author: DIETZEN, Judge.

text:
    In re GUARDIANSHIP Of Jean A. WELLS, Ward.
    No. A06-1500.
    Court of Appeals of Minnesota.
    June 26, 2007.

      Daniel Oberdorfer, Chad M. Roggeman, Leonard, Street & Deinard, P.A., Minneapolis, MN, for appellant Nancy Frey.
    Philip J. Young, Nancy M. Kiskis, Moss & Barnett, Minneapolis, MN, for respondent Diane L. Vandermolen.
    Richard C. Ilkka, Stillwater, MN, for respondent Jean A. Wells.
    Tamara J. Gerten, Gerten & Van Valk-enburg, P.A., St. Paul, MN, for respondent Frank Sutherland.
    Considered and decided by STONEBURNER, Presiding Judge; DIETZEN, Judge; and WORKE, Judge.
   OPINION

DIETZEN, Judge.

Appellant Nancy J. Frey challenges the district court’s denial of her petition for appointment as her mother’s guardian and its order appointing a third-party guardian. We affirm.

FACTS

In early 2005, Wallace and Jean Wells made plans for their estate and health care. As part of that process, Jean Wells executed, among other things, a health care directive naming one of her daughters, Nancy Frey, as her health care agent and her other daughter, Diane Vandermo-len, as the alternate. The directive granted the health care agent and “any person named as successor or alternative health care agent, whether or not then acting as [Wells’s] principal health care agent” the authority to access information pertaining to her medical treatment. Frey lives in Hugo, Minnesota, and Vandermolen lives in New Jersey.

Jean Wells currently suffers from dementia as a result of Alzheimer’s disease. After Wallace Wells’s death in August 2005, Jean Wells was admitted to the memory-care unit of a long-term care facility in Stillwater, near Frey’s home in Hugo. In September 2005, Frey filed a petition seeking to be appointed guardian for her mother. A hearing on Frey’s petition was scheduled for November 2005. Prior to the scheduled hearing, Vandermo-len filed objections to Frey’s petition and sought to be appointed as Wells’s guardian. In the alternative, Vandermolen sought shared guardianship with Frey or the appointment of an independent guardian. The hearing was then continued to February 2006. Before the hearing, an expert appointed by the court met with Wells and determined that she lacked capacity to voice an opinion on who should be appointed.

At the hearing, the only issue was the appointment of a guardian. Wells was represented by a court-appointed attorney, but not a guardian ad litem. The health care directive was admitted, and a longtime friend of the family testified that Frey and Vandermolen’s parents had looked to Frey to take care of their affairs. Vandermolen acknowledged that Frey was qualified to serve as a guardian for their mother, but expressed concerns that Frey had not shared information about their mother’s treatment and had excluded Van-dermolen from participation in their mother’s health care. Citing the conflict between Frey and Vandermolen, Wells’s court-appointed attorney recommended that an unrelated third-party, Frank Sutherland, be appointed as guardian.

In March 2006, the district court denied Frey’s petition and appointed Frank Sutherland/Sutherland Fiduciary, Inc. as guardian. The district court found that the health care directive contemplated that Vandermolen should have access to her mother’s health care information and records and that Frey had “willfully and intentionally” obstructed Vandermolen’s efforts to participate in health care decisions and obtain information about her mother’s care. The district court found that animosity between the sisters “is long-standing and is not likely to dissipate in the indefinite future” and that the conflict “is not in the best interests of [Wells] and has the potential to cause [Wells] aggravation and anxiety should it escalate.”

Frey then brought a motion for amended findings or new trial, which was denied on all issues relevant to this appeal. This appeal followed.

ISSUES

1. When a ward has a health care directive naming a health care agent, what showing is necessary under the Uniform Guardianship and Protective Proceedings Act, Minn.Stat. § 524.5-309 (2006), to appoint a third-party guardian?

2. Did the district court err in concluding that it was not in the ward’s best interests to appoint the health care agent as guardian?

ANALYSIS

I.

Frey argues that the district court erred in its application of Minn.Stat. § 524.5-309 (2006) and its denial of her petition for appointment as her mother’s guardian. The appointment of a guardian is generally within the discretion of the district court. In re Guardianship of Kowalski, 478 N.W.2d 790, 792 (Minn.App.1991), review denied (Minn. Feb. 10, 1992). A reviewing court will not reverse an appointment absent a clear abuse of discretion. Id. We review questions of statutory interpretation de novo. In re Conservatorship of Foster, 547 N.W.2d 81, 84-85 (Minn.1996).

The Uniform Guardianship and Protective Proceedings Act (Guardianship Act) provides that when appointing a guardian, the court “shall consider persons otherwise qualified” in the order of priority established by the statute. Minn.Stat. § 524.5-309(a). The statutory priority relevant to this proceeding is as follows:

(1) a guardian, other than a temporary or emergency guardian, currently acting for the respondent in this state or elsewhere;
(2) an agent appointed by the respondent under a health care directive pursuant to chapter 145C; ...
(4) an adult child of the respondent.

Id. The statute further provides that the court “may decline to appoint a person having priority and appoint a person having a lower priority or no priority,” if to do so would be in the best interests of the proposed ward. Minn.Stat. § 524.5-309(b).

Frey argues that she meets the definition of the second and fourth priorities under the statute and, therefore, is entitled to appointment. Essentially, appellant argues that her appointment should be automatic. We disagree.

The Minnesota Health Care Directives Act (Health Care Act) provides that “the appointment of the health care agent in a health care directive is considered a nomination of a guardian for purposes of [the Guardianship Act].” Minn.Stat. § 145C.07, subd. 2 (2006). But more importantly, the Guardianship Act gives the court discretion to decline the appointment of a person having priority if it is not in the ward’s best interest. Minn.Stat. § 524.5-309(b).

Frey next argues that the Health Care Act limits the discretion of the district court to decline appointment of a person with a higher priority if doing so is not in the ward’s best interests. Specifically, Frey contends that Minn.Stat. § 145C.10(c) (2006) creates a presumption in her favor, absent clear and convincing evidence to the contrary. Vandermolen argues that the presumption in Minn.Stat. § 145C.10(c) is not applicable and does not limit the court’s discretion under Minn. Stat. § 524.5-309.

We interpret statutes according to their plain and ordinary meaning. Minn.Stat. § 645.08(1) (2006). “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2006). The Guardianship Act is based on a uniform law and, therefore, should be “interpreted and construed to effect [the] general purpose to make uniform the laws of those states which enact them.” Minn.Stat. § 645.22 (2006). But only two other states have adopted this law, and neither state’s caselaw sheds light on the question before us. Thus, we turn to the language of the Minnesota statute.

The Health Care Act provides that the health care agent is “presumed to be acting in good faith, absent clear and convincing evidence to the contrary.” Minn.Stat. § 1450.10(c). The phrase “act in good faith” means acting consistently with the health care directive or other directions of the principal. Minn.Stat. § 145C.01, subd. la (2006). Or, if there is not adequate guidance in the directive, “ ‘act in good faith’ means acting in the best interests of the principal, considering the principal’s overall general health condition and prognosis and the principal’s personal values to the extent known.” Id.

Based on our reading of the statute, we conclude that the presumption in Minn.Stat. § 145C.10(c) does not apply to the appointment of a guardian under Minn. Stat. § 524.5-309 and does not limit the discretion of the district court to decline appointment of a person nominated in the health care directive. First, the presumption in the Health Care Act that a health care agent, when making health care decisions, is acting in good faith addresses a wholly different question than whether the health care agent’s appointment as guardian would be in the ward’s best interests. Second, Minn.Stat. § 524.5-309 does not incorporate the presumption or the clear and convincing standard set forth in Minn. Stat. § 145C.10. If the legislature had intended to limit the district court’s discretion to decline to appoint a person with higher priority, in favor of another whose appointment is found to be in the best interests of the ward, it could have done so. We discern no legislative intent to so limit the discretion of the district court. Therefore, we do not read the Health Care Act to require that a clear and convincing standard of proof be applied. Rather, the appropriate standard of proof is a preponderance of evidence.

II.

Frey argues that the district court abused its discretion in not appointing her as guardian and finding that her mother’s best interests required appointment of a neutral third-party as guardian. The “appointment of a guardian is uniquely within the discretion of the appointing court,” and we will not interfere with the exercise of that discretion except in the case of a clear abuse of discretion. Kowalski, 478 N.W.2d at 792. A reviewing court is limited to determining whether the district court’s findings are clearly erroneous, giving due regard to the district court’s determinations regarding witness credibility. Minn. R. Civ. P. 52.01; In re Conservatorship of Lundgaard, 453 N.W.2d 58, 60-61 (Minn.App.1990). Thus, we will defer to the district court’s finding that Frey’s appointment was not in Wells’s best interests, unless that finding is clearly erroneous.

Frey argues that the district court failed to explain its reasoning, which is reversible error under Lundgaard, 453 N.W.2d at 61. But the court expressly stated that the conflict between Frey and Vandermolen was not in Wells’s best interests, and found that the conflict “has the potential to cause [Wells] aggravation and anxiety should it escalate.” Specifically, the court found that Frey and Vandermolen had involved the long-term-care-facility staff and law enforcement in their disputes over their mother’s care and that Frey had failed to provide information to Vandermo-len about her mother’s care. Thus, Frey’s assertion that the court did not explain its reasoning is unfounded.

Frey next argues that the conflict with her sister does not support a finding that her appointment would not be in her mother’s best interests because the conflict — • identified by the court as “longstanding”— existed at the time her mother nominated her to be her guardian and that her mother appointed her despite the conflict.

But, the guardianship statute requires the court to consider both the ward’s expressed preferences and the ward’s best interests. Minn.Stat. § 524.5-309(b). The district court considered Wells’s expressed preferences that Frey be appointed guardian and that Vandermolen have access to her medical information, the sisters’ demonstrated inability to cooperate, and the likely impact on Wells. Here, the court found that appointing Frey would exacerbate the intra-family dispute with Vander-molen, which was not in the best interests of the ward. Thus, the court determined that appointment of a neutral third-party guardian was in the ward’s best interests. See In re Conservatorship of Edwards, 390 N.W.2d 300, 305 (Minn.App.1986) (appointing third party as conservator when children could not agree on how father should be cared for); Schmidt v. Hebeisen, 347 N.W.2d 62, 64 (Minn.App.1984) (appointing third party as conservator when ward’s grandchildren alleged the ward’s daughter had converted ward’s assets).

Frey suggests that the harm the court identified is not severe enough to support a conclusion that her appointment is not in her mother’s best interests and relies on Kowalski. In Kowalski, the ward nominated her lesbian partner as her guardian, but her parents threatened to sever all ties with their daughter if the partner was appointed. 478 N.W.2d at 794. The district court, citing the conflict between the parties, appointed a third-party guardian rather than the partner or parents. Id. This court reversed and remanded for appointment of the partner, holding that the court need not “accommodate one side’s threatened intransigence, where to do so would deprive the ward of an otherwise suitable and preferred guardian.” Id. at 795. Here, both sides participated in the escalation of the conflict.

Frey nonetheless argues that family conflict is not sufficient, and that there must be specific evidence of tangible harm to the ward. She relies on Edwards and Schmidt to support her argument. We disagree. In Edwards, we affirmed the district court order appointing a third party, concluding that the best interest of the ward was paramount and that the court properly exercised its discretion. We stated, “[t]he children cannot agree upon who should care for their aged father. Thus, it is appropriate that a third party be charged with that responsibility.” Edwards, 390 N.W.2d at 305 (citing In re Guardianship of Strom, 205 Minn. 399, 405, 286 N.W. 245, 249 (1939) and Schmidt, 347 N.W.2d at 64). Here, the district court concluded that a family dispute puts family member petitioners at odds with the best interests of the ward. It found that Frey “willfully and intentionally” prohibited Vandermolen from obtaining their mother’s information and involved law enforcement and the care facility’s staff in their disputes. By statute, the district court has the discretion to decline appointment of a petitioner if it is in the best interests of the ward to do so. Minn.Stat. § 524.5-309(b). We do not read the statute to limit the court to specific evidence of tangible harm.

Therefore, because the court’s conclusion that Frey’s appointment is not in the best interests of the ward is supported by the evidence and not clearly erroneous, the district court did not abuse its discretion by declining to appoint Frey as Wells’s guardian.

DECISION

Because Minn.Stat. § 524.5-309 does not require a heightened standard of proof in guardianship proceedings, a party opposing appointment of a person with priority under the Uniform Guardianship and Protective Proceedings Act must establish by a preponderance of the evidence that appointment is not in the best interests of the ward. The district court’s finding that appointment of Frey was not in the best interests of the ward was not clearly erroneous and is supported by the record. Accordingly, we affirm the appointment of a third-party guardian.

Affirmed.

      . In its order denying Frey’s motion for amended findings or a new trial, the district court granted a hearing on the third-party's qualifications as guardian. Thus, the district court has retained jurisdiction over the issue of the third party’s qualifications, and, therefore, we do not reach that issue.

      . The Uniform Guardianship and Protective Proceedings Act has been adopted by Colorado, Hawaii, and Minnesota. Unif. Guardianship & Prot. Proceedings Act (1997). But neither Colorado nor Hawaii has a health care directives act that creates the same presumption at issue here, and thus, their case-law is not helpful. Additionally, Colorado specifically altered the language of the uniform act provision authorizing the court to deviate from the stated priorities. Under Colorado law, "[t]he court, for good cause shown, may decline to appoint a person having priority and appoint a person having a lower prior-ily or no priority.” Colo.Rev.Stal. § 15 — 14— 310(3) (2006) (emphasis added). Thus, Colorado caselaw is not helpful in determining whether a nominated health care agent is presumed to be a suitable guardian whose appointment is in the best interests of the ward.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2007 ND 101
    Robisita WAGNER, Plaintiff, Appellant and Cross-Appellee v. Oral WAGNER, Defendant, Appellee and Cross-Appellant.
    No. 20060228.
    Supreme Court of North Dakota.
    June 26, 2007.

      Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, ND, for plaintiff, appellant and cross-appellee.
    Gregory Ian Runge, Bismarck, ND, for defendant, appellee and cross-appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Robisita Wagner appealed and Oral Wagner cross-appealed from a divorce judgment, ordering Oral Wagner to pay child support, dividing the parties’ marital property, and awarding Robisita Wagner spousal support. We affirm the district court’s award of child support; however, because we conclude the court erred in its distribution of the marital property and award of spousal support and misapplied the law in not awarding attorney’s fees, we reverse and remand for further proceedings.

I

[¶2] Robisita and Oral Wagner were married on June 11, 1992, in Manila in the Philippines. The district court found that they had met through an advertisement in a magazine and that at the time of their marriage, Oral Wagner was fifty-two years old and Robisita Wagner was twenty-eight years old. Neither of the parties had previously been married. The parties had one child born to the marriage in March 1994.

[¶ 3] Prior to the marriage, Oral Wagner had farmed his family farm near Arena his entire life, which includes 1,930 acres of crop and grazing land. Robisita Wagner had previously received a business management degree from a university in the Philippines and had been employed as a housekeeper and a secretary in a casino. She received her visa to come to the United States in February 1993 and became a United States citizen in March 1996. During their marriage, Oral Wagner and Robi-sita Wagner lived on the family farm. The district court found that although Robisita Wagner did little farmwork, she did the bulk of the housework and childcare. The court also found that Oral Wagner is presently a retired, disabled farmer suffering from diabetes, while Robisita Wagner is otherwise in good health.

[¶ 4] Robisita Wagner commenced this divorce action in July 2004. In March 2005, Robisita Wagner filed the complaint and moved for a default judgment. In April 2005, the district court held a hearing on Robisita Wagner’s motion for default judgment. The court issued a partial default judgment in July 2005, which resolved the issues of child support and visitation, set Oral Wagner’s child support obligation at $475 per month, required Oral Wagner to provide health insurance, and distributed the parties’ personal property. At that time, the court reserved ruling on the issues of spousal support, distribution of the real estate in the marital estate, distribution of the parties’ debts, and attorney’s fees. An additional hearing was scheduled for October 2005, but the court granted a continuance after Oral Wagner retained counsel to represent him.

[¶ 5] Oral Wagner subsequently moved for relief from the partial default judgment. After a hearing, the district court vacated the partial judgment, “except for the issues of the divorce being granted, of child custody; and the parties’ personal property presently in each’s possession.” The court further held that although the child support was incorrectly calculated, the child support would remain at the amount previously set, and “[a]ny overage or arrearage in child support, the issues of visitation, all other personal property, debt and real property shall be addressed at the trial.”

[¶ 6] On June 1, 2006, a trial was held in the district court. Because the parties had previously agreed on a visitation schedule and that Oral Wagner’s correct child support obligation was $182 per month, the court determined the remaining issues for trial were the date the agreed child support obligation started and how to handle any resulting overpayment, disposition of the remaining real property and equipment, disposition of the marital debt, spousal support, and attorney’s fees.

[¶ 7] After trial, the district court held Oral Wagner’s $182 per month child support obligation would commence June 1, 2006, but refused to retroactively order the reduced amount, concluding it was not in the child’s best interests and the obligation was incorrectly calculated at the outset due to Oral Wagner’s initial failure to participate in the divorce proceedings. The court found the parties’ Rule 8.3 Property and Debt listing accurately stated the marital assets and debts, indicating a net marital estate of approximately $332,500, including $464,000 in land assets, $41,600 in farm machinery and equipment, and approximately $174,700 in debt. The court ordered Oral Wagner to pay Robisita Wagner $12,000 for her share of the distribution of the marital property and to pay her spousal support in the amount of $200 per month for two years. The district court awarded Oral Wagner the remaining assets and all marital debts.

II

[¶ 8] Robisita Wagner argues the district court erred in distributing the parties’ marital property and in awarding spousal support.

A

[¶ 9] Under N.D.C.C. § 14-05-24(1), the district court must make an equitable distribution of the parties’ marital property and debts. Holden v. Holden, 2007 ND 29, ¶ 10, 728 N.W.2d 312; Kostelecky v. Kostelecky, 2006 ND 120, ¶ 12, 714 N.W.2d 845. In distributing marital property, the district court must consider all of the parties’ assets to ensure the division is equitable. Donlin v. Donlin, 2007 ND 5, ¶ 11, 725 N.W.2d 905; Kostelecky, at ¶ 12. After including all of the parties’ marital assets, the court must consider the Ruff-Fischer guidelines in its distribution of the parties’ assets. Bladow v. Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724. Under the Ruff-Fischer guidelines, the court must consider:

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

Id. (quotations omitted); Donlin, at ¶ 11.

[¶ 10] The district court is not required to make specific findings on each Ruff-Fischer factor, but must explain the rationale for its decision. Kostelecky, 2006 ND 120, ¶ 13, 714 N.W.2d 845; Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724. Although the property division need not be equal to be equitable, the district court must explain any substantial disparity. Kostelecky, at ¶ 13.

[¶ 11] “North Dakota law does not mandate a set formula or method to determine how marital property is to be divided; rather, the division is based on the particular circumstances of each case.” Holden, 2007 ND 29, ¶ 10, 728 N.W.2d 312 (citing Ulsaker v. White, 2006 ND 133, ¶ 14, 717 N.W.2d 567). We have recognized that a long-term marriage supports an equal distribution of property. Holden, at ¶ 10 (quoting Donlin, 2007 ND 5, ¶ 11, 725 N.W.2d 905). We have also recognized that liquidation of an ongoing farming or business operation is ordinarily a last resort. Holden, at ¶ 14; Kostelecky, at ¶ 13; Gibbon v. Gibbon, 1997 ND 210, ¶ 7, 569 N.W.2d 707. “We have upheld the distribution of farm assets to one spouse with an offsetting monetary award to the other spouse.” Gibbon, at ¶ 7.

[¶ 12] Here, the district court considered the Ruff-Fischer guidelines and made a number of additional findings. The district court found that at the time of trial Oral Wagner was sixty-five years old and Robisita Wagner was forty-two years old. Regarding their respective earning abilities, the court found that Robisita had a business management degree she never used and that although she previously had secretarial and housekeeping jobs, she did not work during the marriage. Robisita Wagner testified that she did not speak English well enough to obtain a business management job and that while she had searched for jobs without success, she would like to be trained as a medical tran-scriptionist. The court found there was no reason Robisita Wagner could not earn at least a minimum wage. The court found Oral Wagner is disabled, unable to farm or ranch, and rents out the farm land. The court found that Oral Wagner rents out the crop land for $14,500 per year and the pasture land for $500 per year and that Oral Wagner has no other income, other than social security disability payments, and has no other earning ability.

[¶ 13] Regarding the parties’ conduct during the marriage, the district court found that neither party alleged abuse on the part of the other, and Robisita Wagner did the homemaking and childcare while Oral Wagner did the farm and ranch work. The court also found that Robisita Wagner did accumulate large telephone bills. In considering the parties’ station in life, the court found that Robisita Wagner is relatively young, but never apparently owned much although she testified that her income in Hong Kong was substantial. The court stated, “She would be what would be expected of a typical farm wife thirty years ago. The fact that she was a ‘mail order bride’ and has some difficulty with English contributes to her station in life, and may make it harder for her to improve upon it than others of similar age and education.” The court found Oral Wagner is a retired, disabled farmer who could make ends meet, but nothing more. The district court found that although neither had any unusual circumstances or necessities, Oral Wagner is disabled due to bad knees and has diabetes that is controlled by medication, while Robisita Wagner has an iron deficiency for which she takes medication but is otherwise in good health.

[¶ 14] Specifically, regarding the parties’ financial circumstances, the court found (emphasis added):

The Court previously distributed property the parties had in their possession. Oral owns 1930 acres of land that he bought before the parties met, with one exception. During the marriage, Oral sold 160 acres, but then bought another 160 acres closer to his house, so his total acreage remained the same. Robisita did not contribute in any way to the purchase of the new 160 acres. Oral also has farm machinery and equipment. The evidence is that Oral owned all the machinery and equipment before the marriage. The machinery and equipment is all under a bank lien. The parties have three vehicles. No evidence was presented as to when the parties purchased the vehicles. Oral testified he would pay all the marital debts, so the source of the debts is not dispositive. The Rule 8.3 Property and Debt listing accurately sets out the marital assets and debts, and indicates a net marital estate of $332,505.55. This is somewhat deceiving in terms of property disposition, as $464,000 of the assets is land and $41,600 is farm machinery or equipment. Both these categories of assets secure the debt. Therefore, there are no liquid assets other than the monthly rental payments. ... That only leaves $1,000 per month plus Oral’s disability payment, unless the Court were to order Oral to sell land.

[¶ 15] Despite finding a net marital estate of approximately $332,500, the district court found that because Robisita Wagner contributed little to the accumulation of the marital assets, she was “entitled to little of the assets.” The district court ordered Oral Wagner to “pay Robisita $12,000 ($1,000 per year of marriage — 1992 to 2004) in order for her to become established in a new living arrangement.” The court stated, “Robisita will likely have to move elsewhere to find a job before she planned to, but Oral can only pay so much without the Court forcing him to sell large portions of land.” Oral Wagner was permitted to retain all the other marital assets and assume all marital debts.

[¶ 16] Although we have generally said that liquidation of an ongoing farming operation is a last resort in dividing marital assets, we are not confronted here with an ongoing farming operation, but instead the primary use of the land is as rental property. Here, the district court was laboring to maintain the farm assets intact despite the lack of an ongoing farming operation and, in effect, was removing the property from consideration of an equitable distribution. Despite a long-term marriage of twelve years, which produced a child, and evidence that Robisita Wagner contributed significantly to the marriage by doing the bulk of the housework and childcare, it is unclear how the district court arrived at the $12,000 property division award to Ro-bisita Wagner in light of the amount of the net marital estate. It is also unclear from the court’s findings exactly what Oral Wagner’s monthly income is, including the specific amount of his monthly social security disability payments.

[¶ 17] On this record, we conclude that the district court erred by limiting the property distribution to Robisita Wagner based on Oral Wagner’s limited monthly income and in failing to consider liquidation of the farm property. We reverse and remand for reconsideration of the distribution of the parties’ marital property to include consideration of liquidating the farm assets or assigning a portion of the property to Robisita Wagner.

B

[¶ 18] This Court has also explained the relationship between the district court’s consideration and award of property division and spousal support:

Property division and spousal support are interrelated and intertwined and often must be considered together. Spousal support determinations are findings of fact, and the district court’s decision on spousal support will not be set aside unless it is clearly erroneous. In making a spousal support determination, the district court must consider the relevant factors under the Ruff-Fischer guidelines.

Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845 (citations omitted).

[¶ 19] The district court found that while Robisita Wagner has a business administration degree from a university in the Philippines, she has not used that degree and has some difficulty with English, making it harder for her to improve upon her station in life than for others of similar age and education. However, the district court also focused on the circumstances surrounding the origins of the marriage, i.e., that she was a “mail order bride” and that she left the Philippines “with the apparent expectation that Oral would provide for her needs.” After twelve years of marriage which resulted in the birth of the parties’ child, the origin of the marriage is of less importance.

[¶ 20] Because property division and spousal support are “interrelated and intertwined,” we reverse and remand the district court’s award of spousal support for consideration under the relevant factors of the Ruff-Fischer guidelines.

Ill

[¶ 21] Robisita Wagner argues the district court erred in failing to award her attorney’s fees.

[¶ 22] Under N.D.C.C. § 14-05-23, the district court in divorce proceedings has discretion to award attorney’s fees. Bertsch v. Bertsch, 2006 ND 31, ¶ 8, 710 N.W.2d 113; Reiser v. Reiser, 2001 ND 6, ¶ 15, 621 N.W.2d 348. The court’s award of attorney’s fees is within its sound discretion and will not be set aside on appeal absent an abuse of that discretion. Bertsch, at ¶ 8; Reiser, at ¶ 15. The district court abuses its discretion when it misinterprets or misapplies the law. Bertsch, at ¶ 8; Heller v. Heller, 367 N.W.2d 179, 184 (N.D.1985).

[¶ 23] This Court has previously provided the framework for courts considering an award of attorney’s fees under N.D.C.C. § 14-05-23:

In deciding whether to award attorney fees in a divorce action, the trial court must balance one [party’s] needs against the other [party’s] ability to pay. The court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the action of either party unreasonably increased the time spent on the case. An award of attorney fees requires specific findings supported by evidence of the parties’ financial conditions and needs.

Bertsch, 2006 ND 31, ¶ 8, 710 N.W.2d 113 (quoting Reiser, 2001 ND 6, ¶ 15, 621 N.W.2d 348). “In awarding attorney’s fees, fault is a consideration only to the extent that one party has unreasonably escalated the fees.” Bertsch, at ¶ 10.

[¶ 24] Here, the district court refused to award any attorney’s fees, deciding instead that the parties would pay their own attorney’s fees. The court reasoned: “Robisita commenced the divorce action because the parties ‘just didn’t get along any more,’ a rather skimpy reason. However, once filed, the case likely got prolonged because of Oral’s inaction.” This is not, however, the correct analysis under N.D.C.C. § 14-05-23. Robisita Wagner’s reason for commencing the divorce action is not a relevant factor for consideration. Although either party’s fault is properly a factor only to the extent that a party has unreasonably escalated the fees, as we have explained, the appropriate analysis for awarding attorney’s fees must include balancing one party’s needs against’ the other’s ability to pay.

[¶ 25] Because the district court failed to balance the parties’ needs and abilities to pay, we conclude the court misapplied the law in considering whether to award Robisita Wagner attorney’s fees. We therefore remand for a correct application of the law.

IV

[¶ 26] Oral Wagner argues the district court erred in refusing to set his child support obligation at $182 per month retroactively to July 2005.

[¶ 27] Child support determinations involve questions of law subject to a de novo standard of review, findings of fact subject to a clearly erroneous standard of review, and may include matters of discretion subject to an abuse of discretion standard of review. Marchus v. Marchus, 2006 ND 81, ¶ 6, 712 N.W.2d 636; Lukenbill v. Fettig, 2001 ND 47, ¶ 9, 623 N.W.2d 7. The district court’s decision in setting an effective date for a modified child support obligation is discretionary and, absent an abuse of discretion, will not be overturned on appeal. Marchus, at ¶ 6. The district court abuses its discretion if it acts arbitrarily, capriciously, or unreasonably, or it misapplies or misinterprets the law. Id.

[¶ 28] In the context of child support modification proceedings, we have explained the district court has continuing jurisdiction to modify child support. Steffes v. Steffes, 1997 ND 49, ¶ 14, 560 N.W.2d 888. However, a vested child support obligation may not be retroactively modified. Id.; Brakke v. Brakke, 525 N.W.2d 687, 690 (N.D.1994). “Generally, a modification of child support should be made effective from the date of the motion to modify, absent good reason to set some other date, and the ‘court retains discretion to set some later effective date, but its reasons for doing so should be apparent or explained.’ ” Marchus, 2006 ND 81, ¶ 8, 712 N.W.2d 636 (emphasis in original) (quoting Geinert v. Geinert, 2002 ND 135, ¶ 10, 649 N.W.2d 237). See also N.D.C.C. § 14-08.1-05(1)(c) (stating due and unpaid child support not subject to retroactive modification). When the district court forgives past due child support obligations, it has modified a child support order. Mar-chus, at ¶ 8; Morton County Soc. Serv. Bd. v. Hakanson, 2003 ND 78, ¶ 7, 660 N.W.2d 599.

[¶ 29] In this case, Oral Wagner’s original obligation arose from the partial default judgment entered in July 2005, which ordered Oral Wagner to pay $475 each month in child support. Oral Wagner subsequently retained counsel and in October 2005, sought relief from the partial default judgment. In support of his motion for relief from the partial default judgment, Oral asserted the child support calculations were not done in accordance with the child support administrative guidelines. The district court granted Oral Wagner’s motion to vacate the partial judgment, except for certain enumerated issues. The district court acknowledged that the child support had been calculated incorrectly, but ordered that the child support obligation would remain at the amount originally ordered and that “[a]ny overage or arrearage in child support ... shall be addressed at the trial.” The effect of this order was to delay any modification and maintain the status quo for support of the minor child.

[¶ 30] This case eventually came to trial on June 1, 2006, before a different district court judge. The parties had agreed sometime before trial that the correct child support payment was $182 per month. However, the court specifically reserved for trial the issue of the date the agreed child support obligation began and how to handle any resulting overpayment. After trial, in its order for judgment, the district court stated:

Oral’s child support obligation of $182 per month will commence June 1, 2006. The only reason the obligation was incorrectly calculated at the outset was Oral’s failure to participate in the proceedings. Further, child support is for the child. To retroactively impose the current obligation would deprive the child of what is a minimal payment for 17.7 months or require some form of reimbursement. Neither of those choices is in [the child’s] best interests.

[¶ 31] Here, the district court reserved the decision on the effective date to modify and correct Oral Wagner’s child support obligation. Although Oral Wagner’s motion to vacate the partial default judgment was initially made in October 2005, which first requested to modify and correct his child support obligation, the district court chose the date of the trial, June 1, 2006, as the effective date for the lower amount. The court reasoned that it was Oral Wagner’s own failure to participate in the proceeding which originally resulted in the incorrect child support calculations and, further, that retroactively imposing the minimal amount or requiring reimbursement was not in the child’s best interests.

[¶ 32] The district court’s decision reflects it was the product of a rational mental process by which the facts of record and the law relied upon were considered together for purposes of achieving a reasonable determination, and we cannot conclude the district court acted in an arbitrary or capricious manner, or misapplied the law. We affirm the district court’s decision setting the date of the modified child support obligation.

V

[¶ 33] The district court judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

[¶ 34] MARY MUEHLEN MARING, DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: MARING, Justice.

text:
    2007 ND 103
    Cheryle D. GOOD BIRD, Plaintiff and Appellant v. TWIN BUTTES SCHOOL DISTRICT, Melissa Starr, Darcy Lone Bear, Hank Starr, Defendants and Appellees.
    No. 20070041.
    Supreme Court of North Dakota.
    June 26, 2007.

      Vance Gillette, Minot, N.D., for plaintiff and appellant; submitted on brief.
    Gary R. Thune and Tiffany L. Johnson (argued), Pearce & Durick, Bismarck, N.D., for defendants and appellees.
   MARING, Justice.

[¶ 1] Cheryle Good Bird appeals from the trial court’s judgment of dismissal, order denying motion for reconsideration, and order affirming denial of motion for reconsideration, which granted summary judgment in favor of Twin Buttes School District, Melissa Starr, Darcy Lone Bear, and Hank Starr (“School District”). Good Bird argues the trial court improperly granted summary judgment in favor of the School District on her breach of contract and due process claims. We affirm the trial court’s judgment of dismissal granting summary judgment.

I

[¶ 2] Cheryle Good Bird was hired by the School District to be head cook for

Twin Buttes Elementary School for the 2001-2002 school year and the 2002-2003 school year. Good Bird was not hired for the 2003-2004 school year. Good Bird filed a complaint against the School District. Good Bird claimed the School District breached the parties’ implied contract and violated her due process rights by discharging her without notice or a hearing. Good Bird moved for summary judgment. The School District also moved for summary judgment. The parties submitted affidavits, and other documentation, in support of summary judgment.

[¶ 3] In an affidavit, the School District’s business manager, Janet Lorenz, stated that, in 2001, she sent Good Bird a letter indicating Good Bird’s employment was for the 2001-2002 school year. According to Lorenz, in 2002, the School District hired Good Bird for the 2002-2003 school year after a similar letter was sent to Good Bird. According to the affidavit of Elaine Incognito, principal of Twin Buttes Elementary School, on April 7, 2003, she sent Good Bird a letter informing Good Bird that the head cook position would be advertised for the 2003-2004 school year because of numerous absences, and that Good Bird could re-apply for the position. Good Bird asserts she did not receive the letter. According to Incognito, Good Bird re-applied for the position, but was not hired. According to Good Bird’s affidavit, she did not receive an explanation for her termination and was not provided a hearing.

[¶ 4] The trial court granted the School District’s cross-motion for summary judgment. The trial court dismissed Good Bird’s complaint for lack of subject-matter jurisdiction because she did not exhaust her administrative remedies by not filing a grievance when her position was advertised. The trial court noted, even if subject-matter jurisdiction were present, Good Bird would not have prevailed in her breach of contract or due process claims. Good Bird moved for reconsideration. The trial court denied Good Bird’s motion for reconsideration. Good Bird requested a Rule 3.2, N.D.R.Ct., hearing. The trial court denied Good Bird’s request. Good Bird appeals the trial court’s judgment of dismissal ordering summary judgment in favor of the School District and orders denying reconsideration.

II

[¶ 5] Whether a trial court has properly granted summary judgment is a question of law which this Court reviews de novo on the entire record. Grandbois and Grandbois, Inc. v. City of Watford City, 2004 ND 162, ¶ 17, 685 N.W.2d 129. “Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.” Zuger v. State, 2004 ND 16, ¶ 7, 673 N.W.2d 615. The party seeking summary judgment has the burden of showing there are no genuine issues of material fact, and the moving party is, therefore, entitled to judgment as a matter of law. Grandbois, 2004 ND 162, ¶ 17, 685 N.W.2d 129. In Azure v. Belcourt Pub. Sch. Dist., 2004 ND 128, ¶ 8, 681 N.W.2d 816, this Court explained:

In considering a motion for summary judgment, a court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from that evidence to determine whether summary judgment is appropriate. Matter of Estate of Otto, 494 N.W.2d 169, 171 (N.D.1992). Although the party seeking summary judgment has the burden to clearly demonstrate there is no genuine issue of material fact, the court must also consider the substantive standard of proof at trial when ruling on a summary judgment motion. State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 474-75 (N.D.1991). The party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact, and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. Kummer v. City of Fargo, 516 N.W.2d 294, 297 (N.D.1994). Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case and on which that party will bear the burden of proof at trial. Matter of Estate of Stanton, 472 N.W.2d 741, 746 (N.D.1991).

[¶ 6] When the party opposing summary judgment fails to present competent evidence on an essential element of the claim to the trial court, it is presumed such evidence does not exist. Grandbois, 2004 ND 162, ¶ 17, 685 N.W.2d 129. This Court reviews the evidence in a light most favorable to the party opposing summary judgment and gives that party the benefit of all favorable inferences. Id.

[¶ 7] In a memorandum opinion, the trial court explained its decision to order summary judgment in favor of the School District. The trial court determined summary judgment was appropriate on Good Bird’s breach of contract claim because the parties did not have written documentation that evidenced more than term employment. The trial court determined summary judgment was appropriate on Good Bird’s due process claim because Good Bird had term employment with the School District, and therefore, was not dismissed when her employment ended.

Ill

[¶ 8] Good Bird argues that the Twin Buttes Elementary School Board Personnel Policies and Procedures Handbook (“Handbook”) and her job tenure created contract rights between her and the School District. Good Bird contends that by discharging her from the head cook position without notice, as required by the Handbook, the School District breached a contract between the parties. Therefore, Good Bird contends the trial court’s grant of summary judgment should be reversed in her favor, or remanded. The School District argues the trial court properly granted summary judgment because Good Bird failed to exhaust her administrative remedies and she did not have a contractual right to continued employment. Because we conclude Good Bird has failed to prove a contract entitling her to continued employment, we do not reach the issue of her failure to exhaust administrative remedies.

[¶ 9] “The elements of a prima facie case for breach of contract are: (1) the existence of a contract; (2) breach of the contract; and (3) damages which flow from the breach.” WFND, L.L.C. v. Fargo Marc, L.L.C., 2007 ND 67, ¶ 13, 730 N.W.2d 841. Breach of contract occurs when there is nonperformance of a contractual duty when it is due. Id. “The burden of proving the elements of a breach of contract is on the party asserting the breach.” Id.

[¶ 10] To prevail on her breach of contract claim, Good Bird must first establish that an employment contract existed between her and the School District. “To create an enforceable contract, there must be a mutual intent to create a legal obligation.” B.J. Kadrmas, Inc. v. Oxbow Energy, 2007 ND 12, ¶ 11, 727 N.W.2d 270. “The parties’ mutual assent is determined by their objective manifestations, not their secret intentions.” Id. “A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct.” Id. “Under contracts implied in fact, the court merely attempts to determine from the surrounding circumstances what the parties actually intended.” Id.

[¶ 11] We recognize an employer may create a contract with an employee handbook or personnel policy manual. Heng v. Rotech Medical Corp., 2004 ND 204, ¶ 13, 688 N.W.2d 389. “We construe employment contracts, including handbooks and policies, as a whole to determine the parties’ intent.” Id. In this case, the Handbook states that its “primary purpose ... is to serve as a resource guide to provide school staff with information and guidance regarding conditions of employment, work expectations, resources, procedures, professional ethics.... ” We have not found any provision in the Handbook that indicates the Handbook was intended to create a legal obligation between the parties, rather than serve as a guide. Good Bird has failed to show this Court any provision in the Handbook that creates a legal obligation between the parties. Reliance on unsupported, conclusory allegations is not enough to resist summary judgment. See Azure, 2004 ND 128, ¶ 8, 681 N.W.2d 816. Therefore, the Handbook was not an express contract between the School District and Good Bird.

[¶ 12] A review of the circumstances and the parties’ conduct surrounding Good Bird’s employment with the School District indicates there was not an implied contract between the parties. Lorenz, in her affidavit, stated that the School District hired Good Bird to work as Twin Buttes Elementary School’s head cook for the 2001-2002 school year, by means of a letter that specifically set the term of employment as the 2001-2002 school year. According to Lorenz, in 2002, Good Bird was informed she was selected to be the head cook at the school specifically for the 2002-2003 school year. On April 7, 2003, Incognito sent a letter informing Good Bird that the head cook position would be advertised for the next school year because of numerous absences. Good Bird was invited to re-apply for the position. According to Incognito’s affidavit, Good Bird re-applied for the position. The record indicates Good Bird worked for the School District one year at a time. When that term of employment concluded, a decision was made whether to hire Good Bird for another school year. The record further indicates Good Bird knew her employment was for a set term because she re-applied when so invited.

[¶ 13] Good Bird did not present competent admissible evidence that she had a contract with the School District. By not presenting competent admissible evidence, Good Bird failed to show a genuine issue of material fact as to whether the parties had a contract. Good Bird failed to show a factual dispute exists on an essential element of her breach of contract claim on which she would bear the burden of proof at trial. See Matter of Estate of Stanton, 472 N.W.2d at 746. Therefore, summary judgment on Good Bird’s breach of contract claim was appropriate.

IV

[¶ 14] Good Bird argues her due process rights were violated under 42 U.S.C. § 1983. Good Bird contends cause was required to dismiss her from the head cook position, and that due process required notice and an opportunity to respond. Therefore, because Good Bird was not provided notice or a hearing, she contends the trial court’s grant of summary judgment should be reversed in her favor. Under 42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

[¶ 15] Public employees “who have legitimate expectations of continued government employment possess property interests of which they cannot be deprived without due process.” Livingood v. Meece, 477 N.W.2d 183, 192 (N.D.1991). Due process “requires pretermination notice and an opportunity to respond before an employee with a constitutionally protected property interest in continued employment may be terminated.” Id. at 192-93.

[¶ 16] Good Bird was hired by the School District in 2001 for the 2001-2002 school year. The School District decided to offer Good Bird employment for the 2002-2003 school year. Good Bird’s employment with the School District was for one year at a time, as evidenced by the lack of an employment contract, and the history of one-year term employment between the parties. The record indicates it was customary for Good Bird to be informed by the School District whether she would be hired for the following school year.

[¶ 17] Without an employment contract or a history of continuing employment, Good Bird did not have a legitimate expectation of continued employment. See Livingood, 477 N.W.2d at 192. Therefore, Good Bird did not have a property interest. Without a property interest in continued employment, Good Bird was not entitled, as a matter of law, to the due process rights of notice and an opportunity to respond. See id. at 192-93.

[¶ 18] Good Bird did not present competent admissible evidence that she had a legitimate expectation in continued employment with the School District. By not presenting competent admissible evidence, Good Bird failed to show a genuine issue of material fact as to whether she had a legitimate expectation in continued employment. Good Bird failed to show a factual dispute exists on an essential element of her due process claim on which she would bear the burden of proof at trial. See Matter of Estate of Stanton, 472 N.W.2d at 746. Therefore, summary judgment on Good Bird’s due process claim was appropriate.

V

[¶ 19] The trial court’s judgment of dismissal granting summary judgment in favor of the School District and orders denying reconsideration are affirmed.

[¶ 20] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: KAPSNER, Justice. SANDSTROM, Justice,

text:
    2007 ND 98
    STATE of North Dakota, Plaintiff and Appellee v. Lucas FLATT, Defendant and Appellant.
    No. 20060330.
    Supreme Court of North Dakota.
    June 26, 2007.
    Jonathan R. Byers, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for plaintiff and appellee.
    Ross W. Brandborg, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Lucas Flatt appeals from a judgment entered after a jury verdict for gross sexual imposition and an order denying his motion to vacate the jury verdict and dismiss the charge. Flatt argues the court should have applied a different version of the law. We affirm, concluding Flatt was properly charged with an offense based on the law in effect when the crime occurred.

I

[¶ 2] On December 27, 2004, Flatt engaged in a sexual act with a woman who was under fifteen years old. Flatt was charged with gross sexual imposition under N.D.C.C. § 12.1-20-03(3) on June 25, 2005. The information charged Flatt with the law effective at the time of the crime, December 27, 2004. The criminal information provided, in pertinent part:

Lucas Nathanial Flatt, did commit the crime of GROSS SEXUAL IMPOSITION, a class A felony, in violation of N.D.C.C. § 12.1 — 20—03(l)(d), a crime that was committed as follows, to-wit:
COUNT 1 (GROSS SEXUAL IMPOSITION)
That on or about December 27th, 2004, in Griggs County, the defendant, Lucas Nathanial Flatt, did willfully engage in a sexual act with another, or cause another to engage in a sexual act, when the victim was less than 15 years old, to wit: Lucas Nathanial Flatt did willfully engage in a sexual act with Jill Doe, consisting of sexual contact between his penis and Jill Doe’s vulva, when Jill Doe was fourteen (14) years old.

[¶ 3] On April 12, 2005, the Governor signed 2005 House Bill 1313, which amended the gross sexual imposition law. This amendment became effective on August 1, 2005. The new version of N.D.C.C. § 12.1-20-03(3) increased the offense gradation from a class A felony to a class AA felony if the actor was more than five years older than the victim at the time of the crime, and decreased the offense gradation from a class A felony to a class C felony if the actor was more than four, but less than five years older than the victim at the time of the crime. The Legislature also amended N.D.C.C. § 12.1-20-01(3) to provide that if the criminality of the act depends on the victim’s age, the actor is guilty of an offense only if the actor is more than four years older than the victim at the time of the crime. The information against Flatt was not amended to reflect the 2005 legislative amendments.

[¶4] Flatt was tried to a jury, who returned a guilty verdict on January 13, 2006. ‘On March 28, 2007, seventy-four days after the verdict, Flatt’s counsel filed a motion to dismiss under N.D.R.Crim.P. 12(b)(3)(B). The motion claimed the 2005 legislative amendments changed the penalty and added an element to the crime, the relation between Flatt’s age and the victim’s age. Flatt claimed that the amended law should apply retroactively because the aggregate effect of the amendments would ameliorate Flatt’s punishment. Flatt argued the State was required to prove, and the jury was required to find, Flatt was more than four years older than the victim in order to convict him of gross sexual imposition. Flatt claimed the information must be dismissed because the jury failed to find his age in relation to the victim’s age. Flatt’s motion identified his birth-date and the victim’s birthdate, indicating he was more than four, but less than five years older than the victim. After a hearing, the district court denied Flatt’s motion on June 20, 2006. The court entered its judgment on October 31, 2006, sentencing Flatt to a class C felony. Although Flatt was charged with a class A felony, the State conceded it was appropriate to sentence Flatt to a class C felony in light of the 2005 legislative amendments.

II

[¶ 5] On appeal, Flatt argues the 2005 legislative amendments should have applied to his pending prosecution; the State failed to amend the charging document to reflect an essential element of the crime; the failure of the jury to find an essential element of the crime is reversible error; and the proper remedy is an arrest of judgment or dismissal of the case. The State argues Flatt’s motion to arrest judgment was untimely, and the trial court properly sentenced Flatt to a class C felony. We conclude Flatt was properly charged with gross sexual imposition' under the law in effect on the date of the offense, elements of an offense cannot be applied retroactively, and Flatt is not entitled to relief under either N.D.R.Crim.P. 12(b)(3)(B) or N.D.R.Crim.P. 34.

III

[¶ 6] Flatt argues the Court must dismiss his case on appeal because the State failed to prove an essential element of the offense to the jury, his age in relation to the age of the victim. The State argues the age-in-relation-to-the-victim provision contained in the 2005 legislative amendments is a mitigating factor, not an element of the crime. We conclude the age-in-relation-to-the-victim provision is an element of gross sexual imposition after the effective date of the 2005 legislative amendments, but it was not an element on the date the offense was committed.

A

[¶ 7] The Legislature has specifically defined the meaning of “element of the offense” in N.D.C.C. § 12.1-01-03(1). “Element of the offense” means:

a.The forbidden conduct;
b. The attendant circumstances specified in the definition and grading of the offense;
c. The required culpability;
d. Any required result; and
e. The nonexistence of a defense as to which there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.

Id. On the date of the offense, the State had to allege and prove: (1) on or about the date alleged in the information, in the county and state alleged in the information, the defendant willfully engaged in a sexual act with the victim, and (2) the victim was less than fifteen years old. N.D.C.C. § 12.1-20-03(l)(d) (1997); see also N.D.J.I. K-7.13 (2003). After the effective date of the 2005 legislative amendments, the Legislature added the age-in-relation-to-the-victim language to N.D.C.C. § 12.1-20-01, the general provisions governing the sex crimes chapter. See 2005 N.D. Sess. Laws ch. 115, § 1. The age-in-relation-to-the-victim provision limited what conduct could be considered criminal by providing: “When criminality depends on the victim being a minor, the actor is guilty of an offense only if the actor is at least four years older than the minor.” N.D.C.C. § 12.1-20-01(3) (2005). After the 2005 legislative amendments, determining whether the actor is at least four years older than the minor victim is necessary to establish that a criminal act has occurred. The age of the actor in relation to the victim determines the gradation of the offense. As such, the 2005 legislative amendments created a new element to N.D.C.C. § 12.1-20-03(l)(d), which must be proven beyond a reasonable doubt to the jury.

B

[¶ 8] Since we have concluded the age-in-relation-to-the-victim provision was an essential element added by the 2005 Legislature, we must determine whether the Legislature intended the 2005 amendments to apply in Flatt’s case. In essence, the question presented is one of statutory construction and legislative intent. See State v. Cummings, 386 N.W.2d 468, 470 (N.D.1986). Statutory interpretation is a question of law, which is fully reviewable on appeal. State v. Bachmeier, 2007 ND 42, ¶ 16, 729 N.W.2d 141. We conclude elements of an offense cannot be applied retroactively unless the Legislature expressly declares so. Accordingly, Flatt’s claim fails.

[¶ 9] Generally, no statutory provision applies retroactively unless the Legislature expressly provides it should apply to cases before the law’s effective date. N.D.C.C. § 1-02-10 (“No part of this code is retroactive unless it is expressly declared to be so.”); see also State v. Iverson, 2006 ND 193, ¶ 6, 721 N.W.2d 396; State v. Rodriguez, 454 N.W.2d 726, 730 n. 3 (N.D.1990); Cummings, 386 N.W.2d at 471-72. “A statute is employed retroactively when it is applied to a cause of action that arose prior to the effective date of the statute.” Cummings, at 471 (citing Reiling v. Bhattacharyya, 276 N.W.2d 237, 239 (N.D.1979)). We have said retroactive application is disfavored because it creates new legal responsibilities based on past conduct. Id.

[¶ 10] However, we have carved out an exception to the general bar to retroactivity to prevent an unjust result. See, e.g., id. (defining an exception to the prohibition on retroactive application for an ameliorating penal amendment to a criminal statute). “ ‘[IRaws which confer benefits are often excepted from the general rule against retroactive application.’ ” Smith v. Baumgartner, 2003 ND 120, ¶ 11, 665 N.W.2d 12 (quoting Cummings, 386 N.W.2d at 471); see also 2 Sutherland, Statutory Construction § 41.2 (6th ed.2001). In Cummings, the defendant was charged with driving while under the influence (DUI) and driving under suspension (DUS). 386 N.W.2d at 469. Cummings’ criminal conduct occurred on June 15, 1985, after the 1985 legislative amendments to the DUI and DUS statutes, but before the amendments became “effective.” Id. at 470. While the 1985 legislative amendment did not create additional elements to the DUS offense, it did reduce the penalty from a minimum mandatory punishment of fifteen days to four consecutive days of imprisonment. 1985 N.D. Sess. Laws ch. 429, § 4; see also Cummings, at 470. Cummings pleaded guilty after the amended law became effective, and was sentenced under the harsher, pre-1985 law. Id. This Court overturned Cummings’ sentence, reasoning in pertinent part:

There is a compelling inference that the 1985 Legislature, by reducing the mandatory minimum penalty for violation of [N.D.C.C.] § 39-06-42 ... determined that the former penalty was too harsh and that the latter and lighter punishment was the appropriate penalty for violations of that statute.
That the Legislature had such an intent seems obvious; nothing is gained by imposing a more severe punishment after the Legislature has determined that a lighter penalty is appropriate. The excess in punishment can serve no other purpose than to satisfy a desire for vengeance, a legislative motivation we will not presume.

Cummings, at 472 (emphasis added).

[¶ 11] The State acknowledged the Cummings holding with respect to the retroactive application of a lesser penalty imposed by an ameliorating penal amendment. The State conceded Flatt should only be punished as a class C felon. The district court sentenced Flatt to the lesser penalty, a class C felony, based on the Cummings exception and the State’s concession.

[¶ 12] Flatt argues the Cummings exception should be used to require the State to retroactively apply an essential element to Flatt’s case. Despite Flatt’s broad reading of the Cummings decision, our holding was quite narrow. See Cummings, 386 N.W.2d at 470-72. The Cummings exception applies only to a situation where a lesser penalty is imposed, not where the Legislature creates an additional element to the offense. See id. at 472. We decline to expand our narrow exception to the general rule to include the retroactive application of an additional element of the offense, unless the Legislature expressly declares its intentions to do so. N.D.C.C. § 1-02-10; see, e.g., State v. Boysaw, 99 ConmApp. 358, 913 A.2d 1112, 1116 (2007) (holding the court generally applies the law in existence on the date of the offense). Therefore, we hold a defendant is properly charged with a crime when the charging document alleges each and every essential element of the offense in effect on the date the crime occurred.

IV

[¶ 13] Flatt asserts he is entitled to relief of either arrest of judgment or dismissal of his case. Flatt filed a motion to dismiss under N.D.R.Crim.P. 12(b)(3)(B) because the information did not include an essential element of the offense, the actor’s age in relation to the victim. Rule 12(b)(3)(B), in pertinent part, provides:

(3) Motions That Must Be Made Before Trial. The following must be raised before trial:
(B) a motion alleging a defect in the indictment, information, or complaint — but at any time while the case is pending, the court may hear a claim that the indictment, information or complaint fails to invoke the court’s jurisdiction or to state an offense;

(Emphasis added). The State argues Flatt’s motion was essentially a motion to arrest judgment under N.D.R.Crim.P. 34, which has a shorter time limitation.. As such, the State argues Flatt’s motion, which was filed seventy-four days after the jury verdict, was untimely. When Flatt was sentenced, N.D.R.Crim.P. 34 provided:

The court on motion of a defendant shall arrest judgment if the indictment, information, or complaint does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 7 days after verdict or finding of guilty, or after plea of guilty, or within such further time as the court may fix during the 7-day period.

(Emphasis added). While we recognize there may be a conflict between Rule 12(b)(3)(B) and Rule 34, we need not reach that issue today. But see State v. Frank-furth, 2005 ND 167, ¶ 13, 704 N.W.2d 564 (concluding N.D.R.Crim.P. 34 is consistent with N.D.R.Crim.P. 12). Since we concluded the information properly charged each element of gross sexual imposition on the date of the offense, there was no defect in the information that would entitle Flatt to his requested relief under either rule. The court did not err in denying Flatt’s motion to dismiss.

V

[¶ 14] The information properly alleged an offense based on the law in effect when the offense was committed. We affirm the district court’s judgment and its order denying Flatt’s motion to dismiss.

[¶ 15] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DANIEL J. GROTHERS, JJ., concur.

SANDSTROM, Justice,

concurring specially.

[¶ 16] I agree with the result reached by the majority. I write separately to call for the repudiation of the unconstitutional invasion of the province of the legislative branch by the judicial branch.

[¶ 17] The codified laws of North Dakota specifically provide, “No part of this code is retroactive unless it is expressly declared to be so.” N.D.C.C. § 1-02-10.

[¶ 18] The majority says, at ¶ 10, that this Court has “carved out an exception to the general bar to retroactivity” for “laws which confer benefits,” citing to State v. Cummings, 386 N.W.2d 468 (N.D.1986), and its progeny.

[¶ 19] There is no legal basis for the courts to “amend” the unambiguous enactment of the legislature, absent constitutional infirmity. Judges have no right to substitute their policy preferences for the legitimate policy preferences of the legislature, clearly expressed and properly enacted. “A court is not empowered to substitute its judgment for that of the legislature on matters of policy, nor to strike down a statute which is not manifestly unconstitutional even though the court may consider it unwise.” 1 Norman J. Singer, Sutherland Statutory Construction, § 2:1 (6th ed.2002) (collecting cases); see, e.g., Ferguson v. Skrupa, 372 U.S. 726, 731-32, 83 S.Ct. 1028,10 L.Ed.2d 93 (1963).

[¶ 20] The Constitution of North Dakota establishes separation of functions. “The legislative, executive, and judicial branches are coequal branches of government.” N.D. Const, art. XI, § 26. And “the legislative power of this state shall be vested in a legislative assembly consisting of a senate and a house of representatives,” with the people reserving rights including initiative and referendum. N.D. Const, art. Ill, § 1.

[¶ 21] “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. There is nothing ambiguous about the words, “No part of this code is retroactive unless it is expressly declared to be so.” As the statutes of North Dakota make clear, the “code establishes the law of this state respecting the subjects to which it relates.” N.D.C.C. § 1-02-01. And words “used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears.” N.D.C.C. § 1-02-02.

[¶ 22] Neither the majority here nor the majorities in Cummings and its progeny have cited any constitutional infirmity with the provision: “No part of this code is retroactive unless it is expressly declared to be so.” There is no legal basis for the courts to graft on an amendment, adding the words, “except for laws which confer benefits.” The legislature has told us that if a new enactment is to be retroactive, the legislature iisei/will expressly declare it to be so. If this rule is to be changed, that too is the function of the legislature. This fundamental principle is as old as the constitution and as enduring as our American democracy.

[¶ 23] Dale V. Sandstrom

      . Section 12.1-20-03(3), N.D.C.C., has since been amended in the 60th Legislative Assembly to increase the minimum penalty to a class A felony. 2007 N.D. Sess. Laws ch. 123, § 2.

      . In 2007, the Legislature substantially amended the sex crimes chapter, including the age-in-relation-to-the-victim provision and the minimum offense gradation. See generally 2007 N.D. Sess. Laws chs. 123-126. The 2007 legislative amendments are inapplicable in this case.

      . Rule 34, N.D.R.Crim.P., has been amended to extend the time for filing from seven days to ten days.


author: ZINTER, Justice.

text:
    2007 SD 51
    Kim KLING and Chris Kling, Plaintiffs and Appellants, v. Judith K. STERN, individually, Judith K. Stern, trustee for the Judith K. Stern Amended and Restated Revocable Trust, Defendants and Appellees, and Judith K. Stern, trustee for the Judith K. Stern Amended and Restated Revocable Trust, Third Party Plaintiff and Appellee, v. Roger A. Kessinger and Joanne M. Kessinger, Third Party Defendants.
    No. 24146.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2007.
    Decided May 30, 2007.

      Kenneth E. Barker of Barker Reynolds Law Firm, LLC, Belle Fourche, SD, for plaintiffs and appellants.
    Wesley W. Buckmaster of Buckmaster Law Offices, PC, Belle Fourche, SD, for defendants and appellees.
   ZINTER, Justice.

[¶ 1.] Kim and Chris Kling (Klings) sought a declaratory judgment that Judith Stern violated a restrictive covenant prohibiting the subdivision of land into parcels containing less than forty acres. The specific question was whether Stern violated the covenant when she subdivided the covenanted land into parcels of less than forty acres, but did so by “blending” the covenanted land with non-covenanted land to create “mixed” parcels that were forty acres or greater. The circuit court granted summary judgment in favor of Stern allowing the blended parcel subdivision. Klings appeal. We affirm.

Facts and Procedural History

[¶ 2.] The history of the most relevant covenanted and non-covenanted land is set out in the following time line format:

1985 — Klings sold over 2,000 acres of land to Bruce L. Riley.
1998 — Riley sold approximately 1,000 acres of this land to Roger and Joanne Kessinger (Kessingers). The grant was by warranty deed, with the covenant prohibiting subdivision of the land into less than forty-acre “parcels.”
1999 — Klings sold over 30 acres of other land (non-covenanted land called Tract E) to Kessingers.
2003 — Kessingers combined land from Tract E (non-covenanted land) together with the covenanted land they acquired from Riley to form Tract K-4, a 80.57 acre “mixed parcel” — containing approximately 55 acres of covenanted land and 25 acres of non-covenanted land.
2003 — Stern bought Tract K-4 from Kessingers.
2005 — Stern subdivided K-4 into K-4A (40.29 acres) and K-4B (40.28 acres). This transaction divided the original covenanted land such that neither K-4A nor K-4B contained forty acres of covenanted land. Stern subsequently sold K-4A and K-4B.

[¶ 3.] Because Tracts K-4A and K-4B were created by blending covenanted and non-covenanted land into parcels that contained less than forty acres of covenanted land, Klings contend that Stern violated the forty-acre restrictive covenant. Stern, however, argues that she could subdivide the covenanted land as long as the mixed parcels each contained at least forty acres.

[¶ 4.] Both parties agreed there were no material issues of disputed fact and they moved for summary judgment. The circuit court first determined that the covenant was unambiguous and the language reflected the grantor’s intent to allow subdivided parcels of mixed land. Alternatively, the circuit court considered related covenants and Riley’s testimony concerning intent of the covenant. The circuit court ultimately found that the intent of the covenant was to prevent subdivisions of less than forty acres to create “spacing” in “residential development.” Because Stern’s subdivision did not violate that intent, the circuit court concluded that the mixed parcels did not violate the covenant.

Standard of Review

[¶ 5.] When reviewing a grant of summary judgment, “ ‘[w]e must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.’ ” Burch v. Bricker, 2006 SD 101, ¶ 5, 724 N.W.2d 604, 606 (quoting Garrett v. BankWest, Inc., 459 N.W.2d 833, 836-837 (S.D.1990)). “ ‘Once we determine that the material facts are undisputed, our review is limited to whether the law was correctly applied.’ ” Pauley v. Simonson, 2006 SD 73, ¶ 7, 720 N.W.2d 665, 667 (quoting Krier v. Dell Rapids Twp., 2006 SD 10, ¶ 12, 709 N.W.2d 841, 844-845). “On appeal we read a covenant as we would a contract, that is, without any presumption that the trial court was correct. Whether a contract is ambiguous is a question of law.” Harksen v. Peska, 1998 SD 70, ¶ 11, 581 N.W.2d 170, 173 (internal and other citations omitted). Questions of law are reviewed de novo. Pauley, 2006 SD 73, ¶ 7, 720 N.W.2d at 667 (citations omitted).

Decision

[¶ 6.] The covenant in the Riley-Kessinger deed provided:

This deed is subject to two (2) restrictive covenants, first, that no mobile homes or manufactured homes shall be allowed on this property other than for grantee’s personal use and, secondly, that the above property may not be sold, transferred or alienated in parcels of less than forty (40) acres.

(Emphasis added.) As previously noted, the ambiguity of this covenant is a question of law to be reviewed de novo. See supra, ¶ 5. Ambiguity exists when something “ ‘is capable of being understood ... by reasonably well-informed persons in either of two or more senses.’ ” Petition of Famous Brands, Inc., 347 N.W.2d 882, 886 (S.D.1984) (quoting National Amusement Co. v. Wisconsin Dept, of Taxation, 41 Wis.2d 261, 267, 163 N.W.2d 625, 628 (1969) (other citation omitted)).

[¶ 7.] In determining a covenant’s meaning, it “ ‘should be considered as a whole and all of its parts and provisions will be examined to determine the meaning of any part.’ ” Harksen, 1998 SD 70, ¶ 20, 581 N.W.2d at 174 (quoting Piechowski v. Case, 255 N.W.2d 72, 74 (S.D.1977) (citation omitted)). In this case, there is ambiguity created by the covenant’s use of the different terms “above property” (describing the covenanted land) and “parcels” (describing the minimum size of allowed subdivisions). The meaning of the term “above property” clearly refers to the land conveyed by the deed. This term meant that all of the conveyed land was subject to the restrictive covenant. However, the term “parcels” is not necessarily the same as “above [described] property.” Thus, Riley chose to use different terms for what Klings now claim is the same subject. Considering the use of different terms in the covenant, it is unclear whether the term “parcels” was intended to require that the subdivided parcels had to contain at least forty acres of the “above [described covenanted] property” or whether the subdivided parcels were simply required to contain at least forty acres.

[¶ 8.] Because we believe that it is reasonable to interpret the term “parcels” in either sense, the covenant is ambiguous and it was proper for the circuit court to consider extrinsic evidence of Riley’s intent. “ ‘[I]f [a] contract ‘is uncertain or ambiguous,’ parol and extrinsic evidence may be used for clarification.’ ” Hanks v. Corson County Board of County Commissioners, 2007 SD 10, ¶ 10, 727 N.W.2d 296, 301 (quoting Pauley, 2006 SD 73, ¶ 8, 720 N.W.2d at 668 (citing Jensen v. Pure Plant Food Intern., Ltd., 274 N.W.2d 261, 263-264 (S.D.1979))). Considering that the intent of the grantor was to ensure that the subdivided parcels maintained residential spacing of at least forty acres and the subdivision did not violate that intent, we affirm the circuit court’s conclusion that the blending of covenanted and non-covenanted land did not violate the covenant.

[¶ 9.] Affirmed.

[¶ 10.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

      . In 2001, Kessingers combined land from Tract E (non-covenanted land) together with land purchased from Riley (covenanted land) to also form Tract K-3, a 40-acre "mixed” parcel of covenanted and non-covenanted land. That same year, Klings purchased Tract K-3 from Kessingers. Stern has not appealed the circuit court's ruling that Klings’ purchase of Tract K-3 did not waive or estop them from seeking to enforce the forty acre subdivision covenant with respect to Tracts K-4A and K-4B.

      . We understand Klings' argument that restrictions in Tract E, Tract K-3, and covenants and restrictions in the Country Hills Estates development support their interpretation of the Riley-Kessinger covenant. However, these other restrictions and covenants either do not apply to the property in Tracts K-4A and K-4B or the other language is not helpful in construing the intent of the Riley-Kessinger covenant.

      . We also note that Klings’ interpretation of the covenant would produce an absurd result because it would leave Stern with land that could never be resold. For example, there is little likelihood that topography and other geologic considerations would permit the entire 1000 acres of covenanted property to be subdivided into exactly twenty-five, forty acre parcels. Consequently, under Klings’ interpretation, any remaining fragmentary parcels containing less than forty acres could never be sold. "[T]his Court is constrained from interpreting a contract literally if doing so would produce an absurd result. An absurd result is one that is ‘ridiculously incongruous or unreasonable;’ a result that the parties, presumed to be rational persons pursuing rational ends, are very unlikely to have agreed upon.” Nelson v. Schellpfeffer, 2003 SD 7, ¶ 12, 656 N.W.2d 740, 743 (internal and other citations omitted). Here, it is clear from the language of the covenant that the parties specifically contemplated subdivision of the covenanted land. Yet, Klings' interpretation would not only prohibit a blended subdivision that the parties likely contemplated, but it would further prohibit any sale of residuary fragments, something the parties were very unlikely to have agreed upon.