text:
    In re the Marriage of Steven Darryl DAVIS, Petitioner, Respondent, v. Nancy Kay DAVIS, n/k/a Nancy Kay Haux, Appellant.
    No. C1-01-40.
    Court of Appeals of Minnesota.
    July 31, 2001.

      Joseph A. Evans, Becker County Attorney, Detroit Lakes, for respondent.
    Bonnie J. Askew, Fargo, ND, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, CRIPPEN and STONEBURNER, Judges.
   OPINION

STONEBURNER, Judge.

The 1993 decree of dissolution, based on the parties’ stipulation, awarded them joint legal and physical custody of their two children and reserved the district court’s jurisdiction over the matter of child support. In 2000, Becker County initiated childsupport proceedings. After a hearing, a child support magistrate (CSM) ordered mother to pay $345 per month in ongoing child support and to provide medical and dental insurance for the children, and granted father a $13,638 judgment for child-support arrearages from January 1997 to July 2000. Mother moved for reconsideration, requesting amended findings and an amended order or a new hearing. The district court, which was not provided with a transcript of the hearing, reconsidered the matter based on the record submitted and issued a one-paragraph order affirming the CSM’s order without modification. . Mother appeals.

Because (1) the district court has no authority to make an initial child-support obligation retroactive; (2) there is insufficient evidence to support the finding of mother’s net monthly income; and (3) the Hortis/Valento formula applies in a joint physical custody arrangement, we reverse and remand to the district court for recalculation of mother’s support obligation.

FACTS

The parties dissolved their marriage in 1993 and were granted joint physical and legal custody of their two children. Ac-coi'ding to the decree, during the school year the children live with father and spend the weekends with mother, and in the summer the children live with mother and spend the weekends with father. The district court reserved jurisdiction over the matter of child support:

No child support is being requested by [father] at this time giving consideration to the fact that [mother] has just recently obtained only part time employment at a minimum wage. When [mother’s] salary reaches $600.00 net per month, child support will be established according to Minnesota statutory guidelines.

The dissolution order recognizes that the children are covered by Minnesota Medical Assistance and makes father responsible for providing health insurance when the children no longer qualify for public assistance. Subsequent to the dissolution, MinnesotaCare benefits replaced Minnesota Medical Assistance for the children. Mother, who is remarried, includes the children as insureds under the health-insurance policy available through her current spouse’s employment.

On June 7, 2000, Becker County commenced an action to establish child support, medical support, and child-support arrearages. The form motion states: “This is an action to establish child, medical, and child care support under Minnesota Statutes Sections 256.87, 518.551, 518.64 and 518.171.” The proposed order served with the motion states that “[t]his is an action to establish child support that had previously been reserved and is brought under Minnesota Statutes Section 256.87.” Mother requested a hearing, which was held before a CSM on August 16, 2000. Neither parent was represented by counsel.

The CSM found that mother was self-employed as a daycare provider in her home, and her gross weekly income was $320. After deductions of $56 for medical and dental insurance and $181 for federal and state taxes and social security, the CSM computed mother’s net monthly income as $1,149.67. The CSM found that mother’s net monthly income had been $600 or more since at least January 1, 1997, and that the children qualified for MinnesotaCare, even though mother provided medical and dental insurance. The CSM ordered mother to pay ongoing child support in the amount of $345 per month beginning July 1, 2000, granted father a judgment for reimbursement for past support from January 1, 1997 to July 1, 2000 in the amount of $13,638, and ordered mother to maintain medical and dental insurance for the children.

Mother moved the district court for reconsideration, arguing that: (1) the order does not correctly reflect her income because she was not prepared to testify about business income and expenses and that her true net monthly income is $648; (2) the Hortis/Valento formula should have been applied; (3) the CSM erred in making child support retroactive for more than three and a half years; and (4) the children did not qualify for MinnesotaCare because mother already provided medical insurance for the children. Neither party submitted a transcript of the hearing to the district court. In an order dated November 6, 2000, the district court granted reconsideration, reviewed the matter based on the record presented, and concluded that no changes were needed to the CSM’s findings and order for judgment. Mother appeals the district court’s order.

ISSUES

1. Did the district court abuse its discretion in making the initial child-support obligation retroactive?

2. Did the district court clearly err in determining mother’s net monthly income?

3. Did the district court abuse its discretion by failing to apply the Hor-tis/Valento formula?

ANALYSIS

The district court reviews the CSM’s decision de novo. Blonigen v. Blo-nigen, 621 N.W.2d 276, 280 (Minn.App. 2001), review denied (Minn. Mar. 13, 2001); see Minn. R. Gen. Pract. 372.05, subd. 2 (stating district court must make an independent review of any findings or provisions of the CSM’s decision). Seeking review of a CSM’s decision is not necessary to appeal the decision to this court, but not seeking review limits the scope of review on appeal to whether the evidence supports the findings and whether the findings support the conclusions and the judgment. See Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn.App.2000) (concluding this court applies the same standard of review to a CSM’s order as we would apply to an order issued by the district court); see also Rutten v. RuUen, 347 N.W.2d 47, 50-51 (Minn.1984) (recognizing that district courts have broad discretion to provide for the support of the parties’ children, and this court will not reverse the district court’s decision on child support unless that decision was clearly erroneous).

If review of the CSM’s decision is sought in the district court, a transcript is not necessary. Bbnigen, 621 N.W.2d at 282. Failure to submit a transcript to the district court for review of the CSM’s decision precludes consideration of the transcript on appeal because the transcript is not part of the record on appeal. See Minn. R. Civ.App. P. 110.01 (stating the record on appeal consists of “[t]he papers filed in the trial court”); Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992) (“The court will strike documents included in a party’s brief that are not part of the appellate record.”), affid, 504 N.W.2d 758 (Minn.1993). We review the district court’s decision confirming the CSM’s order under an abuse-of-discretion standard. See Rutten, 347 N.W.2d at 50-51.

I.

Mother argues that the district court abused its discretion in granting a judgment to father for child support retroactive to January 1, 1997. Whether the district court abused its discretion in making mother’s child-support obligation retroactive to January 1,1997, depends on the statutory basis for the county’s petition to establish support. In her brief, mother characterized this action as an action for reimbursement of public assistance brought pursuant to Minn.Stat. § 256.87 (2000) and argued that the district court abused its discretion in failing to determine that the children were entitled to MinnesotaCare benefits. See County of Hennepin ex rel. Clark v. Hernandez, 554 N.W.2d 618, 620 (Minn.App.1996) (holding that before determining the amount of the support obligation, the court must first determine whether the party seeking reimbursement is entitled to support). Mother also argued that the district court abused its discretion in ordering child support without determining the amount of public assistance expended. See County of Nicollet v. Larson, 421 N.W.2d 717, 719 (Minn.1988) (holding court must consider obligor’s ability to pay and amount of assistance expended by the county in calculating reimbursement owed). The county asserts that these issues are irrelevant because this was not an action for reimbursement to the county for public assistance expended pursuant to Minn.Stat. § 256.87. We agree. MinmStat. § 256.87, which contains authority for a retroactive award of child support, does not apply to this action because the county did not seek reimbursement or receive a judgment for reimbursement of public assistance expended.

The county argues that the action is an action to modify an existing support order on behalf of the father, governed by Minn. Stat. § 518.64 (2000), which authorizes a retroactive modification of child support where the party seeking modification received public assistance. See Minn.Stat. § 518.64, subd. 2(d). At oral argument, mother conceded that the action was not for reimbursement of public assistance but argued that the modification statute does not apply because this is an action to establish mother’s initial child-support obligation. We agree.

Where support is reserved in the original decree, “a subsequent establishment of a support obligation is treated as an initial support order rather than a modification of a prior support order.” See Anderson v. Anderson, 470 N.W.2d 719, 721 (Minn.App.1991) (citing Bennyhoff v. Bennyhoff, 406 N.W.2d 92, 94 (Minn.App. 1987)); Mulroy v. Mulroy, 354 N.W.2d 66, 69 (Minn.App.1984). The action, as it is titled, is an action for establishment of child support. The original decree clearly indicates the parties’ intention to examine the issue at a later date when mother had the ability to pay. See Bennyhoff, 406 N.W.2d at 94 (noting decree’s language indicates parties’ obvious intention to examine issue at later time). This is not a modification action, and Minn.Stat. § 518.64 does not apply.

Without citing any authority, the CSM awarded — and the district court affirmed — retroactive child support based on a determination of when mother’s net monthly income reached $600 per month:

For the time period when [mother’s] net monthly income was $600.00 or greater, the Court will start with January, 1997, even though [mother] clearly was employed sometime in 1996. [Mother] had the ability to reimburse [father] the sum of $13,638.00.

Generally, where no prior order to pay child support exists, it is improper to give a support order retroactive effect. Paulson v. Paulson, 381 N.W.2d 53, 55 (Minn.App.1986).

In Martin v. Martin, we held that the district court did not make a retroactive award of child support where the court had entered an order on January 17, 1986 that “when appellant returned to full-time employment, she was to pay support according to the statutory child support guidelines” and then in a July 7, 1986 order, required guideline support commencing on January 17, 1986, based on a finding that appellant had returned to full-time work on January 1, 1986. Martin v. Martin, 401 N.W.2d 107, 109, 111 (Minn.App.1987). The present case is distinguishable, however, because the language in the decree, unlike the language in Martin, does not require mother to pay guide-fine support when her income reaches $600 per month. Here, the decree says that child support will be established when mother’s income reaches $600 net per month. Absent unusual circumstances not argued to be present here, we conclude that the district court abused its discretion by making the obligation retroactive.

II.

Mother argues that the district court’s determination of her net monthly income is clearly erroneous where the court failed to make a finding on her necessary and ordinary business expenses. A district court’s finding on net income for purposes of child support will be affirmed on appeal, if those findings have a reasonable basis in fact and are not clearly erroneous. State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn.App.1999).

For child-support purposes, income from self-employment “is equal to gross receipts minus ordinary and necessary expenses.” Minn.Stat. § 518.551, subd. 5b(f) (2000). The CSM determined that mother was self-employed as a daycare provider in her home and that her gross weekly income was $320. The CSM made no findings regarding mother’s business expenses beyond deductions for medical and dental insurance, taxes, and social security. In addition, the record contains no evidence that the district court considered the appropriate tax table for self-employment income.

Because there is no evidence in the record to support the district court’s finding of mother’s net monthly income, the decision has no reasonable basis in fact. We remand to the district court to open the record for reconsideration of mother’s legitimate business expenses and a determination of an appropriate tax table to calculate mother’s net monthly income.

III.

Mother argues that the district court abused its discretion in failing to apply the Hortis/Valento formula because the parties have joint physical custody of the children. The county argues that the Hortis/Valento formula is not applicable because, in actuality, the children live with father and spend an insignificant amount of time with mother. Failure to apply the Hortis/Valento formula to undisputed facts is a legal error reviewed de novo. See Rumney v. Rumney, 611 N.W.2d 71, 73 (Minn.App.2000) (citing Ayers v. Ayers, 608 N.W.2d 515, 518 (Minn.1993)).

“Application of the Hortis/Valento formula ‘should be used in all joint physical custody cases.’ ” Blonigen, 621 N.W.2d at 282 (quoting Tweeton v. Tweeton, 560 N.W.2d 746, 748 (Minn.App.1997), review denied (Minn. May 28, 1997)). “Custody provisions contained in a stipulated decree must be accorded a good deal of deference * * . Ayers, 508 N.W.2d at 520. Joint physical custody does not require an equal division of time. Id. (citation omitted); see Minn.Stat. § 518.003, subd. 3(d) (2000) (stating joint physical custody “means that the routine daily care and control and the residence of the child is structured between the parties”).

The decree provides that the parties share joint physical custody in an arrangement where during the school year the children live with father and spend the weekends with mother, and in the summer they live with mother and spend the weekends with father. The terms of the decree support a conclusion that the parties share joint physical custody of their children. Cf Blonigen, 621 N.W.2d at 281 (finding district court did not err in determining parties shared joint physical custody where the parties described the arrangement as joint physical custody and the routine daily care and control and residence of the children was structured between the parties). The record on appeal shows no evidence that the parties have departed from this parenting arrangement. The district court abused its discretion in failing to apply the Hortis/Valento formula where a joint physical custody arrangement exists.

Under the Hortis/Valento formula, a parent must pay support in the amount indicated by the guidelines only during the periods of time that the other parent has custody of the children. Id. at 282; see Valento v. Valento, 385 N.W.2d 860, 862 (Minn.App.1986), review denied (Minn. Jun. 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn.App.1985). We remand to the district court, which may review the transcript from the hearing before the CSM and, if necessary, reopen the record for additional evidence, or conduct a rehearing, to permit the district court to make adequate findings on the amount of time the children spend with each parent, and to apply the Hortis/Valento formula to calculate mother’s support obligation.

DECISION

Because this is an action to establish child support, not to modify an existing child-support order or to reimburse the county for public assistance expended, the district court had no authority to order retroactive child support. The record does not support the district court’s finding of mother’s net monthly income. The district court abused its discretion in failing to apply the Hortis/Valento formula.

Reversed and remanded.

      . The county brought a claim on a form petition “to establish child, medical, and child care support under Minnesota Statutes Sections 256.87, 518.551, 518.64 and 518.171.” The county’s petition does not clearly indicate whether this is an action to establish or modify child support or for reimbursement of public assistance expended by the county. The CSM's order is equally ambiguous, stating this is an action under "Minn.Stat. §§ 518.551, subd. 5; 256.87 and 257.66.”

      . The supreme court recently held that application of the Hortis/Valento child-support formula in sole physical custody cases is a deviation from the child-support guidelines and cannot occur without the findings required by Minn.Stat. § 518.551, subds. 5(c), 5(i) (1998). Rogers v. Rogers, 622 N.W.2d 813, 821 (Minn. 2001). The court declined to address whether the use of the Hortis/Valento formula was proper in the context of a joint physical custody situation because the issue was not before the court. Id. at 821 n. 19. In this case, the parties do not challenge the propriety of the Hortis/Valento formula in joint physical custody cases, and we decline to address that issue. See, e.g., Duffney v. Duffney, 625 N.W.2d 839, 842 n. 1 (Minn.App.2001) (declining to comment on the propriety of the assumption that the Hortis/Valento formula is proper in a joint physical custody case); see also Thiele v. Stick, 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts generally address only issues presented to and decided by the district court).


source: Caselaw Access Project

author: HALBROOKS, Judge

license: Public Domain

text:
    In re the MARRIAGE OF Laurel Ann CROCKARELL, n/k/a Laurel Ann March, petitioner, Respondent, Ramsey County, Respondent, v. James L. Crockarell, Appellant.
    No. C2-01-94.
    Court of Appeals of Minnesota.
    July 31, 2001.

      Mark Nygaard, Nygaard & Longe, St. Paul, for respondent petitioner.
    Susan Gaertner, Ramsey County Attorney, Amy A. Anderson, Assistant County Attorney, St. Paul, for respondent county.
    John G. Westriek, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., St. Paul, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge, SCHUMACHER, Judge, and WILLIS, Judge.
   OPINION

HALBROOKS, Judge

On appeal after remand in a contempt proceeding for failure to pay child-support arrearages, appellant alleges the district court erred by (1) drawing negative inferences from appellant’s assertion of his Fifth Amendment rights, (2) finding appellant has access to assets which could be used to pay his obligations and meet the purge conditions, and (3) finding appellant in contempt without a court-ordered written payment plan. Because we conclude that the district court did not err, we affirm.

FACTS

Appellant James Crockarell and respondent Laurel Ann March were married from 1975 to 1983. Upon dissolution, respondent was awarded physical custody of their two children. Appellant was ordered to pay child support at the rate of $350 per month for each child until age 12, at which point the rate would increase to $450 per month for that child. Each child’s support was to continue until that child was 18 years old or no longer living with respondent and no longer dependent upon her for support.

During their marriage, the parties were in business together, buying, selling, and managing property. The dissolution process quickly became complicated and contentious. By the time of trial, appellant was already in arrears on child support. Respondent brought a motion in 1996 seeking to have appellant held in contempt of court for nonpayment of child support. In May 1998, the district court found him in arrears in the amount of $91,404.86 plus interest for failing to pay his child-support obligations. The court rejected his claim that respondent’s 1984 amended tax return of $58,669.26 should be credited to his child-support arrearage.

In October 1998, the district court issued amended findings and denied appellant’s motion for a new trial. In June 2000, the court found that appellant had not made any child-support payments since July 1989, made material misrepresentations to the court, and failed to meet his burden of establishing his inability to pay child support. The district court found that, although appellant claims he has no assets, after the parties’ dissolution, appellant had a net worth of over one million dollars. Appellant claims that he “cannot recall where all of the assets he had during the 1980s have gone to.” The court also found that appellant is capable of earning income, has manipulated his finances so that his current wife receives compensation for his income-generating activities, and has intentionally misrepresented his financial situation in order to appear judgment-proof. The court found that appellant has the ability to pay child support and attorney fees and held him in contempt of court. The court ordered appellant to serve 180 days in the Ramsey County Workhouse, with execution of the sentence stayed so long as he paid child support and interest in the amount of $94,990.64 to respondent, attorney fees in the amount of $22,913.98 to Ramsey County, and $49,247.16 to respondent for attorney fees. The district court issued a judgment pursuant to the June 2000 order in favor of respondent and against appellant in the amount of $94,990.54 for child-support arrearages.

Appellant brought the June order to this court for review. While that appeal was pending, respondent moved to enforce the contempt provisions of the order in a Ma-hady hearing. See Mahady v. Mahady, 448 N.W.2d 888 (Minn.App.1989) (laying out a two-stage proceeding in contempt proceedings). At the October 17, 2000 hearing, appellant, through his lawyer, asserted his Fifth Amendment right against self-incrimination and refused to testify. Appellant also argued that, because there was no court-ordered payment plan under Minn.Stat. § 518.617 (2000), he cannot be held in contempt. Finally, he argued that he does not have the ability to pay child support and that the district court cannot attach his current spouse’s assets in order to satisfy his debt. The district court held that appellant’s assertion of his Fifth Amendment right “unfairly prejudiced [respondent] because his financial condition, income, and his efforts to comply” with the support order are “peculiarly within [appellant’s] own knowledge.” Due to the unfair prejudice, the district court found it appropriate to strike appellant’s claim that he does not havb the ability to pay his arrearages. The district court rejected appellant’s other arguments and reiterated that appellant had access to adequate assets to pay his child-support obligation. The court reaffirmed the order that appellant serve 180 days and set the following purge conditions in a December 2000 order: appellant must (1) pay his child support and interests in the sum of $94,909.54, (2) pay respondent’s attorney fees and costs in the sum of $49,247.15, (3) pay attorney fees and costs to the Ramsey County Attorney’s office in the sum of $22,913.98, and (4) post a supersedeas bond. The sentence was stayed pending this appeal.

ISSUES

1. Did the district court err in sanctioning appellant for his assertion of his Fifth Amendment rights by drawing adverse inferences against him?

2. Does Minn.Stat. § 518.617 (2000) require the court to establish a written payment plan before it may find an obligor in contempt?

3. Did the district court err in finding appellant had access to assets to pay his child-support arrearages?

4. Did the district court err in finding appellant has the ability to meet the purge conditions of the contempt order?

5. Should this court grant respondent attorney fees on appeal?

ANALYSIS

Minnesota courts have statutory authority to enforce maintenance and child-support obligations using civil contempt proceedings. Engelby v. Engelby, 479 N.W.2d 424, 426 (Minn.App.1992). A child-support order constitutes prima facie evidence that the obligor has the ability to pay the award. Minn.Stat. § 518.24 (2000). Disobeying the award is prima facie evidence of contempt. Id. The obli-gor has the burden to prove inability to comply with the order. Engelby, 479 N.W.2d at 426.

The district court has broad discretion to hold an individual in contempt. Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn.1986). This court reviews a district court’s decision to invoke its contempt power under an abuse-of-discretion standard. Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn.1996). Factual findings of a contempt order will be reversed only if they are clearly erroneous. Id.; Minn. R. Civ. P. 52.01.

I. Appellant’s Refusal to Testify

In its December 2000 order, the court found that appellant’s refusal to submit to cross-examination unfairly prejudiced respondent because the matters that appellant was asked to testify about — his finances, income, and efforts to comply with the support order — were peculiarly within appellant’s own knowledge. Appellant argues that because his testimony may have exposed him to criminal liability for failure to pay child support and the information “could have been obtained through the use of documents,” the district court erred in sanctioning him for his invocation of his Fifth Amendment rights. See Minn.Stat. § 609.375 (2000) (providing for criminal sanctions for the failure to pay child support).

The Fifth Amendment privilege against self-incrimination may be invoked if the testimony or information sought would have a tendency to incriminate the witness. Minnesota State Bar Ass’n v. Divorce Assistance Assoc., Inc., 311 Minn. 276, 278, 248 N.W.2d 733, 737 (Minn.1976). The privilege applies in civil as well as criminal proceedings. Parker v. Hennepin County Dist. Court, Fourth Jtidicial Dist., 285 N.W.2d 81, 82-83 (Minn.1979). But the function of the court in civil contempt proceedings is to make meaningful the rights of one party as against another. Hopp v. Hopp, 279 Minn. 170, 174, 156 N.W.2d 212, 216 (1968). Often, only the alleged contemnor can testify as to his or her “reasons for failure [to comply].” Id. Thus, a contemnor’s failure to testify would warrant the court’s drawing every inference against him. Parker, 285 N.W.2d at 83; see also Bollenbach v. Bollenbach, 285 Minn. 418, 428, 175 N.W.2d 148, 155 (1970) (stating that in dissolution proceedings, parties “must make a full and accurate disclosure of their assets and liabilities” and failure to do so “justifies inferences adverse to the party who conceals or evades.”). The use of inferences is permissible because “[a]n adverse inference in a civil case cannot have any effect or be revealed in subsequent criminal proceedings.” Parker, 285 N.W.2d at 83.

The district court relied on a similar case in deciding to draw adverse inferences against appellant. In Engelby, the obligor parent failed to comply with a support order and accrued arrearages. 479 N.W.2d at 426. The obligor then refused to testify about his employment by invoking his Fifth Amendment rights and the district court granted the motion to dismiss the contempt charges, finding that the obligee spouse had not sustained her burden to show that the obligor’s failure to pay child support was willful. Id. This court reversed, finding that although the obligor had the right not the testify, the court “should have imposed an appropriate sanction to prevent unfair prejudice to [the obligee] resulting from [the obligor’s] refusal to testify.” Id. at 427.

Appellant attempts to differentiate En-gelby by arguing that the participation of the county — which could have granted him immunity from prosecution — distinguishes this case from Engelby. But the distinction made by appellant is irrelevant to appellant’s burden to demonstrate his inability to pay the child-support award. Id. at 426. Because he did not carry his burden, and his failure to testify unfairly prejudiced respondent, the district court properly sanctioned appellant by inferring his ability to pay his child-support arrear-ages.

In addition, despite appellant’s assertion that documents could be used to verify his finances, the only document appellant submitted was a copy of his 1999 joint federal income-tax return. This is wholly inadequate to fully determine the issue of appellant’s ability to pay his child-support obligation. See Freking v. Freking, 479 N.W.2d 736, 740 (Minn.App.1992) (“taxable income is not always a reliable indication of net income” for support purposes (citation omitted)); see also Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn.App.1985) (party who failed to submit evidence to support his claim before district court could not object to district court’s findings on appeal). Therefore, we conclude that the court correctly allowed appellant to invoke his Fifth Amendment rights and then properly drew an adverse inference from this invocation.

II. Payment Plan

Appellant argues that MinmStat. § 518.617, subd. 1 (2000), compels the district court to create a written plan for payment of child-support arrearages and that only after an obligor violates the plan may the court find the obligor in contempt. Because no such plan existed in this case, appellant argues that the district court erred as matter of law in finding him in contempt.

Under Minnesota law,

[i]f a person against whom an order or decree for support has been entered * * * is in arrears * * * and is not in compliance with a turitten payment plan approved by the court * * * the person may be cited and punished by the court for contempt.

Minn.Stat. § 518.617, subd. 1 (emphasis added).

The object of all statutory interpretation and construction is to ascertain and effectuate the legislature’s intention. Minn. Stat. § 645.16 (2000). The legislature’s intention may be ascertained by considering, among other things, the need for the law, the circumstances under which it was enacted, the consequences of an interpretation, contemporaneous legislative history, and the object to be attained. Id.

Appellant argues that the plain language of this statute — specifically the words “and not in compliance with a written payment plan” — requires that the district court must approve a payment plan before it can find an obligor in contempt for nonpayment of support. But the statute does not explicitly require a written payment plan, and other sections of this chapter specifically exclude a mandatory written payment plan before the finding of contempt. See Minn.Stat. § 518.551, subds. 13(d) (suspension of the driver’s license of a person more than three months in arrears in child support is mandatory; if the arrears are at the statutory amount, the district court “shall order” the suspension unless a payment plan has been established), 12(d) (2000) (allowing for suspension of occupational license if the obligor is in arrears and has not executed or is not in compliance ivith a court-approved payment plan) (emphasis added).

Appellant’s reading of the statute would force courts to create payment plans regardless of the amount in arrears. The statute simply says that a person who is three months in arrears and not in compliance with any payment plan that may be in existence, may be found in contempt. The statute guarantees that an obligor who is in compliance with a payment plan will not be found in contempt. To require a payment plan in all cases would insert a provision into the statute that the legislature did not put there. See Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (stating “[i]f there is to be a change in the statute, it must come from the legislature”); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987) (stating “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court”), revieiv denied (Minn. Dec. 18,1987).

Moreover, Minnesota public policy dictates that the district court’s ruling properly interprets the statute. “[T]he state has a compelling interest in assuring parents provide primary support for their children.” Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn.App.1998) (citations omitted). Child support laws are intended to “ensure an orderly process” to assess a non-custodial parent’s ability to provide “economic support of their children.” Id. at 81 (citations omitted). The additional step of a court-approved payment plan that appellant argues the statute requires, would further hinder the collection of child support from an already delinquent obli-gor. See Schaefer v. Weber, 567 N.W.2d 29, 33 (Minn.1997) (noting that there is a “strong state policy of assuring that children have the adequate and timely economic support of their parents,” while simultaneously limiting “the unnecessary drain of scarce social service and judicial resources.”). The failure of spouses and parents to make court-ordered support payments is a “serious social problem” and courts need to be provided with the tools to enforce these obligations. Hopp, 279 Minn, at 173, 156 N.W.2d at 216. Minn. Stat. § 518.617 (2000) was introduced and passed by the legislature within a larger bill designed to rectify the problem of nonpayment of child support. See Hearing on S.F. 217 before the Senate Judiciary Subcommittee on Family Law (Minn.1995) (statement of Senator Richard Cohen). Based on the language of the statute, the state’s public policy, the harm to be remedied, and the context of the provision at issue, we conclude that Minn.Stat. § 518.617 does not mandate a court-approved payment plan before a court can find an obligor in contempt.

III. Appellant’s access to assets

Appellant argues that the district court erred in finding that he has assets to pay his outstanding child-support obligation. Appellant argues that the district court erred in finding he has the ability to pay his arrearages because any assets relied on by the court are his wife’s property.

Appellant relies on Overocker v. Solie, 597 N.W.2d 579 (Minn.App.1999), to support his argument that the district court improperly relied on assets that are the property of his current wife in determining his ability to pay child-support arrearages. The Overocker court stated that a “judgment creditor cannot reach property held in the name of a corporation owned by the debtor’s spouse,” id. at 582, and found that any transfer made from husband to wife was “only the aggregate product of his continuous labor and services.” Id. at 581. The court held that “[i]t is not fraud — or a fraudulent transfer — to donate services.” Id. at 582. Appellant argues that the services he provides to his wife’s assets do not give him an ownership right in the property. But the district court did not hold that appellant could afford to pay his child-support obligations because his donated services increased the value of his current wife’s assets. Rather, the court found that appellant could pay his obligation because he transferred his own assets to his wife and has manipulated his finances to avoid his child-support obligation. Further, the district court found that appellant’s efforts and expertise have helped to “generate or accumulate millions of dollars in property and assets for his wife and other business associates” while, at the same time, appellant has made no attempt to seek employment.

Appellant argues that his wife’s assets are independent and separate from his own and cannot be used by the court to support a finding of his ability to pay his child support. See Minn.Stat. §§ 519.02 (providing that a woman maintains ownership rights over property she owned at the time of the marriage), 519.05 (2000) (providing that a spouse is not liable for the debts of the other spouse). But Minn.Stat. § 519.02 does not apply to property that a husband and wife acquire jointly during the marriage. Abrahamson v. Abraham-son, 613 N.W.2d 418, 422 (Minn.App.2000). Moreover, the record is devoid of evidence that the assets were brought to the marriage by appellant’s current wife. Instead, the court found that since 1989, appellant has had the ability to pay child support and that he “intentionally manipulated his financial affairs so that his current wife * * * receives compensation for his income-generating activities.”

A party guilty of contempt may not purge himself by showing that he has voluntarily placed himself in a position where he is unable to conform to the court’s order, when, * * ⅝ he has allowed the means of complying with that order to pass through his hands and out of his control.

Ryerson v. Ryerson, 194 Minn. 350, 351— 52, 260 N.W. 530, 530-31 (1935).

Minnesota law creates a presumption that the obligor has an income sufficient to pay the support order and the order constitutes prima facie evidence that the obligor has the ability to pay the award. Minn.Stat. § 518.24. The obligor in a contempt proceeding has the burden to demonstrate an inability to pay the child-support award. Hopp, 279 Minn, at 174-75, 156 N.W.2d at 216-17. Appellant has presented no evidence to refute the court’s finding regarding his manipulation of assets. Therefore, appellant has not met this burden and the district court did not err in finding that he has the ability to pay his child-support arrearages.

IV. Appellant’s ability to meet purge conditions

Appellant argues that the district court erred in finding that he could meet the purge conditions because the only evidence presented at the hearing was his tax return and there were no specific findings about how appellant could access his wife’s assets.

Contempt law requires two hearings before a contemnor may be jailed. Mahady v. Mahady, 448 N.W.2d 888, 891 (Minn.App.1989). The present case involves the second stage of contempt proceedings in which the contemnor has the opportunity to show compliance or a good faith effort to comply with conditions stated when contempt was first adjudicated. Id. If the court finds that the contem-nor failed to comply without excuse, it may order immediate confinement but still must set purge conditions that provide the contemnor the opportunity to obtain release by compliance. Hopp, 279 Minn, at 175, 156 N.W.2d at 217. For a purge condition to create an actual “opportunity” to gain release, there must be a determination that the contemnor has the ability to meet the purge condition. Id. (depicting obligation in civil contempt proceeding as within obligor’s ability).

The supreme court has consistently held that it is proper to look beyond an obligor’s earnings to his earning capacity, and to disregard any inability to pay that is voluntary on the part of the obligor. Hopp, 279 Minn. 170, 156 N.W.2d 212; Meisner v. Meisner, 220 Minn. 559, 20 N.W.2d 486 (1945). If the obligor fails to make a good faith effort to conform to the contempt order, his burden is not sustained. Hopp, 279 Minn. at 175, 156 N.W.2d at 217; see also Swancutt, 551 N.W,2d at 222-23 (it “was well within its discretion to take into account [appellant’s] history of blatant dereliction of his financial obligations to his children in fashioning its remedy”). Here, the court found that appellant has the ability to pay his child-support obligation. The child-support obligations are the same as his purge conditions. As discussed above, appellant has failed to carry his burden of proof.

The factual findings of a contempt order will be reversed only if they are clearly erroneous. Sivancutt, 551 N.W.2d at 222. Moreover, there is no statutory requirement that the court determine how an obligor access the money necessary to meet the purge conditions, only that it determine the obligor is able to meet them. Because the court found that appellant has the ability to pay, and he has not carried his burden to prove otherwise, the district court did not err.

V. Attorney Fees

Respondent requests that this court grant her attorney fees based on appellant’s bad faith pursuit of this matter and his unwillingness to cooperate with court orders. Minn. R. CivApp. P. 139.06 prescribes the proper procedure for seeking attorney fees on appeal. Such a request must be in the form of a motion and “include sufficient documentation to enable the appellate court to determine the appropriate amount of fees.” Minn. R. Civ.App. P. 139.06, subd. 1. Respondent requested attorney fees in her brief, but has not put her request in the form of a motion. Although this court “may grant on its own motion an award of reasonable attorneys’ fees,” we do not find this to be an appropriate case for a sua sponte motion. Id. We, therefore, decline to address the merits of the request. We may, however, consider this issue upon a proper motion.

DECISION

We affirm the district court’s decision in its entirety. After allowing appellant to assert his Fifth Amendment rights in a civil contempt proceeding, the district court correctly drew adverse inferences to avoid harm to respondent. The district court also correctly found that a Minn. Stat. § 518.617 (2000) does not require a written payment plan before finding an obligor in contempt. Appellant may not lawfully conceal assets to avoid paying child support by placing them in his wife’s name and asserting that they are her individual property. Therefore, the district court did not err in finding that appellant had access to assets to pay his child-support arrearages and the ability to meet the purge conditions.

Affirmed.

      . Respondent challenged portions of the original dissolution judgment. See March v. Croc-karell, 354 N.W.2d 42, 47-48 (Minn.App.1984), review denied (Minn. Jan. 10, 1985).

      . On February 6, 2001, this court found that the district court abused its discretion when it converted the award of attorney fees to an additional judgment for child support but otherwise upheld the district court’s decision. See March v. Crockareli, No. Cl-00-1260, 2001 WL 96140 (Minn.App. Feb.6, 2001), review denied (Minn. Apr. 25, 2001).


author: MILLER, Chief Justice. KONENKAMP, Justice

text:
    2001 SD 98
    Crystal E. BONDE, Plaintiff and Appellant, v. Martin BOLAND, Defendant and Appellee.
    No. 21765.
    Supreme Court of South Dakota.
    Considered on Briefs May 29, 2001.
    Decided July 25, 2001.

      Stan H. Anker, Rapid City, SD, Attorneys for plaintiff and appellant.
    Daniel L. Pahlke, Rapid City, SD, Attorney for defendant and appellee.
   MILLER, Chief Justice.

[¶ 1.] Crystal E. Bonde sought child support and child support arrearages from Martin Boland. The referee concluded Martin did owe arrearages. The circuit court rejected the referee’s recommendation as to arrearages. Crystal appeals. We reverse and remand.

FACTS

[¶2.] Crystal and Martin met while working together at the Holiday Inn in Rapid City, South Dakota. They dated and ultimately engaged in sexual relations, which resulted in Crystal becoming pregnant. Soon after she learned of her pregnancy, Crystal advised Martin and told him that he was the father. The couple discussed and rejected abortion as an option. Crystal alleges, and Martin disputes, that after she told him she was pregnant with his child Martin wanted to have nothing to do with her. She further claims that as her due date neared and following the birth, Martin’s efforts to harass her increased, including peering through and beating on her windows, leaving things in her mail box and screaming at her from outside her home all resulting in police involvement. Additionally, she contends Martin accused her of drug abuse and caused her to lose her job.

[¶ 3.] Before the child was born, Crystal considered giving the child up for adoption. Two months before birth, Martin received adoption papers requesting termination of his parental rights. He signed the adoption papers after meeting the adoptive parents. Ultimately, the adoption failed. (Martin alleges that immediately prior to the birth Bonde told him that due to the fact she was late for delivery he might not be the father.)

[¶ 4.] Crystal gave birth on November 25, 1994 and informed Martin by telephone a few days later. He attempted to visit Crystal and the child, but he claims the police arrived and told him he must leave or be charged with trespassing. They allegedly told him that Crystal said he was not the child’s father.

[¶ 5.] Martin also alleges that he attempted to establish paternity by sending a form to the state, but he learned it would not be accepted because Crystal had not listed him as the father on the birth certificate.

[¶ 6.] In December 1994, Crystal spoke telephonieally with Martin’s mother and inquired about his blood type. Martin’s mother, who is a nurse, asked a doctor about the possibility of Martin’s paternity based on the blood types. The doctor allegedly indicated that given the blood types there would be less than a oneper-cent chance. Crystal admitted to the referee that the conversation could have given the impression that Martin’s paternity was in question. She conceded that, due to his horrible behavior, she wished he were not the father.

[¶ 7.] Despite the controversy surrounding Martin’s potential paternity, he left for work in Alaska in early 1995 without resolving the situation. He returned to South Dakota for a visit in the fall of 1998. After speaking with a friend of Crystal’s, he contacted her and suggested DNA testing to determine paternity. She agreed and the test confirmed Martin was the child’s father. He began paying child support. (During Martin’s absence in Alaska, Crystal never sought child support from him nor did he ever attempt to contact her.)

[¶ 8.] In November 1999, Crystal brought this action seeking ongoing child support and arrearages. The referee recommended that Martin pay both current, ongoing support and arrearages from the date of the child’s birth. The circuit court rejected the referee’s findings of fact and conclusions of law and its recommendation as to arrears. The circuit court then substituted its own findings of fact and conclusions of law, nunc pro tunc, for the referee’s, and concluded that the equitable defenses of laches and estoppel barred Crystal from recovering child support arrears. She appeals.

STANDARD OF REVIEW

[¶ 9.] We review findings of fact under the clearly erroneous standard, which means we will reverse only if we are definitely and firmly convinced a mistake was made. Granel v. South Dakota Sch. of Mines & Tech., 2000 SD 145, ¶ 7, 619 N.W.2d 260, 262. Whether laches and equitable estoppel are available as defenses in child support cases is an issue of law. In re Loomis, 1998 SD 113, ¶ 7, 587 N.W.2d 427, 429. Accordingly, our review of this issue is de novo. Id.

DECISION

[¶ 10.] Crystal brought this action under SDCL 25-8-5, which states:

The mother may recover from the father a reasonable share of the necessary support of a child born out of wedlock. In the absence of a previous demand in writing served personally or by registered or certified letter addressed to the father at his last known residence, not more than six years’ support furnished before bringing an action may be recovered from the father.

As we noted in Loomis, nothing in this statute abrogates the right of a father to assert equitable defenses. 1998 SD 113, ¶ 11, 587 N.W.2d at 429. The statute simply establishes “a maximum time span for which a father of a child born out of wedlock can be required to pay past child support.” Id.

[¶ 11.] Martin argues that Crystal should be barred from receiving arrearag-es for the care of his child by both the equitable defenses of laches and estoppel. The circuit court agreed because it believed the facts and circumstances here are “almost identical” to the facts in Loomis. We hold that the circuit court’s findings of fact are clearly erroneous.

[¶ 12.] The circuit court in rejecting the referee’s findings in this case wholly disregarded the referee’s ability to see and hear the testimony of the witnesses and judge the credibility of those witnesses. Contrary to the referee, the circuit court found that Crystal had misrepresented facts about Martin’s paternity. These findings, however, directly contradict Martin’s own admissions that: (1) Crystal told him she was pregnant and he was the father; (2) he signed adoption papers relinquishing his parental rights; (3) Crystal informed him of the birth within two days by leaving a message on his answering machine; and (4) he believed he was the father during Crystal’s pregnancy with his child. As Martin’s own admissions before the referee directly contradict the circuit court’s findings of fact, we are definitely and firmly convinced a mistake was made. Granel, 2000 SD 145, ¶ 7, 619 N.W.2d at 262.

[¶ 13.] The circuit court erred in its belief that these facts are identical to those in Loomis. In Loomis, the father and the mother had a brief sexual encounter, which resulted in the mother’s pregnancy. The mother did not tell the father shp was pregnant nor she did she tell him he fathered the child after it was born, even though they both lived in the same town for three years after the child’s birth. The father moved away, married and started another family. The mother waited fourteen years before seeking to inform the father about their child. We held that because the mother had purposefully concealed the child from the father for fourteen years it would be inequitable to force him to pay support arrears for the past six years.

[¶ 14.] As discussed earlier, the facts and circumstances in this case are significantly different from those in Loomis. First, Martin acknowledged that Bonde told him she was pregnant with his child just two months into her pregnancy. Second, Martin admitted he met the adoptive parents and signed adoption papers relinquishing his parental rights. Third, Martin testified that Crystal informed him she had given birth within two days! Fourth, Martin stated he believed he was the father during the pregnancy. Fifth, the time frame here is significantly shorter, i.e. 5 years (which is within the statutory maximum) versus the 14 years in Loomis.

[¶ 15.] The key facts upon which Loom-is turned are noticeably absent in this case. Crystal did not hide the true facts, but rather told Martin on more than one occasion that he was the father. Furthermore, he acknowledged his paternity in signing adoption papers relinquishing his parental rights. Crystal did not conceal or misrepresent the fact of Martin’s paternity, nor has Martin moved on and started another family. These facts are significantly distinguishable from Loomis.

[¶ 16.] 1. Laches

[¶ 17.] To establish a successful defense under the doctrine of laches, Martin must show, “(1) she had full knowledge of the facts upon which the action is based, (2) regardless of this knowledge, she engaged in an unreasonable delay before commencing the suit, and (3) that allowing her to maintain the action would prejudice other parties.” Conway v. Conway, 487 N.W.2d 21, 24 (S.D.1992) (citations omitted).

[¶ 18.] Crystal had the child, knew Martin was the child’s father and knew he had an obligation to support the child. She does not offer any argument on this element. Furthermore, she had two other children for whom she was receiving child support. Clearly, the first element is satisfied.

[¶ 19.] Martin claims Crystal’s five-year delay in seeking child support arrears is unreasonable. Although he relies upon Loomis in support of this proposition, as we previously noted, the facts therein are significantly different.

[¶ 20.] The last factor requires us to examine whether allowing Crystal to maintain this action will prejudice other parties. Loomis, 1998 SD 113, ¶ 13, 587 N.W.2d at 429. Martin argues that he missed the first three years and nine months of his child’s life due to Crystal’s misrepresentations. He claims he proceeded with his life not knowing he had a child to support, but, once he knew he might be the father, he immediately agreed to DNA testing for paternity and began paying child support when the testing confirmed his paternity.

[¶ 21.] Martin contends his actions are similar to the father in Loomis. However, as noted above there are many key factual distinctions. His assertions simply are not supported by the facts.

[¶ 22.] Accordingly, Crystal is not barred from recovery by laches because Martin has failed to establish two of the three factors required.

[¶ 23.] 2. Equitable estoppel.

[¶ 24.] The equitable defense of estoppel finds its basis in “‘fair dealing, good faith and justice.’ ” Loomis, 1998 SD 113, ¶ 17, 587 N.W.2d at 430 (citation omitted). Martin must show that:

(1) Crystal made a false representation or a concealment of material facts;
(2) he was without knowledge of the real facts;
(3) Crystal made the representation or concealment with the intent that it be acted on; and
(4) he relied on the misrepresentation or concealment creating prejudice or injury.

Id. (citation omitted). Martin must show each of these elements by clear and convincing evidence. Id. (citation omitted). We hold that he has not met that burden.

[¶ 25.] Because the circuit court erred in denying an award of arrearages, we reverse and remand to the circuit court for further proceedings consistent with this opinion.

[¶ 26.] SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

[¶ 27.] KONENKAMP, Justice, concurs in result.

KONENKAMP, Justice

(concurring in result).

[¶ 28.] Child support is a fundamental human right. Equitable defenses, such as laches and estoppel, which turn on the actions or inactions of parents, fail to consider the child’s rights. South Dakota’s statutory scheme creates a child-centered paradigm for resolving disputes between parents: where the protection and support of children are concerned, the faults and failings of the parents do not control. Under no circumstances can a child be held accountable for laches or estoppel. For these reasons, and for the additional reasons set out in my dissent in In Re Loomis, 1998 SD 113, 587 N.W.2d 427 (SD 1998), I concur in the result of this case.


author: KAPSNER, Justice.

text:
    2001 ND 136
    STATE of North Dakota, Plaintiff and Appellee, v. Craig HEITZMANN, Defendant and Appellant.
    No. 20010017.
    Supreme Court of North Dakota.
    July 20, 2001.

      H. Jean Delaney, Assistant State’s Attorney, Valley City, for plaintiff and appel-lee.
    Kerry S. Rosenquist, Rosenquist Law Office, Larimore, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Craig Heitzmann appealed from a criminal conviction entered upon his conditional guilty plea to class C felony possession of a controlled substance. We conclude the trial court did not err in denying Heitzmann’s suppression motion because his Fourth Amendment rights were not violated during the search conducted in this case. We, therefore, affirm.

I

[¶ 2] On the evening of April 19, 2000, a Valley City police officer was on patrol when he received a call from a deputy on the Stutsman County Drug Task Force stating a pickup driven by Chris Jacobson, whose license was suspended, was coming toward the officer. At 9:09 p.m., the officer stopped the pickup, and the deputy pulled up behind the officer’s vehicle. The officer arrested Jacobson for driving while his license was suspended and, after frisking him, ’ placed Jacobson in the back, of the officer’s patrol car. The officer told Jacobson he was going to search the pickup incident to the arrest, and Jacobson stated there was an unloaded pistol without a clip “in the back of the vehicle.” Before returning to Jacobson’s pickup, the deputy told the officer that the passenger in the pickup was Heitzmann, who was on probation. The deputy had received “intel” indicating Heitzmann recently received a shipment of methamphetamine, and earlier the deputy had helped perform a probation search of Heitzmann’s residence during which Heitzmann became “agitated.” The deputy also informed the officer that the deputy would stay back from the pickup because the deputy “didn’t want to get into an argument or fight with [Heitzmann].” The deputy warned the officer to “be cautious.”

The officer returned to the pickup and spoke to Heitzmann, who had appeared nervous when the officer stopped the pickup. The officer told Heitzmann that Jacobson was under arrest; the officer was going to search the pickup; and if Heitzmann had a valid driver’s license and Jacobson “okayed it,” the officer would release the vehicle to Heitzmann rather than impound it. The officer asked Heitz-mann to step out of the pickup. The officer told Heitzmann he was going to do a quick pat-down for the safety of both He-itzmann and the officer.

[¶ 4] The officer testified Heitzmann appeared more nervous while getting out of the pickup and walking to the front of the vehicle. The officer tapped Heitz-mann’s pants pockets, and Heitzmann told the officer there was “Certs” in one pocket and money in the other pocket. The officer “felt a baggy of crushed substance that didn’t feel like Certs to me.” The officer then patted Heitzmann’s jacket pockets, which contained “a bunch of stuff.” When the officer asked Heitzmann to take the contents out of the jacket pockets, Heitz-mann complied and then took a couple of steps, starting to go around the front of the pickup, but the officer grabbed Heitz-mann’s sleeve. Heitzmann stated he wanted to show the officer what was in the back of the pickup, but the officer responded he would first do the pat-down. According to the officer, Heitzmann was “pretty nervous” at this point, and the officer told Heitzmann that “[Heitzmann’s] being nervous ... ma[de] [the officer] nervous.”

[¶ 5] The officer hung onto Heitz-mann’s right arm and tapped the wallet in Heitzmann’s back pocket, removed it, and placed it on the hood of the pickup. Heitz-mann then pulled his left arm out of the jacket, so the officer grabbed him by the back of his pants. The officer tapped the left front pocket of Heitzmann’s pants, and Heitzmann said it contained money. After asking whether anything else was in that pocket, the officer removed a large “wad” of money, placed it on the hood of the pickup, and motioned for the deputy to come over. At that point, Heitzmann pulled his other arm out of the jacket and began running. The officer pursued and took Heitzmann down in the middle of the street. The deputy and the officer struggled to place Heitzmann in handcuffs, and Heitzmann’s arm was broken in the scuffle. The officer called for an ambulance. At this point, Heitzmann yelled to the deputy: “[T]here’s crank in my wallet.” The officer and deputy found methamphetamine and a razor blade in Heitzmann’s wallet on the hood of the pickup.

[¶ 6] Heitzmann was charged with class C felony possession of a controlled substance in violation of N.D.C.C. § 19-03.1-23. Heitzmann moved to suppress the contraband. The trial court denied the suppression motion, concluding Heitz-mann’s rights were not violated because the officer “acted reasonably in conducting a pat-down search of the defendant in an effort to complete his search of the automobile without fear that the defendant was armed and dangerous.” Heitzmann conditionally pled guilty under N.D.R.Crim.P. 11(a)(2), reserving the right to appeal the denial of his suppression motion.

II

[¶ 7] Heitzmann claims the trial court erred in denying his suppression motion because the search violated his Fourth Amendment rights.

[¶ 8] Our standard of review of a trial court’s denial of a suppression motion is well-established:

We will defer to a trial court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence' capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Wanzek, 1999 ND 163, ¶ 5, 598 N.W.2d 811 (quoting State v. Overby, 1999 ND 47, ¶ 5, 590 N.W.2d 703). While we defer to the trial court’s findings of fact, questions of law are fully reviewable. Wanzek at ¶ 5, 598 N.W.2d 811.

A

[¶ 9] The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. City of Jamestown v. Dardis, 2000 ND 186, ¶ 8, 618 N.W.2d 495. A person may be seized without being arrested. State v. Boline, 1998 ND 67, ¶ 26, 575 N.W.2d 906. Within the meaning of the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable. State v. Gilberts, 497 N.W.2d 93, 95 (N.D.1993). A seizure has occurred “ ‘[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’ ” Boline at ¶ 25, 575 N.W.2d 906 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). A determination of reasonableness requires balancing the public interest with the individual’s right to personal security free from arbitrary interference by police officers. Gil-berts at 95.

[¶ 10] Heitzmann does not challenge the investigative stop of Jacobson’s pickup, Jacobson’s arrest, or the officer’s right to search the passenger compartment of the pickup incident to Jacobson’s arrest. In Gilberts, 497 N.W.2d at 96, this Court held that a vehicle passenger’s Fourth Amendment rights were not violated when a law enforcement officer, who had arrested the driver for driving under suspension, asked the passenger to step out of the vehicle before the search of the vehicle incident to the arrest, even though the passenger had not violated any traffic laws and was not suspected of committing any crime. This Court reasoned:

We believe there are two grounds that justify Smith’s request that Gilberts exit the car, and that make this brief intrusion upon Gilberts’s privacy both reasonable and permissible under the Fourth Amendment. First, an officer is justified by safety reasons in ordering both the driver and the passengers out of a lawfully detained vehicle. Bethea v. Commonwealth, 14 Va.App. 474, 419 S.E.2d 249 (1992); People v. Martinez, 187 Mich.App. 160, 466 N.W.2d 380 (1991); State v. Ferrise, 269 N.W.2d 888 (Minn.1978). When the state’s interest in the protection and safety of its police, who patrol the roadways, is weighed against the minor intrusion on a passenger’s liberty in momentarily leaving a vehicle, safety predominates. Secondly, Smith was entitled to search the passenger compartment of the vehicle incident to the driver’s arrest. [New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)]. To conduct the search safely and thoroughly, it was both necessary and reasonable for Smith to ask Gilberts and the other passenger to briefly leave the car. United States v. Bell, 762 F.2d 495 (6th Cir.1985). We hold that Gilberts’s constitutional right to be free of unreasonable seizure was not encroached when Smith ordered him out of the car for the search after the driver’s arrest.

Gilberts at 96. See also Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Consequently, we conclude Heitzmann’s Fourth Amendment rights were not violated when the officer had Heitzmann step out of the pickup for the purpose of conducting a search of the vehicle incident to Jacobson’s arrest.

B

[¶ 11] Gilberts did not involve a separate search of a passenger who has stepped out of a vehicle upon the request of a law enforcement officer. There is no automatic search rule for companions of an arrestee. See, e.g., Wyoming v. Houghton, 526 U.S. 295, 303, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999); Ybarra v. Illinois, 444 U.S. 85, 92-96, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); United States v. Menard, 95 F.3d 9, 11 (8th Cir.1996); United States v. Flett, 806 F.2d 823, 827 (8th Cir.1986); United States v. Bell, 762 F.2d 495, 498 (6th Cir.1985). Rather, a law enforcement officer may conduct a frisk, or a pat-down search, of a person only when the officer “‘possesses an articulable suspicion that an individual is armed and dangerous.’ ” State v. Haverluk, 2000 ND 178, ¶ 22, 617 N.W.2d 652 (quoting Michigan v. Long, 463 U.S. 1032, 1034, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). As the United States Supreme Court explained in Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (footnote omitted):

[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 174 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Stacey v. Emery, 97 U.S. 642, 645[, 24 L.Ed. 1035] (1878). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States, supra.

[¶ 12] In this case, the deputy told the officer that Heitzmann had recently received a shipment of methamphetamine. The deputy told the officer to be “cautious” with Heitzmann because Heitz-mann had become “agitated” with him during the earlier probation search. Heitz-mann had appeared nervous to the officer during the initial stop and became more nervous after being asked to step out of the pickup. -Most important, however, Jacobson told the officer there was an unloaded pistol in the “back” of the pickup, the officer was unaware of its location, and it was becoming dark outside. Under the circumstances, we conclude the officer had a reasonable and articulable suspicion He-itzmann might be armed and dangerous, and a frisk or pat-down search of Heitz-mann was warranted.

C

[¶ 13] A valid Terry frisk consists “solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.” Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). A pocket search is distinct from a pat-down search. As this Court explained in State v. Zearley, 444 N.W.2d 353, 359 (N.D.1989), “the reasonableness of a patdown, without more, does not make a pocket search reasonable. A patdown is not simply a routine preliminary to a more extensive search. Before going further, the officer must have an articulable and reasonable suspicion that the person is armed and dangerous.” Consequently, when an outside clothing pat-down search reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon, the searching officer is entitled to continue the search to the inner garments where the object is located in order to determine whether the object is in fact a weapon. State v. Zearley, 468 N.W.2d 391, 392 (N.D.1991).

“Weapon verification is essential if safety is to be preserved and a potentially volatile situation neutralized. We can.not impose a.condition of certainty that the object is a weapon before allowing an officer to continue the pat search to the inner clothing sight [sic] where the object is located. To do so would frustrate the objective of the pat search. We can impose a condition that an officer’s belief that the object is a weapon be reasonably grounded and not a mere subterfuge for a random search.”

Id. (quoting People v. Thurman, 209 Cal.App.3d 817, 257 Cal.Rptr. 517, 521 (1989)). If an officer continues to explore a detainee’s pocket after having concluded that it contains no weapon, the valid scope of a Terry search has been exceeded and any contraband discovered in the pocket must be suppressed. See Minnesota v. Dickerson, 508 U.S. 366, 378-79, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

[¶ 14] In this case, Jacobson told the officer there was a pistol in the “back” of the pickup and the officer was not sure of its location. Heitzmann was a passenger in the pickup who may have had access to the gun, and Heitzmann was becoming progressively more nervous. The deputy told the officer that Heitzmann had recently received a shipment of methamphetamine and to be “cautious” with him. When the officer patted Heitzmann’s jacket pockets, he noticed a “bunch of stuff’ in the pockets. The officer was unable to tell if there was a weapon in the pockets. Because, as found by the trial court, the officer reasonably believed the bulges in the jacket pockets may have contained a weapon, we conclude the officer acted reasonably in asking Heitzmann to remove the contents of the jacket pockets and place them on the hood of Jacobson’s pickup. See, e.g., United States v. Strahan, 984 F.2d 155, 158 (6th Cir.1993); United States v. Anderson, 859 F.2d 1171, 1177 (3rd Cir.1988); United States v. Oates, 560 F.2d 45, 62 (2d Cir.1977); State v. Vasquez, 167 Ariz. 352, 807 P.2d 520, 524 (1991).

D

[¶ 15] At this point, the confrontation escalated. Heitzmann made quick evasive movements as though he was going to run around the front of the truck. The officer had to grab his sleeve. Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Heitzmann, who continued to appear more nervous, told the officer he wanted to show him something in the back of the pickup. The officer, who was also becoming more nervous because of Heitzmann’s actions, told Heitzmann he first wanted to complete the pat-down. While hanging onto Heitz-mann’s right arm, the officer tapped the wallet in Heitzmann’s back pockét, removed it, and placed it on the hood of the pickup. Heitzmann pulled his arm out of the jacket, necessitating that the officer hold onto him by the back of his pants. The officer then removed a “wad” of money from Heitzmann’s pocket. The officer testified the wallet could have contained razor blades and the “wad” of money could have contained needles. Although the officer admitted he did not believe the wallet or money were weapons in themselves, the officer said he removed the items “[t]o make sure [Heitzmann] didn’t have anything else in his pocket.”

[¶ 16] Courts have recognized that a more intrusive Terry search may be constitutionally permissible when the detainee attempts to prevent an officer from performing an effective pat-down. See, e.g., Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (upholding officer’s seizure of gun from suspect’s waistband without a prior pat-down because the suspect failed to comply with officer’s request to step out of vehicle and instead - rolled down window); State v. Warren, 124 Ariz. 279, 603 P.2d 550, 552 (1979) (upholding officer’s reaching into suspect’s bulging pants pocket where suspect pushed officer’s hand away during attempt to frisk and continued to drop hands after hands had been placed against wall); Shaver v. State, 382 Ark. 13, 963 S.W.2d 598, 600 (1998) (upholding search of detainee’s pockets even though bulge did not feel like a weapon, because officer was uncertain what contents of pocket were and detainee appeared agitated and was ordered to calm down); Thomas v. State, 231 Ga.App. 173, 498 S.E.2d 760, 762 (1998) (upholding immediate search of pocket where suspect refused to remove his hand from pocket and officer forcibly removed suspect’s hand from pocket and reached in'to search for weapon); McGuGan v. State, 215 Ga.App. 535, 451 S.E.2d 460, 462 (1994) (upholding officer’s reaching into suspe'ct’s pocket and retrieving packet of cocaine where' suspect had refused to 'exit vehicle upon officer’s request, resisted officer’s attempt to place him against the vehicle so he could be frisked, and refused officer’s request to identify the object in the pocket); Hayes v. State, 202 Ga.App. 204, 414 S.E.2d 321, 323-24 (1991) (upholding officer’s reaching into suspect’s pants pocket to determine whether it contained a weapon where suspect had frustrated officer’s efforts to conduct pat-down by suspect’s grabbing and pushing officer’s hands away from pocket and by turning his body to prevent officer from touching outside of pocket); State v. Alesso, 328 N.W.2d 685, 688 (Minn.1982) (upholding officer’s brushing suspect’s hand aside and reaching into suspect’s pocket where the suspect made a furtive movement toward the pocket as if reaching for a weapon); State v. Kearney, 183 N.J.Super. 13, 443 A.2d 214, 216 (1981) (upholding immediate search of pockets where suspect prevented officer from conducting pat-down by grabbing officer’s hands and backing away from officer when officer attempted to touch bulge in suspect’s clothing). These cases illustrate that, when faced with threatening conduct by a suspect during a Terry frisk, officers are entitled to take reasonable action to protect themselves, which may involve an immediate intrusive search of the suspect. Thomas, 498 S.E.2d at 762. An officer may proportionately respond to the actions of a suspect. Hayes, 414 S.E.2d at 324.

[¶ 17] Under the circumstances of this case, we believe the officer’s actions were a proportionate response to Heitzmann’s actions. Heitzmann was attempting to frustrate the officer’s pat-down efforts. The officer was required to hold onto Heitzmann to attempt to -frisk him because of Heitzmann’s furtive movements and nervousness. We conclude the officer’s removal of the wallet and wad of money from Heitzmann’s pockets was reasonable under these extenuating circumstances.

E

[¶ 18] We reject Heitzmann’s argument that the confrontation between him and the officer constituted an illegal arrest without probable cause. There is no bright line rule for evaluating whether an investigative detention has become a de facto arrest, and while the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion, the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes must 'also be ' considered. United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). An officer is authorized to detain a person for as long as is reasonably necessary to effectuate the purpose of the detention. State v. DuPaul, 509 N.W.2d 266, 270 (N.D.1993). The right to make an investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it, and the test of reasonableness under the Fourth amendment requires careful attention to the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting the seizure or attempting to evade the seizure by flight. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Officers are entitled to use the forcible means reasonably necessary to effectuate the detentive goals of investigation, maintenance of the status quo, or officer safety. Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App.1997).

[¶ 19] In this case, Heitz-mann’s detention was relatively brief and the restriction of his- movements was undertaken- to effectuate the search of the pickup incident to Jacobson’s arrest. He-itzmann’s demeanor and actions justified a pat-down search, and when Heitzmann became uncooperative and began exhibiting evasive behavior, a more intrusive pocket search was justified. Heitzmann eventually escaped from the officer’s grasp and attempted to flee, but was taken down in the street and handcuffed by the officer and deputy. When Heitzmann fled, the officer had not yet searched the pocket Heitzmann told him contained Certs, justifying a reasonable belief on the part of the officer and deputy that Heitzmann was attempting to free himself to gain access to a weapon in the unsearched pocket. Officers confronted with flight may stop a fugitive and investigate further. See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Under these circumstances, Heitzmann cannot complain that the officer and deputy took forcible steps to detain him when Heitz-mann’s own evasive actions created the need for those steps. See, e.g., United States v. Jackson, 175 F.3d 600, 602 (8th Cir.1999) (holding it was reasonable for officer to tackle defendant to effect investigative stop when defendant began to flee upon seeing police); United States v. Weaver, 8 F.3d 1240, 1245 (7th Cir.1993) (holding officer’s tackling of suspect after suspect began to flee did not convert a Terry stop into an arrest); Tom v. Voida, 963 F.2d 952, 958 (7th Cir.1992) (holding officer’s chasing and attempting to handcuff Terry stop suspect after the suspect fled did not convert Terry stop into an arrest); United States v. Taylor, 716 F.2d 701, 709 (9th Cir.1983) (holding officer’s requiring suspect to lie down and be handcuffed while frisk was performed did not transform' Terry stop into an arrest); Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143, 149 (1998) (holding officer’s actions of retrieving detainee’s identification from knapsack, placing him in police car while identification was checked, and handcuffing him after he tried to escape were permissible to preserve status quo); 4 La-Fave, Search and Seizure § 9.2(d) (1996). We conclude Heitzmann’s encounter with the officer and deputy did not convert this permissible Terry detention into an illegal arrest.

F

[¶ 20] Neither the officer nor the deputy had further searched the items retrieved from Heitzmann’s pockets and placed on the hood of Jacobson’s pickup when Heitzmann candidly informed the deputy “there’s crank in my wallet.” He-itzmann does not challenge on other constitutional grounds the officers’ subsequent seizure of methamphetamine from the wallet. We, therefore, conclude the search of Heitzmann did not violate his Fourth Amendment rights.

Ill

[¶ 21] There is sufficient competent evidence supporting the trial court’s findings, and its decision is not contrary to the manifest weight of the evidence. We conclude the trial court did not err in denying Heitzmann’s suppression motion.

[¶ 22] The conviction is affirmed.

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

      . In upholding the validity of the search in this case, the trial court found it unnecessary to consider the information the deputy related to the officer. However, when determining the constitutional validity of a Terry detention, courts must consider the totality of the circumstances. Geiger v. Backes, 444 N.W.2d 692, 693 (N.D.1989). The information given to the officer by the deputy is part of the totality of the circumstances of this case, and we will consider those facts in this opinion.

      . Heitzmann’s related argument that the search in this case violated N.D.C.C. § 29-29-21, is without merit. Section 29-29-21, N.D.C.C., is not applicable to investigatory stops of motor vehicles. See City of Bismarck v. Uhden, 513 N.W.2d 373, 376 (N.D.1994). Moreover, the itemized reasons for a stop in N.D.C.C. § 29-29-21, are not exclusive of the instances where a stop on reasonable suspicion grounds is appropriate. See State v. Boline, 1998 ND 67, ¶29, 575 N.W.2d 906.