.
    No. 20060167.
    Supreme Court of North Dakota.
    March 5, 2007.

      Tyrone J. Turner, Assistant State’s Attorney, Bismarck, N.D., for petitioner and appellee; submitted on brief.
    Bradley D. Peterson, Legal Services of North Dakota, Bismarck, N.D., for respondent and appellant; submitted on brief.
   MARING, Justice.

[¶ 1] R.W.S. (“Richard”) appeals the juvenile court’s orders adjudicating him a delinquent child and placing him with the North Dakota Division of Juvenile Services until March 2007. Richard argues he was denied a fair hearing by having to wear handcuffs and because the in-court identifications were impermissibly suggestive and unreliable. We hold the juvenile court abused its discretion by failing to independently decide whether to remove Richard’s handcuffs. We conclude, however, this was harmless error because there is overwhelming evidence of Richard’s guilt. We further hold the juvenile court did not violate Richard’s right to due process when it allowed the in-court identifications because they were not unnecessarily suggestive and did not lead to a substantial likelihood of irreparable misidentification. We affirm the juvenile court’s orders.

I

[¶ 2] On April 18, 2006, a juvenile hearing, presided over by a juvenile court referee, was held to determine whether Richard was a delinquent child. Richard was accused of committing the delinquent offenses of burglary, robbery, and disorderly conduct. Richard was transported to the hearing in handcuffs and remained in handcuffs for the duration of the hearing. At the hearing, Richard asked to have his handcuffs removed. The referee responded: “Well, as I’ve been told by the presiding judge of the district that this is a matter to be determined by the sheriffs office since they’re responsible for security. And so I’ve been told not to interfere with that decision.” Robert and Carol Sol-berg, witnesses to the alleged offenses, testified at the hearing.

[¶ 3] The Solbergs have a workshop in their backyard. On March 7, 2006, Robert Solberg noticed the workshop’s side door was open a few inches and he could see through the door’s glass panel that an individual was inside. Robert Solberg yelled at the individual as he was leaving the workshop with a tool belt. The individual threw a wood chisel at Robert Sol-berg and then attacked him with the tool belt. Robert Solberg knocked the individual to the ground, then detained him. Robert Solberg’s son, who had called the police, detained the individual while Robert Solberg inspected the workshop for missing items. When he returned from the shop, he resumed detaining the individual.

[¶ 4] When Carol Solberg heard there was an intruder, she went to the back door of the garage. She saw Robert Solberg standing on the back deck and the individual lying on the ground, facing her. The individual called her names and used inappropriate language. She had a clear view of the individual’s face from five to six feet away as the police escorted the individual through the garage after his arrest. The individual was placed in the police vehicle and transported to the police station.

[¶ 5] During Robert Solberg’s hearing testimony, he was asked to identify the individual he encountered on March 7, 2006. Solberg identified Richard, who was sitting next to his attorney. Richard’s attorney stated: “I’d like the record to also reflect that [Richard] is the only Native American male in this courtroom. He’s also the only person in this courtroom who’s currently in handcuffs.” When asked to identify the individual she saw on March 7, 2006, Carol Solberg pointed to Richard. Richard’s attorney again asked that the record reflect that he was the only Native American male at the hearing and the only individual in handcuffs.

[¶ 6] The referee adjudicated Richard a delinquent child for committing the offenses of burglary, robbery, and disorderly conduct. Richard was ordered to be removed from the legal custody of his mother and placed in the custody of the North Dakota Division of Juvenile Services until March 7, 2007.

[¶ 7] Richard requested a review of the referee’s order, arguing he was denied his constitutional right to a fair hearing by having to wear handcuffs, and that the in-court identifications were impermissibly suggestive and unreliable. On review, the juvenile court affirmed the referee’s order on the grounds that there was no showing of prejudice and the in-court identifications were supported by the evidence. Richard appeals the juvenile court’s orders.

II

[¶ 8] Under N.D.R.CivJP. 52(a), this Court reviews a juvenile court’s factual findings under a clearly erroneous standard of review, with due regard given to the opportunity of the juvenile court to judge the credibility of the witnesses. In re K.H., 2006 ND 156, ¶ 7, 718 N.W.2d 575. “A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law.” Interest of D.D., 2006 ND 30, ¶ 18, 708 N.W.2d 900. This Court reviews questions of law de novo. In re K.H., at ¶ 7.

[¶ 9] Richard does not claim the juvenile court erred in finding him delinquent. Richard argues the juvenile court violated his constitutional rights by refusing to remove his handcuffs at the hearing without independently deciding the necessity of restraints. Richard contends the handcuffs denied him the ability to communicate with his lawyer and assist in his defense, impaired his physical movement and mental faculties, caused psychological harm, interfered with his ability to testify, and was an affront to the dignity of the hearing.

[¶ 10] This is a case of first impression for our Court, as we have not previously addressed the right of either adult defendants or juveniles to appear in court free from physical restraints. When deciding a question of the violation of a federal constitutional right, we look to federal courts for guidance. See City of Bismarck v. Materi, 177 N.W.2d 530, 538 (N.D.1970).

[¶ 11] The United States Supreme Court has recently stated that there is near consensus agreement that during a trial’s guilt phase, “a criminal defendant has a right to remain free of physical restraints that are visible to the jury; that the right has a constitutional dimension; but that the right may be overcome in a particular instance by essential state interests such as physical security, escape prevention, or courtroom decorum.” Deck v. Missouri, 544 U.S. 622, 628, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005); see ABA Standards for Criminal Justice: Discovery and Trial by Jury 15-3.2, pp. 188-91 (3d ed.1996).

[¶ 12] In Deck, the United States Supreme Court addressed “whether shackling a convicted offender during the penalty phase of a capital case violates the Federal Constitution.” 544 U.S. at 624, 125 S.Ct. 2007. The Court held “that the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is ‘justified by an essential state interest’ — such as the interest in courtroom security — specific to the defendant on trial.” Id. (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (emphasis omitted)); see also Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (holding restraints may be used when necessary to maintain dignity, order, and decorum in the courtroom). In so holding, the United States Supreme Court examined the reasons that motivate the guilt phase constitutional rule and determined they apply with similar force at the penalty phase, even though “shackles do not undermine the jury’s effort to apply that presumption” of innocence because the defendant has been convicted. Deck, 544 U.S. at 682, 125 S.Ct. 2007.

[¶ 13] In Deck, the United States Supreme Court reviewed the considerations that militate against the routine use of visible physical restraints during a criminal trial. Id. at 630-31, 125 S.Ct. 2007. The Court identified three fundamental legal principles: (1) “the criminal process presumes that the defendant is innocent until proved guilty,” and visible physical restraints undermine that presumption, suggesting “to the jury that the justice system itself sees a need to separate a defendant from the community at large;” (2) “the Constitution, in order to help the accused secure a meaningful defense, provides him with a right to counsel,” and “[s]hackles can interfere with the accused’s ability to communicate with his lawyer;” and (3) “judges must seek to maintain a judicial process that is a dignified process ... which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual’s liberty through criminal punishment.” Id. (citations omitted).

[¶ 14] The United States Supreme Court applied these principles and concluded that the latter two considerations, securing a meaningful defense and maintaining dignified proceedings, militate against the routine use of visible physical restraints during the penalty phase of a criminal trial. Id at 632, 125 S.Ct. 2007. The Court also concluded that although the jury was not deciding between guilt and innocence, it was deciding between life and death, an equally important decision. Id.

[¶ 15] With respect to a juvenile court proceeding, we recognize the concerns about the effect of visible physical restraints on a jury do not apply. However, we agree with those courts holding that juveniles have the same rights as adult defendants to be free from physical restraints. See In the Matter of Millican, 138 Or.App. 142, 906 P.2d 857, 860 (1995); In re Staley, 67 Ill.2d 33, 7 Ill.Dec. 85, 364 N.E.2d 72, 74 (1977). “[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.” In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In Millican, the Court of Appeals of Oregon held that “two factors warrant our extension of the right against physical restraint to juvenile proceedings. First, the right to remain unshackled is based on considerations beyond the potential for jury prejudice, including inhibition of free consultation with counsel,” and “[s]econd, extending the right to remain unshackled during juvenile proceedings is consonant with the rehabilitative purposes” of the juvenile justice system. 906 P.2d at 860 (citations omitted). “Allowing a young person who poses no security hazard to appear before the court unshackled, with the dignity of a free and innocent person, may foster respect for the judicial process.” Id; see also In re Staley, 7 Ill.Dec. 85, 364 N.E.2d at 74 (extending to juveniles the right to remain free from restraints in non-jury proceedings absent a showing of clear necessity for restraints).

[¶ 16] The United States Supreme Court, in Deck, also held that the constitutional requirement to be free from physical restraints is not absolute. 544 U.S. at 633, 125 S.Ct. 2007. The trial court, in the exercise of its discretion, may take account of special circumstances that call for restraints. Id. “But any such determination must be case specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant.” Id The United States Supreme Court concluded that the trial court failed to provide reasons why the shackles were necessary. Id. at 634-35, 125 S.Ct. 2007. Finally, the United States Supreme Court held:

Thus, where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove beyond a reasonable doubt that the shackling error complained of did not contribute to the verdict obtained.

Id. at 635, 125 S.Ct. 2007 (citation omitted).

[¶ 17] We conclude that the juvenile court had a duty to exercise its discretion when Richard requested that his handcuffs be removed during his adjudicatory hearing. The referee violated Richard’s due process right to a fair trial when he failed to exercise his discretion and deferred to law enforcement. See Lakin v. Stine, 431 F.3d 959, 964 (6th Cir.2005) (holding the trial court’s deference to a corrections officer was a violation of due process); Woodards v. Cardwell, 430 F.2d 978, 981-82 (6th Cir.1970) (holding the trial court abused its discretion by leaving the decision of whether to physically restrain to the sheriff); In re A.H., 359 Ill.App.3d 173, 295 Ill.Dec. 709, 833 N.E.2d 915, 923 (2005) (holding the trial court, not the sheriff, has discretion to decide whether to leave a respondent in physical restraints); State v. Carter, 53 Ohio App.2d 125, 372 N.E.2d 622, 626-27 (Ct.App.1977) (holding the trial court’s decision to allow the sheriff to determine if defendant was to be physically restrained was clearly erroneous); Millican, 906 P.2d at 860 (holding a conclusory statement by a law enforcement officer or prosecutor of a serious risk of dangerous behavior was not sufficient to meet the independent analysis necessary for the exercise of discretion); State v. Roberts, 86 N.J.Super. 159, 206 A.2d 200, 205-06 (1965) (holding the trial court had discretion whether to apply physical restraints).

[¶ 18] The factors the juvenile court should have considered are: the accused’s record, temperament, and the desperateness of his situation; the security situation at the courtroom and courthouse; the accused’s physical condition; and whether there was an adequate means of providing security that was less prejudicial. Lakin, 431 F.3d at 964.

[¶ 19] In the present case, the juvenile court made no findings that Richard posed an immediate and serious risk of dangerous or disruptive behavior or of escape or flight. Therefore, refusal to remove Richard’s handcuffs was a violation of his due process rights. Our analysis leads us to whether this violation was harmless error. “[F]ederal constitutional errors do not automatically require reversal if it is shown that they were harmless, but before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” State v. Chihanski, 540 N.W.2d 621, 623 (N.D.1995). “In declaring this belief, the court must be convinced that the error did not contribute to the verdict.” Id. “Furthermore, before making this declaration, the court must review the entire record and determine, in light of all the evidence, the probable effect of any constitutional error upon a criminal defendant’s rights.” Id. at 623-24. The burden is on the beneficiary of a constitutional error to prove the error is harmless beyond a reasonable doubt. State v. Trieb, 315 N.W.2d 649, 655 (N.D.1982).

[¶ 20] Here, the evidence in the record is overwhelmingly in support of the adjudication of guilt. Robert Solberg had a clear view of Richard as he left the Solbergs’ workshop and had an extended close view of Richard as he fought off Richard, and then as he detained Richard on the ground. Carol Solberg also had a clear view of Richard when he was on the ground and as he was escorted through the garage. The Solbergs both identified Richard as the individual they encountered on their property on March 7, 2006. Richard was never out of the sight of either the Solbergs or the police, and he was taken directly from the Solberg house to the police vehicle and then the police station. There is no doubt Richard committed the delinquent offenses of burglary, robbery, and disorderly conduct. See In re A.H., 295 Ill.Dec. 709, 833 N.E.2d at 924 (holding the father’s deprivation of his child was supported by overwhelming evidence, therefore, the trial court’s failure to analyze need for physical restraints was harmless beyond a reasonable doubt). Here, the juvenile court violated Richard’s due process rights, but the error was harmless beyond a reasonable doubt because of the overwhelming evidence against Richard.

Ill

[IT 21] Richard argues that the in-eourt identifications at the hearing were impermissibly suggestive and unreliable and, therefore, denied him a fair hearing.

[¶ 22] We review federal constitutional questions de novo. State v. Campbell, 2006 ND 168, ¶ 6, 719 N.W.2d 374, cert. denied, — U.S. -, 127 S.Ct. 1150, — L.Ed.2d - (2007).

[¶ 23] In State v. Norrid, 2000 ND 112, 611 N.W.2d 866, we addressed the question of whether an out-of-court identification must be suppressed because it was so unnecessarily suggestive and conducive to irreparable mistaken identification to constitute a denial of due process. In Norrid, we analyzed the United States Supreme Court decisions concerning eyewitness identifications. Id. at ¶¶ 7-13. These decisions all deal with the exclusion of an impermissibly suggestive out-of-court identification or an in-court identification that has been tainted by suggestive pretrial identifications. See Neil v. Biggers, 409 U.S. 188, 200-01, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Whether the five factors set out in Neil v. Biggers, and again in Manson v. Brathwaite, apply to initial in-court identifications has not to date been addressed by the United States Supreme Court.

[¶ 24] The Eighth Circuit Court of Appeals has concluded that a defendant’s claim that a first-time in-court identification was made under impermissibly suggestive procedures does implicate the defendant’s right to constitutional due process and the Biggers and Manson factors apply. United States v. Murdock, 928 F.2d 293, 297 (8th Cir.1991); United States v. Davis, 103 F.3d 660, 669-70 (8th Cir.1996). However, the South Carolina Supreme Court has held: “We conclude, as the majority of courts have, that Neil v. Biggers does not apply to in-court identifications and that the remedy for any alleged suggestiveness of an in-court identification is cross-examination and argument.” State v. Lewis, 363 S.C. 37, 609 S.E.2d 515, 518 (2005). The rationale provided by the South Carolina Supreme Court is “these extra safeguards are not applicable to an in-court identification because the witness’ testimony is subject to the same rules of evidence, witness credibility, and cross-examination as all testimony in a criminal trial.” Id.; see also United States v. Domina, 784 F.2d 1361, 1368-69 (9th Cir.1986) (holding in-court identification is reviewed under an abuse of discretion standard).

[¶ 25] We have held: “Our court looks to decisions of other states for guidance, but it is not bound by those decisions. In respect to questions involving the United States Constitution, not only does our court receive guidance from the decisions of the United States Supreme Court, but it is bound by those decisions.” City of Bismarck v. Materi, 177 N.W.2d 530, 538 (N.D.1970). Decisions of federal courts other than the United States Supreme Court, interpreting the United States Constitution are considered for guidance. See generally State v. Lamb, 541 N.W.2d 457, 459 n. 2 (N.D.1996) (stating that federal decisions construing federal rules similar to our state’s rules are considered for guidance.); Opp v. Source One Management, Inc., 1999 ND 52, ¶ 12, 591 N.W.2d 101 (holding when we are interpreting the ND Human Rights Act, we will look to federal interpretations of Title VII for guidance).

[¶26] In Nortid, we stated that the United States Supreme Court, in Stovall v. Denno, held “identification testimony must be suppressed if, under the totality of the circumstances, the procedure for identification ‘was so unnecessarily suggestive and conducive to irreparable mistaken identification’ to constitute a denial of due process.” 2000 ND 112, ¶ 8, 611 N.W.2d 866 (quoting Stovall, 388 U.S. at 302, 87 S.Ct. 1967). We noted: “Under the Stovall due process test, the determination of the admissibility of an identification involves a two-pronged analysis of (1) whether the identification procedure is impermissibly suggestive, and (2) if so, whether the identification nevertheless is reliable under the totality of the circumstances.” Horrid, at ¶ 10. We also held the defendant has the burden of proving the identification procedure is impermissibly suggestive, and the State must then show the identification is reliable under the totality of the circumstances. Id. Further, we held: “even if an identification procedure is unnecessarily or impermissibly suggestive, there is no due process violation requiring exclusion of identification evidence if the identification is reliable under the totality of the circumstances....” Id. ¶ 13. Determining reliability requires the consideration of several factors: “ ‘The opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his pri- or description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.’ ” Id. (quoting Biggers, 409 U.S. at 199-200, 93 S.Ct. 375). The Eighth Circuit Court of Appeals has analyzed a defendant’s claim that a first-time in-court eyewitness identification violated his due process rights because the procedure was impermissibly suggestive and unreliable under the very framework we applied in Norrid. United States v. Murdock, 928 F.2d 293 (8th Cir.1991); United States v. Davis, 103 F.3d 660 (8th Cir.1996).

[¶ 27] In Murdock, the defendant argued the in-court identification testimony was tainted because he was seated at the defense counsel table and was the only African-American in the room. Murdock, 928 F.2d at 297. The Murdock Court held, under Manson, in addressing these claims “we must apply the two part test” and “[f]irst, we must decide whether the challenged confrontation was impermissi-bly suggestive. If it was, we must then determine whether, under the totality of the circumstances, the suggestive procedures created ‘a very substantial likelihood of irreparable misidentification.’ ” Murdock, 928 F.2d at 297 (quoting Manson, 432 U.S. at 116, 97 S.Ct. 2243). The Eighth Circuit Court of Appeals then held that in making this second determination it must consider the Biggers and Manson five factors. Murdock, 928 F.2d at 297. The court stated that it does not require pretrial lineups precede in-trial identifications and, therefore, the only issue in this case was whether Murdock’s “presence at the defense table, combined with his being the only African-American in the courtroom at the time of the identification, constituted impermissibly suggestive procedures.” Id. The court concluded: “[W]hile it may have been suggestive, it was not impermissibly suggestive. Even if the procedure was impermissibly suggestive, under the totality of the circumstances, there was no substantial likelihood of mis-identification.” Id. The court applied the Biggers five factors noting that facts supported that the witnesses had a substantial amount of time to view the defendant, the witness were fairly attentive during the crime, the witnesses were very certain about the defendant’s identify, and the identifications took place within a reasonable period after the crime. Id.

[¶ 28] In United States v. Davis, 103 F.3d 660 (8th Cir.1996), the Eighth Circuit Court of Appeals again reviewed a defendant’s claim that a first-time in-court identification violated his constitutional right to procedural due process. In that case, the court stated: “ ‘Reliability is the linchpin in determining the admissibility of identification testimony.’ ” Id. at 669 (quoting Manson, 432 U.S. at 113-14, 97 S.Ct. 2243). The court again applied the due process formulation emanating from Stovall, 388 U.S. at 302, 87 S.Ct. 1967, and the totality of the circumstances standard and the factors outlined in Biggers, 409 U.S. at 199-200, 93 S.Ct. 375 and Manson, 432 U.S. at 114, 97 S.Ct. 2243. Id. 669-70. In Davis, the defendant contended that the first-time in-court identification was made under “an impermissibly suggestive procedure because Davis was the only African-American male seated at the defense counsel table, and the only other African-American individual present was a man in the back of the courtroom.” Id. at 670. The court noted that the defendant “made a specific objection to the racial composition of the courtroom and requested that he not be seated at counsel table during the identification procedures.” Id. The Eighth Circuit Court of Appeals held: “We agree with the Ninth Circuit’s assessment that ‘there is no constitutional entitlement to an in-court line-up or other particular methods of lessening the suggestiveness of in-court identification, such as seating the defendant elsewhere in the room. These are matters within the discretion of the court.’ ” Id. (citing Domina, 784 F.2d at 1369). The Eighth Circuit Court of Appeals concluded that given “the total circumstances, the arguably suggestive nature of the in-court identification was not so impermissibly suggestive as to create ‘a very substantial likelihood of irreparable misidentification.’ ” Id. at 671 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). The court pointed out that the prosecutor’s questions were not suggestive, the witness’ in-court identification was vigorously attacked on cross-examination, and that under the five factors analysis other circumstances indicated the witness’ testimony was reliable. Id. at 670.

[¶ 29] Two recent cases, United States v. Jaeger, 298 F.Supp.2d 1003 (D.Hawai’i 2003), and Louisiana v. Jordan, 813 So.2d 1123 (La.Ct.App.2002), have applied the five factor test from Biggers to in-court identifications that were not preceded by pretrial identifications.

[¶ 30] In Jaeger, 298 F.Supp.2d at 1005, the defendant was charged with distributing a controlled substance to an undercover police officer. The defendant argued that because a pretrial identification was not conducted and a considerable amount of time had passed from the alleged sale to the trial, in-court identifications should have been excluded or safeguards should have been implemented to prevent prejudice. Id. at 1005. The United States District Court for the District of Hawaii held the decision to allow an in-court identification is left to the court’s discretion and “[t]hat discretion is abused only when the in-court identification testimony given is ‘so unnecessarily suggestive and conducive to irreparable misidentification as to amount to a denial of due process of law.Id. at 1007 (quoting Domina, 784 F.2d at 1369). The Jaeger court then applied the Biggers factors to determine the reliability of the in-court identification testimony. 298 F.Supp.2d at 1007-08. The court concluded that the in-court identification did not present a substantial likelihood of misidentifieation. Id. at 1008.

[¶ 31] In Jordan, 813 So.2d at 1128, the defendant was charged with armed robbery. The victim had viewed the defendant for three to four minutes. Id. at 1127. The victim identified the defendant for the first time at trial. See id. at 1129. The defendant argued that the court should have excluded the in-court identification on the grounds it was unreliable because the defendant was not identified before the trial. Id. at 1130. The court considered the Manson factors when it evaluated the reliability of the witness’s in-court identification. Jordan, 813 So.2d at 1130. “Even if the identification procedure is suggestive, an identification will be permissible if there is not a very substantial likelihood of irreparable misidentifieation.” Id. “The opportunity to crossexamine a witness about his in-court identification of the defendant as the perpetrator of a crime will ordinarily cure any suggestiveness of such an identification.” Id. The court concluded that application of the Biggers factors established that “the in-court identification of defendant was permissible because there did not exist a substantial likelihood of irreparable misidentifieation.” Id.

[¶ 32] In United States v. Perez-Gonzalez, 445 F.3d 39, 43 (1st Cir.2006), the defendant was charged for involvement in a riot on government property. Prior to trial, law enforcement officials viewed videos of the riot that included the defendant’s image. Id. The officials identified the defendant for the first time at trial. See id. at 48. The defendant argued that the in-court identifications were improperly suggestive and they were likely to lead to misidentifieation, and that he should have been allowed to sit in the gallery and given an in-court line-up. Id. When evaluating an in-court identification, a court first looks to whether an inappropriately suggestive procedure was used. Id. If a suggestive procedure is used, the court must decide whether the identification was nonetheless reliable under the totality of the circumstances. Id. The Court held exclusion or prohibition of an in-court identification is appropriate only if the court finds a very substantial likelihood of irreparable misidentifieation. Id.

[¶ 33] We hold that the admissibility of an in-court identification .that is not preceded by a pretrial identification is to be determined by applying the same analysis we applied in Norrid considering whether the in-court identification procedure is unnecessarily suggestive and susceptible to a substantial likelihood of irreparable misidentifieation. The five Biggers and Manson factors are to be used to evaluate whether there is a substantial likelihood of irreparable misidentifieation.

[¶ 34] We recognize the potential for suggestiveness in an initial in-court identification. The in-court identifications of Richard were suggestive because he was the only Native American male in the courtroom, the only individual in handcuffs, and was sitting alone with his attorney at the defense table. Richard never requested, however, procedures at trial that may have lessened the suggestiveness of the in-court identifications. Any suggestiveness was reduced by Richard’s opportunity to cross-examine the witnesses and his ability to raise doubts about the accuracy of the identifications. During cross-examination, Richard questioned the witnesses about their encounters with the intruder. Richard had the opportunity to expose possible weaknesses in their identifications, thereby reducing the suggestiveness of the in-court identifications. We conclude that the procedure was not im-permissibly suggestive.

[¶ 35] Even if it was impermissibly suggestive, applying the Biggers and Manson factors to this case, the in-court identifications of Richard did not create a substantial likelihood of irreparable mis-identification. Robert Solberg had an excellent view of Richard as he threw the chisel, as Richard attacked him, and as they fought. Both Robert and Carol Sol-berg had a clear view of Richard as he lay on the ground after being detained by Robert Solberg. Both witnesses devoted their exclusive attention to Richard as he lay on the ground. A prior description of Richard was not necessary because Robert Solberg personally handed over Richard to the police. Richard was apprehended and detained by Robert Solberg while in the commission of his crimes and never left the scene, providing Robert and Carol Sol-berg certainty that Richard was the intruder. Robert and Carol Solberg witnessed Richard’s crimes on March 7, 2006. A juvenile heai'ing took place on April 18, 2006. Less than six weeks from the witnessing of a crime to the in-court identification is a minimal amount of time.

[¶ 36] Application of the Biggers and Manson factors establishes that the in-court identifications were properly admitted because there was not a substantial likelihood of irreparable misidentification. Therefore, the juvenile court did not violate Richard’s due process rights when it allowed the in-court identifications of Richard.

IV

[¶ 37] In conclusion, the juvenile court violated Richard’s due process rights by failing to independently and properly analyze whether to remove Richard’s handcuffs; however, this was harmless error because there is overwhelming evidence of guilt in this record. The juvenile court did not violate Richard’s due process rights in admitting the in-eourt identifications because they did not lead to a substantial likelihood of irreparable misidentification. We affirm the juvenile court’s orders.

[¶ 38] GERALD W. VANDE WALLE, C.J., and SONJA CLAPP, D.J., and DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 39] The Honorable SONJA CLAPP, D.J., sitting in place of SANDSTROM, J., disqualified.

      . The party’s name is a pseudonym.


author: CROTHERS, Justice.

text:
    2007 ND 35
    In the Matter of the ESTATE OF Robert E. CARLSON, Deceased. Jorjann Carlson, Petitioner and Appellant, v. Stephen R. Carlson, Personal Representative of the Estate of Robert E. Carlson, Deceased, Respondent and Appellee.
    No. 20060204.
    Supreme Court of North Dakota.
    March 5, 2007.

      David L. Johnson, McNair, Larson & Carlson, Ltd., Fargo, N.D., for petitioner and appellant.
    Craig E. Johnson, Johnson, Ramstad & Mottinger, P.L.L.P., Fargo, N.D., for respondent and appellee.
   CROTHERS, Justice.

[¶ 1] Jorjann Carlson appealed from a judgment dismissing her claim against the estate of her ex-husband, Robert E. Carlson, and denying her motion to join the personal representative of the estate as a third party in her California court action for division of Robert Carlson’s military retirement benefits. We vacate that part of the judgment denying Jorjann Carlson’s motion to join the personal representative in the California action because the district court lacked jurisdiction to decide the motion. We reverse that part of the judgment dismissing her claim against the estate because the district court should not have ruled on the merits of Jorjann Carlson’s California action, and because there is no requirement that Jorjann Carlson file a claim against the estate if the California court should rule in her favor. We vacate in part and reverse in part.

I

[¶ 2] Robert Carlson and Jorjann Carlson were married in 1958 and separated in 1981 while he was on active military duty with the United States Air Force in California. Robert Carlson filed a petition to dissolve the marriage with the Superior Court of California on April 13, 1981, an interlocutory judgment of dissolution was entered on May 27, 1982, and a final judgment of dissolution was entered on August 31, 1982. California is a community property state, but in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court held that federal law preempted a state divorce court from including one spouse’s military retirement pay in the parties’ marital estate. The Carlsons’ interlocutory judgment of divorce provided:

The court shall retain jurisdiction over the real property, consisting of the Arizona lot and the residence located at 3667 Helma Court, Camarillo, California, and over any and all rights which may accrue in the future to [Jorjann Carlson] as a result of any legislative action by Congress allowing divorced spouses to have retirement rights under military pensions.

[¶ 3] In response to the McCarty decision, Congress enacted the Uniformed Services Former Spouses’ Protection Act, effective February, 1, 1983, which altered the preemptive result of McCarty by authorizing a state court to treat “disposable retired pay ... either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” 10 U.S.C. § 1408(c)(1). California followed by enacting Cal. Civil Code § 5124, 1983 Cal. Stat. ch. 775, § 1, which allowed community settlements, judgments, or decrees that became final between June 25, 1981, and February 1, 1983, to be modified to include a division of military retirement benefits payable on or after February 1, 1983, if the proceeding was brought before January 1,1986.

[¶ 4] Robert Carlson retired from the military and started drawing military retirement benefits on August 1, 1989. On August 9, 2005, Jorjann Carlson, still a resident of California, filed an order to show cause in the Superior Court of California requesting that she be awarded part of Robert Carlson’s military retirement benefits as provided under the 1982 dissolution judgment. On October 1, 2005, while Jorjann Carlson’s action was pending in the California Superior Court, Robert Carlson died while domiciled in North Dakota. Probate proceedings were commenced in Cass County, and Stephen R. Carlson was appointed personal representative of the estate. On December 6, 2005, the California court ruled Robert Carlson’s “recent death does not deprive the Ventu-ra County Superior Court of jurisdiction for the limited purpose of determining what percentage interest, if any, [Jorjann Carlson] acquired post-judgment in [Robert Carlson’s] military retirement benefits,” but denied the motion to show cause without prejudice because Jorjann Carlson had not complied with a California “procedural pre-requisite”:

Petitioner (actually, Petitioner’s Estate) through the “special appearance” of counsel argues that the current request of Respondent is premature, and that Respondent must first comply with California Probate Code § 9370. Section 9370 requires the filing of a claim in Petitioner’s Estate and then the obtaining “leave of court” to add the Decedent’s Personal Representative as a “joined” third party in the instant Family Law action before an adjudication on the merits as to Petitioner’s military retirement benefits can commence.

[¶ 5] In February 2006, Jorjann Carlson filed a claim against Robert Carlson’s estate in North Dakota seeking “not less than $200,000” for her portion of the military retirement benefits, and filed a motion in North Dakota district court for “leave of court to add the decedent’s personal representative as a joined third party in a family law action venued in the Superior Court of California, County of Ventura.” The personal representative disallowed the claim against the estate on March 6, 2006, and objected to the request to add him as a party in the California action. Jorjann Carlson then filed a petition for allowance of her claim in district court. The district court denied the motion for leave of court to add the personal representative as a party to the California action and dismissed Jorjann Carlson’s claim against the estate “as a matter of law,” concluding Jorjann Carlson’s claim for the military retirement benefits was barred by California law and by the equitable doctrine of laches.

II

[¶ 6] The personal representative of the estate argues the district court properly denied Jorjann Carlson’s motion to join him as a party in the California action because a North Dakota court has no jurisdiction to order him to submit to the jurisdiction of a California court.

[¶ 7] The California procedural statute Jorjann Carlson was attempting to follow is Cal. Probate Code § 9370 (1991) (emphasis added), which provides:

(a) An action or proceeding pending against the decedent at the time of death may not be continued against the decedent’s personal representative unless all of the following conditions are satisfied:
(1) A claim is first filed as provided in this part.
(2) The claim is rejected in whole or in part.
(3) Within three months after the notice of rejection is given, the plaintiff applies to the court in which the action or proceeding is pending for an order to substitute the personal representative in the action or proceeding. This paragraph applies only if the notice of rejection contains a statement that the plaintiff has three months within which to apply for an order for substitution.
(b) No recovery shall be allowed in the action against property in the decedent’s estate unless proof is made of compliance with this section.

[¶ 8] Plain language of the statute requires the plaintiff to apply to the court in which the action or proceeding was pending against the decedent at the time of death for an order to substitute the personal representative, not to the probate court administering the estate. See generally Missouri Slope Livestock Auction, Inc. v. Wachter, 113 N.W.2d 222, 223 (N.D.1962). Jorjann Carlson’s motion for substitution, labeled a motion “to add the decedent’s personal representative as a joined third party” in the California action, must be filed with the California court. Moreover, it is axiomatic that a North Dakota court lacks subject matter jurisdiction to grant or deny a motion to substitute a party in an action or proceeding in another state. See generally Smith v. Crumm, 778 So.2d 1088, 1089 (Fla.App.2001); In re Estate of Einstoss, 26 N.Y.2d 181, 309 N.Y.S.2d 184, 257 N.E.2d 637, 642 (1970); 67A C.J.S. Parties § 76 (2002).

[¶ 9] We conclude the district court lacked jurisdiction to rule on Jorjann Carlson’s motion for “leave of court to add the decedent’s personal representative as a joined third party” in the California family law action.

Ill

[¶ 10] Jorjann Carlson argues the district court erred in denying her claim against the estate because the court should not have ruled on the merits of her California action seeking a portion of Robert Carlson’s military retirement benefits.

[¶ 11] Jorjann Carlson continues to reside in California, and the Carlsons’ dissolution judgment stated that the California “court shall retain jurisdiction ... over any and all rights which may accrue in the future to [Jorjann Carlson] as a result of any legislative action by Congress allowing divorced spouses to have retirement rights under military pensions.” Both Jorjann Carlson and the estate acknowledge, and we agree, that the California court has subject matter jurisdiction to resolve this issue. The district court’s attempt to resolve the issue through its interpretation of California law and to deny Jorjann Carlson’s claim against the estate conflicts with the provisions of the Uniform Probate Code.

[¶ 12] Under N.D.C.C. § 30.1-19-04(2) (U.P.C. § 3-804), which addresses the manner of presentation of claims against an estate, “[n]o presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of death.” Although Jorjann Carlson was required to present a claim against Robert Carlson’s estate to comply with California procedural requirements, she was not required to do so to assert a claim against the estate under the Uniform Probate Code. See Lovell v. One Bancorp, Maine Sav. Bank, 755 F.Supp. 466, 468 (D.Me.1991) (construing Maine law); Reese v. Reese, 196 Mont. 101, 637 P.2d 1183, 1185 (1981). Moreover, Jorjann Carlson was not required to petition the North Dakota district court for allowance of her claim after it was denied by the estate. Under N.D.C.C. § 30.1-19-06(4) (U.P.G. § 3-806), “[a] judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent’s estate is an allowance of the claim.” Consequently, Jorjann Carlson’s claim would be automatically allowed under the Uniform Probate Code if she succeeds in the California court in having the personal representative of the estate substituted as a party in the California action, and should the California court rule in her favor on the merits of her claim for a portion of Robert Carlson’s military retirement benefits. See Reese, 637 P.2d at 1185. The district court’s attempt to resolve the merits of Jorjann Carlson’s claim under California law in the contejct of this probate proceeding was inappropriate.

[¶ 13] We conclude the district court erred by adjudicating Jorjann Carlson’s claim against the estate based on its interpretation of California law.

IV

[¶ 14] In view of our disposition of this case, it is unnecessary to address the other issues raised by the parties. We vacate that part of the judgment denying Jorjann Carlson’s motion to join, the personal representative in the California action, and we reverse that part of the judgment denying her claim against the estate.

[¶ 15] GERALD W. VANDE WALLE, C.J., and EVERETT NELS OLSON, S.J., and MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 16] The Honorable EVERETT NELS OLSON, S.J., sitting in place of SANDSTROM, J., disqualified.


author: STREIT, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. William Porter RICKABAUGH, Respondent.
    No. 05-1467.
    Supreme Court of Iowa.
    March 5, 2007.

      Charles L. Harrington and Laura M. Roan, Des Moines, for complainant.
    William Porter Rickabaugh, Tabor, respondent, pro se.
   STREIT, Justice.

In this attorney disciplinary action, William P. Rickabaugh is charged with making false statements, neglecting his clients’ legal matters, collecting an illegal fee, practicing law while his license is suspended, and failing to cooperate with the Iowa Supreme Court Attorney Disciplinary Board (“Board”). We find Rickabaugh violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers. We agree with the Grievance Commission’s recommendation to revoke Rickabaugh’s license to practice law.

I. Background

Rickabaugh was admitted to the Iowa bar in 1992. He is sixty years old and lives in Tabor, Iowa. Rickabaugh’s license to practice law is currently suspended. See In re Rickabaugh, 661 N.W.2d 130 (Iowa 2003). On May 7, 2003, we suspended his license indefinitely with no possibility of reinstatement for three years. Id. at 133. This suspension was reciprocal discipline in response to Nebraska’s disbarment of Rickabaugh. See Nebraska ex rel. Counsel for Discipline v. Rickabaugh, 264 Neb. 398, 647 N.W.2d 641 (2002). The Nebraska Supreme Court disbarred Ricka-baugh for various ethical violations, including accepting a legal matter he was not competent to handle, neglect, creating fictitious pleadings, and forging a judge’s signature. Id. at 642.

The present disciplinary action concerns a four-count complaint filed against Ricka-baugh on March 14, 2006 by the Board. Rickabaugh did not file an answer. On July 21, 2006, the parties filed a joint stipulation of facts and waiver of hearing. Rickabaugh recognized his wrongdoing and stated he has no plans to practice law again. The Grievance Commission recommends we revoke Rickabaugh’s license to practice law.

II. Scope of Review

We review the findings of the Grievance Commission de novo. Iowa Ct. R. 35.10(1). We give weight to the Commission’s findings but we are not bound by those findings. Iowa Supreme Ct. Attorney Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 695 (Iowa 2006). The Board has the burden to prove disciplinary violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Attorney Disciplinary Bd. v. DAngelo, 710 N.W.2d 226, 230 (Iowa 2006). This burden is “ ‘less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.’ ” Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).

III. Factual Findings

Rickabaugh did not file an answer to the Board’s complaint. Pursuant to Iowa Court Rule 36.7, the allegations of the complaint are deemed admitted. In lieu of a hearing, the parties agreed to a stipulation of facts and admission of exhibits. Thus, we find convincing evidence to prove the following:

A. Grosse Estate

In early 2001, Glenda Shelton hired Ric-kabaugh to assist her in probating the estate of her mother, Maxine Grosse. Grosse’s will appointed Shelton to serve as executor. On July 30, 2001, Rickabaugh sent Shelton a report and inventory which listed all of the assets in the Grosse estate. He requested she sign the report and inventory and return it to him so he could file it with the probate court. Shortly thereafter, Shelton wrote to Rickabaugh explaining she would not sign the report and inventory “because the numbers are not correct.” Specifically, she was concerned Rickabaugh had not included the interest which had accrued on Grosse’s United States savings bonds. She provided the correct figures and asked Ricka-baugh to “[p]lease make the corrections for me as soon as possible and send them to me to sign.” Rickabaugh never made the requested changes. Shelton sent letters to Rickabaugh on March 10, 2002 and January 20, 2003, urging him to send her the corrected report and inventory so the estate could be closed. Exasperated, Shelton finally contacted another attorney to help her close the estate. Unbeknownst to Shelton, Rickabaugh had forged her signature on the report and inventory and filed it with the court on January 31, 2002.

Additionally, while Rickabaugh was representing Shelton and the estate, the clerk of court issued two probate delinquency notices for failure to file an interlocutory report.

B. Benedict Estate

Rickabaugh was hired by W. Edward Thompson to probate the estate of Ruth Benedict. Benedict’s will appointed Thompson, a banker, to be the executor. Rickabaugh opened the estate in September 2000. In April 2001, Thompson gave Rickabaugh a signed check for $8607 made payable to the Iowa Department of Revenue for inheritance taxes due. Ricka-baugh did not file the inheritance tax return or the fiduciary return nor did he pay the taxes. As a result, the estate had to pay $3,104.24 for penalty and interest.

The Benedict estate was still open when we suspended Rickabaugh’s law license on May 7, 2003. Rickabaugh did not notify Thompson of the suspension nor did he withdraw as counsel.

On December 1, 2003, Thompson received a notice of delinquency from the clerk of court indicating an interlocutory report for the estate was overdue. Thompson contacted another attorney to look into the matter and subsequently hired him to finish the administration of the estate.

On January 29, 2004, Thompson discovered a package in his bank’s night deposit box. It contained an interlocutory report and an envelope addressed to the clerk of court. Rickabaugh later called Thompson and said he dropped off the package so Thompson could sign the report and file it with the clerk of court.

C. Ross Estate

In March 2002, James Ross hired Ricka-baugh to probate the estate of his mother, Wilma Ross. Although much of the work for the estate remained to be done, Ross (a co-executor) wrote a check payable to Rickabaugh for $7386. This amount represented 100% of Rickabaugh’s fees and expenses. Rickabaugh did not file an application with the probate court for allowance and payment of fees.

After we suspended Rickabaugh’s license, he did not withdraw as counsel nor did he notify the executors of his suspension. In a letter dated June 3, 2004, Ric-kabaugh informed a co-executor that “[d]ue to declining health I will not be able to finish the estate.” In the same letter, Rickabaugh stated he would “make an appropriate refund of the fee ASAP.” Ricka-baugh refunded the estate $5675 in March 2005.

D.Failure to Cooperate

The executor of the Grosse estate filed a complaint against Rickabaugh on August 4, 2003. The Board personally served Ric-kabaugh with notice of the complaint. He did not respond as required by Iowa Court Rule 34.6(4).

IV. Ethical Violations

Rickabaugh committed the following ethical violations:

A. Misrepresentations and False Statements

Rickabaugh made at least two misrepresentations. In the Grosse estate, he forged the executor’s name on the report and inventory and filed it with the probate court. In the Ross estate, Ricka-baugh misrepresented the basis for his inability to close the estate. Instead of informing the executor of his recent license suspension, he represented he could not complete the work due to health problems. In both incidents, Rickabaugh violated a number of ethical rules, namely DR 1 — 102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice); DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law); DR 7-102(A)(5) (a lawyer shall not knowingly make a false statement of law or fact); and DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule).

B. Practicing Law While Suspended

We suspended Rickabaugh’s license to practice law on May 7, 2003, and he remains under suspension. Rickabaugh did not notify the executors of the Benedict and Ross estates of his suspension as required by Iowa Court Rule 35.21(l)(a). This violated DR 1 — 102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice) and DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law). While suspended, Rickabaugh prepared an interlocutory report for the Benedict estate and delivered it to the executor for his signature. This violated DR 3-101(B) (a lawyer shall not practice law in a jurisdiction where to do so would be in violation of the rules in that jurisdiction) and DR 7-106(A) (a lawyer shall not disregard a court order).

C. Neglect

“Professional neglect involves ‘indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes a client.’” Iowa Supreme Ct Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d 812, 821 (Iowa 2004) (quoting Iowa Supreme Ct Bd. of Prof'l Ethics & Conduct v. Kennedy, 684 N.W.2d 256, 259-60 (Iowa 2004)). “Neglect is more than ordinary negligence and usually involves multiple acts or omissions.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551-52 (Iowa 2004) (citing Comm. on Prof'l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 536 (Iowa 1981)).

Rickabaugh committed professional neglect on several occasions. He received three probate delinquency notices for failure to file an interlocutory report in two estates. See Iowa Code § 633.32 (2001). In the Benedict estate, Rickabaugh failed to file the inheritance tax return after the executor gave him a check for the taxes due. As a result, the estate accrued over $3000 in penalty and interest. Moreover, Rickabaugh’s neglect delayed the administration of all three estates and required the executors of each estate to hire a new attorney. His conduct violated DR 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice); DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law); and DR 6-101(A)(3) (a lawyer shall not neglect a client’s legal matter). See Iowa Supreme Ct. Attorney Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 399 (Iowa 2005) (“A failure to take the necessary actions in estate matters in a timely fashion constitutes professional neglect.”).

D. Excessive/Illegal Fee

Iowa has special rules for payment of attorney fees in probate matters. Iowa Code section 633.198 requires the attorney to file an application with the probate court for allowance and payment of fees. Iowa Court Rule 7.2(4) stipulates when attorney fees are payable. Once the court order is secured, the attorney may be paid one half of the fee only after the Iowa inheritance tax return is prepared or an inheritance tax clearance is filed. Iowa Ct. R. 7.2(4). The attorney may be paid the balance of his fee only when the final report is filed and court costs have been paid. Id.

In the Ross estate, Ricka-baugh received 100% of his fees and expenses prematurely and without a court order authorizing the payment. This illegal fee-taking violates DR 2-106(A) (a lawyer shall not collect an excessive or illegal fee). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Waples, 677 N.W.2d 740, 742 (Iowa 2004). Moreover, it took Rickabaugh twenty-two months after his license was suspended to refund the unearned portion of his fee. This was also nine months after Rickabaugh promised the executor he would return the fee. His delay violates Iowa Court Rule 35.21(l)(c) (requiring an attorney whose license is suspended to refund within thirty days any part of any fees paid in advance that have not been earned) and DR 9-102(B)(4) (requiring an attorney to promptly pay to the client all funds the client is entitled to receive).

E. Failure to Cooperate with Disciplinary Process

Rickabaugh did not file an answer to the Board’s complaint as required by Iowa Court Rule 34.6(4). We expect and demand attorneys to cooperate with disciplinary investigations. Honken, 688 N.W.2d at 821 (citing Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sullins, 556 N.W.2d 456, 457 (Iowa 1996)). A failure to do so is an independent act of misconduct. Comm. on Prof'l Ethics & Conduct v. Pracht, 505 N.W.2d 196, 199 (Iowa 1993) (citing Comm. on Prof'l Ethics & Conduct v. Van Etten, 490 N.W.2d 545, 548 (Iowa 1992)). Rickabaugh’s failure to respond to the Board’s complaint violates DR 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice) and DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law).

Y. Sanction

We now turn to the appropriate sanction to address Rickabaugh’s unethical conduct. We consider “the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer’s fitness to practice, and our duty to uphold the integrity of the profession in the eyes of the public.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Fleming, 602 N.W.2d 340, 342 (Iowa 1999) (citing Comm. on Prof'l Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69 (Iowa 1989)). We also consider both aggravating and mitigating circumstances. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ruth, 656 N.W.2d 93, 99 (Iowa 2002) (citing Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 637 N.W.2d 183, 187 (Iowa 2001)). Ultimately, the form and extent of a disciplinary sanction “must be tailored to the specific facts and circumstances of each individual case.” Rogers, 313 N.W.2d at 537.

We agree with the Commission that disbarment is the appropriate sanction. Past disciplinary action bears upon an attorney’s character and is considered an aggravating factor. Comm. on Prof'l Ethics & Conduct v. Wenger, 469 N.W.2d 678, 680 (Iowa 1991). We suspended Rickabaugh’s license to practice law in May 2003 as a result of very serious ethical misconduct, most notably the fabrication of documents and the forgery of a judge’s signature in an attempt to persuade a client he had filed a lawsuit and obtained a judgment. In the present action, Rickabaugh forged the Grosse estate’s executor’s signature on a court document. Additionally, Rickabaugh lied to the co-executor of the Ross estate about why he could not close the estate instead of admitting his license was suspended.

We consider misrepresentation to be a “grave and serious breach of professional ethics.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 603 N.W.2d 574, 576 (Iowa 1999); accord Moonen, 706 N.W.2d at 399. As we have said in the past:

Fundamental honesty is the base line and mandatory requirement to serve in the legal profession. The whole structure of ethical standards is derived from the paramount need for lawyers to be trustworthy. The court system and the public we serve are damaged when our officers play fast and loose with the truth.

Comm. on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990).

Rickabaugh has demonstrated a blatant disregard for his duty as an attorney to be honest and truthful. The legal profession is “ ‘no place for persons who demonstrate a penchant for distorting the truth.’ ” Wenger, 469 N.W.2d at 679 (quoting Comm. on Prof'l Ethics & Conduct v. Postma, 430 N.W.2d 387, 392 (Iowa 1988)). Ricka-baugh’s pattern of deceit reveals a serious character flaw which makes him unfit to practice law.

Moreover, Rickabaugh committed other serious ethical infractions. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Humphrey, 551 N.W.2d 306, 308 (Iowa 1996) (“Multiple violations of our disciplinary rules support enhanced sanctions.”). He neglected several cases, which caused considerable expense and delay for his clients. He accepted his fee in a probate matter prematurely; he failed to notify his clients of his suspension; and in at least one instance he practiced law while suspended. Finally, he did not cooperate with the Board’s investigation. Although each individual act of misconduct, viewed in isolation, may not warrant revocation, we must consider the combination of the current charges and Rickabaugh’s past discipline. Taken all together, it is obvious Rickabaugh does not respect the awesome responsibilities of an attorney. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 139 (Iowa 2004) (finding attorney’s “pattern of misconduct and dishonesty demonstrates that he has no intention of complying with his legal and ethical obligations unless forced to do so”). We find the public in general and the legal profession in particular will best be served if Rickabaugh is disbarred.

VI. Conclusion

We revoke Rickabaugh’s license to practice law in the State of Iowa. Costs are taxed to Rickabaugh pursuant to Iowa Court Rule 35.25(1).

LICENSE REVOKED.

      . This court adopted the Iowa Rules of Professional Conduct effective July 1, 2005. Because Rickabaugh’s misconduct occurred before July 1, 2005, the Iowa Code of Professional Responsibility for Lawyers governs.

      . Rickabaugh eventually reimbursed the estate for this expense.

      . The record reveals several other misrepresentations Rickabaugh made to the court and to his clients. However, the Board in its complaint did not charge Rickabaugh with these misrepresentations. Consequently, we will not consider them at this time. See In re Ruffalo, 390 U.S. 544, 550-51, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968) (stating due process requires attorney in disciplinary action be given notice of the charges and an opportunity to respond); Comm. on Prof'l Ethics & Conduct v. Wenger, 454 N.W.2d 367, 369 (Iowa 1990) (holding due process requires court to disregard grievance commission's findings based on additional charges because allowing committee to amend complaint at the close of all the evidence deprived attorney notice and opportunity to respond).

      . Rule 7.2(4) was amended effective February 1, 2005. Under the current rule, if an Iowa inheritance tax return is not required, then the attorney may collect half of his fee when the inventory is filed.