author: SANDSTROM, Justice.

text:
    2000 ND 212
    STATE of North Dakota, Plaintiff and Appellee, v. Tanya R. GLASS, Defendant and Appellant.
    No. 20000126.
    Supreme Court of North Dakota.
    Dec. 12, 2000.

      Rick Lee Volk, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appel-lee.
    Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Tanya Renee Glass appeals from a judgment of conviction entered upon a jury verdict finding her guilty of driving under the influence of alcohol. Concluding the district court’s jury instructions were proper and Glass failed to preserve her objection to the exclusion of testimony regarding bipolar disorder, we affirm the judgment of conviction.

I

[¶ 2] At approximately 1:30 a.m. on October 16, 1999, a Bismarck police officer stopped a vehicle, occupied solely by Glass, for failure to stop at a stop sign. The officer subsequently arrested Glass for driving under the influence of alcohol (“DUI”). Glass was convicted by a jury of driving under the influence of alcohol. She raises two issues on appeal: (1) whether the district court erred in excluding evidence of her bipolar disorder; and (2) whether the district court erred in failing to instruct the jury on the requisite culpability for the offense of DUI. Glass argues that exclusion of bipolar disorder evidence and failure to instruct on the required culpability for DUI were obvious error.

[¶ 3] The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-06.

II

[¶ 4] If a defendant fails to preserve an issue for appeal, our standard of review requires a showing of “obvious error which affects substantial rights of the defendant.” State v. Jones, 557 N.W.2d 375, 378 (N.D.1996) (quoting State v. Thiel, 411 N.W.2d 66, 70 (N.D.1987); N.D.R.Crim.P. 52(b)). “We exercise our power to consider obvious error cautiously and only in ‘exceptional situations where the defendant has suffered serious injustice.’ ” State v. Ash, 526 N.W.2d 473, 482 (N.D.1995) (quoting State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988)).

[¶ 5] We review jury instructions as a whole and determine “whether they correctly and adequately inform the jury of the applicable law, even though part of the instructions when standing alone'may be insufficient or erroneous.” State v. Wilson, 1999 ND 34, ¶ 11, 590 N.W.2d 202 (citations omitted).

III

[¶ 6] Glass argues the district court erred in excluding evidence of her bipolar disorder. She argues her bipolar disorder results in mood swings and the State used evidence of her mood swings at trial to demonstrate her impairment at the time of her DUI arrest. Glass argues she should have been allowed to present evidence of bipolar disorder, not as a mental disease or defect capable of being asserted as a defense, but rather as an explanation of her mood swings.

[¶ 7] When counsel for Glass asked the arresting officer about bipolar disorder, the State objected and requested a sidebar. At sidebar, the State argued Glass had an obligation under Rule 12.2 of the North Dakota Rules of Criminal Procedure to notify the State if she intended to introduce evidence of bipolar disorder. The district court sustained the objection on that basis, and defense counsel did not make an offer of proof.

A

[¶ 8] By failing to make an offer of proof, Glass did not preserve this issue for appeal. N.D.R.Ev. 103(a). “Error cannot be predicated upon a ruling which excludes evidence unless the party offering the evidence makes an offer of proof, or the substance of the evidence is apparent from the context in which the question was asked.” State v. Jensen, 2000 ND 28, ¶ 17, 606 N.W.2d 507 (citing N.D.R.Ev. 103).

[¶ 9] At oral argument, Glass argued the purpose of the offer of the bipolar evidence was apparent to the district court. Our review of the record does not reveal the substance of the offer was clear. After the State objected, Glass did not inform the district court of the purpose for the questioning. Nor did Glass later attempt to introduce bipolar evidence through her own testimony. Had Glass informed the district court of the intended purpose of the offered evidence, she would have made the purpose of the offer apparent to the district court and would have preserved the issue for appellate review. However, without argument of counsel or an offer of proof, the district court could not be expected to know that Glass sought to offer testimony of bipolar disorder for the sole purpose of rebutting testimony about her mood swings. See State v. Goulet, 1999 ND 80, ¶ 10, 593 N.W.2d 345 (judges are not expected to understand a party’s intention if that intention is not presented to the court); see also State v. Dymowski, 459 N.W.2d 777, 780-81 (N.D.1990) (absent objection or argument of counsel, this Court will not review claimed errors where there is no offer of proof or record by which the claimed error can be properly evaluated).

[¶ 10] “One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it.” State v. Osier, 1999 ND 28, ¶ 14, 590 N.W.2d 205 (citing Beavers v. Walters, 587 N.W.2d 647, 652 (N.D.1995); State v. Neset, 216 N.W.2d 285 (N.D.1974)). “The Explanatory Note to N.D.R.Ev. 103 ‘clearly directs the parties to create a record which will permit informed appellate review.’ ” Id. (citing Gorsuch v. Gorsuch, 392 N.W.2d 392, 394 (N.D.1986)). Here, there is nothing in the record to permit an informed appellate review of Glass’s asserted error. Because Glass failed to make an offer of proof and because the record does not establish the district court knew the rationale for Glass’s intended evidence, the failure to object “acts as a waiver of the claim of error.” City of Fargo v. Erickson, 1999 ND 145, ¶ 22, 598 N.W.2d 787 (Sandstrom, J., concurring specially) (citing Andrews v. O’Hearn, 387 N.W.2d 716, 730 (N.D.1986)).

B

[¶ 11] Even though Glass effectively waived the issue, “the error may provide a basis for reversal if it constitutes obvious eiTor affecting substantial rights of the defendant.” Dymowski, 459 N.W.2d at 780 (citing State v. Smuda, 419 N.W.2d 166, 167-68 (N.D.1988)). “We exercise our power to consider obvious error cautiously and only in ‘exceptional situations where the defendant has suffered serious injustice.’ ” State v. Ash, 526 N.W.2d 473, 482 (N.D.1995) (quoting State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988)). In order for us to recognize obvious error, a defendant has the burden to show “(1) error, (2) that is plain, and (3) affects substantial rights.” State v. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658 (citing United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “In analyzing obvious error, our decisions require examination of the entire record and the probable effect of the alleged error in light of all the evidence.” Id. at ¶ 12 (citing State v. Woehlhoff, 540 N.W.2d 162, 165 (N.D.1995)).

[¶ 12] The evidence shows that Glass’s mood swings did not begin until after she had been arrested, had refused testing, was taken to jail, and was being booked into detention. The officer testified Glass had a strong odor of alcoholic beverage about her, she had difficulty with motor skills, she had bloodshot and glassy eyes, and she admitted she had “done wrong” and should therefore be arrested. The officer testified he observed erratic driving when Glass passed through a stop sign at a high rate of speed, and he testified Glass dropped her identification card on the vehicle’s floorboard.

[¶ 13] Even absent chemical testing, the evidence presented here was sufficient to affirm the conviction. See State v. Shipton, 339 N.W.2d 87, 88-89 (N.D.1983); State v. Halvorson, 340 N.W.2d 176, 177-78 (N.D.1983); State v. Pollack, 462 N.W.2d 119, 121-22 (N.D.1990) (evidence sufficient for convictions in each instance, even without a chemical test).

[¶ 14] If there was error that was obvious, it “must affect ‘substantial rights,’ that is, it must have been prejudicial, or affected the outcome of the proceeding.” Olander, 1998 ND 50, ¶ 15, 575 N.W.2d 658. The burden of showing prejudice is on the defendant. Id. at ¶ 17. The record shows Glass was allowed to explain her behavior as having been caused by fear that her boyfriend may have been angry. Glass testified she was traveling in a direction other than the one described by the officer and therefore could not have failed to stop at a stop sign. Glass also testified she was not unsteady, she had naturally occurring nystagmus, she had only four or five beers, and she had not dropped her identification card on the vehicle’s floorboard.

[¶ 15] We recognize obvious error only with extreme caution and have done so only in very limited circumstances. See Olander, 1998 ND 50, ¶12, 575 N.W.2d 658 (detailing cases recognizing obvious error). In light of all the evidence on the record, we conclude there was substantial evidence upon which the jury could find Glass guilty, and we decline to presume that exclusion of bipolar evidence was prejudicial or would have affected the outcome. Therefore, because Glass has failed to establish the alleged error affected her substantial rights, we conclude exclusion of the bipolar evidence was not obvious error.

rv

[¶ 16] Glass argues the district court erred in failing to instruct the jury regarding the required culpability for DUI. Glass argues DUI offenses do not specify a culpability level and are therefore “willful” offenses. The State argues the willful culpability level applies only to offenses in Chapter 12.1 of the North Dakota Century Code and therefore does not apply to DUI offenses contained in Chapter 39 of the Century Code.

[¶ 17] Glass bases her argument on N.D.C.C. § 12.1-02-02(2), which states provisions of the criminal code not prescribing culpability require a showing of willful culpability. “[W]e have stated section 12.1-02-02(2) is only applicable to Title 12.1, and the willful culpability level will not be read into other chapters unless the legislature specifically states as such.” State v. Eldred, 1997 ND 112, ¶ 31, 564 N.W.2d 283 (citations omitted). Glass offers no evidence that the legislature intended to apply section 12.1-02-02(2) to the DUI provision, section 39-08-01.

A

[¶ 18] The record establishes the trial court inquired whether either party had objections to the proposed jury instructions prior to the case being submitted to the jury. Neither party objected. We have long held that a party cannot claim error in jury instructions when that party has not offered a proposed instruction or objected to the instructions given. “Rule 30(c), N.D.R.Crim.P., requires an objection to a designated part or omission of a proposed jury instruction to preserve the issue for appeal when counsel has received a copy of the proposed instructions and has been given an opportunity to object.” City of Bismarck v. Towne, 1999 ND 49, ¶ 11, 590 N.W.2d 893 (citing Woehlhoff v. State, 531 N.W.2d 566, 568 (N.D.1995)). When provided a copy of the proposed instructions and given an opportunity to object, the defendant’s failure to subsequently raise an objection generally precludes a defendant from raising the issue on appeal. Id.

[¶ 19] When a party fails to adequately preserve the issue of allegedly improper jury instructions under N.D.R.Crim.P. 30(c), our inquiry is limited under N.D.R.Crim.P. 52(b) “to whether the court’s failure to instruct the jury on this issue was obvious error affecting substantial rights.” State v. Olander, 1998 ND 50, ¶ 11, 575 N.W.2d 658.

B

[¶ 20] As noted, obvious error requires a showing of error that is plain and that affects substantial rights. Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658 (citing United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Because we conclude there was no error, we likewise conclude there was no obvious error.

1

[¶ 21] In State v. Ulmer we stated the “essential elements of a DUI offense are (1) the defendant was driving a motor vehicle on a public way; and (2) while driving the defendant was under the influence of intoxicating liquor.” 1999 ND 245, ¶ 7, 603 N.W.2d 865 (citing State v. Salhus, 220 N.W.2d 852, 856 (N.D.1974)). The absence of culpability in the essential elements of the offense establishes that DUI is a strict liability offense. Cf. State v. Olson, 356 N.W.2d 110, 112 (N.D.1984) (stating the absence of a culpability requirement in section 39-08-07 creates a strict liability offense when a driver strikes an unattended vehicle and fails to notify the vehicle’s owner).

[¶ 22] In discussing actual physical control of a motor vehicle while under the influence of alcohol under section 39-08-01, and application of the presumptions of intoxication contained in section 39-20-07, this Court has stated, “We are not here concerned with a crime dependant upon the accused’s intent. Rather, we are concerned with a strict liability crime of control of a vehicle while under the influence of intoxicating liquor.” State v. Vogel, 467 N.W.2d 86, 90 (N.D.1991). Further discussing the legislative history behind the presumptions of intoxication contained in section 39-20-07, this Court stated the legislative intent ‘Vas to establish a ‘per se,’ strict-liability crime in two ways.” Id. at 89.

2

[¶ 23] We conclude that because DUI is a strict liability offense, the willful culpability requirement of N.D.C.C. § 12.1-02-02(2) does not apply and therefore the district court had no obligation to instruct the jury as to any level of culpability. We further conclude error cannot be predicated on failure to give an instruction that would misstate the law. See State v. Anderson, 480 N.W.2d 727, 730 (N.D.1992) (a court must refuse to give an instruction that misstates the law); see also Olander, 1998 ND 50, ¶ 18, 575 N.W.2d 658 (instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse; jury instructions are reviewed as a whole) (citations omitted).

[¶ 24] The district court did not commit error, obvious or otherwise, in failing to give an instruction on culpability, a nonessential element of a strict liability offense. See State v. Ulmer, 1999 ND 245, ¶ 7, 603 N.W.2d 865 (identifying the essential elements of a DUI (citing State v. Salhus, 220 N.W.2d 852, 856 (N.D.1974))); see also Olander, 1998 ND 50, ¶¶ 18-20, 575 N.W.2d 658 (a court must give an instruction identifying the State’s burden for all essential elements of the crime).

V

[¶ 25] The judgment of conviction is affirmed.

[¶ 26] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ„ WILLIAM W. McLEES, D.J., concur.

[¶ 27] WILLIAM W. McLEES, D.J., sitting in place of KAPSNER, J., disqualified.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2000 ND 214
    John Daniel LAWRENCE a/k/a Dan Lawrence, Plaintiff, Appellant and Cross-Appellee, v. Tina Lucille DELKAMP, Defendant, Appellee and Cross-Appellant. John Daniel Lawrence a/k/a Dan Lawrence, Plaintiff and Appellant, v. Tina Lucille Delkamp, Defendant and Appellee.
    Nos. 20000061, 20000151.
    Supreme Court of North Dakota.
    Dec. 12, 2000.
    Rehearing Denied Feb. 2, 2001.

      Todd D. Kranda, Kelsch, Kelsch, Ruff & Kranda, Mandan, for plaintiff, appellant and cross-appellee.
    Arnold V. Fleck, Bismarck, for defendant, appellee and cross-appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] John Daniel Lawrence appealed from an order, dated February 2, 2000, restricting visitation with his son. Lawrence also appealed from an order, dated March 30, 2000, awarding Rylan’s mother, Tina Lucille Delkamp, costs and attorney fees in the amount of $12,149.70. Delkamp has cross-appealed from the latter order, claiming additional attorney fees. We hold the trial court’s finding Lawrence committed domestic violence is clearly erroneous. We, therefore, reverse both orders and remand for further proceedings.

I

[¶ 2] Although Lawrence and Delkamp were never married to each other, they had a son who was born in August 1992. Through a series of amended judgments and orders, Delkamp was awarded custody of the child with visitation for Lawrence, who was also ordered to pay child support. See Lawrence v. Delkamp, 1998 ND 178, 584 N.W.2d 515. Thereafter, Lawrence filed motions requesting a change of custody or, alternatively, modification of visitation, and Delkamp filed a motion seeking a court ordered psychological evaluation of Lawrence. The trial court denied Lawrence’s request for a change of custody, and Lawrence has not appealed that decision. In the February 2, 2000 order, the trial court found the parties had, by stipulation, completed a domestic violence assessment and Delkamp’s motion for psychological evaluation was moot. The court also found Lawrence had committed domestic violence, and the court restricted Lawrence’s visitations with the child to supervised visits at the Family Safety Center in Bismarck. On appeal, Lawrence claims the trial court’s finding of domestic violence is clearly erroneous and requests a reversal and redetermination of visitation.

[¶ 3] In awarding custody in the best interests of the child, the court must consider the factors listed under N.D.C.C. § 14-09-06.2. Ryan v. Flemming, 533 N.W.2d 920, 923 (N.D.1995). In the hierarchy of factors to be considered, domestic violence predominates when there is credible evidence of it. Id. Consideration of domestic violence in granting visitation is discussed under N.D.C.C. § 14-09-06.2(1)©, and under N.D.C.C. § 14-05-22(3). Section 14-09-06.2(1)© provides in relevant part:

In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence.... As used in this subdivision, “domestic violence” means domestic violence as defined in section 14-07.1-01.

Section 14-05-22(3) states:

If the court finds that a parent has perpetrated domestic violence and that parent does not have custody, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, the court shall allow only supervised child visitation with that parent unless there is a showing by clear and convincing evidence that unsupervised visitation would not endanger the child’s physical or emotional health.

Section 14-07.1-01(2), N.D.C.C., defines domestic violence:

“Domestic violence” includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.

(Emphasis added).

[¶ 4] While N.D.C.C. § 14-05-22(3) neither defines domestic violence nor refers to the definition under N.D.C.C. § 14-07.1-01, we conclude that definition should be applied to N.D.C.C. § 14-05-22(3) as well as N.D.C.C. § 14-09-06.2©. The latter section expressly requires use of the definition provided by N.D.C.C. § 14-07.1-01, for purposes of awarding custody and in granting visitation. It would not be logical or appropriate, in our view, to apply a different or more expansive definition of domestic violence when considering visitation restrictions under N.D.C.C. § 14-05-22(3) than when the court is considering custody or visitation restrictions under N.D.C.C. § 14-09-06.2(j).

[¶ 5] In this case, the trial court made the following specific finding regarding domestic violence:

1. Domestic violence. On one occasion John Daniel Lawrence (“Dan”) told Tina Lucille Delkamp (“Tina”) he would have his girlfriend “beat the crap out” of Tina if Tina pursued the issue of child support. On another occasion, Dan told Tina he could “eliminate” Rylan in a boating accident. Dan told Tina she would not be seeing Rylan once Dan got him. Dan also told Tina on one occasion he would not return Rylan to Tina after a visitation unless she agreed to let Dan claim Rylan as an exemption on Dan’s tax return. Most of these incidents occurred more than two years ago but during Rylan’s life....
Dan has perpetrated domestic violence. N.D.C.C. § 14-07.1-01(2). Moreover, he engaged in a pattern of conduct ■within a reasonable time proximate to the proceedings just completed to create a rebuttable presumption that Dan should not have joint or sole custody of Rylan. N.D.C.C. § 14-09-06.2.
State law requires any visitation arrangement under such circumstances must be designed to protect Rylan and Tina from further domestic violence. Id.

[¶ 6] The trial court made no finding that Lawrence has ever committed physical harm or bodily injury to Rylan or Delkamp. Nor is there any evidence in the record to support such a finding. The court’s finding of domestic violence rests solely upon threats made by Lawrence. Under our domestic violence statutes, threats can only constitute domestic violence for purposes of creating a rebuttable presumption against custody and for restriction of visitation, if they constitute “the infliction of fear of imminent physical harm.”

[¶ 7] The determination whether there has been domestic violence is an issue of fact determined by the court, as trier of fact, and will not be set aside on appeal unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Lovcik v. Ellingson, 1997 ND 201, ¶ 10, 569 N.W.2d 697. The question whether the trial court has misinterpreted the domestic violence statute is a question of law that is fully reviewable on appeal. See Ryan v. Flemming, 533 N.W.2d at 923.

[¶ 8] The record supports the trial court’s finding that Lawrence made threats to Delkamp. The record shows that Lawrence threatened he would have a girlfriend “beat” Delkamp if she pursued child support, that Lawrence said he could “eliminate” Rylan in a boating accident, and that Lawrence said he would not return Rylan after a visitation unless Del-kamp agreed to a specific tax exemption for Lawrence. These threats are serious and reprehensible, and we do not dismiss their relevance. The trial court can certainly consider Lawrence’s threatening behavior in deciding custody and visitation issues. Under N.D.C.C. § 14-09-06.2 Lawrence’s threats are relevant to the court’s consideration of such factors as the capacity and disposition of the parents to give the child love, affection, and guidance, the moral fitness of the parents, and the mental and physical health of the parents. However, the specific issue before us in this appeal is whether Lawrence’s threats constitute domestic violence, as that term is defined under the statute, for purposes of imposing restricted visitation.

[¶ 9] The threats made by Lawrence are clearly distinguishable from the threats made in Lovcik v. Ellingson, which the trial court found were domestic violence. In Lovcik, a protection order had been entered against the father for committing violent physical acts of aggression against the mother, including pushing her against a wall, choking her while she was holding one of the children, and pushing her to the ground. Lovcik, at ¶ 3. During the evening after the parties had attended a court hearing on custody and child support modification, the father became very angry and made a series of telephone calls to the mother. During those calls, the father used harassing language toward the mother and called her derogatory names. The series of angry threatening calls made the mother immediately fear for her safety. She “became nauseated and shook from fear,” and she immediately locked all doors and windows of the home and called the police to request protection. Lovcik, at ¶ 8. The trial court found the father’s harassing calls caused the mother to have fear of imminent physical harm and also found that her fear was reasonable because of her past experience of having been physically abused by the perpetrator. This Court affirmed the trial court’s finding of domestic violence, concluding, under those circumstances, the threats constituted an infliction of fear of imminent physical harm.

[¶ 10] Unlike the circumstances in Lov-cik, there is no history shown on this record of physical assault or violence by Lawrence toward Delkamp or the child. The threats made by Lawrence, while objectionable, were qualified threats of possible future conduct conditioned upon the occurrence of certain actions or responses by Delkamp. There was no finding by the trial court that at the time Lawrence made the threats Delkamp was put in fear of immediate or soon to be inflicted physical harm.

[¶ 11] This Court’s application of the phrase “imminent serious bodily injury” in State v. Kurle, 390 N.W.2d 48, 49 (N.D.1986), is instructive. In Kurle, the defendant was charged with menacing, which requires proof the defendant knowingly placed another human being in fear of “imminent serious bodily injury.” Concluding there was insufficient evidence to sustain the conviction, this Court stated:

In this case, Kurle’s words — “when you are up here alone, we will get you”— speak to the future and do not denote sufficient immediacy. And, taken in context, no aspect of immediacy may be inferred: Kurle made the statement as he was leaving the scene; in addition, Kurle, unlike one of his antagonists, was unarmed.
Under our construction of the word “imminent,” it is apparent that the set of facts, about which neither party has serious disagreement, does not support the conclusion that the threat of serious bodily injury was imminent.... [T]he record fails to exhibit even the possibility of imminent serious bodily injury and therefore cannot support the conviction for menacing....

Id. at 49 (footnote omitted).

[¶ 12] The threats the court found Lawrence made in this case are similar to the threats made by the defendant in Kurle, because the threats were of future conduct and did not denote immediacy so as to place Delkamp in fear of harm occurring without delay. Under this interpretation of N.D.C.C. § 14-07.1-01(2), Lawrence’s threats did not constitute domestic violence under N.D.C.C. § 14 — 09—06.2(l)(j) or N.D.C.C. § 14-05-22(3), and the trial court’s finding of domestic violence is clearly erroneous. In establishing visitation for Lawrence with Rylan the trial court erred in considering Lawrence’s conduct to be domestic violence requiring visitation restrictions. We remand for the trial court to redetermine appropriate visitation.

II

[¶ IB] In the March 30, 2000 order, the court awarded Delkamp costs and attorney fees under N.D.C.C. § 14-05-22(5), which authorizes the award of costs and attorney fees when there is a finding of domestic violence. In view of our conclusion the trial court erred in finding domestic violence, the court’s order awarding costs and attorney fees under this statute is reversed. Upon reconsidering the visitation issue, the court may revisit the issue of costs and attorney fees under the applicable statutes.

[f 14] The orders of the district court are reversed, and the case is remanded for further proceedings.

[¶ 15] DALE V. SANDSTROM, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, JJ„ LAWRENCE A. LECLERC, D.J., concur.

[¶ 16] The Honorable LAWRENCE A. LECLERC, D.J., sitting in place of KAPSNER, J., disqualified.

      . Under this subsection a finding of a pattern of domestic violence within a reasonable time proximate to the proceeding, domestic violence involving a dangerous weapon, or domestic violence resulting in serious bodily injury creates a "rebuttable presumption” against the perpetrator being awarded custody. A finding of domestic violence does not, however, create, under this section, a presumption the perpetrator cannot have unsupervised visitation with a child.


author: PER CURIAM.

text:
    2000 ND 221
    In the Matter of the Application For DISCIPLINARY ACTION AGAINST Michael E. KELLER, a Member of the Bar of the State of North Dakota Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Michael E. Keller, Respondent.
    No. 20000225.
    Supreme Court of North Dakota.
    Dec. 21, 2000.

      Loralyn Kay Hegland, Assistant Disciplinary Counsel, Bismarck, N.D., for petitioner.
    Michael E. Keller, pro se, Larimore, N.D., respondent.
   PER CURIAM.

[¶ 1] The Disciplinary Board petitions for disciplinary action against Michael E. Keller. After Keller failed to respond to a motion for order of default, the Hearing Panel of the Disciplinary Board issued an order for default. We decline to adopt the findings and recommendations of the Hearing Panel and remand to allow Keller an opportunity to bring a motion to vacate the default order and to present evidence demonstrating a lack of notice.

I

[¶ 2] Michael E. Keller was admitted to practice law in North Dakota on October 10, 1984. A summons and a petition for discipline were personally served on Keller on November 10, 1999. Keller filed an answer to the petition, dated November 30,1999, denying any misconduct.

[¶ 3] Disciplinary Counsel served Keller with interrogatories and admissions and a request for production of documents, dated December 16, 1999. Because Keller did not respond to such discovery requests, Disciplinary Counsel made a motion to compel discovery, dated February 23, 2000. Keller again did not respond, and on March 20, 2000, the Hearing Panel issued an order compelling discovery. Keller did not comply with the order compelling discovery. On March 29, 2000, Keller was served with an amended petition for discipline. He did not file an answer to the amended petition. Based in part on his failure to respond to the discovery requests, this Court issued an Interim Suspension, dated July 5, 2000, suspending Keller’s license to practice law until further order.

[¶ 4] Because Keller failed to comply with the order compelling discovery, Disciplinary Counsel filed a motion for order of default on April 17, 2000. That same day, a copy of the motion was served by mail on Keller. Keller did not respond, and on June 20, 2000, the Hearing Panel issued an order of default.

[¶ 5] On July 18, 2000, Keller filed a Written Demonstration of Lawyer Pursuant to Rule 3.4, North Dakota Rules for Lawyer Discipline that Interim Suspension Order Not Remain in Force and Appendix. In his Written Demonstration, Keller acknowledged he had not responded to the order compelling discovery, but that he would do so by July 19, 2000. In light of the Written Demonstration, our Court lifted the Interim Suspension. Although Keller states he complied with the discovery order on July 19, 2000, answers to those discovery requests are neither found in the record nor with the Secretary of the Disciplinary Board. On July 21, 2000, a copy of the order of default was served by certified mail return receipt requested on Keller.

[¶ 6] The Hearing Panel’s findings and recommendations were filed August 8, 2000, and on August 11, 2000, Keller was served a copy of the report by certified mail. On August 29, 2000, Keller filed objections to the findings and recommendations. In his objections, Keller states he did not receive a copy of the amended petition or the notice of motion for order of default.

II

[¶ 7] Keller contends he did not respond to the motion for order of default because he did not receive notice. Specifically, he claims the motion for order of default was sent to the wrong address and, therefore, requests this Court determine service on Keller was not proper and remand the matter back to the Hearing Panel to proceed on the merits of the disciplinary petition. We decline to decide whether Keller received notice and grant his request to remand so that he may bring a motion to the Hearing Panel to vacate the order of default based on lack of notice.

[¶ 8] Our review of disciplinary proceedings is de novo on the record. Disciplinary Action Against Dvorak, 2000 ND 98, ¶ 8, 611 N.W.2d 147. In this context, de novo generally means we accord due weight to the findings and recommendations of the Hearing Panel, but “we do not act as a mere 'rubber stamp.’ ” Disciplinary Bd. v. Leier, 1997 ND 79, ¶ 3, 562 N.W.2d 741 (quoting Disciplinary Bd. v. Gray, 544 N.W.2d 168, 171 (N.D.1996)). We decide each case on the facts in the record. Disciplinary Bd. v. Dooley, 1999 ND 184, ¶ 12, 599 N.W.2d 619.

[¶ 9] Because Keller did not make a motion under Rule 60(b), N.D.R.Civ. P., to vacate the order of default, Disciplinary Counsel urges us to adopt the findings and recommendations of the Hearing Panel. The North Dakota Rules of Civil Procedure apply to disciplinary proceedings unless otherwise noted. N.D.R. Lawyer Discipl. 3.5(B). Ordinarily, on appeal a party may not claim for the first time that it did not receive notice of a default judgment. Dakota Bank and Trust Co. of Fargo v. Brakke, 452 N.W.2d 351, 352 (N.D.1990). Rather, a party’s available remedy is to move under Rule 60(b), N.D.R.Civ.P., to vacate the default judgment and present evidence to the trial court demonstrating lack of notice. Id. A Rule 60(b), N.D.R.Civ.P., motion, however, applies only to relief from a final judgment or order. The Hearing Panel’s order of default and findings and recommendations for suspension are not final judgments or orders. Only our Court can order suspension of a lawyer. N.D.R. Lawyer Discipl. 1.3(A)(2). The applicability of a Rule 60(b) motion in these disciplinary proceedings, therefore, is not analogous to civil proceedings.

[¶ 10] When this circumstance arises in disciplinary proceedings, we conclude the better practice is to move our Court to remand the matter to the Hearing Panel for consideration of a motion to vacate the default order. We will consider Keller’s objections to the Hearing Panel’s findings and recommendations as a motion to remand in order to afford him an opportunity to bring a motion to vacate the order of default. The Hearing Panel may proceed in one of two ways when it receives Keller’s motion. It may either hold a hearing on Keller’s claim regarding lack of notice, or it may directly proceed to hold a hearing on the merits of the disciplinary petition. If a hearing is held regarding the lack of notice, and it is determined Keller did not receive notice of the default order, then the Hearing Panel must consider the merits of the disciplinary petition.

[¶ 11] Accordingly, the matter is remanded to the Hearing Panel for further proceedings consistent with this opinion.

VANDE WALLE, C.J., MARING, NEUMANN, SANDSTROM, KAPSNER, JJ., concur.


author: KAPSNER, Justice.

text:
    2000 ND 220
    SUPERPUMPER, INC., Plaintiff and Appellee, v. NERLAND OIL, INC., Defendant. West Fargo Truck Stop, Inc., Appellant.
    No. 20000103.
    Supreme Court of North Dakota.
    Dec. 21, 2000.

      John J. Petrik, Pringle & Herigstad, PC, Minot, ND, for plaintiff and appellee.
    Jay D. Carlson, Fargo, ND, for appellant.
   KAPSNER, Justice.

[¶ 1] West Fargo Truck Stop, Inc. appealed an order confirming an arbitration decision as to it and staying the arbitration decision as to Nerland Oil, Inc. We conclude West Fargo Truck Stop and Nerland Oil have such an identity of interest that Nerland Oil’s pending bankruptcy petition and the automatic stay of bankruptcy law applies to confirmation of the arbitration decision as to West Fargo Truck Stop. We reverse the order and remand with instructions to vacate confirmation of the arbitration decision as to West Fargo Truck Stop.

I

[¶ 2] In 1995, Superpumper, Inc., an entity that owns and operates convenience stores in various locations, purchased the Dakota Fuel Stop in Jamestown, North Dakota, from Nerland Oil for $1,829,332. Superpumper’s “offer to purchase” included “real property, buildings, equipment and products supply” and was “subject to a supply and freight agreement to be executed by [Superpumper] in a form acceptable to [Nerland Oil].” Superpumper and Ner-land Oil allocated $1,000,000 of the purchase price to real property, $250,000 to equipment, and $579,332 to a “freight agreement” and an “exclusive requirements supply and freight agreement” between Superpumper and an affiliate of Nerland Oil, West Fargo Truck Stop. Under the “exclusive requirements supply and freight agreement,” Superpumper agreed to use West Fargo Truck Stop as the exclusive supplier and hauler of petroleum products to the Dakota Fuel Stop. Under the “freight agreement,” Super-pumper agreed to have West Fargo Truck Stop haul petroleum products to a Super-pumper station in Belfield, North Dakota. For purposes of the purchase agreement, the Belfield freight agreement was assigned a value of $206,904 and the Dakota Fuel Stop exclusive requirements supply and freight agreement was assigned a value of $372,428.

[¶ 3] As part of the purchase, Super-pumper executed a $350,000 promissory note, secured by a second mortgage on the real property, in favor of Nerland Oil. The offer to purchase, promissory note, and second mortgage did not include an arbitration clause. Both the Belfield freight agreement and the Dakota Fuel Stop exclusive requirements supply and freight agreement contáined similar clauses requiring binding arbitration of any disputes under those agreements.

[¶ 4] A dispute arose between Super-pumper and Nerland Oil regarding processing of credit card receivables for Dakota Fuel Stop. Superpumper sued Nerland Oil, seeking quiet title to the Dakota Fuel Stop real property, or specific performance to satisfy and release Superpumper’s promissory note and second mortgage to Nerland Oil. Super-pumper also sought payment for credit card receivables Nerland Oil had failed to remit to Superpumper. Nerland Oil answered, identifying itself and West Fargo Truck Stop as defendants and third-party plaintiffs. The answer alleged Superpumper’s complaint failed to join all necessary parties, including West Fargo Truck Stop, and included a counterclaim alleging Superpumper breached the Belfield freight agreement and the Dakota Fuel Stop exclusive requirements supply and freight agreement. Nerland Oil and West Fargo Truck Stop sought to compel arbitration of both supply and freight agreements and to stay Super-pumper’s claims pending arbitration. Nerland Oil and West Fargo Truck Stop moved for joinder of West Fargo Truck Stop as a defendant.

[¶ 5] The district court denied the motion to join West Fargo Truck Stop as a defendant and stayed Superpumper’s claims pending arbitration of both supply and freight agreements. Superpumper moved for reconsideration. Nerland Oil and West Fargo Truck Stop resisted Su-perpumper’s motion for reconsideration and sought arbitration of the entire dispute “arising out of the breach of the purchase agreement.” The court denied Superpumper’s motion for reconsideration and concluded the agreements between Superpumper, Nerland Oil, and West Fargo Truck Stop were “so intertwined that it only makes sense to place the entire dispute in arbitration.” The court ordered arbitration of the entire dispute.

[¶ 6] In Superpumper, Inc. v. Nerland Oil, Inc., 1998 ND 144, ¶ 1, 582 N.W.2d 647, we dismissed Superpumper’s appeal from the order compelling arbitration. We concluded the order was not appeal-able under either the Uniform Arbitration Act, N.D.C.C. ch. 32-29.2, or the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Super-pumper at ¶ 1.

[¶ 7] In August 1999, a three-member arbitration panel decided Nerland Oil owed Superpumper $348,856.26 for credit card receivables, and that debt was subject to a $10,933.92 setoff against $359,790.18 due on Superpumper’s promissory note to Nerland Oil. In a two-to-one decision, the arbitration panel decided Superpumper and Nerland Oil had orally modified the Belfield freight agreement and, as modified, the agreement had been “suspended” since October 26, 1996. The majority of the panel decided there was no breach of the Belfield freight agreement.

[¶ 8] In October 1999, Superpumper moved for confirmation of the arbitration decision. On November 7, 1999, Nerland Oil filed a voluntary petition for bankruptcy under chapter 7 of the United States Bankruptcy Code. Nerland Oil resisted confirmation of the arbitration decision because of its bankruptcy petition, and West Fargo Truck Stop moved to vacate the arbitration decision and to remand to the panel for rehearing on the Belfield freight agreement. The district court confirmed the arbitration decision as to West Fargo Truck Stop, but concluded it did not have jurisdiction over Nerland Oil because of its pending bankruptcy petition. West Fargo Truck Stop appealed.

II

[¶ 9] We must initially consider the effect of Nerland Oil’s bankruptcy petition on the confirmation of the arbitration decision. Under 11 U.S.C. § 362(a)(1) and (3), the filing of a petition for bankruptcy ordinarily operates as an automatic stay of the commencement or continuation of any action against a debtor or against property of the estate. See, e.g., Kessel v. Peterson, 350 N.W.2d 603, 604 (N.D.1984). Upon the filing of a bankruptcy petition, the stay is automatically effective, see 3 Collier on Bankruptcy ¶ 362.02 (15th Ed. Rev.2000), and applies to arbitration proceedings against a debtor. See In re Drexel Burnham Lambert Group, Inc., 160 B.R. 508, 511-12 (1993). Whether a proceeding is against a debtor is determined by the debtor’s status in the initial proceeding, regardless of whether the debtor subsequently becomes an appellant or an appel-lee. See Kessel, at 604-05.

[¶ 10] The automatic stay of 11 U.S.C. § 362(a)(1) ordinarily does not apply to actions against non-debtor codefendants. Teachers Ins. Annuity Ass’n v. Butler, 803 F.2d 61, 65 (2d Cir.1986); Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1329-30 (10th Cir.1984); Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 126-27 (4th Cir.1983); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1196-97 (6th Cir.1983); Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 544 (5th Cir.1983); Austin v. Unarco Indus., Inc., 705 F.2d 1, 4-5 (1st Cir.); Pitts v. Unarco Indus., Inc., 698 F.2d 313, 314 (7th Cir.1983). See 3 Collier on Bankruptcy at ¶ 362.03[3][d]. .

[¶ 11] Some courts, however, have recognized the automatic stay of 11 U.S.C. § 362(a)(1) applies to actions against non-debtor codefendants in “unusual circumstances.” See Matter of S.I. Acquisition, Inc., 817 F.2d 1142, 1147 (5th Cir.1987); A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 999 (4th Cir.1986); In re Neuman, 128 B.R. 333, 336-37 (S.D.N.Y.1991); Marroquin v.. D & N Funding Inc., 943 S.W.2d 112, 115 (Tex.App.1997); Belington Bank v. Marketeers, Co., 185 W.Va. 564, 408 S.E.2d 316, 320 (1991).

[¶ 12] In Piccinin, 788 F.2d at 996, an action against Robins, the manufacturer of the Daikon Shield, was stayed by its bankruptcy filing. Plaintiffs sought to sever their action against Robins and proceed against codefendants who were entitled to indemnification from Robins. Id. The Fourth Circuit Court of Appeals described the situation as one involving “unusual circumstances” which justified a stay of proceedings against the non-debtor codefend-ants. Id. at 999. The court explained “unusual circumstances” exist when “there is such identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be a judgment or finding against the debtor.” Id. The court also explained 11 U.S.C. § 362(a)(3), see fn.l, stays any action against a debtor or third party to obtain possession or exercise control over property of the debtor. Piccinin, at 1001. The court said the debtor’s insurance policies, which would be used to satisfy judgments against the non-debtor codefendants, were property of the estate and any action to diminish that property was subject to the automatic stay. Id.

[¶ 13] In Neuman, 128 B.R. at 337, a bankruptcy court held a state court shareholder derivative action violated the automatic stay, because an individual bankrupt debtor, Neuman, owned 78% of the stock of a non-debtor codefendant, CCF, and two other non-debtor codefendants were wholly-owned subsidiaries of CCF. The court concluded there was such an identity of interests between the entities that any relief in state court would necessarily affect a bankruptcy settlement. Id.

[¶ 14] In Marroquin, 943 S.W.2d at 115, the Texas Court of Appeals held a forcible detainer action against a husband and wife to evict them from property was automatically stayed by the wife’s bankruptcy petition. The court concluded because the husband and wife had such an identity of interest and the action sought control over the debtor’s property, the automatic stay applied to the forcible detain-er action against the husband. Id.

[¶ 15] Here, the arbitration panel acknowledged the unity of interest between West Fargo Truck Stop and Ner-land Oil:

The Nerland entity which executed the Freight Agreement was West Fargo Truck Stop. Although the agreement identified West Fargo Truck Stop as being “in the business of supplying and shipping petroleum and petroleum products in the State of North Dakota and elsewhere,” West Fargo Truck Stop was not in that business. In fact, West Fargo Truck Stop did not own any trucks, nor was it a “jobber.” Section 5 of the Freight Agreement provided that the rights and responsibilities of the parties could not be assigned without the written consent of the other party. It appears that West Fargo Truck Stop assigned all of its responsibilities under the Freight Agreement, because it was not able to perform the agreement directly. Therefore, the hauling of the fuel products was done by Nerland Transport, Inc. through Nerland Oil. The invoices sent to Superpumper for the hauling under the agreement were sent by Nerland Oil. Mr. Nerland indicated during his testimony that the involvement of West Fargo Truck Stop was because of the IRS debt owed by Nerland Oil. If that debt had not existed, West Fargo Truck Stop would not have been involved in the Freight Agreement. The involvement of West Fargo Truck Stop was for the purpose of attempting to shift revenue from Ner-land Oil.

[¶ 16] The arbitration decision refers to the Belfield freight agreement as a contract between Superpumper and Ner-land Oil. Superpumper’s offer to purchase the Dakota Fuel Stop from Nerland Oil specifically said the offer was subject to a freight agreement executed by Superpum-per in a form acceptable to Nerland Oil. Although the freight agreement was executed by Superpumper and West Fargo Truck Stop, Nerland Oil and West Fargo Truck Stop were both operated by Brent Nerland as president. Nerland Oil and West Fargo Truck Stop have been represented by the same attorney throughout this proceeding. For purposes of the arbitration proceeding, West Fargo Truck Stop and Nerland Oil are, in effect, the same party and the contractual rights under the freight agreement are part of the larger contractual rights between Super-pumper and Nerland Oil for the purchase of the Dakota Fuel Stop. The district court order compelling arbitration recognized that relationship when it stated the agreements between Superpumper, Nerland Oil, and West Fargo Truck Stop were “so intertwined that it only makes sense to place the entire dispute in arbitration.” The court confirmed the arbitration decision as to West Fargo Truck Stop and decided the proceedings against Nerland Oil were stayed. The court’s decision effectively provides for piecemeal litigation of the arbitration decision. We have a strong policy against piecemeal litigation. See, e.g., Union State Bank v. Woell, 357 N.W.2d 234, 237 (N.D.1984) (stating N.D.R.Civ.P. 54(b) intended to avoid piecemeal disposal of multi-claim litigation).

[¶ 17] When the automatic stay of 11 U.S.C. § 362(a)(1) and (3) is considered with our finality jurisprudence, we conclude the district court erred in confirming the arbitration decision as to West Fargo Truck Stop and deciding the proceeding was stayed as to Nerland Oil. We conclude the unity of interest between Nerland Oil and West Fargo Truck Stop and the interrelationship of the Belfield freight agreement with the purchase agreement, coupled with our policy against piecemeal litigation, automatically stayed the entire arbitration decision pending Nerland Oil’s bankruptcy proceeding.

[¶ 18] We reverse the district court order and remand with instructions to vacate confirmation of the arbitration decision as to West Fargo Truck Stop.

[¶ 19] VANDE WALLE, C.J., SANDSTROM, NEUMANN, MARING, JJ., concur.

      . 11 U.S.C. § 362(a), provides, in part:
      (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of—
      (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
      (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;

      . In addition to the automatic stay, a bankruptcy court may affirmatively stay proceedings under its broad discretionary powers in 11 U.S.C. § 105. See Matter of S.I. Acquisition, Inc., 817 F.2d 1142, 1146 n. 3 (5th Cir.1987).


author: NEUMANN, Justice. KAPSNER, Justice,

text:
    2000 ND 218
    Michael P. DAVENPORT, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20000148.
    Supreme Court of North Dakota.
    Dec. 21, 2000.

      Paul H. Myerchin, Bismarck, ND, for petitioner and appellant; submitted on brief.
    Bruce A. Romanick, Assistant State’s Attorney, Bismarck, ND, respondent and appellee; submitted on brief.
   NEUMANN, Justice.

[¶ 1] Michael P. Davenport appeals an order denying his petition for post-conviction relief. We affirm.

I

[¶ 2] On July 14, 1997, Michael P. Davenport was charged with two counts of gross sexual imposition (“GSI”). The complaint was amended to include two additional counts of GSI. On July 17, 1997, Davenport made an appearance on the amended complaint. Although the maximum prison time for the offenses was outlined, Davenport was not told about the registration requirement for sexual offenders. On August 11, 1997, the State filed a second amended complaint including six additional counts of GSI. On September 15, 1997, Davenport was arraigned at a preliminary hearing on ten counts of GSI. Again, the registration requirement was not mentioned when the court explained the punishment provisions.

[¶ 3] On November 3, 1997, Davenport appeared in trial court requesting to change his plea pursuant to a plea agreement entered with the State. The agreement dismissed three of the counts from the information and required Davenport to enter pleas to five class B felonies and two class A felonies. The plea agreement included ten years’ imprisonment in the state penitentiary, three years suspended on each count, and the sentences on the seven counts to run concurrently. Davenport pled guilty to seven counts of GSI. The court ordered a presentence investigation, including a sexual evaluation.

[¶ 4] The trial court sentenced Davenport on January 5, 1998. During the sentencing hearing, the prosecutor mentioned the registration requirement as a condition of probation. The court asked Davenport if he had any additions or corrections to the presentence investigation report, which included a notation that Davenport was required to register as a sex offender as a condition of probation. The court reviewed the conditions of probation with Davenport, specifically mentioning the registration requirement. The criminal judgment states Davenport is required to register as a sex offender.

[¶ 5] Davenport petitioned for post-conviction relief, alleging he was not aware of the registration requirement when he entered his guilty plea and seeking to withdraw his plea. After an evidentiary hearing, the trial court concluded Davenport was aware of the registration requirement and denied Davenport’s petition. Davenport appeals.

II

[¶ 6] Davenport argues the trial court abused its discretion in denying his petition for post-conviction relief seeking withdrawal of his guilty plea because he was not aware of the sex offender registration requirement as a consequence of his plea.

[¶ 7] An applicant’s petition to withdraw a guilty plea under the Uniform Post-conviction Procedure Act generally is treated as a motion to withdraw a plea under Rule 32(d), N.D.R.Crim.P. Abdi v. State, 2000 ND 64, ¶ 10, 608 N.W.2d 292. Under Rule 32(d), N.D.R.Crim.P., a defendant cannot withdraw a guilty plea unless withdrawal is necessary to correct a manifest injustice. Abdi at ¶ 10. A manifest injustice may be the result of procedural errors made by the sentencing court. Abdi, at ¶ 10. The determination of whether a manifest injustice exists is within the trial court’s discretion and will be reversed on appeal only for an abuse of discretion. Id. at ¶ 10. An abuse of discretion under Rule 32(d), N.D.R.Crim.P., occurs when the trial court’s legal discretion is not exercised in the interests of justice. Id. at ¶ 10.

[¶ 8] Under Rule 11(b), N.D.R.CrimJP.:

The court may not accept a plea of guilty without first, by addressing the defendant personally ... in open court, informing the defendant of and determining that the defendant understands the following: ... [t]he mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.

The trial court advisement required by Rule 11(b), N.D.R.Crim.P. is mandatory. Abdi, 2000 ND 64, ¶ 12, 608 N.W.2d 292. Although Rule 11(b) does not require the trial court’s advice to follow ritualistic, predetermined formality, the court must substantially comply with the procedural requirements of the rule to ensure the defendant is entering a voluntary guilty plea. Abdi at ¶ 12; see also State v. Schumacher, 452 N.W.2d 345, 346 (N.D.1990) (“The purpose of the procedure outlined in Rule 11(b) is to ensure that the defendant is fully aware of the consequences of a guilty plea before he enters his plea.”).

[¶ 9] Davenport argues the trial court did not comply with Rule 11(b)(2), N.D.R.Crim.P., because Davenport was not aware of the sex offender registration requirement resulting from his guilty plea before he entered his plea, and the registration requirement is a consequence of his guilty plea.

[¶ 10] In State v. Burr, 1999 ND 143, ¶ 36, 598 N.W.2d 147, we held the sex offender registration requirement is a collateral consequence upon conviction. See also Burr v. Snider, 234 F.3d 1052 (8th Cir.2000). Although a defendant must be informed of all direct consequences of a guilty plea, he need not be advised of collateral consequences. State v. Dalman, 520 N.W.2d 860, 863 (N.D.1994); Houle v. State, 482 N.W.2d 24, 30 (N.D.1992). Consequently, the trial court was not required to inform Davenport of the registration requirement before he entered his guilty plea. The trial court advised Davenport of the maximum possible punishment Davenport faced, and there was no mandatory minimum sentence. Thus, the trial court complied with Rule 11(b), N.D.R.Crim.P. We conclude the trial court did not abuse its discretion in denying Davenport’s motion to withdraw his guilty plea.

Ill

[¶ 11] We affirm the order denying Davenport’s motion for post-conviction relief.

[¶ 12] VANDE WALLE, C.J., and SANDSTROM, JJ., concur.

KAPSNER, Justice,

concurring.

[¶ 13] Given the holding of the majority in State v. Burr, 1999 ND 143, 598 N.W.2d 147, I am compelled to concur in the result.

[¶ 14] MARING, J, concurs.


text:
    2000 ND 219
    Leslie PFEIFLE, f/k/a Leslie Miller, Plaintiff and Appellant, v. Curtis TANABE, Defendant and Appellee.
    No. 20000134.
    Supreme Court of North Dakota.
    Dec. 21, 2000.

      Jon J. Jensen (argued) and Jeffrey L. Skaare, Pearson Christensen, Grand Forks, ND, for plaintiff and appellant.
    Grant H. Shaft, Shaft, Reis and Shaft, Grand Forks, ND, for defendant and ap-pellee.
   KAPSNER, Justice.

[¶ 1] Leslie Pfeifle appeals from the judgment of the district court determining Dr. Curtis Tanabe did not breach a five-year lease but justifiably terminated the lease and vacated the premises, based on Pfeifle’s failure to secure quiet possession of the premises within a reasonable time, and determining dental cabinets were trade fixtures lawfully removed. We affirm.

I

[¶ 2] In January 1993, Leslie Pfeifle entered a five-year lease agreement with Dr. Curtis Tanabe for rental of premises in connection with Tanabe’s purchase of the dental practice of Pfeifle’s late husband. Tanabe also leased part of the basement of the premises for equipment and record storage, with Pfeifle remaining in possession of an adjacent part of the basement. The specified purpose of the lease was for “operating a dental practice, and for no other purpose.” The lease required both parties to utilize the premises in accordance with existing zoning ordinances and condominium covenants, conditions, and restrictions. The lease further required Pfeifle not to unreasonably withhold consent to an assignment or sublease of the premises. The stock purchase agreement between Pfeifle and Tanabe was based on an appraisal of the dental practice at $274,-300, including a valuation of $51,700 for “Dental Equipment, Sundries, Hand Instruments, and Cabinets.”

[¶ 3] During the summer of 1994, Pfei-fle’s husband and their sons began to occupy the adjacent basement premises, utilizing the property as an office, workshop, and living quarters. The sons and their friends also entered the dental office during non-office hours and used the bathroom, office furniture, and equipment, causing Tanabe concern about sterilization problems and the confidentiality of dental files. These unauthorized entries to the leased dental premises continued until the end of 1995, when Tanabe changed the locks. Construction noises from the basement at times required Tanabe or his staff to stop conversing with patients over the hammering, drilling, or sawing. Pfeifle also began a construction project, leaving piles of dirt outside the building in the parking area in excess of six months. Tanabe at times had to leave patients in the middle of a procedure to tell children to get off the dirt piles. During January 1996, Tanabe’s office manager found a smoldering plug on an electrical cord used by the Pfeifles in the basement. Fumes from the Pfeifles’ propane heater in the basement came up through the dental office vents, sickening patients and staff. Pfeifle also used electricity in the basement; the electricity was billed to Tan-abe’s meter. Following inspections by the city fire marshal and building code enforcement officers, Pfeifle was cited for illegal use of electrical wiring, failing to obtain a building permit, unlawful use of the premises, and failing to maintain a sprinkler system in the basement as required by city fire code.

[¶ 4] Tanabe and his office manager personally reported these various complaints to Pfeifle and her family, primarily during 1995 and 1996, at times also leaving messages on Pfeifle’s answering machine. Pfeifle acknowledged receiving the majority of these complaints. After discussing these “landlord problems” with a real estate developer, in August 1995 Tanabe signed a purchase agreement for a new office building. On April 15, 1996, Tanabe vacated the leased premises, after his attorney wrote a letter two months earlier officially informing Pfeifle of Tanabe’s intention to terminate the lease and vacate. Tanabe had workmen remove dental cabinets which were screwed into the wall and electrically wired and plumbed. Tanabe attempted to provide Pfeifle with a suitable tenant willing to sublet the premises in order to mitigate the loss of rent payments from the terminated lease; however, Pfeifle refused to consent to assigning or subletting the lease. Tanabe continued to pay rent to Pfeifle for two months after vacating, but then failed to make the remaining 15 payments.

[¶ 5] Pfeifle filed an action claiming Tan-abe breached the lease and converted the dental cabinets which were fixtures on the property. Tanabe responded with an affirmative defense of constructive eviction, arguing he was justified in terminating the lease because Pfeifle interfered with Tan-abe’s quiet possession of the property and made the premises unfit for a dental office. Tanabe claimed he rightfully removed the cabinets because they were trade fixtures included in his purchase of the dental practice. Tanabe asserted a counterclaim that he had paid electricity bills for a part of the basement which he had not leased.

[¶ 6] The trial court concluded Tanabe was justified in terminating the lease before the end of the contractual term, based on Pfeifle’s failure to fulfill her obligation to secure to Tanabe quiet possession of the property. The trial court found the “accumulative effect” of Pfeifle’s actions constituted constructive eviction of Tanabe, whose dental practice required quiet use and enjoyment of the premises. Despite no written complaints from Tanabe, the trial court found sufficient evidence complaints were made about various problems. Finally, the trial court found Tanabe was entitled to take the dental cabinets because (1) the cabinets were part of the purchase price, based on the appraisal and income tax records, and (2) the premises were in a commercially reasonable state after Tanabe removed the cabinets. The trial court dismissed Pfeifle’s claims, as well as Tanabe’s counterclaim relating to the electrical billing because the amount was nominal. Pfeifle appeals.

II

[¶ 7] Whether a party has breached a contract is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. Wachter v. Gratech Co., Ltd., 2000 ND 62, ¶ 17, 608 N.W.2d 279. A finding of fact is clearly erroneous if it is not supported by any evidence, if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous conception of the law. Id. A trial court’s conclusions of law are fully reviewable. CAP Partners v. Cameron, 1999 ND 178, ¶ 11, 599 N.W.2d 309.

III

[¶ 8] Pfeifle argues the trial court erred as a matter of law in deciding Tanabe had not breached the lease and was not liable for the remaining payments, because Tan-abe failed to comply with statutory requirements and express lease terms for terminating the lease. Pfeifle further contends Tanabe waived his right to terminate the lease by remaining on the property for a substantial time following his complaints. We disagree.

A

[¶ 9] Pfeifle asserts she had a right to timely written notice of intent to terminate the lease, required by law and by the express terms of the lease agreement, because a lessor is allowed a reasonable time to restore quiet possession or make repairs after a lessee’s request. We are not persuaded.

[¶ 10] “An agreement to lease real property binds the lessor to secure to the lessee the quiet possession of such property during the term of the lease against all persons lawfully claiming the same.” N.D.C.C. § 47-16-08. “If within a reasonable time after notice from the lessee of dilapidations which the lessor ought to repair the lessor neglects to do so, the lessee may ... [v]acate the premises, in which case the lessee shall be discharged from further payment of rent or performance of other conditions.” N.D.C.C. § 47-16-13. A lessee who vacates the premises under § 47-16-13 must give the lessor notice of intent to vacate the premises prior to vacating. Hofmann v. Stoller, 320 N.W.2d 786, 794 (N.D.1982). A lessee of real property may terminate a lease before the end of an agreed term “[w]hen the lessor does not fulfill the lessor’s obligations, if any, within a reasonable time after request, as to placing and securing the lessee in the quiet possession of the property leased, or putting it into a good condition, or repairing it....” N.D.C.C. § 47-16-17.

[¶ 11] By the plain language of §§ 47-16-13 and 47-16-17, notice must be given to a lessor by requests to repair dilapidations or to secure quiet possession of leased property; however, neither statute requires notice to be written.

[¶ 12] Pfeifle relies on the lease agreement, as requiring written notice before termination. The lease language on which Pfeifle relies provides: “All notices ... in this Lease Agreement provided to be given or made or sent, ... by either party to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States mail....” Pfeifle refers to no language of the lease which requires the tenant to give notice of the landlord’s failure to secure quiet possession of the premises. However, even if the lease specifically required such notice, two months before Tanabe vacated the premises, his attorney did send Pfeifle a written notice of Tan-abe’s intent to terminate the lease and vacate. Tanabe also made numerous verbal complaints, in person and by telephone messages, which Pfeifle acknowledged receiving. Therefore, we find sufficient evidence in the record to support the trial court’s findings that Pfeifle received notice of the complaints and also notice of Tan-abe’s intention to terminate the lease and vacate.

B

[¶ 13] Pfeifle argues the district court clearly erred because none of the alleged problems justify termination of the lease because she took immediate steps to resolve problems after Tanabe’s complaints and all the problems were resolved before Tanabe vacated the premises. Pfei-fle insists Tanabe did not experience any interference with his tenancy because his dental practice was open every day and did not lose any patients. Pfeifle contends the court’s justification based on the cumulative effect of “small problems” which were corrected has no support in the case law. We disagree.

[¶ 14] In CAP Partners v. Cameron, 1999 ND 178, ¶ 14, 599 N.W.2d 309, we concluded a lessee was entitled to terminate a lease and vacate the premises under N.D.C.C. §§ 47-16-13 and 47-16-17 when the lessor failed to make repairs within a reasonable time after notification by the lessee. The lessor never repaired a back door allowing snow to blow into the premises; repaired the leaking roof months after the lessee’s complaints, but it still leaked after the repairs; and replaced the malfunctioning heating/cooling units six weeks after the lessee’s complaints. CAP Partners, at ¶ 5. We rejected the lessor’s argument these problems did not rise, as a matter of fact or law, to the level of dilapi-dations required by § 47-16-13, which allows a lessee the right to terminate a lease. CAP Partners, at ¶ 12. Rather, we affirmed the trial court’s conclusion these problems “if taken individually would not constitute constructive eviction. [But] together they seriously disturbed [lessee’s] enjoyment of the premises and made them unfit for occupancy for the purposes for which they were leased.” Id. at ¶¶ 8, 14; see also Peterson v. Front Page, Inc., 462 N.W.2d 157, 158-59 (N.D.1990) (determining a lessee was entitled to abandon the lease when the lessor breached his duty to maintain the parking lot, heating/cooling systems, and elevator).

[¶ 15] Thus, contrary to Pfeifle’s contention, our case law does justify termination of a lease based on the cumulative effect of dilapidations or problems concerning the lessee’s quiet enjoyment of the premises. Pfeifle characterizes Tanabe’s complaints as small problems with a commercial lease which were corrected and which caused no disruption to Tanabe’s dental practice. However, sufficient evidence exists in the record to find Tanabe’s quiet possession of the leased premises was seriously disturbed by the cumulative effect of long-standing and continual problems caused by unauthorized intrusions jeopardizing sterilization and confidentiality, construction noise disrupting the quiet environment of the dental office, leaking gas fumes sickening patients and staff, and dirt pile hazards disrupting Tanabe while working with patients. See N.D.C.C. § 47-16-08 (requiring a lessor to secure to lessee the quiet possession of leased property); N.D.C.C. § 47-16-17 (justifying termination of a lease when lessor does not secure lessee’s quiet possession or repair premises within a reasonable time after request).

[¶ 16] The record also demonstrates the problems were not corrected within a reasonable time. The unauthorized intrusions continued from 1994 until 1995 and were corrected only by Tanabe himself changing the locks. The dirt pile created a hazard for over six months. Problems were continually surfacing from 1994 through 1996. See CAP Partners, 1999 ND 178, ¶ 5, 599 N.W.2d 309 (affirming the lessor failed to make repairs within a reasonable time when a back door was never repaired, and roof repairs took months and heating/cooling repairs took six weeks after the lessee’s complaints); see also Peterson, 462 N.W.2d at 158 (determining a lessor did not correct breaches after a reasonable time when he failed to maintain the parking lot, heating/cooling systems, and elevator within fifteen days from written notice as provided in the lease).

C

[¶ 17] Pfeifle argues Tanabe waived his right to terminate the lease because he remained in possession for about two years after the alleged problems occurred. Pfei-fle contends the unauthorized access into the premises was eliminated after Tanabe changed the locks, and the construction noise occurred primarily two years before Tanabe vacated. Pfeifle argues the dirt pile problem was resolved one year before Tanabe vacated, and the problems occurring in 1996 were insignificant. We find no basis for waiver,

[¶ 18] A waiver occurs when a person voluntarily and intentionally relinquishes a known right or privilege. Hanson v. Cincinnati Life Ins. Co., 1997 ND 230, ¶ 13, 571 N.W.2d 363. Waiver may be established either by an express agreement or by inference from acts or conduct. Id. The existence of waiver generally is a question of fact, but if circumstances of an alleged waiver are admitted or clearly established and reasonable persons can draw only one conclusion from those circumstances, the existence of waiver is a question of law. Id. Waiver may be found from an unexplained delay in enforcing contractual rights or accepting performance different than called for by the contract. Dangerfield v. Market, 252 N.W.2d 184, 191 (N.D.1977).

[¶ 19] In CAP Partners, 1999 ND 178, ¶¶ 17, 19, 599 N.W.2d 309, we affirmed that lessees had not waived their rights to terminate the lease by remaining in possession for three months after noticing employees were sickened from the faulty heating/cooling apparatus. We agreed with the trial court which found the lessee abandoned the premises within a reasonable time, because the problems existed from the time the lessee took possession and continued without repair until the lessee vacated. Id. at ¶¶ 16, 18-19. Similarly, in Peterson, 462 N.W.2d at 159, we rejected the lessor’s argument that the lessee waived his right to terminate the leasehold because he remained in possession for more than two years after giving notice. We determined the lessee acted reasonably, given that the condition of disrepair continued throughout the two-year period and the lessee repeated his demands for repairs during that period. Id.

[¶ 20] We conclude Tanabe did not waive his right to terminate the lease by remaining in possession after his complaints, when the unauthorized intrusions ceased in late 1995 after Tanabe changed locks, because the problems were continuing and had a cumulative effect. Tanabe did not act unreasonably by remaining in possession until his new dental office was constructed.

D

[¶ 21] Pfeifle argues Tanabe failed to establish his defense of constructive eviction, as a matter of law, since there was no substantial interference to the leasehold and Tanabe did not abandon the premises within a reasonable time after the problems arose. However, because we conclude Tanabe was justified in terminating the lease and vacating the premises under N.D.C.C. §§ 47-16-13 and 47-16-17, we decline to reach the question of whether Tanabe was constructively evicted. See CAP Partners, 1999 ND 178, ¶ 15, 599 N.W.2d 309 (declining to decide a constructive eviction issue when the lessee was statutorily entitled to terminate the lease).

IV

[¶>22] Pfeifle argues the dental cabinets were fixtures, which required Pfeifle’s approval before removal, as they were affixed to the walls by screws, contained permanent plumbing and electrical wiring, required electricians and plumbers to remove them, and left holes in the wall and carpeted area. According to Pfeifle, the cabinets were not trade fixtures because, unlike dental instruments, the cabinets were not necessary for Tanabe’s practice and Tanabe could buy other cabinets as replacements. Even if the cabinets were trade fixtures, Pfeifle argues they only may be removed if done without injury to the premises and if they are not affixed as an integral part of the premises. Pfeifle argues it is irrelevant whether the cabinets were part of the original purchase of the dental practice. Pfeifle’s arguments fail.

[¶ 23] Fixtures are statutorily defined by the manner in which they are attached to the premises. “A thing is deemed to be affixed to land when it is ... permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws.” N.D.C.C. § 47-01-05. Tenants may remove fixtures under the provisions of N.D.C.C. § 47-06-04:

When a person affixes that person’s property to the land of another without an agreement permitting that person to remove it, the thing affixed belongs to the owner of the land, unless the owner of the land chooses to require the former to remove it. A tenant may remove from the demised premises, any time during the continuance of the tenant’s term, anything affixed thereto, for the purpose of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has become an integral part of the premises by the manner in which it is affixed....

[¶ 24] However, determining the manner of attachment of anptem does not end the inquiry into whether an item is a fixture. Other relevant considerations are the intent of the person annexing the item to the realty and the adaptation of the item to the use of the realty. Marsh v. Binstock, 462 N.W.2d 172, 174 (N.D.1990). In Marsh, we concluded milking equipment permanently attached to the barn by screws, electrical wiring, and separate piping was specifically adapted to the use of the realty, and all outward manifestations suggested the intent of the person who annexed the equipment to the realty was that they were fixtures. Id. Notwithstanding the physical characteristics of a fixture, however, the parties may agree to characterize the item as personal property rather than a fixture. Id. For example, when an owner of realty and fixtures sells the fixtures separate from the.real estate, a constructive severance occurs, and the fixtures become personal property. Id. Determining whether the parties intended to treat fixtures as personalty is a question of fact. Id. Thus, despite the milking equipment being permanently attached to the barn and specifically adapted to the use of the realty, we noted the contract for deed and tax statements both separately valued the milking equipment for the purpose of selling the property. Id. We concluded the sale documents for the realty created an inference the parties intended to treat the equipment as personal property, not as a fixture. Id.

[¶ 25] Our cases have indicated the parties’ intent is the preeminent factor in analyzing whether an item is a trade fixture. R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 388 (N.D.1986). The other two factors, means of attachment and adaptation to purpose of premises, are primarily evidence of the intent of the parties when annexing items to the property. Id. In R & D Amusement, we concluded that heating equipment constituted a trade fixture and could be removed lawfully at the end of the tenancy. Id. We reached that conclusion for three reasons: (1) the equipment was not permanently and irrevocably attached to the building, but affixed simply by bolts and was removed without substantially damaging the building; (2) an adequate heating system is necessary to the operation of a successful movie theater which must maintain a comfortable environment for patrons; and (3) when a tenant installs fixtures in furtherance of his or her own purposes, there is a presumption the fixtures are intended to be trade fixtures. Id. We found no evidence that the tenant who installed the equipment, or the present or past owners of the building, intended the heaters to become a permanent part of the realty. Id.

[¶ 26] Pfeifle asserts it is irrelevant whether the dental cabinets were part of the purchase of the dental practice. We disagree. Such information is relevant to ascertain the parties’ intent regarding the permanency of an item attached to the realty. The evidence from the record shows the appraisers separately valued the cabinets with other personal property at $51,700 in the purchase price for the sale of the dental practice. The 1992 corporate income tax returns for Pfeifle’s late husband, the previous owner of the dental practice, and the 1993 corporate income tax returns for Tanabe listed the cabinets as depreciable assets. See Marsh, 462 N.W.2d at 174 (finding equipment attached by screws, wiring, and piping was intended by the parties to be personal property, not a fixture, when sale and tax documents separately valued the equipment). Presumably, Tanabe would not have based part of the purchase price of the practice on the dental cabinets, knowing he would have to abandon them at the end of the five-year lease. See R & D Amusement, 392 N.W.2d at 388 (creating a presumption that fixtures installed in furtherance of a party’s own purpose are intended to be trade fixtures). The district court found Tanabe left the premises in a commercially reasonable state after removing the cabinets. See id. (determining equipment bolted into the property was a lawfully removable trade fixture when removed without substantially damaging the building). We hold the dental cabinets, which were screwed into the wall, plumbed, and wired, were intended by the parties to be trade fixtures sold with the dental practice.

V

[¶ 27] The district court’s decision is affirmed.

[¶ 28] VANDE WALLE, C.J., MARING, SANDSTROM, NEUMANN, JJ., concur.


author: MARING, Justice.

text:
    2000 ND 222
    In the Interest of C.R.H., a child. Vincent Ament, Petitioner, v. C.H. and M.H., Respondents and Appellees. North Dakota Department of Human Services, Intervenor and Appellant.
    No. 20000228.
    Supreme Court of North Dakota.
    Dec. 21, 2000.

      Thomas E. Merrick, Merrick & Schaar Law Firm, Jamestown, ND, for respondents and appellees.
    Jean R. Mullen, Assistant Attorney General, Bismarck, ND, for intervenor and appellant.
   MARING, Justice.

[¶ 1] The North Dakota Department of Human Services (“Department”) appealed from an order denying the Department’s post-judgment motion to intervene in a parental termination proceeding and to amend the trial court’s order terminating M.H.’s parental rights. We hold the trial court erred in denying the motion to intervene. We further hold the trial court erred in awarding visitation for M.H. in its parental termination order. We, therefore, reverse the order denying intervention and remand with instructions the trial court vacate its order terminating parental rights and conduct further proceedings on the merits of the petition for termination.

[¶ 2] In October 1998, the Stutsman County Department of Social Services filed a petition to terminate the parental rights of M.H. to her natural child C.R.H. After the petition was filed, M.H. stipulated her child was a deprived child and the cause of the deprivation was likely to continue. M.H. agreed to the termination of her parental rights on the condition that she would receive limited visitation privileges with the child. In accordance with the stipulation, the trial court entered an order on December 30, 1998 terminating the parental rights of M.H. with the condition that “[M.H., the natural mother] shall have the right to visit with the child on his birthday, on or near major holidays, and at significant family events such as weddings or funerals, before and after any adoption.” The court placed the child in the custody of the Department’s executive director.

[¶ 3] On January 5, 2000 the Department filed a motion to intervene and a motion to amend the court’s order, asserting the court did not have authority to award visitation to a person whose parental rights were being terminated and requesting the court to remove the visitation provision from the termination order. On January 7, 2000 the district court granted the Department’s motion to intervene. After conducting two hearings, the trial court entered an order on June 5, 2000, setting aside the previous order granting the motion to intervene and denying the Department’s motion to amend the parental termination order. On August 7, 2000, the Department filed a notice of appeal.

I

[¶ 4] The order setting aside the trial court’s original grant of the motion to intervene was entered on June 5, 2000 and the Department did not file its notice of appeal until August 7, 2000, 63 days after entry of the order. Section 27-20-56(1), N.D.C.C., provides for appeals from final decisions in proceedings brought under the Uniform Juvenile Court Act:

An aggrieved party, including the state or a subdivision of the state, may appeal from a final order, judgment, or decree of the juvenile court to the supreme court by filing written notice of appeal within thirty days after entry of the order, judgment, or decree, or within any further time the supreme court grants, after entry of the order, judgment, or decree....

The statutory 30-day time for appeal is not absolute and this Court can grant extensions of time for filing an appeal under the statute. In Interest of 449 N.W.2d 574, 575 (N.D.1989). In the M.M.S., 449 N.W.2d at 576 decision, this Court, following our earlier direction in Heitkamp v. S.L., 338 N.W.2d 834 (N.D.1983), stated:

We equate our statutory power to grant further time for an appeal under NDCC 27-20-56(1) with our rulemaking power which established the time for an appeal in a civil case. NDRAppP 4(a). This administers the need for finality in juvenile cases, including a termination of parental rights. It does so without treating a juvenile case differently than other civil cases for appellate procedure.

[¶ 5] Under N.D.R.App.P. 4(a), an appeal in a civil case must be filed within 60 days “of service of notice of entry of the judgment or order appealed from.” Service of the notice of entry of the order is the trigger which starts the running of the time to file an appeal under N.D.RApp.P. 4(a). In this case there was no service of notice of the entry of the trial court’s order. The Department’s attorney filed an affidavit with the notice of appeal, stating she received actual knowledge of the trial court’s order “through a phone call to the Stutsman County Clerk of Court on August 2, 2000.” The filing of the affidavit constitutes record evidence of the Department’s actual notice of the order on August 2, 2000 and, consequently, the running of the 60-day period to file a timely notice of appeal began to run on that date. See N.D.R.Civ.P. 58(b); Gierke v. Gierke, 1998 ND 100, ¶¶ 6-12, 578 N.W.2d 522. Consequently, the Department’s appeal is not untimely under Rule 4(a). We, therefore, conclude we have jurisdiction to review this order.

II

[¶ 6] Although the trial court entered its order terminating the parental rights of M.H. on December 30, 1998, the Department did not move to intervene until January 7, 2000, more than one year later. The Department’s substantial delay is perplexing and difficult to justify, considering the trial court placed custody of the child with the Department for the express purpose of placing the child for adoption. The Department moved to intervene as an intervention of right under N.D.R.Civ.P. 24(a). In reviewing the trial court’s consideration of this motion, we review any findings of fact made by the trial court under the clearly erroneous standard of N.D.R.Civ.P. 52(a). Fisher v. Fisher, 546 N.W.2d 354, 355 (N.D.1996). However, the ultimate question of whether the Department has a right to intervene in the action is a question of law that is fully reviewable. Id.

[¶ 7] The trial court provided in its termination order “[I]n the event the child has not been adopted within one year from the date of the Order ... this matter shall be brought back before the Juvenile Court for further review and disposition.” The trial court is authorized under N.D.C.C. § 27-20-47 to commit a child to the custody of the Department’s executive director upon entering an order terminating the parental rights of the child’s parent and, as amended effective August 1,1999, the statute provides:

3. If the child is not placed for adoption within twelve months after the date of the order and a legal guardianship or other planned permanent living arrangement for the child has not been established by a court of competent jurisdiction, the child must be returned to the court for entry of further orders for the care, custody, and control of the child.

More than one year after the termination of the parental rights of his natural mother, C.R.H. has not been placed for adoption, and we are not aware of any legal guardianship or other permanent living arrangement having been established by the court. Under these circumstances, the Department, as the designated custodian of the child, is obligated under the statute, as well as under the court’s parental termination order, to return to the court for further consideration of the matter. The Department, as custodian, is given a mandate to seek the court’s review of the custody, care, and control issues involving this child. Furthermore, the issue raised by the Department, whether a trial court can provide visitation to the natural’ parent in a parental termination order, implicates important policy issues.

[¶ 8] In view of the court’s order of termination requiring the child to be returned within one year from the date of the order if the child was not yet adopted and in view of the mandate for review provided under N.D.C.C. § 27-20-47, we conclude the Department, as a matter of right, had standing to bring the issues relating to termination of parental rights and custody to the court for reconsideration. Under these circumstances, we hold the trial court erred in denying the Department’s motion to intervene.

Ill

[¶ 9] Section 27-20^6, N.D.C.C., is very clear in declaring the finality of a decree of parental termination which ends all legal rights and obligations between the parent and child:

An order terminating parental rights of a parent terminates all his rights and obligations with respect to the child and of the child to or through him arising from the parental relationship. The parent is not thereafter entitled to notice of proceedings for the adoption of the child by another nor has he any right to object to the adoption or otherwise to participate in the proceedings.

The statute providing for adoption, N.D.C.C. § 14 — 15—14(l)(a), is equally clear and decisive:

A final decree of adoption and an interlocutory decree of adoption which has become final ... have the following effect ... to relieve the natural parents of the adopted individual of all parental rights and responsibilities, and to terminate all legal relationships between the adopted individual and the individual’s relatives, including the individual’s natural parents, so that the adopted individual thereafter is a stranger to the individual’s former relatives for all purposes ....

These statutes are clear on their face. When a statute is unambiguous, we apply the plain language. State v. Hafner, 1998 ND 220, ¶ 10, 587 N.W.2d 177. These statutes do not vest any discretionary authority upon a court entering a decree of parental termination to provide visitation rights or other privileges to the terminated parent. Section 27-20-46, N.D.C.C., requires an unconditional termination of all legal rights and obligations of the terminated parent with respect to the child.

[¶ 10] A similar issue was presented to the Illinois Appellate Court in In re M.M., 226 Ill.App.3d 202, 168 Ill.Dec. 287, 589 N.E.2d 687, 690 (1992). The court was asked to review a decision of the juvenile court which terminated parental rights and appointed a guardian with limited authority to arrange an adoption by which the adoptive parents would consent to continued visitation or contact between the adopted child and the biological parents. In concluding the juvenile court did not have authority to make the adoption contingent upon the biological parents’ right to visitation, the Illinois Appellate Court stated:

[Allowing the court to limit, restrict, or make conditional the order appointing the guardian with the power to consent to adoption, is tantamount to allowing the court to limit, restrict, or make conditional the termination of parental • rights.
The finality of an order terminating parental rights should be of primary concern since the termination order is the first step in the adoption procedure and there is a strong public policy favoring finality and stability in adoptions. If we were to allow for a conditional termination of parental rights, it would leave the question of termination of parental rights open to attack indefinitely, thereby jeopardizing the entire adoption scheme.

In re M.M., 168 Ill.Dec. 287, 589 N.E.2d at 691-692 (citation omitted). Affirming this decision, the Illinois Supreme Court in In re M.M., 156 Ill.2d 53, 189 Ill.Dec. 1, 619 N.E.2d 702, 713 (1993), stated:

[A]doption results in a complete severance of the parent-child relationship. Appellants cite to no authority to support the conclusion that biological family ties continue to receive protected status in the face of an adoption....
Once an adoptive placement is determined to be in the best interests of the child, duties and responsibilities with respect to the care, custody and control of that child vest, solely, in the adoptive parents. It then becomes the right of the adoptive parents to decide whether to permit or deny continued contact with the child’s biological family.

[¶ 11] The Court of Appeals of New York in Matter of Gregory B., 74 N.Y.2d 77, 544 N.Y.S.2d 535, 542 N.E.2d 1052, 1058-59 (1989), recognized that allowing biological family members enforceable contacts or visitation with an adopted child is an issue for the legislature, not the courts:

[W]e are not unmindful of the psychological harm that may possibly result from severing the bonds between a child and his or her biological parent, particularly where the child is older and has strong emotional attachments to the birth family. Such concerns have been increasingly well documented in recent years, prompting some to advocate “open” adoptions in which the court supplements an order of adoption with a provision directing that the adopted child have continuing contacts and visitation with members of his or her biological family.
[T]he “open” adoption concept would appear to be inconsistent with this State’s view as expressed by the Legislature that adoption relieves the biological parent “of all parental duties toward and of all responsibilities for” the adoptive child over whom the parent “shall have no rights.” Although adoptive parents are free, at their election, to permit contacts between the adopted child and the child’s biological parent, to judicially require such contacts arguably may be seen as threatening the integrity of the adoptive family unit. In any event, “open” adoptions are not presently authorized. If they are to be established, it is the Legislature that more appropriately should be called upon to balance the critical social policy choices and the delicate issues of family relations involved in such a determination.

(Citations omitted.) A year later, the New York legislature passed a statute expressly allowing a conditional surrender of parental rights of children in foster care. McKinney’s Cons.Laws of N.Y., Book 52A, Social Services Law § 383 c., 1995. Referring to this statute, the Court of Appeals of New York, in Matter of Jacob, 86 N.Y.2d 651, 636 N.Y.S.2d 716, 660 N.E.2d 397, 404 (1995), concluded the new law “expressly permits parties to agree that the biological parent will retain specified rights — such as visitation with the child— after the adoption, thereby authorizing ‘open adoptions’ for the first time in this State.”

[¶ 12] Unlike the New York legislation, our current adoption statutes do not expressly authorize court-ordered visitation or other contacts between the biological parents and the adopted child. Under N.D.C.C. § 27-20-46, a decree terminating parental rights severs all legal ties between the natural parent and the child. There is no provision for conditional parental termination under the statute. Likewise, under N.D.C.C. § 14-15-14(1), a decree of adoption terminates all legal relationships between the adopted person and his or her natural parents. In this case, M.H. stipulated to a termination of her parental rights upon the condition that the termination decree would give her rights of visitation upon the child’s adoption. Having concluded our statutes do not authorize such a conditional parental termination, we must vacate the trial court’s parental termination order.

IV

[¶ 13] The order denying the Department’s motion to intervene and to amend the termination decree is reversed and the case is remanded with directions the trial court vacate the December 30, 1998 parental termination order and conduct further proceedings on the merits of the petition to terminate M.H.’s parental rights.

[¶ 14] VANDE WALLE, C.J., NEUMANN, SANDSTROM, KAPSNER, JJ., concur.

      . The trial court's order terminating the parental rights of M.H. was entered on December 30, 1998. This provision was amended, effective August 1, 1999, on matters not relevant to this appeal, and the quoted language was not changed.

      . However, when a parent files a petition to relinquish parental rights to an identified adoptive parent, under N.D.C.C. § 14-15.1-02, our "open adoption" procedure, a report of agreements between the parties, including agreements “which relate in any way to the future conduct of any party with respect to the child” must be filed with the court. N.D.C.C. § 14-15.1-05. The identified adop-live parent has 90 days after entry of the order for relinquishment to file for adoption under N.D.C.C. ch. 14-15. N.D.C .C. § 14-15.1-07. An order under N.D.C.C. ch. 14-15.1 terminates the relationship of the birth parent and the child. N.D.C.C. § 14-15.1-03(4). The present case does not arise under N.D.C.C. ch. 14-15.1.