author: PARKER, Judge

text:
    STATE of Minnesota, Respondent, v. Richard RICHARDSON, Appellant.
    No. C2-00-1817.
    Court of Appeals of Minnesota.
    Oct. 2, 2001.

      Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, St. Paul, MN; and Lisa Nelson Borgen, Clay County Attorney, Clay County Courthouse, Moorhead, MN, (for respondent).
    John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, Minneapolis, MN, (for appellant).
    Considered and decided by HARTEN, Presiding Judge, WILLIS and PARKER, Judges.
   OPINION

PARKER, Judge

Richard Richardson appeals his eight felony convictions and sentences for patterns of harassing conduct under Minn. Stat. § 609.749, subd. 5, claiming that (1) the statute on pattern of harassing conduct does not permit the state to bring multiple charges of pattern harassment using overlapping predicate acts, (2) the trial court erred in its jury instructions regarding the law on pattern of harassment, (3) the evidence was not sufficient to convict him of pattern harassment against Kenneth Gillette, (4) the statute on pattern of harassing conduct does not allow multiple convictions that are based on overlapping predicate acts, and (5) the trial court erred in imposing separate sentences for each of the eight pattern harassment convictions.

FACTS

In August 1991, appellant Richard Richardson applied for public assistance in Clay County. Julie Gillette, a financial caseworker at that time, approved Richardson’s application for food stamps and medical assistance, but denied his application for cash assistance because Richardson was unable to confirm his county residency. Richardson appeared pleasant at the time and Gillette treated him as she did any other client.

Over the next couple of months, Richardson wrote several scathing letters to the Clay County office. In the letters, Richardson called Gillette stupid and threatened to sue her and Dennis Lien (her supervisor at the time), to destroy her life, and to make sure she was imprisoned. Julie Gillette testified that the letters frightened her and subsequently caused her to suffer panic attacks and to quit her job with the county. Ultimately, criminal charges were brought against Richardson. He pled guilty to attempting to coerce and was sentenced to 90 days in jail.

In January 1993, the Clay County social services office, and Julie Gillette and Dennis Lien at their homes, each received a frightening postcard with essentially the same message. One stated “Liens and Gillettes on list for Feb! ½ down ½ on finish of job. You know where!”

In December 1995, Dennis Lien, his wife Barbara, their two children, and Julie Gillette each received threatening postcards at their homes. The postcards addressed to the Lien children stated “Merry Xmas! I’ll soon pay back what I owe your dad.” The postcards addressed to Julie Gillette and Dennis and Barbara Lien threatened that Richardson would pay them back for the 100 days he lost as a result of being in prison. These threats caused fear in each of the households.

In October 1997, Christopher Lien received notice that Richardson’s address had changed to Moorhead. In November 1997, Dennis Lien received a letter from AT & T requiring him to sign the paperwork for his request to change his telephone services. Dennis Lien testified that he had not filled out the change-of-service card, felt harassed by the correspondence, and believed that Richardson had filled it out but not signed it.

In April 1998, Julie Gillette and the four Liens each received a change-of-address postcard informing them that Richardson would be receiving mail in Fargo, North Dakota. Each postcard had written on it: “I was innocent last time! 100 days for a crime not committed,” and was signed with Richardson’s name.

On July 9, 1999, Dennis Lien received a threatening postcard at the Clay County social services office that referred to him receiving “paybacks.” On July 12, 1999, Barbara Lien received a similar postcard at home that threatened her and her family. The Lien family felt frightened for their lives.

On July 12, 1999, a postcard, addressed to Julie Gillette, was received at the Clay County office, although she no longer worked there, which threatened the lives of her and her family. On July 13, 1999, Julie Gillette received a postcard at her new home (forwarded from her old address) threatening “paybacks.” Julie Gillette testified that she believed Richardson was threatening to kill, first, the Lien family and then her family. She testified that she and her family were frightened as a result of these postcards.

In August 1999, Julie and Kenneth Gillette received a postcard at their new home address, again threatening them with “paybacks for false arrest and jail time,” and causing them to feel frightened. Dennis and Barbara Lien also received a postcard at their home in August threatening them and causing them to be fearful.

In June 2000, a jury found Richardson guilty of all eighteen counts in the complaint, which consisted of three counts of gross misdemeanor harassment, one count of felony aggravated harassment, six counts of terroristic threats, and eight counts of felony pattern' of harassing conduct. The trial court vacated the six ter-roristic threat convictions as lesser-included offenses. The trial court then imposed concurrent sentences on the three gross misdemeanor harassment convictions, and concurrent sentences on each of the felony convictions (with a stay of execution on the pattern harassment conviction for count 18). Richardson now challenges the eight felony pattern harassment convictions.

ISSUES

1. Does the statute on pattern of harassing conduct allow the state to bring multiple counts of pattern of harassing conduct charges using the same underlying criminal act as a predicate act for different counts of pattern harassment?

2. Did the trial court properly instruct the jury on the pattern of harassing conduct charges?

3. Was the evidence sufficient to sustain the conviction for pattern of harassing conduct against Kenneth Gillette?

4. Does the statute on pattern of harassing conduct allow convictions of multiple counts of pattern harassment that use the same underlying criminal act as a predicate act for different counts of pattern harassment?

5. Did the trial court err in imposing separate sentences for each of Richardson’s eight convictions for pattern of harassing conduct?

ANALYSIS

I.

Richardson argues that Minn.Stat. § 609.749, subd. 5 (2000), does not allow the state to charge multiple pattern of harassing conduct offenses using the same occurrence of a criminal act as a predicate act for different pattern of harassment counts. In other words, Richardson contends that there can be no overlapping predicate acts to establish multiple counts of pattern harassment.

Statutory construction is a question of law, which this court reviews de novo. State v. Azure, 621 N.W.2d 721, 723 (Minn.2001). The purpose of interpreting statutes is to ascertain and effectuate the intent of the legislature. Minn.Stat. § 645.16 (2000). Every law shall be construed, if possible, to give meaning to all its provisions. Id. If a statute is unambiguous, the court examines only its plain language. State v. Edwards, 589 N.W.2d 807, 810 (Minn.App.1999), review denied (Minn. May 18, 1999). The fundamental rule is to “look first to the specific statutory language and be guided by its natural and most obvious meaning.” Id. (quotation omitted). If, however, there is any doubt concerning the legislature’s intent, the statute must be strictly construed in favor of the defendant. State v. Olson, 325 N.W.2d 13,19 (Minn.1982).

Under Minn.Stat. § 609.749, subd. 5(b), a “pattern of harassing conduct” means “two or more acts within a five-year period that violate the provisions of’ twelve specifically enumerated statutory offenses. This language indicates that a pattern harassment charge can be brought when two criminal acts occur. Nothing in this language, however, expressly limits the prosecutor’s discretion in determining how to charge a defendant with pattern harassment when the defendant commits at least three of the underlying criminal acts within a five-year period. Nor does it expressly prohibit the prosecutor from overlapping a predicate act to charge a defendant with multiple counts of pattern harassment. Notably, in the absence of any limiting statutory language, we give deference to the prosecutor’s discretion to evaluate the facts of a case, which may lead to various combinations of charges, and to select the particular charges best suited to achieve justice. See State v. Hanson, 285 N.W.2d 483, 485 (Minn.1979) (finding theft statute gives prosecutor discretion, as does the general criminal code, to either prosecute seriatim or to aggregate certain types of theft offenses). Consequently, we find no error here in the manner in which the state chose to charge Richardson with pattern harassment.

II.

Richardson next argues that the trial court’s jury instructions on the pattern of harassing conduct charges did not provide the jury with an accurate and complete definition of the underlying offenses required to form a pattern of harassing conduct offense or with the elements of those underlying offenses. Richardson seeks to have his eight convictions for pattern of harassing conduct reversed, contending that the trial court’s omission was an error of fundamental law and was substantially prejudicial.

As a threshold matter, the state claims that, because Richardson failed to object to the jury instructions at trial, appellant has waived his right to review or, at most, that this court review under a plain-error test. We agree that no objection was raised. In general, a defendant’s failure to object to jury instructions before they are presented to the jury constitutes a waiver of the right to appeal. State v. Cross, 577 N.W.2d 721, 726 (Minn.1998). On review, this court may nonetheless review unobjected-to jury instructions “if the instructions contain plain error affecting substantial rights or an error of fundamental law.” Id. If this court finds any error in the jury instructions, a new trial is not required if the error was harmless. State v. Hare, 575 N.W.2d 828, 833 (Minn.1998). On review, the trial court’s jury instructions must be read as a whole, and if the instructions correctly state the law in a manner in which the jury could understand them, there is no reversible error. Cross, 577 N.W.2d at 726.

The trial court instructed the jury that, in order to find Richardson guilty of pattern harassment, the state must prove beyond a reasonable doubt all of the elements of the crime of pattern of harassing conduct. Following the standard jury instruction, 10 Minnesota Practice, CRIM-JIG 13.58 (1999), the trial court specifically instructed the jury on the elements of the pattern of harassing conduct offense:

First, the defendant engages in a pattern of harassing conduct. A pattern of harassing conduct means two or more criminal acts within a five-year period.
Second, the defendant engaged in this conduct with respect to each of the above-mentioned individuals.
Third, the defendant knew or had reason to know that each of the above-mentioned individuals would feel terrorized or fear bodily harm.
Fourth, each of the above-mentioned individuals felt terrorized or feared bodily harm as a result of the defendant’s conduct.
And, fifth, that the defendant’s act took place on or about April 28, 1998 with respect to Dennis Lien; on or about April 28, 1998 with respect to Barbara Lien; on or about July 12, 1999 with respect to Barbara Lien; on or about July 9, 1999 with respect to Dennis Lien; on or about July 12, 1999 with respect to Julie Gillette; on or about July 13, 1999 * * * with respect to Julie Gillette; on or about August 6, 1999 with respect to both Dennis and Barbara Lien; and on or about August 6, 1999 with respect to both Julie and Kenneth Gillette, all occurring within Clay County and the State of Minnesota.

Appellant contends that the trial court, in stating the first element of pattern of harassing conduct, committed an error in fundamental law by failing to articulate each element of the underlying “criminal act” listed within the statute and repeatedly committed by appellant to create the alleged pattern of harassment.

Appellant was separately charged with harassment and terroristic threats, which are included in the list of underlying criminal acts that can form a pattern of harassing conduct. See Minn.Stat. § 609.749, subd. 5(b). The trial court instructed the jury separately on these offenses, including all the statutory elements the state was required to prove beyond a reasonable doubt.

The pattern harassment statute does not require proof of convictions of the underlying criminal acts, although the jury here did convict appellant of harassment and terroristic threats. State v. Schmitz, 559 N.W.2d 701, 705 (Minn.App.1997), review denied (Minn. Apr. 15, 1997); cf. Cross, 577 N.W.2d at 727 (noting that domestic abuse murder statute did not require proof of pattern of domestic abuse convictions). It might have been helpful to the jury to repeat the elements of those underlying offenses when instructing on pattern harassment. See 10 Minnesota Practice, CRIMJIG 13.58, n. 1 (1999) (suggesting that trial court should instruct on elements of underlying crimes if necessary). But because the court outlined those elements in a separate section of the instructions, it was not necessary to do so.

In a recent case, the supreme court has held that it was error to fail to instruct the jury on all elements of the substantive crime of first-degree controlled substance offense that was the object of the conspiracy charged against the defendant. State v. Kuhnau, 622 N.W.2d 552, 558 (Minn.2001). But in Kuhnau, although the court read the statutory definition of the substantive crime in another part of the instructions, it never provided the jury with all essential elements of that offense. Id. at 557-58. Further, the court in Kuhnau found that the defendant had properly objected to the instruction and thus reviewed the challenge under an abuse of discretion standard. Id. at 555-56.

This court must view the jury instructions in their entirety. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). A complete reading of the elements of harassment and terroristic threats, although coming in a separate part of the instructions, was adequate to inform the jury of the elements of pattern harassment. Accordingly, it was not reversible error to fail to repeat those elements in instructing the jury on pattern harassment. See generally State v. Cross, 577 N.W.2d at 726-27 (assessing adequacy of jury instruction on “pattern of domestic abuse”).

III.

Richardson also argues that the evidence is insufficient to support the conviction for the pattern of harassing conduct offense against Kenneth Gillette. Richardson contends that there was no evidence at trial of a pattern of harassing conduct, which requires two or more acts, towards Kenneth Gillette because only one postcard' was specifically addressed to Kenneth Gillette, and therefore, only one harassing act occurred.

In considering the sufficiency of the evidence, the reviewing court must view the evidence in the record in the light most favorable to the jury’s verdict and must assume the jury believed the state’s witnesses and disbelieved contrary evidence. State v. Robinson, 539 N.W.2d 231, 238 (Minn.1995). In so reviewing the evidence, this court must determine if the evidence was sufficient to allow the jury to reasonably conclude the defendant was guilty of the charges beyond a reasonable doubt. Id.

A conviction of pattern harassment requires proof beyond a reasonable doubt of all elements of the pattern harassment statute, including that defendant acted within the elements of the underlying offenses. Schmitz, 559 N.W.2d at 705.

There was evidence presented that numerous postcards were sent to the Gillette home. In addition to the postcard specifically addressed to Kenneth Gillette in August 1999, Julie Gillette received two threatening postcards in July 1999, each of which made her feel as if her family was in danger. Kenneth Gillette was aware of the contents of the July 1999 letters and testified that the threats frightened him. In this light, a jury could reasonably conclude that Richardson was guilty beyond a reasonable doubt of a pattern of harassing conduct against Kenneth Gillette. The record thus supports this conviction.

IV.

Richardson further argues that five of the eight convictions of pattern of harassing conduct must be reversed, claiming that these five convictions were based on overlapping predicate acts. Richardson claims that, under the pattern harassment statute (Minn.Stat. § 609.749, subd. 5(b)), a single incident of criminal conduct could not be used repeatedly to support multiple convictions of pattern of harassing conduct. In other words, Richardson claims that the statute does not allow for overlapping predicate acts to sustain convictions.

As indicated earlier, we review the language of a statute de novo. Azure, 621 N.W.2d at 728. And, if there is any ambiguity in the language or the legislature’s intent, we will strictly construe a penal statute in favor of the defendant. Olson, 325 N.W.2d at 19. The statute at issue here defines a “pattern of harassing conduct” to mean “two or more acts within a five-year period that violate the provisions of’ twelve specifically enumerated offenses. Minn.Stat. § 609.749, subd. 5(b).

The language “two or more” acts is open to at least two interpretations. The statute implies that “two or more” acts in a five-year period can support either one conviction or multiple convictions if at least three criminal acts occur. Assuming three criminal acts, as listed in the statute, occur against a single individual in a five-year period, one interpretation is that the second criminal act cannot be used as a basis to convict a defendant of a second count of pattern harassment, based on the second and third criminal acts, because the defendant has already been convicted of a count of pattern harassment in which the second act has been used. Because the express language of the statute is silent as to the effect of using such overlapping predicate acts, another interpretation is that the statute does not prohibit a conviction of pattern harassment where the second criminal act has been used as the basis for a conviction on two separate counts of pattern of harassing conduct.

In light of the statute’s ambiguity, we must strictly construe it in favor of Richardson. We conclude that the necessary inference is that a conviction of pattern harassment can stand only when at least two separate and discrete criminal acts against a single individual occur. This is not to say that a single predicate act committed against two individuals is limited to being used only as a basis for one conviction of pattern harassment. In such an instance, the single predicate act would not be overlapping when applied to each victim.

In this case, the jury could not have convicted Richardson of all eight felony counts of pattern harassment based on separate and discrete criminal acts. The jury could have, at most, applied separate predicate acts to seven of the pattern harassment counts without “overlapping” criminal acts as to any single individual, in the following way:

Dennis Lien
Count 3 December 1995 and April 28, 1998
Count 8 November 1997 and July 9, 1999
Barbara Lien
Count 2 December 1995 and April 28,1998
Count 10 April 28, 1998 and July 12, 1999-v acated
Count 16 July 12, 1999 and August 6.1999
Julie Gillette
Count 12 December 1995 and July 12.1999
Count 14 April 28, 1998 and July 13, 1999
Kenneth Gillette
Count 18 July 1999 and August 6, 1999

Thus, we hold that Richardson’s count 10 conviction of pattern harassment against Barbara Lien contained an overlapping predicate act involving the July 12, 1999, incident and must be vacated. We therefore order that the conviction and sentence as to count 10 be vacated.

V.

Finally, Richardson argues that receiving a sentence for each of his pattern of harassing conduct convictions violates the statutory prohibition against multiple punishments for the same conduct. “[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses * * Minn. Stat. § 609.035 (2000). Thus, if a defendant commits numerous crimes against the same person during a single behavioral incident, Minn.Stat. § 609.035 provides that the defendant may be sentenced for only one of those offenses. State v. Book-waiter, 541 N.W.2d 290, 293 (Minn.1995). In determining whether two convictions arose from a single behavioral incident, this court must examine the offenses to see whether they were motivated by a desire to obtain a single criminal objective. State v. Soto, 562 N.W.2d 299, 304 (Minn.1997). Additional factors that must be considered include determining “the unity of time and of place of the behavior.” Bookwalter, 541 N.W.2d at 294 (quotation omitted). The determination of whether multiple offenses constitute a single behavioral act is not, however, a mechanical test, but requires an examination of all the facts and circumstances. Soto, 562 N.W.2d at 304.

In evaluating the facts and circumstances of this case, we find it distinguishable from the supreme court’s decision in State v. Schmidt, 612 N.W.2d 871 (Minn. 2000). In Schmidt, the supreme court concluded that conduct occurring on the street in front of the alleged victims’ home during the course of a single time period spanning one year, and where the alleged conduct was directed toward a single criminal objective of harassing the victims, constituted a single behavioral incident for sentencing purposes. Id. at 876.

In this case, there were multiple victims of the pattern of harassing conduct offense: Dennis Lien, Barbara Lien, Julie Gillette, and Kenneth Gillette. The fear that Richardson’s conduct instilled in these individuals occurred between 1991 and 1999. The criminal acts leading to the current convictions and sentences occurred in December 1995, November 1997, April 1998, July 1999, and August 1999. We cannot say that Richardson’s acts occurred in a single and continuous time period where the pattern of his criminal conduct was broken and sporadic over almost four years. Neither can we determine that there was unity of place in Richardson’s conduct, as there was in Schmidt. The four individuals received the threatening postcards at various locations: the Gil-lettes’ two different homes, the Liens’ home, and the county’s social services office. Although in the broader sense Richardson may have had a single purpose of harassing his victims, he inflicted fear and stress upon them over a lengthy period of time. We do not think his actions can be considered one course of conduct for sentencing purposes for the seven pattern of harassing conduct convictions. We therefore reject his argument on multiple sentencing and remand only for the trial court to vacate the conviction and sentence as to count 10, and to recalculate the sentence on the other counts, if appropriate.

DECISION

The state did not violate the pattern harassment statute by charging Richardson with multiple counts of pattern of harassing conduct using overlapping predicate acts. The trial court properly instructed the jury on the law of pattern of harassing conduct. The evidence is sufficient to sustain the conviction for pattern of harassing conduct against Kenneth Gillette. The evidence is sufficient to sustain seven felony pattern of harassing conduct convictions without applying the same underlying criminal act as a predicate act for the various counts of pattern harassment. We therefore remand for the trial court to vacate the conviction and sentence on count 10 because it is based on an overlapping predicate act. If that conviction affected any subsequent sentence, the district court has the authority to make required adjustments. The trial court did not err in imposing separate sentences for the pattern of harassing conduct convictions as separate behavioral incidents.

Affirmed in part, reversed in part, and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . We note that, although Richardson was a pro se defendant with standby counsel at trial, this does not affect our decision on review. See State v. Worthy, 583 N.W.2d 270, 276 (Minn.1998) (noting trial court’s practice of holding pro se defendants to the same standard as licensed attorneys after defendants waived their right to counsel).


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2001 ND 156
    WARNER AND COMPANY, a North Dakota corporation, Plaintiff and Appellant, v. Shirley M. SOLBERG, Defendant and Appellee.
    No. 20000327.
    Supreme Court of North Dakota.
    Sept. 5, 2001.

      Ronald H. McLean (argued) and Jane L. Dynes, Serkland Law Firm, Fargo, ND, for plaintiff and appellant.
    Robert Vaaler (argued), and Rebecca Jo Heigaard McGurran (appeared), Grand Forks, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Warner and Company (“Warner”) appealed the summary judgment dismissing its breach of contract claim against Shirley Solberg. The trial court held the contract was an unlawful restraint of trade in violation of N.D.C.C. § 9-08-06. We hold a portion of the contract does violate N.D.C.C. § 9-08-06 and there are genuine issues of material fact precluding summary judgment with respect to the remaining portions of the contract. We affirm the judgment in part, reverse the judgment in part, and remand for further proceedings.

I

[¶ 2] Warner is an independent insurance agency with its principal office in Fargo, North Dakota. In 1980, Solberg was hired by Warner. Solberg worked for Warner as a personal lines underwriter, marketing manager, and an insurance agent. In 1982, Solberg was made a vice president of Warner and purchased 500 shares of Warner stock.

[¶ 8] In 1992, Solberg signed a producer agreement. Paragraph 5 of the agreement covers the protection of trade secrets. Paragraph 6 contains limitations after termination of employment on efforts to discontinue existing policies, writing replacement policies, and soliciting former employees. Paragraph 7 contains the agreement on liquidated damages, specifying loss of renewal commissions and payment of two times the current annual commission, for insurance business lost to the agency as a result of a breach.

[¶ 4] In 1996, Solberg began to seek other employment. Solberg contacted Vaaler Insurance, Inc. (“Vaaler”) and in December 1996, Vaaler offered Solberg a position. On March 2, 1997, Solberg resigned her position at Warner. Solberg sold her stock in Warner. Solberg accepted a position with Vaaler effective April 1, 1997.

[¶ 5] Solberg retained files of Warner’s after she resigned. One box of files containing information on policyholders was retrieved within weeks. Another box containing personnel files was retrieved months later.

[¶ 6] Within a few months of Solberg’s resignation, Warner lost the business of Phoenix International, Inc., and the business of related companies of Ag Air Manufacturing, Agris Corporation, InterAg Tec and InterAg Food, to Vaaler Insurance. Solberg was the insurance producer for these policies at Warner and is the producer for these policies now at Vaaler. Warner stated the lost business is approximately $50,000 in commissions. Warner claimed Solberg has accepted and written policies for Vaaler representing approximately 85-90% of the commissions she was handling for Warner.

[¶ 7] Eight months after Solberg left Warner, Susan Hilkerbaumer, an employee of Warner, was hired by Vaaler and was assigned to work for Solberg. Hilkerbau-mer was supervised by Solberg when Sol-berg worked for Warner.

[¶ 8] Warner brought a suit against Solberg alleging she had breached Paragraph 6 of the agreement by her actions to “affect the discontinuance” of the policies Phoenix International, Inc. and related companies had with Warner, and by writing those same policies for Vaaler. Additionally, Warner alleged Solberg breached her contract by soliciting Hilkerbaumer to leave her job at Warner for a new position at Vaaler. Also, by retaining files and using trade secrets, Warner contended Solberg breached Paragraph 5 of the agreement. Solberg denied any breach and argued the agreement was void as a restraint of trade in violation of N.D.C.C. § 9-08-06.

[¶ 9] Solberg moved for summary judgment. The district court granted the summary judgment on the basis there were no questions of material fact and Solberg was entitled to judgment as a matter of law because the agreement was void as a restraint of trade in violation of N.D.C.C. § 9-08-06.

II

[¶ 10] Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without a trial. Hall Family Living Trust v. Mutual Service Life Ins. Co., 2001 ND 46, ¶ 6, 623 N.W.2d 32. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.D.R.Civ.P. 56(c). The party opposing summary judgment cannot simply rely on factual assertions in a brief or pleadings and cannot rely on unsupported allegations; such conclusory assertions are insufficient to raise an issue of material fact. Jones v. Barnett, 2000 ND 207, ¶ 5, 619 N.W.2d 490. However, the evidence must be viewed in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Mandan Edue. Ass’n v. Mandan Public School Dist. No. 1, 2000 ND 92, ¶ 6, 610 N.W.2d 64. Whether the trial judge properly granted summary judgment is a question of law and is reviewed de novo. Garofalo v. St. Joseph’s Hosp., 2000 ND 149, ¶ 6, 615 N.W.2d 160.

Ill

[¶ 11] Warner argues the activity prohibited by the agreement between Solberg and Warner is not within the purview of N.D.C.C. § 9-08-06 and therefore the agreement is not void as a restraint of trade. Paragraph 6 of the agreement states:

6. During the Producer’s employment and for a period of three (3) years following the date of termination of the Producer’s employment with the Agency, the Producer will not engage directly or indirectly, personally or through any other person in any of the following prohibited activities:
a.The Producer will not solicit, contact or in any way attempt to affect the discontinuance of any of the Agency’s insurance business.
b. The Producer will not on the Producer’s own behalf or for any other agency, broker, salesman, or insurance company accept or write any policy of insurance in replacement of any policy issued by the Agency pri- or to the termination of this agreement, or otherwise be involved in or assist with the replacement of any such insurance business.
c. The Producer will not solicit or seek to influence any other employee of the Agency to become directly or indirectly the employee or representative of any other insurance agency or insurance company.

[¶ 12] Section 9-08-06, N.D.C.C., declares contracts that constitute a restraint of business are void, with two exceptions:

Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void, except:
1. One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part of either, so long as the buyer or any person deriving title to the goodwill from him carries on a like business therein.
2. Partners, upon or in anticipation of a dissolution of the partnership, may agree that all or any number of them will not carry on a similar business within the same city where the partnership business has been transacted, or within a specified part thereof.

[¶ 13] Concluding neither of the exceptions applied, the trial court held the agreement was void because N.D.C.C. § 9-08-06 prohibits any restraint of trade. Citing this Court’s decision in Werlinger v. Mutual Service Casualty Ins. Co., 496 N.W.2d 26, 29 (N.D.1993), the trial court highlighted that case’s recognition of the long-standing public policy against restraints upon free trade.

[¶ 14] Although the statute may appear to protect the party against whom a contract not to compete is sought to be enforced, statutes making void contracts in restraint of trade are based upon consideration of public policy and not necessarily upon consideration for the party against whom relief is sought. Herman v. Newman Signs, Inc., 417 N.W.2d 179, 181 (N.D.1987); Hill Medical Corp. v. Wycoff, 86 Cal.App.4th 895, 103 Cal.Rptr.2d 779, 784 (2001). It is the right of the public’s access to the services offered by the employee that is more significant than the employee’s interests. In Werlinger, 496 N.W.2d at 29-30, the Court recognized the statute invalidates provisions in employment contracts prohibiting an employee from working for a competitor after completion of his employment or imposing a penalty if he does so. In Spectrum Emergency Care, Inc. v. St. Joseph’s Hospital & Health Ctr., 479 N.W.2d 848, 852 (N.D.1992), the Court held the statute prohibits an excessive restraint on a person’s exercise of a lawful profession, trade, or business as an employer as well as an employee. See Earthworks, Inc. v. Sehn, 553 N.W.2d 490, 493 (N.D.1996).

[¶ 15] In Werlinger, 496 N.W.2d at 30, the Court held the agreement was void because it violated N.D.C.C. § 9-08-06; however, that agreement was different than the agreement between Solberg and Warner. In Werlinger, 496 N.W.2d at 27, the agreement prohibited the insurance agent to work or “in any way be connected” with property, casualty, health, or life insurance business within one year of termination within 25 miles of his former business. The activity prohibited in Paragraph 6(a) of the agreement Solberg signed is any “attempt to affect the discontinuance” of any of Warner’s existing insurance business.

[¶ 16] In Werlinger we cited with approval decisions of the California courts because California statutes contain the same provision from the Field Code as N.D.C.C. § 9-08-06. In Buskuhl v. Family Life Ins. Co., 271 Cal.App.2d 514, 76 Cal.Rptr. 602 (1969), the court invalidated a provision in an employment contract prohibiting an employee from working for a competitor after completion of employment or imposing a penalty if the employee did so. But the court in Buskuhl upheld a provision in the contract restricting an employee from dealing with the customers of the former employer for a limited time as not being within the purview of the statute if confidentiality of the identity of customers was an element of the restrictions.

[¶ 17] Recognizing this Court has applied N.D.C.C. § 9-08-06 to invalidate clauses in employment agreements that absolutely bar an employee from competing with a former employer or working for a competitor, the United States Court of Appeals for the Eighth Circuit, applying North Dakota law, concluded less burdensome restrictions may survive. Kovarik v. American Family Insurance Group, 108 F.3d 962, 965 (8th Cir.1997). The agreement in Kovarik only obligated Kovarik not to solicit for one year current policy holders credited to his account. Id. Looking to former applications of N.D.C.C. § 9-08-06, as well as California applications of a similar statute, the United States Court of Appeals for the Eighth Circuit held the nonsolicitation clause was not invalid as an unlawful restraint of trade. Id. at 967. See Buskuhl v. Family Life Ins. Co., 271 Cal.App.2d 514, 76 Cal.Rptr. 602, 607 (1969) (holding agreement to avoid injuring the former company in its relations with customers and to refrain from attempting to induce customers to discontinue association with former company for five years did not prevent the employee from conducting his business); Gordon v. Landau, 49 Cal.2d 690, 321 P.2d 456, 459 (1958) (holding agreement to not use confidential lists to solicit customers for one year was valid); Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1330 (9th Cir.1980) (concluding “a person is not always free to solicit customers of a former employer or to use information acquired during his former employment”).

[¶ 18] We are urged to follow the California decisions as well as the decision in Kovarik. Because of the plain language of the statute, the history of legislation in North Dakota concerning this issue, and because North Dakota has enacted trade-secrets legislation, we decline to do so.

[¶ 19] Section 9-08-06, N.D.C.C., prohibits a contract by which anyone is restrained from exercising a lawful profession, trade or business with certain specific exceptions we discuss later in this opinion. The statute has been applied to employers and employees. E.g., Spectrum Emergency Care. The statute contains no exception for the contractual provisions in § 6(a) and (b) of the contract. It is black letter law in North Dakota that in construing and applying a statute the court looks first to the language of the statute. E.g., In re Juran & Moody, Inc., 2000 ND 136, ¶ 6, 613 N.W.2d 503; N.D.C.C. §§ 1-02-02, 1-02-03. The words used in the statute must be given the meaning intended by the lawmakers. City of Enderlin v. Pontiac Tp., Cass County, 62 N.D. 105, 242 N.W. 117, 122 (1932). Only if the statute is ambiguous do we delve further for legislative intent or policy. In re Ju-ran & Moody, Inc. We see no ambiguity in N.D.C.C. § 9-08-06.

[¶ 20] Furthermore, the North Dakota Legislature has been asked several times to enact legislation recognizing the validity of provisions restricting the ability of a former employer to solicit a former employee’s clients. The most recent example was in the Fifty-Seventh Legislative Assembly when S.B. 2355 was introduced and would have amended N.D.C.C. § 9-08-06 to, among other matters, permit an employee to agree with an employer not to “[s]olieit any existing customer of the employer existing at the date of termination within a specified county or counties or such other specified area for a period of up to two years from the date of termination of the agreement if the employer continues to carry on a like business in that area.” See also S.B. 2402, Fifty-Sixth Legislative Assembly (1998); H.B. 1389 Fifty-Fourth Legislative Assembly (1995). These bills failed to pass. Although the defeat of legislation is not indicative of legislative intent, for public policy is declared by the Legislature’s action, not by its failure to act, James v. Young, 77 N.D. 451, 43 N.W.2d 692 (1950), neither are the courts to provide judicial exceptions in the face of the clear language of the statute. Douville v. Pembina County Water Re source District, 2000 ND 124, ¶ 9, 612 N.W.2d 270 (holding when a statute is clear and unambiguous court will not disregard the letter of the law because the legislative intent is clear from the face of the statute).

[¶ 21] Finally, insofar as the California decisions such as Buskuhl preceded the adoption of the Uniform Trade Secrets Act in California in 1985, see Cal. Civ.Code §§ 3426 through 3426.11 (West 1997), and as we discuss in Section V of this opinion, North Dakota has also now adopted the Uniform Trade Secrets Act, see N.D.C.C. ch. 47-25.1, the rationale in those cases for the need to create a judicial exception to N.D.C.C. § 9-08-06 to protect the employer’s customer list may now be questioned.

[¶ 22] In Werlinger, 496 N.W.2d at 27, Spectrum, 479 N.W.2d at 850, and Olson v. Swendiman, 62 N.D. 649, 651, 244 N.W. 870 (1932), prohibitions were broad and general. Werlinger was prohibited from selling any insurance within 25 miles. Werlinger, 496 N.W.2d at 27. The doctors in Spectrum were prohibited from practicing medicine at the hospital. 479 N.W.2d at 850. In Olson, 62 N.D. at 651, 244 N.W. at 870, the contract provided, if the employed dentist left before the term expired, he could not practice dentistry in Grand Forks, North Dakota, or East Grand Forks, Minnesota, for a period of two years. In contrast, Paragraph 6(a) of the contract between Warner and Solberg limits agents from leaving one agency and converting the same policies of the same customers to a new agency. Nevertheless, Paragraph 6(a), although more narrowly drawn than those in Werlinger, Spectrum and Olson, nevertheless does not escape the broad prohibition in N.D.C.C. § 9-08-06, nor does the provision fall within the two exceptions allowed by that statute.

[¶ 23] In Biever, Drees & Nordell v. Coutts, 305 N.W.2d 33, 38 (N.D.1981), we held an accounting firm had a right to expect an employee would not solicit clients of the firm for himself while he was employed by the firm and the employee had an obligation to the firm not to do so, • notwithstanding there was no written contractual provision to that effect. We did so, relying on the North Dakota Administrative Code § 3-04-05-01 (since repealed) prohibiting an accountant from seeking additional engagements from a client without first notifying the referring accountant. We held the provision of the Administrative Code “clearly sets forth what the firm had a right to expect from Coutts, i.e., that he would not solicit clients of the firm for himself while he was employed by the firm.” Id. at 36. Although the Administrative Code provision has been repealed and would not, in any event, apply in this instance, the same concept is embodied in N.D.C.C. § 34-02-14 which provides in part that an employee “who has any business to transact on his own account similar to that entrusted to him by his employer shall give the latter the preference always.” When statutes relate to the same subject matter, we make every attempt to harmonize and give meaningful effect to each statute without rendering one or another useless. In Interest of K.G., 551 N.W.2d 554, 556 (N.D.1996). Thus, our decision in Biever, Drees & Nor-dell v. Coutts recognizes that soliciting the employer’s clients for one’s self without the employer’s consent, is contrary to the purpose of N.D.C.C. § 34-02-14. Such activity, even in the absence of an agreement, constitutes a breach of loyalty entitling Warner to “equitable protection against unfair competition.” Spectrum, 479 N.W.2d at 852. See N.D.C.C. §§ 34-02-07, 34-02-14. Solberg informed Phoenix International of her plans to leave Warner in advance of her resignation. The question of fact remains if that contact included solicitation of clients prior to her leaving Warner. Our decisions in Werlinger, Spectrum and Olson recognize the meaning of N.D.C.C. § 9-08-06 and prohibit restraints on solicitation after the employment ceases.

[¶ 24]. Paragraph 6(b) prohibits Solberg from accepting or writing any policy of insurance in replacement of any policy issued by Warner prior to the termination of the agreement. That clause of the agreement also generally prohibits Sol-berg from otherwise being involved in or assisting with any replacement policies. This clause inappropriately prohibits Sol-berg from writing a policy for a client who freely comes to her. This clause restrains third parties from contracting for insurance with the company or agent they choose. These limitations constitute a restraint of trade and therefore the agreement is “to that extent void.” N.D.C.C. § 9-08-06. See Hawkins Chemical, Inc. v. McNea, 321 N.W.2d 918, 920 (N.D.1982) (stating “it is well settled that if an unreasonable restraining clause can be separated leaving a reasonable agreement, it is valid to do so”).

[¶ 25] Paragraph 6(c) prohibits Solberg from soliciting or seeking to influence any employee of Warner to become the employee of Vaaler. This prohibition is narrowly drawn to penalize only Solberg’s actions of soliciting or influencing an employee to leave Warner and come to work for Vaaler and is not void as a restraint of trade. Warner alleges Sol-berg solicited Hilkerbaumer to leave Warner and come to work for her at Vaaler. Solberg maintains Hilkerbaumer contacted her about a possible position at Vaaler and independently decided to come to work for Vaaler. The fact question remains if Sol-berg solicited Hilkerbaumer in violation of Paragraph 6(c) of the agreement.

IV

[¶ 26] Warner argues Solberg’s sale of stock and the compensation paid her constitute sales of goodwill and therefore the first exception to N.D.C.C. § 9-08-06 applies. The trial court concluded “[c]learly, neither of the listed exceptions applies to the present case.” The goodwill exception to N.D.C.C. § 9-08-06 provides:

1. One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part of either, so long as the buyer or any person deriving title to the goodwill from him carries on a like business therein.

[¶ 27] Section 47-07-10, N.D.C.C. defines goodwill as “[t]he goodwill of a business is the expectation of continued public patronage, but it does not include a right to use the name of any person from whom it was acquired.” In Bessel v. Bethke, 56 N.D. 1, 6-7, 215 N.W. 868, 869-70 (1927), we concluded the predecessor to N.D.C.C. § 9-08-06(1) applied to a sale of stock.

Where one sells his stock he necessarily disposes of his interest in the good will of the business conducted by the corporation to the same extent as he parts with his interest in any other property of the corporation. And where, as in the instant case, he disposes of all his stock and severs his connection with a business that had been in a measure dependent for its success upon his skill or ability and contracts at the same time not to re-engage in the same business within an area permitted by the statute, he has, in fact, sold the good will within the exception, and the contract is valid.

However, the goodwill exception makes a limited non-competition agreement valid only if it is connected with the sale of the goodwill of a business. Earthworks, Inc. v. Sehn, 553 N.W.2d 490, 493 (N.D.1996). See Hayashi v. Ihringer, 79 N.D. 625, 632, 58 N.W.2d 788, 791-92 (1953).

[¶ 28] Wben a party sells a business and, as part of the sale, agrees not to engage in the same or similar business in the same area for a particular and reasonable length of time, “good will, although not specifically mentioned, [is] a subject of the sale and passe[s] as an incident of the transfer of real and personal property involved.” Igoe v. Atlas Ready-Mix, Inc., 134 N.W.2d 511, 514 (N.D.1965). See also Lire, Inc. v. Bob’s Pizza Inn Rest., Inc., 541 N.W.2d 432, 433 n. 1 (N.D.1995); Engstrom v. Larson, 77 N.D. 541, 562, 44 N.W.2d 97, 108 (1950). The sale of less than a majority interest is still a sale of goodwill and meets the exception of N.D.C.C. § 9-08-06(1). Earthworks, 553 N.W.2d at 493; Bessel, 56 N.D. at 6, 215 N.W. at 869.

[¶ 29] Solberg’s sale of stock can constitute a sale of goodwill qualifying for the exception. Ordinarily, it is a question of fact whether the sale of stock was sufficiently connected to the agreement. Although the sale of stock can be less than a majority interest to qualify as a sale of goodwill sufficient for the exception, it is ordinarily a question of fact whether the sale of stock was sufficient to constitute a sale of goodwill. We believe the sale of only a small amount of stock may not be sufficient to qualify for the goodwill exception to N.D.C.C. § 9-08-06. See Hill Medical Corp. v. Wycoff, 86 Cal.App.4th 895, 103 Cal.Rptr.2d 779, 786 (2001)(hold-ing the sale of the corporate fractional interest must involve “a substantial interest in the corporation, sp that the owner, in transferring ‘all’ of his [or her] shares, can be said to transfer the goodwill of the corporation,” quoting Bosley Medical Group v. Abramson, 161 Cal.App.3d 284, 207 Cal.Rptr. 477, 481 (1984)). Solberg sold 500 of the 100,000 shares of stock issued in Warner. We agree with the trial court that, as a matter of law, the sale of a l/200th interest cannot be said to transfer the goodwill of the business.

V

[¶ 30] Warner contends Solberg misappropriated trade secrets to cause the transfer of Warner policies to Vaaler. Trade secrets are defined by N.D.C.C. § 47-25.1-01(4).

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

[¶ 31] Affidavits submitted by Warner support the claim it treated all client coverage information, expiration dates, premiums, commissions, and claim histories as trade secrets. Warner presented evidence it protected its confidential trade secrets through its producer agreements, job descriptions, employee manuals and memo-randa. Paragraph 5 of the producer agreement signed by Solberg provides:

The Agency shall have the exclusive right, title and interest in and to all materials, services and information pertaining to such insurance business whether in the possession of the Producer or the Agency including but not by way of limitation all records of insurance policies, policy applications and underwriting information, policy expiration dates, customer lists, prospective customer information, manuals, communications, sales and promotion materials and any other proprietary Agency information. Both parties agree that all such information, documents or materials constitute trade secrets within the meaning of the Uniform Trade Secrets Act as codified in NDCC, Chapter 47-25.1 and Minn.Stat. Chapter 325C.01. Producer shall not be authorized to use, copy or divulge any such trade secrets except on behalf of the Agency in accordance with the terms of this agreement. On termination of the Producer’s employment, all such materials, services and information, and any copies, summaries or documents containing any such information, shall be immediately surrendered to the Agency whether provided by the Agency or prepared by the Producer and will not thereafter be used by the Producer or be divulged to any other person.

[¶ 32] In Advanced Business Telephones, Inc. v. Professional Data Processing, Inc., 359 N.W.2d 365, 368 (N.D.1984), we held the trial court did not abuse its discretion by ordering that a preliminary injunction, prohibiting the use of a customer list, remain in effect pending the completion of the action on its merits. Advanced Business Telephones, Inc., sought damages and an injunction to prohibit continued use of its trade secrets, which they asserted Professional Data Processing misappropriated. Id. at 366. We stated “[t]he trade secret, if any, involved here is a list of business customers of ABT’s Telnet division.” Id.

[¶ 33] In Northern States Power Co. v. North Dakota Public Service Com’n, 502 N.W.2d 240, 243 (N.D.1993), we held the definition of trade secrets in N.D.C.C. § 47-25.1-01(4) was broad enough to include the price and volume data in Northern States Power Co.’s gas transportation contracts. We affirmed the Public Service Commission’s determination that “the ‘price and volume data contained in NSP’s filings derives independent economic value from not being generally known to and not being readily ascertainable by proper means by providers of alternative fuel,’ that this data ‘is kept confidential by NSP,’ and that, therefore, this data constitutes a trade secret under the Uniform Trade Secrets Act.” Id.

[¶ 34] The United States Court of Appeals for the Eighth Circuit in Kovarik v. American Family Insurance Group, 108 F.3d 962, 966 (8th Cir.1997), determined customer information has been classified as a trade secret and can be an appropriate subject of limitation in employment agreements:

A finding of confidentiality may be appropriate under common law principles, as well as under the UTSA, even if the customers’ names are known or easily ascertainable, if the specific attributes of such customers are important to the seller and are not obvious. This is the case with a former insurance agent who acquires the names, addresses, and telephone numbers of policyholders; the amounts and types of insurance purchased; due dates of premiums and the amounts thereof; the character, description, and location of insured property; and personal information as to the insured such as age, physical condition, the existence of dependents, licensed drivers in the household, driving records of licensed drivers, and financial and credit history. This customer data has been classified as confidential by California courts under common law principles, and under the UTSA, and has been recognized as an appropriate subject of limitation in an employment agreement despite statutory language identical to North Dakota Century Code section 9-08-06. (Citations omitted).

[¶ 35] Courts in other jurisdictions have examined a number of factors to determine whether particular employer customer information constitutes a protect-able trade secret. See Annot., Former Employee’s Duty, In Absence of Express Contract, Not to Solicit Former Employer’s Customers or Otherwise Use His Knowledge of Customer Lists Acquired In Earlier Employment, 28 A.L.R.3d 7 (1969); 54 Am.Jur.2d Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 914, 927 and 1122 (1996). The United States Court of Appeals for the Ninth Circuit examining California law in Hollingsworth, 622 F.2d at 1332, stated: “Perhaps the most important consideration is whether the information is readily accessible to a reasonably diligent competitor or salesman.”

[¶ 36] After resigning on March 2, 1997, Solberg retained a box of files in her home until they were retrieved weeks later by an employee of Warner. Months later, Warner discovered Solberg also had personnel files containing employee evaluations in her possession. The trial court made no specific findings concerning Warner’s claim Solberg misappropriated trade secrets, stating broadly “there are no questions of material fact.” Fact questions and questions of law remain concerning whether the files and information retained by Solberg were trade secrets and whether Solberg’s actions constituted misappropriation of trade secrets.

VI

[¶ 37] We affirm the summary judgment in part and reverse the summary judgment in part. We remand for trial in conformance to this opinion.

[¶ 38] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN and LESTER KETTERLING, D.J., concur.

[¶ 39] LESTER KETTERLING, D.J., sitting in place of SANDSTROM, J., disqualified.

      . Section 9-08-06, N.D.C.C., is derived from the Field Code, the same source as Section 16600 of the California Business and Professional Code, and the language of the California statute is nearly identical to N.D.C.C. § 9-08-06. See Cal. Bus. and Prof.Code § 16600 (stating "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void”). Because of the common derivation, we have stated California court decisions construing Field Code sections, while not binding, are entitled to respectful consideration, and may be persuasive and should not be ignored. Werlinger v. Mutual Service Casualty Ins. Co., 496 N.W.2d 26, 30 (N.D.1993).

      . Although we affirmed the price and volume information was a trade secret, we also held it was a public record and subject to our open-records law because the price and volume information was required by law to be kept, maintained, and publicly filed. Northern States Power Co. v. North Dakota Public Service Com'n, 502 N.W.2d 240, 243-44 (N.D.1993).


author: NEUMANN, Justice. MARING, Justice, SANDSTROM, Justice,

text:
    2001 ND 157
    Stephanie R. DICKSON, Plaintiff and Appellant, v. Thomas A. DICKSON, Defendant and Appellee.
    No. 20010011.
    Supreme Court of North Dakota.
    Sept. 5, 2001.

      Isabella Robertson of Robertson Law Office, P.C., Bismarck, for plaintiff and appellant.
    Thomas M. Tuntland, Mandan, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Stephanie R. Dickson appealed from a trial court order denying her request to move to Saratoga, California with the parties’ daughter. We reverse and remand the trial court’s denial of Stephanie’s request to move.

I

[¶ 2] Stephanie and Thomas Dickson divorced in October 1993. Stephanie was awarded custody of the parties’ daughter. Thomas was awarded and exercised visitation.

[¶ 3] The parties both reside in the Bismarck Mandan area. Thomas remarried in December 1995, and he and his wife have one child together. Thomas’s wife has two children from a prior marriage. Stephanie has not remarried. Stephanie works part time at a department store and substitute teaches during the school year.

[¶ 4] In June 2000, Stephanie was offered a teaching position in Saratoga, California with a $34,000 annual salary. In July 2000, Stephanie moved the trial court for permission to relocate to California with the parties’ child. Thomas opposed Stephanie’s motion, asserting the move would not improve Stephanie and the child’s quality of life, would not foster and preserve the child’s relationship with Thomas and his family, and would result in visitation problems.

[¶ 5] After a hearing, the trial court denied Stephanie’s motion, finding she failed to meet her burden of proving the move was in the child’s best interests. Stephanie appealed.

II

[¶ 6] Stephanie asserts the trial court erred in determining the move was not in the child’s best interests.

[¶ 7] A custodial parent must obtain judicial permission to move a child to another state if the noncustodial parent does not consent to the move. N.D.C.C. § 14-09-07. The purpose of N.D.C.C. § 14-09-07 is to protect the noncustodial parent’s visitation rights when the custodial parent wants to move out of state. Hentz v. Hentz, 2001 ND 69, ¶ 5, 624 N.W.2d 694. The primary consideration in determining whether a custodial parent may move a child out of state is the best interests of the child. Id. at ¶ 5. The custodial parent has the burden of proving, by a preponderance of the evidence, the move from the state is in the best interests of the child. Id. at ¶ 5. When determining whether the move is in the best interests of the child, the trial court must consider the following factors:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

Id. at ¶ 7; see Hawkinson v. Hawkinson, 1999 ND 58, ¶¶ 6 and 9, 591 N.W.2d 144 (citing Stout v. Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903, and clarifying its fourth factor).

[¶ 8] A trial court’s decision as to whether a proposed move to another state is in the best interests of the child is a finding of fact that will not be overturned on appeal unless it is clearly erroneous. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence supports it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. Id. at ¶ 6.

[¶ 9] The trial court applied the relocation factors in resolving Stephanie’s motion to move out of state with the parties’ child. The court determined factors two and three were not dispositive because neither parent lacked integrity or valid purpose in that parent’s motive regarding the move. As to the second factor, the court found Stephanie’s desire to move was not to defeat or deter Thomas’s visitation with the child, but to be close to Stephanie’s sister and other family members. As to the third factor, the court found Thomas’s reason for opposing the move was his concern that visitation might not happen or might be more difficult to arrange once the parties’ daughter was living in California. The trial court’s findings under these factors is supported by the evidence.

[¶ 10] The trial court found factors one and four to be dispositive. Under the first factor, the court concluded Stephanie failed to show the move would improve the economic and noneconomic quality of life for her and the child. Under the fourth factor, the court concluded the proposed move would have a negative impact on Thomas’s ability to maintain and preserve a close relationship with the child.

A

[¶ 11] Stephanie argues the trial court’s finding under the first factor was clearly erroneous because the court did not properly weigh the prospective advantages of the move.

[¶ 12] Under the first relocation factor, the trial court must weigh the advantages of the requested move while recognizing the importance of maintaining continuity and stability in the custodial family. Tibor v. Tibor, 1999 ND 150, ¶ 11, 598 N.W.2d 480. The court must give due weight to the possibility the move will enhance both the economic and noneco-nomic aspects of the custodial family’s life. Id. at ¶ 11. Whether a custodial parent has secured employment at the proposed site of relocation should be considered under the first factor. Aus v. Carter, 1999 ND 246, ¶ 21, 603 N.W.2d 885.

1

[¶ 13] Regarding the prospective economic advantages of the move under the first factor, the trial court found:

[Stephanie] also has testified and submitted letters from both the Bismarck Public Schools and the Mandan Public School District, wherein they state they have currently filled their full-time teaching positions.... However, upon cross-examination of [Stephanie], she testified she had not applied for teaching positions in any other school district in the state of North Dakota. She did state she was offered a position in Fort Yates, where she did not apply, but the administrator offered her a position anyway. [Stephanie] testified she turned it down, due to the distance she would have to travel on a daily basis.

The court observed:

But, why did she not place applications in other surrounding school districts which are closer? And if [Stephanie] is determined to get a full-time position, why did she not apply to school districts in other urban areas of North Dakota?

[¶ 14] The court found that “California would be a likely choice for [Stephanie] to find employment outside of North Dakota” because she has family in California and Oregon. The court also found Thomas did not contradict that a $34,000 annual salary is higher than a salary for an elementary school teacher in North Dakota. The court continued with the following queries:

But, what about the salaries of elementary teachers in North Dakota? The only evidence of salary comparison is the job she was offered at Fort Yates for a salary of $19,000. The same job which she testified she did not apply for and did not think very highly of the position. So, what about the salaries of teaching positions in Dickinson, Fargo, Jamestown, Grand Forks, Minot, Devils Lake, Williston, etc.? How can the Court compare the economics of the position in California when [Stephanie] did not submit any evidence of salary comparisons to North Dakota? And what about the cost-of-living adjustment with a move from North Dakota to California? The Court is quite aware that the cost of living is quite more expensive in states such as California as compared to North Dakota. Does a salary of $34,000, adjusted for the increase in daily and monthly expenses living in California, bring home more net dollars than an elementary teaching position in North Dakota? Without this type of evidence on the record, how can a court determine that the economics of a move to California would be beneficial to [Stephanie] and [the parties’] child?

[¶ 15] The trial court found that Stephanie failed to present sufficient evidence to show she was unable to secure a teaching position in North Dakota outside the Bismarck Mandan area, and also found Stephanie did not submit evidence to prove her net monthly income in California, after adjusting for cost-of-living changes, would be more beneficial than what she might earn in North Dakota. Based on these findings, the trial court concluded Stephanie had not met her burden of proving the economic advantage of the move would be more beneficial to her and the child.

[¶ 16] This Court considered and rejected a similar analysis under factor one in Keller v. Keller, 1998 ND 179, 584 N.W.2d 509, and Goff v. Goff, 1999 ND 95, 593 N.W.2d 768.

[¶ 17] In Keller, 1998 ND 179, ¶ 14, 584 N.W.2d 509, the custodial parent introduced evidence showing economic and non-economic benefits of a proposed move from Grand Forks, North Dakota to Fort Wayne, Indiana. She accepted a position related to her doctoral psychology degree in Fort Wayne. Id. at ¶ 14. The position provided benefits and the opportunity for career development. Id. at ¶ 14. Despite evidence of the difficulty of securing similar employment in Grand Forks, the trial court found the custodial parent failed to prove the economic advantage of the move because she did not apply for employment in Grand Forks or the surrounding area. Id. at ¶¶ 14-15. After recognizing the noncustodial parent offered little evidence to directly contradict the evidence offered by the custodial parent, we concluded the trial court’s finding was clearly erroneous. Id. at ¶ 15.

[¶ 18] The custodial parent in Goff, 1999 ND 95, ¶12, 593 N.W.2d 768, was unemployed at the time of the relocation motion. She presented documentation to the trial court showing she had distributed more than fifty resumes to businesses in the Fargo Moorhead area with the intent of securing either a full-time position as a dental hygienist or a position utilizing her business degree. Id. at ¶ 12. She also sent resumes to a limited number of businesses in Minnesota and Michigan. Id. at ¶ 12. She was unsuccessful in her attempts to secure employment in the Fargo Moorhead area and ultimately accepted a position as a part-time dental hygienist in Holland, Michigan. Id. at ¶ 12. The trial court found she had not adequately explored employment opportunities outside the Fargo Moorhead area, but within a reasonable driving distance. Id. at ¶ 12. We stated:

After receiving evidence of an extensive, but unfruitful, job search in the Fargo Moorhead area, we do not believe it reasonable for a trial court to suggest a custodial parent must seek employment that would involve a daily commute outside of the community where the parent and children reside. The failure to seek a job that requires such commuting is not appropriate evidence of lack of a good faith effort to find employment.

Id. at ¶ 12. We further opined, “The trial court’s findings, if sustained, would impose unreasonable requirements upon custodial parents seeking to improve their financial circumstances through new employment.” Id. at ¶ 13.

[¶ 19] The trial court in this case erred in requiring Stephanie to look for employment “in other urban areas of North Dakota.” Stephanie is not required to seek employment that would involve a daily commute outside of the general Bismarck Mandan area. See Goff 1999 ND 95, ¶ 12, 593 N.W.2d 768. Nor have we required a custodial parent to provide a trial court with a comparative cost-of-living analysis to prove the economic advantage of the proposed move. Although relevant, cost-of-living evidence is not required.

[¶ 20] Stephanie provided the trial court with evidence showing there were no teaching positions available with either the Bismarck Public Schools or the Mandan Public School District. Stephanie provided evidence of the $34,000 annual salary offered her by the Saratoga Union School District. Thomas did not contradict Stephanie’s contention that the $34,000 salary she was offered for the teaching position in California is a higher salary than elementary school teachers are paid in North Dakota. See Keller, 1998 ND 179, ¶¶ 14-15, 584 N.W.2d 509 (recognizing the noncustodial parent offered little evidence to directly contradict the evidence offered by the custodial parent and concluding the trial court’s finding the custodial parent failed to prove the economic advantage of the move because she did not apply for employment in Grand Forks or the surrounding area was clearly erroneous).

[¶ 21] The trial court misapplied the law in reaching its conclusion that Stephanie had failed to prove the proposed move would be economically advantageous for Stephanie and the child by imposing unreasonable requirements on her to seek employment outside the Bismarck Mandan area and to prove economic advantage with a comparative cost-of-living analysis.

2

[¶ 22] Regarding the prospective noneconomic advantages of the move under the first factor, the trial court considered the number of relatives in California as compared to the number of relatives in North Dakota. The court found, “[The child] and [Stephanie] definitely have more family living in North Dakota, especially the Bismarck area, than in California.” The court acknowledged the convenience in transportation for Stephanie if she works at the school the child attends. The court continued, however, stating:

But, the Court does not see where this situation would be of any further benefit. [Stephanie] and [the child] would not be able to spend any quality time together during the school day, since [Stephanie] would be in her classroom teaching, and [the child] would be in her classroom learning. Also, [the child] will not be in elementary school for too many years, and then she will be attending junior high school. The Court is assuming, since no evidence was presented to the contrary, that the junior high school in Saratoga would be a completely different school and location from the elementary school. Therefore, any convenience for [Stephanie] relative to transportation would end at that point.

The court concluded the noneconomic aspects of the child’s life would not be enhanced by the proposed move because most of her immediate family is in North Dakota and her daily contact with her mother would not increase merely because they would be in the same elementary school.

[¶ 23] The trial court’s consideration of the convenience of having Stephanie working at the school the child attends is much too narrow. The potential advantages of the arrangement may be numerous and significant, including a single trip at the beginning and end of each work day, and the trial court failed to give sufficient consideration to the advantages.

[¶ 24] In considering the location of family members on the noneconomic aspects of the proposed move, simply adding the number of relatives in each location and comparing the two numbers is an improper method for determining whether a move will enhance the noneconomic aspects of the lives of the custodial parent and the parties’ child. The trial court should have considered the comparative strengths of the supportive family relationships, and should also have considered other noneconomic advantages which are likely to improve the child’s and custodial parent’s general quality of life such as educational opportunities, health, and happiness. See Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903.

[¶ 25] In making its findings as to the first factor, the trial court misapplied the law to the facts in this case.

B

[¶ 26] Stephanie argues the trial court’s finding under the fourth factor was clearly erroneous because the court was not presented with evidence showing Stephanie would not comply with Thomas’s visitation rights.

[¶ 27] Under the fourth factor, the court must consider the negative impact of the move on the noncustodial parent’s relationship with the child and the ability to restructure visitation to foster and preserve the relationship. Tibor v. Tibor, 1999 ND 150, ¶ 23, 598 N.W.2d 480.

In applying factor four, the court stated: [T]he parties have both been residing in Bismarck since the time of the divorce, except for the brief period of time in 1995 when [Stephanie] moved to New York. Therefore, visitations have been convenient for [Thomas], and he has been able to keep close and frequent contact with the child. With the proposed move to California, naturally the closeness and frequency of visitations would drastically change.
Now, [Stephanie] has testified she is willing to provide for a more extended summer visitation for [Thomas] with alternating holidays. She is willing to pay for the transportation except for the Easter holiday. However, as [Thomas] testified, he has recently been denied at least one visitation in the past, and he had no telephone contact with [the child] when she was in California over Father’s Day. [Stephanie] claims [the child] did not want to call her father, but the Court agrees with [Thomas] that she should have taken more control of the situation and had [the child] make the call. So, the parties have had some difficulty with visitations even when they have been living in the same community, let alone being thousands of miles apart from one another. Also, there is already evidence that phone contact between [Thomas] and his child will be a problem, if [the child] is living out of state from her father. Consequently, it appears in all likelihood [Thomas] will definitely have more difficulty in arranging visitations and making contact with his child and dealing with [Stephanie] when she is living in California rather than North Dakota.

The court concluded the proposed move would have a negative impact on Thomas’s ability to maintain and preserve close relationship with the child.

[¶ 28] The record supports the trial court’s finding that the potential negative impact on the relationship between Thomas and the child weighs against the move. In addition to the instances referred to by the trial court, there is other evidence suggesting visitation may be difficult if Stephanie and the child move to California. Thomas has accused Stephanie of refusing to allow him reasonable visitation. Stephanie has accused Thomas of failing to follow visitation arrangements.

[¶ 29] In reviewing a trial court’s findings of fact, we give due regard to the court’s opportunity to assess the credibility and observe the demeanor of the witnesses. Lohstreter v. Lohstreter, 2001 ND 45, ¶ 21, 623 N.W.2d 350. We do not re-weigh evidence or reassess credibility when there is evidence to support a trial court’s findings. Id. at ¶21. A trial court’s choice between two permissible views of the weight of the evidence is not clearly erroneous. Id. at ¶ 21.

[¶ 30] Because there is evidence supporting the trial court’s finding, the court did not clearly err in determining the fourth factor weighs against allowing the move.

Ill

[¶ 31] Because the trial court erroneously applied factor one, prospective advantages of the move, the trial court’s finding that the move would not be in the child’s best interest cannot be affirmed. We reverse and remand for an appropriate consideration of all the relocation factors. The trial court may, in its discretion, de: termine whether any further evidence or argument is required.

[¶ 32] GERALD W. VANDE WALLE, C.J., KAPSNER, J., concur.

MARING, Justice,

concurring in part and dissenting in part.

[¶ 33] I concur in that part of the majority opinion concluding the trial court misapplied the law with regard to the first factor. I am of the opinion, however, the trial court also misinterpreted and misapplied the law with regard to the fourth factor, and therefore, I would remand for the trial court to correctly apply the fourth factor as well as the first factor.

[¶ 34] Under the fourth factor, “the trial court must determine whether a visitation schedule can be devised which can reasonably provide the foundation for maintaining and developing a parent-child relationship between the child and the noncustodial parent.” Stout v. Stout, 1997 ND 61, ¶ 37, 560 N.W.2d 903. Although a proposed move may adversely affect the noncustodial parent’s relationship with his child, when the move is sought in good faith and to gain legitimate advantages for the custodial parent and the child, the move must not be denied because visitation cannot continue in its existing pattern. Id.; Hentz v. Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694 (quoting Stout v. Stout, 1997 ND 61, ¶ 37, 560 N.W.2d 903). To hold otherwise would result in “an unintentional automatic reason to deny relocation.” Keller v. Keller, 1998 ND 179, ¶16, 584 N.W.2d 509.

[¶ 35] We have continually recognized that even though distance may make it impossible to maintain the same visitation schedule presently enjoyed by the noncustodial parent and the child, allowing liberal visitation during summer months and vacations can foster a meaningful relationship between the noncustodial parent and the child. Keller, 1998 ND 179, ¶ 16, 584 N.W.2d 509; see also Burich v. Burich, 314 N.W.2d 82, 88 (N.D.1981). A visitation schedule which provides less frequent, but extended visitation periods can preserve a noncustodial parent’s right to foster and develop a relationship with the child. Matter of B.E.M., 1997 ND 134, ¶20, 566 N.W.2d 414. Extended periods of visitation provide the noncustodial parent and the child longer periods together, whereby they can nurture and develop their relationship. State ex rel. Melling v. Ness, 1999 ND 73, ¶ 23, 592 N.W.2d 565.

[¶ 36] It is not an appropriate consideration that it is more convenient for the noncustodial parent to maintain the status quo. When both parents have lived in the same city, any proposed relocation will result in a less convenient visitation schedule. Today modern transportation and instant communication through telephone and computers are available to foster the noncustodial parent-child relationship. Tibor v. Tibor, 1999 ND 150, ¶26, 598 N.W.2d 480. A trial court’s analysis of factor four which indicates its belief that any restructuring must provide the same visitation schedule and convenience after a relocation as was experienced before the relocation is an incorrect interpretation of the law. Goff v. Goff, 1999 ND 95, ¶ 18, 593 N.W.2d 768; Hentz, 2001 ND 69, ¶ 9, 624 N.W.2d 694. The frequency of visitation and closeness between the noncustodial parent and the child are to be considered in the context of re-fashioning the visitation schedule. If there has been frequent contact, then liberal extended visitation in summers, on school breaks, and on holidays should be scheduled.

[¶ 37] It appears the trial court in the present case did not consider frequency of visitation and closeness in the proper context, however. In its analysis applying factor four, the trial court stated:

As stated beforehand, the parties have both been residing in Bismarck since the time of the divorce, except for the brief period of time in 1995 when the plaintiff moved to New York. Therefore visitations have been convenient for the defendant, and he has been able to keep close and frequent contact with the child. With the proposed move to California, naturally the closeness and frequency of visitations would drastically change. (Emphasis added.)

[¶ 38] The trial court’s misinterpretation and misapplication of factor four is evident in its statement of its conclusion of factor four: “Lastly, the proposed move would have a negative impact on the defendant’s ability to maintain and preserve a close relationship with the minor child.” (Emphasis added.)

[¶ 39] This is not the standard. The noncustodial parent’s inability to maintain the same frequent contact and degree of closeness with the child is not a sufficient basis to deny a relocation when the “move is sought in good faith and to gain legitimate advantages for the custodial parent and the child.” Stout, 1997 ND 61, ¶ 37, 560 N.W.2d 903; Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694 (quoting Stout, 1997 ND 61, ¶ 37, 560 N.W.2d 903). Naturally, Stephanie’s relocation to California will result in a visitation schedule that is less convenient and less frequent for Thomas. This is true, however, for any proposed relocation, and the trial court cannot consider convenience, frequency of visitation or closeness in a manner that circumvents the proper interpretation and application of factor four.

[¶ 40] In Hentz, 2001 ND 69, ¶¶ 8-9, 624 N.W.2d 694, we noted our concern about a sentence in the trial court’s decision that states: “If the move were allowed, there would be no regular contact between father and son.” We emphasized “the fact a noncustodial parent will not be able maintain the same visitation schedule is not, alone, a basis for denying permission to the custodial parent to leave the state with the child.” Id. at ¶ 9. We affirmed the trial court’s denial of the move because we concluded the trial court’s decision was not based on frequency of visitation but rather the conclusion the custodial parent would not comply with the visitation order thus preventing “regular contact.”

[¶ 41] Here, however, the trial court concludes a “close relationship” cannot be maintained and preserved by restructured visitation. There is a big difference between maintaining a “close relationship,” which connotes frequency and convenience, and maintaining “regular contact,” which connotes compliance with a restructured visitation schedule. I recognize the trial court concluded “in all likelihood” the noncustodial parent would have more difficulty in arranging visitations because of past visitation difficulties with the custodial parent. Frustration of visitation is an appropriate consideration in determining whether each parent will comply with restructured visitation under factor four. See Tishmack v. Tishmack, 2000 ND 103, ¶ 19, 611 N.W.2d 204; Hentz, 2001 ND 69, ¶ 9, 624 N.W.2d 694. I am not convinced, however, the trial court considered the facts of closeness, frequency of visitation, and convenience of contact in the proper context.

[¶ 42] In this case, if the trial court had properly applied factor four to the evidence, I do not know whether it would have found factor four in favor of Thomas based solely on the two incidents of frustration of visitation. The parties have been divorced for seven years, and the trial court found only two incidents of frustration of visitation. During the first incident, Thomas was scheduled to have visitation with the child on her birthday, but since he did not plan a birthday party for the child, Stephanie planned one for her at a local motel. After Thomas became aware of the party, he consented to it and was able to exercise visitation that evening. The second incident involved a scheduled telephone contact. While Stephanie and the child were in California over Father’s Day, the child did not call Thomas. Stephanie, however, testified she asked the child to call Thomas on two occasions, and the child declined to do so both times. Also, Stephanie testified Thomas knew the number where she and the child could be reached in California, and he, too, failed to call.

[¶ 43] Furthermore, the trial court’s findings under factor four are at odds with its findings under factor two. Under factor two, the trial court must determine whether a motion to relocate is motivated by a desire to interfere with visitation. Stout, 1997 ND 61, ¶ 35, 560 N.W.2d 903. In doing so, the court must determine the degree to which the custodial parent will comply with visitation arrangements after the move. Id. The trial court considering the same evidence it did under factor four concluded under factor two that Stephanie’s desire to move was not to defeat or deter Thomas’s visitation with the child. Under factor four, however, the trial court concluded Stephanie was not likely to comply with a restructured visitation order. These findings are inconsistent, and if the court, with regard to factor two, was of the opinion that the two incidents of interference with visitation did not indicate that Stephanie would not comply with visitation after the move, then it should have found she would comply with a restructured visitation under factor four. It did not, however, and I believe the trial court must reconsider its findings under factor four.

[¶ 44] Because I believe the trial court misapplied factor four, I would remand for the trial court to determine whether a restructured visitation is possible and, if so, whether the two incidents regarding Stephanie’s interference with visitation over a seven-year period are sufficient grounds to find this factor in Thomas’ favor.

[¶ 45] Mary Muehlen Maring

SANDSTROM, Justice,

concurring and dissenting.

[¶ 46] I agree with the majority’s conclusion as to “the fourth factor,” but disagree with its conclusion as to the first factor.”

[¶ 47] The majority correctly states, at ¶ 7, “The custodial parent .has the burden of proving, by a preponderance of the evidence, the move from the state is in the best interests of the child.” Hentz v. Hentz, 2001 ND 69, ¶ 5, 624 N.W.2d 694.

[¶ 48] As to the economic advantage of the move, the trial court found that the custodial parent had failed to meet her burden for a number of reasons, any one of which would be sufficient to sustain the finding. Stephanie testified she did not apply to any of the smaller surrounding school districts. The trial court’s requirement that Stephanie look for employment with the surrounding school districts was reasonable and was not clearly erroneous. Economic advantage of the move was not established where the custodial parent had not reasonably pursued employment in surrounding school districts.

[¶ 49] As to the noneconomic advantage of the move, the majority reweighs the evidence, and further states, at ¶24: “In considering the location of family members on the noneconomic aspects of the proposed move, simply adding the number of relatives in each location and comparing the two numbers is an improper method for determining whether a move will enhance the noneconomic aspects of the lives of the custodial parent and the parties’ child.” While such a method may be improper, but see Stout v. Stout, 1997 ND 61, ¶ 39, 560 N.W.2d 903, the record does not support an assertion that the trial court used it.

[¶ 50] I would affirm the decision of the trial court.

[¶ 51] Dale V. Sandstrom