author: NEUMANN, Justice.

text:
    2002 ND 39
    John B. DENNISON, Plaintiff and Appellant v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, successor to the Public Welfare Board of North Dakota, Defendant and Appellee.
    No. 20010250.
    Supreme Court of North Dakota.
    Feb. 22, 2002.

      Terry W. Elhard, Ashley, for plaintiff and appellant.
    Matthew Arnold Sagsveen, Assistant Attorney General, Attorney General’s Office, Bismarck, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] John B. Dennison appealed from an adverse summary judgment in his action against the Department of Human Services, as successor to the Public Welfare Board, to quiet title to land in McIntosh County. We hold the State’s restraint on alienation, which aróse from its filing of a homestead statement for old age assistance benefits paid to Dennison’s predecessor in interest, is a right or interest in the land which ordinarily is excepted from the Marketable Record Title Act under N.D.C.C. § 47-19.1-11(2). However, we further hold there are unresolved issues regarding the nature and duration of the State’s right or interest in the land which require determination in the context of Dennison’s quiet title action. We reverse and remand for proceedings consistent with this opinion.

I

[¶ 2] In 1925, Katharina Deglau conveyed the land by warranty deed to Chris-toph Retzer. On August 6, 1951, Carlyle D. Onsrud, the Executive Director of the Public Welfare Board, executed a homestead statement for old age assistance benefits under N.D.R.C. § 50-0707 (1943) on behalf of Christoph Retzer’s wife, Magdalena Retzer. The homestead statement was recorded on August 13, 1951. It said Magdalena Retzer had applied to the McIntosh County Welfare Board for old age assistance and the County Welfare Board had approved her application for monthly payments beginning in March 1951. The statement said “Magdalena Retzer (Christoph Retzer, deceased husband, is the title owner) occupies, a homestead, which he own[ed],” described her one-third interest in the land, and further provided:

Section 50-0707 North Dakota Revised Code of 1943 provides that the Public Welfare Board of North Dakota “shall cause to be filed in the office of the Register of Deeds of the County in which such homestead is located, a statement in writing to the effect that the owner of such homestead is receiving, or about to receive, Old Age Assistance payments, and such written statement shall be signed by the Executive Director of the Public Welfare Board of North Dakota, and after the filing of such statement any instrument of conveyance or encumbrance executed by the applicant for Old Age Assistance who is the owner of such homestead without the approval of the Public Welfare Board of North Dakota, shall be null and Void”?
NOW, THEREFORE, Notice is hereby given that, because of payments made under the provisions of the above described statute, any conveyance or encumbrance of the above described real property without the written approval of the Public Welfare Board of North Dakota, shall be null and void.

[¶ 3] By warranty deed dated August 31, 1951 and filed October 8, 1952, Magdalena Retzer conveyed her interest in the land to her seven children. There is no evidence the Public Welfare Board approved the conveyance, and it has not released its homestead statement. On October 7, 1952, a probate court issued a final decree in the probate of Christoph Ret-zer’s estate. Under the decree, which was filed on October 8, 1952, the seven Retzer children each received an undivided one-seventh interest in the land.

[¶ 4] By warranty deed recorded on November 3, 1952, the Retzer children conveyed their interest in the land to John Martz. In 1980, Martz conveyed the land by warranty deed to himself and his wife, Paulina Martz, as joint tenants. John Martz died in 1985. In 1986, Paulina Martz conveyed the land by quitclaim deed to Oscar Martz as “Trustee U/A dated January 13, 1986, FBO Paulina Martz.” In 1991, Oscar Martz, as trustee, conveyed the land by warranty deed to Clifford and Esther Hildebrand. In 2000, the Hilde-brands conveyed the land by warranty deed to Dennison.

[¶ 5] Dennison brought this action against the Department, as successor to the Public Welfare Board, to quiet title to the land. The trial court granted the Department summary judgment, ruling “[t]he state has a recorded interest in the property and the North Dakota Marketable Record Title Act (N.D.C.C. Ch. 47-19.1) does not bar the state from asserting its interest in the property.” The court concluded the Department “retains whatever interest it may have had in the property and Den-nison retains the remainder of [the] interest in the property.” Dennison appealed.

II

[¶ 6] Summary judgment is appropriate if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from the undisputed facts, or if resolving disputed facts would not alter the result. Bender v. Aviko USA L.L.C., 2002 ND 13, ¶ 4, 638 N.W.2d 545. The interpretation of a statute is a question of law. Anderson v. Anderson, 1999 ND 57, ¶ 4, 591 N.W.2d 138.

III

[¶ 7] Dennison argues the filing of the homestead statement did not create any right, title, interest, or hen in favor of the Public Welfare Board upon Magdalena Retzer’s interest in the land, and therefore the Department, as successor to the Public Welfare Board, has no claim or interest in the land. Dennison argues he has marketable title under the Marketable Record Title Act, N.D.C.C. ch. 47-19.1, which bars all claims asserted by “governmental” entities unless a notice of claim was duly filed or recorded before twenty years from the recording of a root deed under N.D.C.C. § 47-19.1-05. The Department responds the filing of the homestead statement gave the State a right or interest in Magdalena Retzer’s interest in the land. The Department argues the Marketable Record Title Act does not deprive the State of its right or interest under the recorded homestead statement, because the Act specifically excepts from its provisions any right, title, or interest of the State.

[¶ 8] The essence of a marketable title act is “[w]hen one person has a clear record title to land for a designated period ..., inconsistent claims or interests which arose before that period are extinguished unless the adverse claimant seasonably records a notice of his claim or interest.” Paul E. Basye, Trends and Progress-The Marketable Title Acts, 47 Iowa L.Rev. 261, 267 (1962). Section 47-19.1-10, N.D.C.C. describes the purpose of N.D.C.C. ch. 47-19.1, North Dakota’s version of the Marketable Record Title Act:

This chapter shall be construed to effect the legislative purpose of simplifying and facilitating real estate title transactions by allowing persons to deal with the record title owner as defined herein and to rely upon the record title covering a period of twenty years or more subsequent to the recording of a deed of conveyance as set out in section 47-19.1-01, and to that end to bar all claims that affect or may affect the interest thus dealt with, the existence of which claims arises out of or depends upon any act, transaction, event, or omission occurring before the recording of such deed of conveyance, unless a notice of such claim, as provided in section 47-19.1-05, shall have been duly filed for record. The claims hereby barred shall mean any and all interest of any nature whatever, however denominated, whether such claims are asserted by a person sui juris or under disability, whether such person is or has been within or without the state, and whether such person is natural, corporate, private, or governmental.

[¶ 9] Under N.D.C.C. § 47-19.1-01, any person with legal capacity to own real estate who is in possession of land and has an unbroken chain of title to the land through himself or his immediate or remote grantors under a deed of conveyance which has been recorded for twenty years or longer is deemed to have marketable title, subject only to claims that are not extinguished or barred by N.D.C.C. ch. 47-19.1, instruments which have been recorded less than twenty years, and any encumbrances of record not barred by the statute of limitations. Section 47-19.1-11, N.D.C.C. lists exceptions to the Marketable Record Title Act and provides, in part, it “shall not be [djeemed to affect the right, title, or interest of the state of North Dakota, or the United States, in any real estate in North Dakota.” Section 47-19.1-10, N.D.C.C., allows persons dealing with a record title owner to rely on record title covering an unbroken chain of title for a period of twenty years or more after the recording of a deed of conveyance and bars “governmental” claims occurring before the recording of the deed of conveyance unless a notice of claim was filed or recorded within twenty years after the recording of the deed of conveyance.

[¶ 10] Although marketable record title bars “governmental” claims under N.D.C.C. § 47-19.1-10, the Marketable Record Title Act does not affect the right, title, or interest of the State in any real estate in North Dakota. N.D.C.C. § 47-19.1-11(2). Our law recognizes a distinction between the State and other governmental entities. See Bulman v. Hulstrand Const. Co., Inc., 521 N.W.2d 632, 638 (N.D.1994) (identifying difference between governmental immunity for political subdivisions and sovereign immunity for State); Kitto v. Minot Park Dist., 224 N.W.2d 795, 797 (N.D.1974) (abolishing governmental immunity for political subdivisions but retaining sovereign immunity of state). If possible, we construe statutes on the same subject to harmonize them to give full force and effect to the Legislature’s intent. Held v. North Dakota Workers Comp. Bur., 540 N.W.2d 166, 170 (N.D.1995). We construe N.D.C.C. §§ 47-19.1-10 and 47-19.1-11 together to harmonize them to generally allow marketable record title to bar “governmental” claims but specifically to not affect the right, title or interest of the State in land in North Dakota. See also North Dakota Title Standards (2000), Standard 18-02 (stating marketable record title does not apply to claims which are specifically excepted by N.D.C.C. ch. 47-19.1).

[¶11] In Estate of Hillesland, 86 N.W.2d 522, 525 (N.D.1957), this Court said the filing of a homestead statement under N.D.R.C. § 50-0707 (1943) did not create a statutory lien upon the property of a person receiving old age assistance, because the statute was intended to abolish the practice of requiring a lien or mortgage upon homesteads as security for moneys advanced for old age assistance. Rather, this Court said the homestead statement provided for a restraint on alienation. Hillesland, at 525. Under N.D.R.C. § 50-0707(1943), a recipient of old age assistance benefits could not encumber or convey a homestead without approval of the State and any conveyance or encumbrance by an applicant whose application was granted was null and void. Under Hillesland and N.D.R.C. § 50-0707(1943), the State’s homestead statement was not tantamount to a hen, and the issue in this case is whether the State’s homestead statement affects the right, title, or interest of the State within the meaning of the exception in N.D.C.C. § 47-19.1-11(2).

[¶ 12] Under N.D.C.C. § 47-19-01, any instrument affecting the title to or possession of real property is entitled to be recorded. See also N.D.R.C. § 47-1901 (1943). A homestead statement was entitled to be recorded under N.D.R.C. § 50-0707 (1943). Because a homestead statement was entitled to be recorded, it follows that the Legislature intended a homestead statement to be an instrument affecting title to or possession of real property.

[¶ 13] Moreover, we construe technical words and phrases according to the peculiar and appropriate meaning acquired in law. N.D.C.C. § 1-02-03; Broderson v. Boehm, 253 N.W.2d 864, 867 (N.D.1977). In the context of property law, a “right” is a “legally enforceable claim of one person against another, that the other shall do a given act or shall not do a given act,” and an interest “generically ... includefe] varying aggregates of rights, privileges, powers and immunities and distributively ... mean[s] any one of them.” Restatement of the Law of Property §§ 1 and 5 (1936). See also Blacks Law Dictionary 816, 1322 (7th ed.1999). Those meanings under property law guide our interpretation of “right” and “interest” in N.D.C.C. § 47-19.1-11(2).

[¶ 14] Generally, one of the incidents of ownership of property is the right to convey it. See Holien v. Trydahl, 134 N.W.2d 851, 855 (N.D.1965). See generally 61 Am.Jur.2d, Perpetuities and Restraints on Alienation § 100 (1981). The State’s restraint on alienation of this land precludes a recipient of old age assistance from doing a given act with the land, i.e., encumbering or conveying it, and is a “right” or “interest” in the context of property law. The State’s homestead statement provided the State with a restraint on alienation, which affects the right or interest of the State in real estate in North Dakota within the meaning of N.D.C.C. § 47-19.1-11(2). The trial court therefore did not err to the extent it decided the State “retains whatever interest it may have had in the property and Dennison retains the remainder of [the] interest in the property.”

[¶ 15] However, the nature, extent, and duration of the State’s right or interest in the land has not yet been decided in Dennison’s quiet title action. Section 32-17-01, N.D.C.C., authorizes a person with an interest in real property to bring a quiet title action against any other person claiming an interest in the property to determine adverse claims. In State v. Amerada Petroleum Corp., 71 N.W.2d 675, 679 (N.D.1955), this Court said a quiet title action is a direct action to determine what, if any, interest each party has in a tract of land, and a court’s decision shall adjudicate the nature and extent of the parties’ claims and shall determine the validity, superiority, and priority of the claims. See N.D.C.C. § 32-17-10.

[¶ 16] Under N.D.R.C. § 50-0707 (1943), an applicant for old age assistance was not required to transfer a homestead in exchange for assistance, see Hillesland, 86 N.W.2d at 525; a “recipient” of old age assistance was not permitted to encumber or convey a homestead without approval in writing of the state agency; and any instrument of conveyance or encumbrance executed by “such applicant” for old age assistance without the approval of the state agency was null and void. The State’s restraint on alienation effectively ran against the recipient of old age assistance benefits and not against the land itself. As a recipient of old age assistance benefits, Magdalena Retzer’s conveyance of her interest in the land to her children was void. However, the language of N.D.R.C. § 50-0707 (1943) does not void an instrument of conveyance executed by someone other than a recipient or applicant for old age assistance benefits, and a transfer evidenced by a court order or personal representative’s deed was not rendered void by the language of that statute. Under N.D.R.C. § 50-0734 (1943), when a recipient of old age assistance died, the State, subject to funeral, last illness, and administrative expenses, had a preferred claim against the recipient’s estate for the amount of old age assistance paid under N.D.R.C. eh. 50-07(1943). See also Shuck v. Shuck, 77 N.D. 628, 44 N.W.2d 767 (1950); State v. Wehe, 72 N.D. 186, 5 N.W.2d 311 (1942); State v. Whitver, 71 N.D. 664, 3 N.W.2d 457 (1942). Section 50-0734 N.D.R.C. (1943), cross-referenced N.D.R.C. § 30-1818 (1943) for the order of payment of claims against an estate.

[¶ 17] Here, the record is silent about the total amount of old age assistance Magdalena Retzer received; when, or if she has died; and if she has died, whether the State pursued a claim against her estate, or whether the time has expired for a claim against her estate. Those issues must be resolved in the context of Dennison’s quiet title action and the Marketable Record Title Act to fully determine the adverse claims to this land.

[¶ 18] We reverse the judgment and remand for proceedings consistent with this opinion.

[¶ 19] VANDE WALLE, C.J., MARING, KAPSNER, JJ„ and JOHN C. McCLINTOCK, Jr., District Judge, concur.

[¶ 20] The Honorable JOHN C. McCLINTOCK, Jr., District Judge, sitting in place of SANDSTROM, J., disqualified.

      . Section 50-0707, N.D.R.C. (1943) provided: An applicant for old age assistance under the provisions of this chapter in no case shall be required to transfer a homestead occupied by him as such unless he or she desires to do so. A recipient of old age assistance shall not be permitted to encumber or convey such homestead without the approval in writing of the state agency. When an application for old age assistance is granted and it appears that the applicant occupies a homestead, which he owns, the state agency shall cause to be recorded, in the office of the register of deeds of the county in which such homestead is located, a statement in writing to the effect that the owner of such homestead is receiving or is about to receive old age assistance payments. Such written statement shall be signed by the executive director of the state agency. After the recording of such statement, any instrument of conveyance or encumbrance executed by such applicant for old age assistance without the approval of the state agency shall be null and void. No fee shall be charged by the register of deeds for recording such statement.


source: Caselaw Access Project

license: Public Domain

text:
    2002 ND 38
    Reinhold GRUEBELE and Marion Gruebele, Plaintiffs and Appellees, v. Lawson GERINGER, Defendant and Appellant.
    No. 20010149.
    Supreme Court of North Dakota.
    Feb. 22, 2002.

      Joseph F. Larson II of Larson Law Firm, Jamestown, ND, for defendant and appellant.
    David R. Bliss of Bliss Law Office, Bismarck, ND, for plaintiffs and appellees.
   NEUMANN, Justice.

[¶ 1] Lawson Geringer appeals from a judgment quieting title in a piece of property owned by Reinhold and Marion Grue-bele. We conclude the trial court did not err in finding Geringer failed to establish ownership of the disputed property under the doctrine of adverse possession, and we affirm.

I

[¶ 2] Reinhold and Marion Gruebele and Lawson Geringer own adjacent property in Pettibone, North Dakota. On September 18, 2000, the Gruebeles began an action against Geringer to quiet title to a disputed piece of property. The dispute involves ownership of a garage located on the property line between Geringer’s property (“Tract 1”) and the Gruebeles’ property (“Tract 2”). The parties do not dispute that the garage sits on the property line.

[¶ 3] The garage was built in 1959 or 1960 by John and Katie Pleines, the owners of Tract 1 at that time. In 1975, Raymond Guthmiller purchased Tract 1 from the Pleines. During Guthmiller’s ownership, it was determined the garage sat on the property line. The owners of Tract 2 at that time, John and Elizabeth Guthmiller, gave Raymond Guthmiller permission to keep the garage at its location, and the two adjacent owners shared the garage. Henry Wallenvein purchased Tract 1 from Raymond Guthmiller in 1977. Wallenvein heard rumors the garage was on the property line after he had purchased the property. The Gruebeles purchased Tract 2 in 1994, and stored gardening tools, a boat, and a pickup in the garage. In 1996, Wallenvein sold Tract 1 to Geringer, as the high bidder over the Gruebeles. At the sale, the Gruebeles removed their gardening tools from the garage and informed Geringer the garage was on the property line and would have to be moved. In November 1998, the Grue-beles wrote to Geringer telling him to move the garage.

[¶ 4] A trial was held on February 9, 2001. The court found that the garage was determined to be on the boundary line in 1975, and has been shared by the adjacent owners since then, defeating any claim of adverse possession based on a failure to show exclusive and continuous possession of the property. The trial court concluded the Gruebeles are the rightful owners of Tract 2, and ordered title to the property quieted as to Geringer’s claims. Geringer appeals.

II

[¶ 5] Geringer argues the trial court erred in finding he did not adversely possess the property because his possession was not exclusive and continuous. Geringer claims an adverse claimant’s possession does not have to be absolutely exclusive in order to satisfy the exclusivity condition of adverse possession. Geringer contends that a use permitted by neighborly courtesy does not defeat the exclusivity requirement of adverse possession.

[¶ 6] The determination of whether there has been an adverse possession is a question of fact that will not be set aside on appeal unless it is clearly erroneous. Benson v. Taralseth, 382 N.W.2d 649, 653 (N.D.1986). A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Albrecht v. Metro Area Ambulance, 2001 ND 61, ¶ 6, 623 N.W.2d 367.

[¶ 7] To satisfy the elements for adverse possession, the acts on which the claimant relies must be actual, visible, continuous, notorious, distinct, and hostile, and of such character to unmistakably indicate an assertion of claim of exclusive ownership by the occupant. Torgerson v. Rose, 339 N.W.2d 79, 84 (N.D.1983). To constitute an effective adverse possession, all the elements must be satisfied, and if a single element is wanting, the possession will not confer title. See 2 C.J.S. Adverse Possession § 25, at 678 (1972).

[¶ 8] The burden is on the person claiming property by adverse possession to prove the claim by clear and convincing evidence, and every reasonable intendment will be made in favor of the true owner. Trautman v. Ahlert, 147 N.W.2d 407, 413 (N.D.1966). There exists a statutory presumption of possession by the record titleholder under N.D.C.C. § 28-01-07, which provides:

28-01-07. Presumption against adverse possession of real estate. In every action for the recovery of real property or for the possession thereof, the person establishing a legal title to the premises must be presumed to have been possessed thereof within the time required by law, and the occupation of such premises by any other person must be deemed to have been under and in subordination to the legal title, unless it appears that such premises have been held and possessed adversely to such legal title for twenty years before the commencement of such action.

[¶ 9] Under N.D.C.C. § 28-01-07, Geringer had the burden to prove the owners of Tract 1 adversely possessed the garage for a continuous twenty-year period. See Brooks v. Bogart, 231 N.W.2d 746, 750 (N.D.1975). The trial court found that Raymond Guthmiller purchased Tract 1 in 1975. During Raymond Guthmiller’s ownership of Tract 1, it was determined by the owners that the garage sat on the property line. The trial court found that the owners of Tract 2 at that time, John and Elizabeth Guthmiller, gave Raymond Guthmiller permission to keep the garage at its location, and the parties shared the garage.

[¶ 10] To be entitled to a decree of adverse possession, the property of a legal title-owner must be held by hostile possession for the statutorily required time. See Benson, 382 N.W.2d at 652. When possession begins by the true owner granting permission to the claimant, such possession cannot acquire the character of adverse possession until the claimant rebuts the presumption of subservience. 16 Richard R. Powell, Powell on Real Property § 91.05[5][a], at 91-30 (2001). In Tor-gerson, this Court explained:

Possession, which is permissive in its inception can become adverse only where there is a disclaimer of the true owner’s title, or there are acts of such an unequivocal nature on the part of the user, that notice of the hostile character of the possession is brought home to the record owner. Ellison v. Strandback, 62 N.W.2d 95, 100 (N.D.1953).

339 N.W.2d at 84. To be effective as a means of acquiring title, an adverse claimant’s exclusive possession must be such as to operate as an ouster or disseisin of the owner of legal title, and the owner must be wholly excluded from possession by the claimant. 2 C.J.S. Adverse Possession § 55, at 728 (1972). There was no evidence in the record to indicate an act on Raymond Guthmiller’s part to establish hostile and exclusive possession of the garage. Raymond Guthmiller’s own testimony indicated shared possession with John and Elizabeth Guthmiller. He testified about a conversation with John Guthmiller in which John stated Raymond could leave the garage on John’s property for the time being. Raymond Guthmiller also testified the owners each had their own part of the garage. The evidence supports the trial court’s finding that shared possession of the garage existed during Raymond Guth-miller’s ownership.

[¶ 11] Henry Wallenvein purchased Tract 1 from Raymond Guthmiller in 1977. The trial court found Henry Wal-lenvein knew the garage was located on the property line after he purchased Tract 1. The trial court also found Wallenvein and the Gruebeles shared the garage throughout Wallenvein’s ownership of Tract 1. There was no evidence to indicate Wallenvein possessed the property adversely against the owners of Tract 2. There was also no evidence presented of a hostile act, which is required to overcome the heavy burden created by the permissive use granted by the owners. See Lindvig v. Lindvig, 385 N.W.2d 466, 471 (N.D.1986). Exclusive possession, for purposes of establishing title through adverse possession, requires the exclusion of the record owner and third parties as well. 16 Powell, supra, § 91.06, at 91-38. The trial court found the Gruebeles stored gardening tools, a boat, and a pickup in the garage during Wallenvein’s possession of Tract 1. The evidence presented at trial supports the trial court’s finding that shared possession of the garage existed during Wallenvein’s ownership of Tract 1.

[¶ 12] The first hostile and exclusive act that might rebut the presumption of permissive use was by Geringer after he purchased Tract 1 in December 1996. After Geringer’s purchase of Tract 1, the Gruebeles removed their tools stored in the garage, and Geringer maintained exclusive possession of the garage.

[¶ 13] While Geringer’s acts may satisfy the hostile and exclusive requirements for adverse possession, his claim fails to comply with the twenty-year requirement under N.D.C.C. § 28-01-07. When an original entry is permissive and not adverse, the time will not begin to run against the true owner until the adverse claimant establishes exclusive right in himself. Gameson v. Remer, 96 Idaho 789, 537 P.2d 631, 633-34 (Id.1975). The evidence presented showed shared possession of the garage by Wallenvein and the Grue-beles in 1996. Under these facts, the trial court correctly concluded Geringer’s claim failed to trace a period of twenty years where Geringer or his predecessors maintained adverse possession of the property the garage encroaches upon.

[¶ 14] Geringer failed to meet his burden to prove adverse possession by clear and convincing evidence. See Trautman, 147 N.W.2d at 413. When a claimant fails to prove legal title by adverse possession, the presumption of possession by the legal owner applies. Martin v. Rippel, 152 N.W.2d 332, 339 (N.D.1967). The trial court correctly found the Grue-beles were the rightful owners of the disputed property, and properly quieted title as to any claim by Geringer.

Ill

[¶ 15] Under our standard of review, the trial court did not clearly err in finding a lack of exclusive and continuous possession. We conclude the trial court’s findings of fact are supported by the evidence. The judgment is affirmed.

[¶ 16] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER and CYNTHIA ROTHE-SEEGER, D.J., concur.

[¶ 17] The Honorable CYNTHIA ROTHE-SEEGER, D.J., sitting in place of SANDSTROM, J., disqualified.

      . The record indicates John and Elizabeth Guthmiller obtained the portion, of Tract 2 on which the disputed garage sits as part of a larger conveyance in 1961. In 1980, John and Elizabeth Guthmiller conveyed a portion of their larger lot to Gottlieb and Dora Martin. Through an informal deed of distribution of a personal representative in 1992, Gottlieb Martin’s estate conveyed the lot to George Martin. In 1994, George Martin conveyed the lot to Reinhold and Marion Gruebele. It appears from the record that these parties believed the lot conveyed to the Gruebeles contained the tract on which the eastern portion of the garage sat. The Gruebeles did not obtain the legal title to the portion of Tract 2, which the garage sat on, until November 7, 1997, when Elizabeth Guthmiller conveyed that portion through a quit claim deed.


author: SABERS, Justice. KONENKAMP, Justice AMUNDSON, Justice

text:
    2002 SD 15
    Timothy D. MELDRUM, Sr., Individually and as the biological parent and natural guardian of T.D.M., Jr., Plaintiff and Appellee, v. Charles NOVOTNY, Defendant and Appellant, T.D.M., Jr., Intervenor and Appellant.
    No. 21995.
    Supreme Court of South Dakota.
    Argued Oct. 3, 2001.
    Decided Jan. 30, 2002.

      J.M. Grossenburg, Winner, for plaintiff and appellee.
    Sandy J. Steffen of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, for defendant and appellant.
    Steven R. Smith of Andera & Smith Law Offices, Chamberlain, for intervenor and appellant.
   SABERS, Justice.

[¶ 1.] Justice Richard W. Sabers delivers the majority opinion of the Court on Issue 1, which holds that the trial court did not err in determining that Meldrum was fit to have custody of T.D.M.

[¶ 2.] Justice Sabers delivers the majority opinion of the Court on Issue 2, which holds that the trial court did not err in determining that Meldrum did not abandon T.D.M.

[¶ 3.] The separate writings of Chief Justice Gilbertson, Justice Konenkamp and Justice Amundson control Issue 3, and result in a remand to the trial court for a determination of the best interest of the child.

[¶4.] SABERS, Justice, writing the majority on Issues 1 and 2.

[¶ 5.] Timothy Meldrum, Sr., (Meld-rum) the biological father of T.D.M., filed a writ of habeas corpus seeking custody of his son, T.D.M. Charles Novotny (Novot-ny) countered for custody of T.D.M. The trial court awarded custody to Meldrum. Novotny appeals on the ground that Meld-rum is unfit. T.D.M. appeals on the grounds that he was abandoned by Meld-rum and that extraordinary circumstances exist to defeat Meldrum’s parental preference. We affirm.

FACTS

[¶ 6.] Timothy Meldrum, Sr., and Nancy Meldrum were married in Rock County, Illinois, on June 9, 1988. They had one son, T.D.M., who was born on October 9, 1988. In 1990, Nancy began working as an exotic dancer. Her appearances required her to travel away from home. During Nancy’s absences, T.D.M. stayed with his father.

[¶ 7.] One of Nancy’s appearances took her to Winner, South Dakota. While in Winner, Nancy met Novotny, a local rancher. Prior to T.D.M.’s fourth birthday in 1991, Nancy and Novotny began living together.

[¶ 8.] In 1992, Nancy took T.D.M. with her to Winner. Meldrum did not contest this arrangement and believed his son would be well cared for. Meldrum remained in Illinois. When Nancy returned to Illinois for dancing appearances, she took T.D.M. to visit his father. Meldrum’s extended family, his mother, father, and several aunts, also saw T.D.M. on some of these occasions. This extended family sent letters and cards to T.D.M. after he moved to South Dakota.

[¶ 9.] Nancy and Novotny had one son, Z.N., born on August 3, 1993. When Nancy would travel for dancing appearances, Novotny, with the assistance of his mother, cared for both T.D.M. and Z.N. Novotny provided much of the daily care for the two children, including medical and educational needs.

[¶ 10.] In 1995, a dispute arose between Novotny and Nancy. Novotny sought custody of both T.D.M. and Z.N. On December 26, 1995, Circuit Judge Kathleen Trandahl granted Novotny temporary physical custody of T.D.M. and Z.N., subject to reasonable visitation in Nancy. This was done despite an affidavit filed by Meldrum, who was not a party to the action, seeking custody of both children. The custody proceeding was not pursued.

[¶ 11.] In December 1997, Nancy obtained a divorce from Meldrum. She received physical custody of T.D.M., subject to reasonable visitation in Meldrum. Meldrum was ordered to pay $130.00 per month in child support. Nancy refused the support payments.

[¶ 12.] Meldrum has since remarried and has two children with his second wife. Nancy and Novotny never married. Nancy was killed in a car accident on May 3, 1998.

[¶ 13.] Within two months of Nancy’s death, on June 16, 1998, Meldrum filed an application for writ of habeas corpus seeking custody of T.D.M. Novotny countered for custody of T.D.M. The matter was scheduled for trial on August 12, 1998. Custody was awarded to Meldrum. No-votny appealed the award and in 1999 the South Dakota Supreme Court remanded the case for a new trial based on the trial court’s failure to appoint an attorney for T.D.M.

[¶ 14.] A new trial was scheduled for March 13, 2000. In March 2000, T.D.M.’s attorney filed a motion to terminate Meld-rum’s parental rights alleging that Meld-rum had abandoned T.D.M. On March 13, 2000, the trial judge continued the case based upon a stipulation of the parties providing for visitation in Meldrum. On January 3, 2001, the trial court set a new trial date for March 29, 2001.

[¶ 15.] At trial, Meldrum presented testimony that he had never abandoned T.D.M. He testified that Novotny prevented T.D.M. from having contact with him and that he did not want to make life difficult for either Nancy or T.D.M. Meld-rum also testified that his attempts to provide child support for T.D.M. were refused by Nancy. Other witness testimony claimed that Meldrum was a caring man and a good provider.

[¶ 16.] At trial, Novotny presented testimony that T.D.M. had lived with Novotny for the majority of his life and that he was primarily responsible for T.D.M.’s support and care. Novotny provided other testimony that indicated T.D.M. referred to Novotny as his father and neither thought of nor referred to Meldrum in this way. Novotny attempted to establish that it was in T.D.M.’s best interest to remain with him in South Dakota.

[¶ 17.] At the conclusion of the trial on June 4, 2001, the court awarded custody to Meldrum and granted Novotny visitation with T.D.M. from June 1, 2002, to August 1, 2002, and each year thereafter during T.D.M.’s minority. The tidal court concluded that Meldrum was not an unfit parent and neither Novotny nor T.D.M. had shown such extraordinary circumstances as would defeat Meldrum’s parental preference under South Dakota law.

STANDARD OF REVIEW

[¶ 18.] This Court’s standard for reviewing findings of fact is well established. “The findings of the trial court will not be set aside unless they are clearly erroneous.” Langerman v. Langerman, 336 N.W.2d 669, 670 (S.D.1983). In reviewing findings of fact, this Court “must give due regard to the opportunity of the trial court to judge the credibility of witnesses and to weigh their testimony properly.” Id. The trial court’s findings will not be disturbed unless this Court is “firmly and definitely convinced a mistake has been made.” Jasper v. Smith, 540 N.W.2d 399, 401 (S.D.1995).

[¶ 19.] 1. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT MELDRUM WAS FIT TO HAVE CUSTODY OF T.D.M.

EH 20J Novotny argues that the trial court erred in awarding custody of T.D.M. to Meldrum because he is unfit. This Court has recognized that:

The law presumes that the best interests and welfare of a minor will be best served by awarding its custody to the parent and the burden is upon those who claim otherwise to overcome such presumption by clear and satisfactory proof of abandonment or forfeiture or a legal surrender or unfitness of the parent to have custody.

Guardianship of Sedelmeier, 491 N.W.2d 86, 87 (S.D.1992) (quoting Sweeney v. Joneson, 75 S.D. 213, 216, 63 N.W.2d 249, 251 (1954)). This Court has further recognized that “[i]n legal contests between a parent and a nonparent for the custody of a child the threshold question is: Is the parent unfit to have the custody of the child? ... Without unfitness being established, there is no necessity to look to the best interest of the child.” Sedelmeier, 491 N.W.2d at 87. There must be “a clear showing against the parent of ‘gross misconduct or unfitness, or of other extraordinary circumstances affecting the welfare of the child’ [ ], and an award cannot be made to [nonparents] simply because they may be better custodians.” Quinn v. Mouw-Quinn, 1996 SD 103, ¶ 35, 552 N.W.2d 843, 848 (Amundson, J., dissenting) (citing Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953), overruled on other grounds by Termination of Parental Rights P.A.M., 505 N.W.2d 395 (S.D.1993)). See also Langerman, 336 N.W.2d at 670 (holding that grandmother was not entitled to custody of grandchild simply because she may have been a better caretaker than child’s biological father).

[¶ 21.] This Court has held that the definition of “unfitness” should be interpreted broadly. Blow, 59 N.W.2d at 827.

A parent’s disqualification results not only from a lack of ability but also from an unwillingness or from an indifferent lack of desire, as well, to rear a child spiritually, morally, mentally and physically according to the minimum standard the law condones. Thus, unfitness would follow from voluntary conduct bearing on a parent’s cruelty, morals, extreme neglect, abandonment or any attitude or condition, created through marriage or otherwise, resulting in home surroundings below the minimum standards; and unfitness would also result from involuntary circumstances such as extreme poverty, physical or mental infirmity, or any other condition making it impossible for the parent to care for the child according to the minimum requirements.

Id.

[¶ 22.] The burden was upon No-votny to show by clear and satisfactory proof that Meldrum was unfit in order to defeat an award of custody to Meldrum. Novotny asserts that Meldrum was unwilling to parent T.D.M. He claims that Meld-rum’s failure to pay child support, lack of communication with T.D.M., and failure to request visitation, support a finding of unfitness.

[¶ 23.] The trial court, however, concluded that Novotny failed to make the appropriate showing to establish unfitness. In its findings of fact, the trial court stated:

Based on the evidence, the Court finds that Meldrum is a fit and proper person to have the care, custody and control of T.D.M. Meldrum is married, has two additional children, has a good job and lives in proximity to many of his family members. From the testimony, his home is suitable.

The trial court also stated that “Novotny has prevented Meldrum from giving T.D.M. proper parental care” and “attempted to acquire superior rights to T.D.M. by withholding T.D.M. from his father.” The trial court further concluded that Nancy had refused the child support payments initially offered by Meldrum. Novotny has failed to make a clear showing against Meldrum of unfitness affecting the welfare of T.D.M. Therefore, the trial court’s findings are not clearly erroneous. In the absence of such a showing of unfitness, there is no basis for disturbing Meld-rum’s right to custody.

[¶ 24.] 2. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT MELDRUM DID NOT ABANDON T.D.M.

[¶ 25.] Novotny and T.D.M. also argue that the presumption of custody can be overcome by proof of abandonment. No-votny and T.D.M. assert that Meldrum’s actions of not paying child support and having little contact with T.D.M. constitute abandonment.

[¶ 26.] Abandonment is defined in SDCL 25-7-17. SDCL 25-7-17 provides:

Proof of abandonment or desertion of a child by a parent, or the omission by a parent to furnish necessary food, clothing, shelter, medical attendance, other remedial care, or other means of support for his child is prima facie evidence that the abandonment, desertion or omission is intentional and without lawful excuse.

This Court’s standard for determining abandonment is well established. Claymore v. Serr, 405 N.W.2d 650 (S.D.1987) (holding that even though the father was lacking in the area of parental support and responsibility, he had not abandoned his child).

To constitute abandonment under our code it must appear by clear and convincing evidence that there has been by the parents a giving-up or total desertion of the minor child. In other words, there must be shown an absolute relinquishment of the custody and control of the minor and thus the laying aside by the parents of all care for it. There must be a showing of an intent on the part of the parent to abandon and to relinquish parental obligations; this intention may be inferred from conduct.

Id. at 655 (internal citations omitted).

[¶ 27.] The trial court held that:

[T.D.M.] was not abandoned by [Meld-rum] because father did not maintain contact with the child. [Meldrum] was intimidated by [Novotny] and did not wish to cause trouble for the child or Nancy Meldrum.
[T.D.M.] was not abandoned by [Meld-rum] because father did not pay child support. [Meldrum] was told by Nancy Meldrum, mother of the child, that she did not want child support.

[¶ 28.] The evidence at trial supports the trial court’s findings. There has been no showing by Novotny that Meldrum intended to abandon or desert T.D.M. In fact, despite footnote 1, within two months of Nancy’s death in 1998, Meldrum filed an application for habeas corpus seeking custody of T.D.M. Such an action is wholly inconsistent with an intent to abandon a child. Furthermore, even while the contact between T.D.M. and Meldrum and Meldrum’s family may have been somewhat limited, there was some contact and visitation. There is no sufficient showing that Meldrum abandoned T.D.M.

[¶ 29.] Novotny and T.D.M. have failed to show by clear and satisfactory proof that Meldrum is unfit or that he abandoned T.D.M. The trial court’s findings on this issue are not clearly erroneous.

[¶ 30.] GILBERTSON, Chief Justice, and AMUNDSON, KONENKAMP and MILLER, Acting Justice, concur.

[¶ 31.] MILLER, Acting Justice, sitting for GORS, Circuit Judge, Acting Supreme Court Justice, disqualified.

[¶ 32.] SABERS, Justice, writing on Issue 3, with MILLER, Acting Justice concurring, would hold that insufficient extraordinary circumstances exist to require that custody of T.D.M. be awarded to Novotny.

[¶ 33.] 3. WHETHER EXTRAORDINARY CIRCUMSTANCES EXIST IN THE BEST INTEREST OF THE CHILD REQUIRING THAT CUSTODY OF T.D.M. BE AWARDED TO NOVOTNY.

[¶ 34.] T.D.M. also argues that sufficient extraordinary circumstances exist in the best interest of the child requiring that custody of T.D.M. be awarded to Novotny. A showing of extraordinary circumstances affecting the welfare of the child may defeat parental preference under South Dakota law. See Quinn, 1996 SD 103, ¶ 35, 552 N.W.2d at 848 (citations omitted). However, we have reviewed this argument and the authorities set forth by the parties and conclude that there is no showing of extraordinary circumstances requiring that the findings of fact and conclusions of law set forth in issues 1 and 2 are clearly erroneous or that custody of T.D.M. should be awarded to Novotny.

[¶ 35.] For all of these reasons, we should affirm the trial court.

[¶ 36.] The result of Issue 3, which is to remand to the trial court to determine the best interest of the child is controlled by the separate opinions of Chief Justice Gilbertson, Justice Konen-kamp and Justice Amundson.

[¶ 37.] GILBERTSON, Chief Justice, writing on Issue 3.

[¶ 38.] If one were to poll the judges of this state as to what type of case is the most difficult to decide, a substantial portion, if not all of them, would respond that it is in the area of child custody. It is this issue that established King Solomon as one of the wisest of the ancients. Unlike the case before Solomon, however, both Meldrum and Novotny love T.D.M., making the task before this trial court even more difficult. The trial courts of this state decide these difficult issues by applying general principles of law found in our constitutions and statutes. They, like this Court, do not possess a roving license to do good as they see it.

[¶ 39.] I concur in issues One and Two of this case. I feel, however, that this Court, as well as the trial court, failed to give sufficient attention to T.D.M.’s and Novotny’s claim of exceptional circumstances. The record establishes the existence of exceptional circumstances and the case should therefore be remanded to determine what is in the best interests of T.D.M. Neither the trial court nor this Court reached this question.

[¶40.] T.D.M. has Attention Defect Hyperactive Disorder (ADHD). Both sides acknowledge that he has ADHD. However, their views regarding the significance of the condition and how to deal with it, are substantially different. Both sides further agree that T.D.M. “is a bright boy.” But ADHD does not effect a person’s amount of intelligence. Rather, it affects how a person is able to learn and what difficulties must be overcome to maximize the learning process and make full use of the effected person’s intelligence. T.D.M. must learn to live with a medical condition that will significantly effect the balance of his life.

[¶ 41.] Joann Haffield, T.D.M.’s elementary school counselor in Winner, where T.D.M. attended, described the general effect of ADHD on T.D.M.’s mind. “It’s as though you have a Ping-Pong ball in your head and its bouncing around all the time.” This constitutes a permanent and major distraction for a child with ADHD when he attempts to learn. Haf-field further testified that “[T.D.M.] is very very intelligent [but] he’s a compulsive young man and so the structure needs to be provided for him to help control that....” The key to successful education for a child with ADHD is through as much structure as possible throughout the learning process, both in school and at home. This structure helps overcome the distractions to learning that ADHD creates in T.D.M.’s mind. The condition is also treated in part by medication. T.D.M. takes Ritalin for this condition.

[¶ 42.] Obviously, how the ADHD child is raised and educated will effect the amount of learning acquired and the life skills taken into adulthood when he or she attempts to enter a profession and live an independent life. Beyond how much they know, people with ADHD are more compulsive if they have not had proper training and education. Haffield testified this greater compulsion could make them more vulnerable to become delinquents, alcoholics, or drug abusers.

[¶ 43.] Novotny recognized that T.D.M. had difficulties that led to a diagnosis of ADHD by University Physicians in Sioux Falls. He then sought help by reading books on the subject and entering a support group. He provided, in his home, the stability a child with ADHD needs. The trial transcript is replete with examples of how Novotny attempted to structure and guide T.D.M. to overcome the ADHD. He ensured that the Winner School District, both at elementary and higher levels, were aware of T.D.M.’s condition and were providing an educational program to maximize his learning process. Novotny would stop by the school and regularly visit with T.D.M.’s teachers to see if Novotny needed to be providing additional help with homework. Novotny continuously monitored T.D.M.’s educational process.

[¶ 44.] These concepts were all previously recognized by those familiar with ADHD, yet they are concepts that do not appear in the record to have been substantially considered by Meldrum. Both Tim Meldrum Sr. and his wife, Barbara, are familiar with ADHD because another family member has it. They have read articles and taken a class on the subject. Curiously, even though they are actively seeking T.D.M.’s custody, they have made no concrete plans on how to get a proper counsel- or to deal with ADHD. Further, when asked about T.D.M.’s need for taking Ritalin, Barbara Meldrum testified “I don’t think that’s a problem here.” T.D.M.’s counselors, teachers, other professionals and lay witnesses testified as to the extensive specialized treatment needed for T.D.M.’s education. Yet Meldrum’s mother testified “I don’t see [T.D.M.] having a big problem with it. I know ADHD kids and I don’t see these things in [T.D.M.] that I see in these other kids.”

[¶ 45.] The effect ADHD has had on T.D.M. cannot be viewed in isolation. Testimony from non-parties to the action establishes T.D.M. has been very emotionally effected by the death of his mother and a grandparent. T.D.M. has also developed a close bond with Novotny, as well as T.D.M.’s half-brother Zach, who lives with Novotny and is his son.

[¶ 46.] Although South Dakota recognizes the doctrine of exceptional circumstances, we have not had the issue analyzed by this Court in detail. Other jurisdictions, however, recognize the exceptional circumstances doctrine and have applied it in cases with factual settings similar to this one.

[¶ 47.] In William L. v. Betty T., 243 A.D.2d 860, 663 N.Y.S.2d 324 (N.Y.App.Div.1997), the court affirmed a determination that the natural father was not suitable for placement of his children due to extraordinary circumstances. The court based its decision on the father’s extended lack of custody of the children, together with the custodians’ successful treatment of the children’s Attention Defect Disorder, mental retardation, and other special needs. Similarly, in Banks v. Banks, 285 A.D.2d 686, 726 N.Y.S.2d 795 (N.Y.App.Div.2001), the court held that the special needs of an older child and the parent’s failure to address these problems, while petitioner had arranged for counseling, constituted extraordinary circumstances. The court in Smith v. Pond, 5 Va.App. 161, 360 S.E.2d 885 (1987), also concluded that medical history and treatment can constitute extraordinary circumstances, which would justify taking a child from the natural parents, if the parents were unable or unwilling to provide adequate medical care to meet the special needs.

[¶ 48.] Overriding parental preference, when extraordinary circumstances are present, does not offend the Constitution. In Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997), the court examined the doctrine of extraordinary circumstances against the-applicable constitutional standards which have been addressed herein by this Court. The Price court concluded:

A natural parent’s constitutionally protected paramount interest in the companionship, custody, care, and control of his or her child is a counterpart of the parental responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child. Therefore, the parent may no longer enjoy a paramount status if his or her conduct is inconsistent with this presumption or if he or she fails to shoulder the responsibilities that are attendant to rearing a child.... [C]onduct inconsistent with the parent’s protected status, which need not rise to the statutory level warranting termination of parental rights, would result in application of the “best interest of the child” test without offending the Due Process Clause. Unfitness, neglect, and abandonment clearly constitute conduct inconsistent with the protected status parents may enjoy. Other types of conduct, which must be viewed on a case-by-case basis, can also rise to this level so as to be inconsistent with the protected status of natural parents. Where such conduct is properly found by the trier of fact, based on evidence in the record, custody should be determined by the “best interest of the child” test mandated by statute.

Id. at 534-35 (internal citations omitted).

[¶ 49.] The above facts with regard to T.D.M., Novotny and the Meldrums are uncontested. The trial court’s findings of fact are correct, as far as they go. However, very little attention was paid to T.D.M.’s ADHD. The trial court properly treated the doctrine of extraordinary circumstances as a conclusion of law, but then erred as a matter of law by concluding T.D.M.⅛ ADHD and its surrounding uncontested facts did not constitute extraordinary circumstances for the purposes of determining custody. Upon a de novo review of the applicable law and uncontested underlying facts, I would reverse the trial court on its refusal to apply the doctrine of extraordinary circumstances.

[¶ 50.] As per Sedelmeier, 491 N.W.2d 86, I would remand to the trial court for a determination of what custody arrangement is in the best interests of T.D.M. That determination should include comprehensive home studies of both households which, to date, have not been done. The question of what is in the best interests of the child was never reached by the trial court because it does not become a consideration until the non-parent prevails, either on the claim of parental unfitness or extraordinary circumstances. Id. at. 87. T.D.M. and Novotny should prevail on the extraordinary circumstances issue. As a result, the best interests of the child test now becomes applicable and should determine with whom T.D.M. resides, visitation and other relevant matters.

[¶ 51.] In summary, I concur on issues One and Two and would reverse and remand on issue Three.

[¶ 52.] KONENKAMP, Justice, writing on Issue 3.

KONENKAMP, Justice

(concurring in part and concurring in remand for a best interests determination).

A.

[¶ 53.] I concur with the conference opinion on Issues One and Two. Insufficient evidence of parental unfitness exists in this record. As for abandonment, if Meldrum abandoned his child, it was primarily to the mother, not to the mother’s boyfriend. But that does not end our inquiry. On Issue Three, this ease must be remanded to allow Novotny to seek guardianship of T.D.M.

B.

[¶ 54.] A guardianship proceeding affords an established mechanism for considering claims by nonparents for the custody of children. It ensures principled decision-making, with some measure of certainty and predictability in this difficult and complex area. Our guardianship laws were rewritten in 1993, creating the new South Dakota Guardianship and Conserva-torship Act. With this enactment, our Legislature implemented a more expansive and protective approach toward the special needs of children. Among other things, this law allows for the separation, if necessary, of caretaking and money management functions.

[¶ 55.] Most important, as part of the revisions, the parental preference statute in our former guardianship law was repealed. See SDCL 30-27-23 (repealed 1993). There still exists a constitutional preference for fit parents, of course. The natural parent-child relationship is a protected fundamental right. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606 (1982). Yet, children are not property. They have rights of their own. Courts are beginning to recognize that “a child has an independent, constitutionally guaranteed right to maintain contact with a person with whom the child has developed a parent-like relationship.” Webster v. Ryan, 189 Misc.2d 86, 729 N.Y.S.2d 315, 316, 331 (N.Y.Fam.Ct.2001) (addressing right to visitation). Our new guardianship laws give greater impetus to these rights.

[¶ 56.] Under South Dakota’s guardianship laws, both the person seeking guardianship and the child for whom guardianship is sought have a voice in how the matter should be decided. SDCL 29A-5-203 provides:

[A] petition for the appointment of a guardian, a conservator, or both, may be filed by ... an interested relative, by the individual or facility that is responsible for or has assumed responsibility for the minor’s care or custody,' by the individual or anyone the minor has nominated as guardian or conservator, or by any other interested person, including the department of human services or the department of social services.

Certainly, Novotny is an “individual ... [who] has assumed responsibility for the minor’s care or custody....” In a guardianship proceeding, a court must consider “the suitability of the proposed guardian or conservator, the minor’s current or proposed living arrangements, ... the availability of less restrictive alternatives, the extent to which it is necessary to protect the minor from neglect, exploitation, or abuse, and if applicable, the minor’s need for habilitation or therapeutic treatment.” SDCL 29A-5-208. Moreover, under our guardianship laws, a court “shall” consider “the wishes of the minor if the minor is of sufficient age to form an intelligent preference.” SDCL 29A-5-202. See also SDCL 29A-5-304 (nominating or appointing guardian or conservator). The word “shall” in our statutes “manifests a mandatory directive,” conferring no discretion. SDCL 2-14-2.1.

[¶ 57.] Nonetheless, as we have said in several cases, before custody may be transferred to a nonparent, the parents must be proved unfit or there must exist extraordinary circumstances, reflecting on some serious detriment to the child. In Cooper v. Merkel, we wrote:

Before a parent’s right to custody over his or her own children will be disturbed in favor of a nonparent a clear showing against the parent of gross misconduct or unfitness, or other extraordinary circumstance affecting the welfare of the child is required, and an award cannot be made to [nonparents] simply because they may be better custodians.

470 N.W.2d 253, 255 (S.D.1991) (internal quotation omitted). Although abandonment and unfitness were not proved, the record contains considerable evidence of extraordinary circumstances.

[¶ 58.] We have never before defined the term “extraordinary circumstances.” Several other jurisdictions, however, have identified the extraordinary circumstances sufficient to overcome the constitutional parental preference. These circumstances must be only those that result in serious detriment to the child. They include the abandonment or persistent neglect of the child by the parent; the likelihood of serious physical or emotional harm to the child if placed in the parent’s custody; the extended, unjustifiable absence of parental custody; the abdication of parental responsibilities; the provision of the child’s physical, emotional, and other needs by persons other than the parent over a significant period of time; the existence of a bonded relationship between the child and the nonparent custodian sufficient to cause significant emotional harm to the child in the event of a change in custody; the -substantial enhancement of the child’s well-being while under the care of the nonparent; the extent of the parent’s delay in seeking to reacquire custody of the child; the demonstrated quality of the parent’s commitment to raising the child; the likely degree of stability and security in the. child’s future with the parent; the extent to which the child’s right to an education would be impaired while in the custody of the parent; and any other circumstances that would substantially and adversely impact the welfare of the child. See Locklin v. Duka, 112 Nev. 1489, 929 P.2d 930, 934-35 (1996); In the Matter of the Guardianship of Jenae K.S., 196 Wis.2d 16, 539 N.W.2d 104, 106 (Wis.Ct.App.1995); Burrows v. Sanders, 99 Md.App. 69, 635 A.2d 82, 85 (Spec.App.1994); Ross v. Hoffman, 280 Md. 172, 372 A.2d 582, 593 (1977); Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976).

[¶ 59.] Substantial extraordinary circumstances exist in this case. The record contains uncontradicted expert testimony that a permanent return of custody to the father would cause serious emotional detriment. The child has been in Novotny’s custody for more than eight years. Much of that time the father acquiesced in the situation. There were many years where there was no contact between father and son. Even after the temporary order of December 26, 1995, granting Novotny physical custody of the child as against the mother, the father did not initiate any legal action to assert his right to custody until after the mother’s death in 1998. The child has a strong attachment to No-votny. He also has a strong attachment to his half-sibling in Novotny’s home. The child has maintained a consistent desire to remain with Novotny. The circuit court concluded that there were no extraordinary circumstances. That was clearly erroneous. The court must consider these vital issues on remand.

C.

[¶ 60.] Consistent with South Dakota law, a two-part test must be met before a court can grant custodial guardianship to a nonparent. Once extraordinary circumstances have been shown, then the best interests of the child must be considered. The circuit court never reached the question of the child’s best interests. In finding that there was no abandonment or extraordinary circumstance, the court held that Novotny obstructed Meldrum’s visitation and contact with his son. Yet this is only one factor in many to consider and balance in a best interests determination. Fuerstenberg v. Fuerstenberg, 1999 SD 35, 591 N.W.2d 798. Furthermore, because T.D.M. has been living with his father in Illinois during the pendency of this appeal, the circuit court may wish to hear additional evidence on the child’s progress with his father.

[¶ 61.] Courts must never lightly intrude upon family integrity. The family relationship remains intrinsic to our religious, cultural, social, and economic substance. Even between loving parents, deciding who will maintain custody of a child will always be an onerous task. In most instances, when' family' integrity fails, we still depend on parental commitment to the child. But when even that breaks down, we must resort to some established legal process to prevent children from being buffeted by demands having little to do with their best interests. South Dakota’s guardianship process addresses the circumstances we face in this case. Parents have rights, of course, but children have rights as well, rights to care, stability, and love.

[¶ 62.] AMUNDSON, Justice, writing on Issue 3.

AMUNDSON, Justice

(concurring specially).

[¶ 63.] Because I believe the best interest of the child should always be paramount, I would reverse and remand for a determination of this issue.

[¶ 64.] A child’s welfare should be of utmost importance, even when evaluating a custody battle between a parent and non-parent. There is a plethora of cases in this state placing “the best interest of the child” on a pedestal above all other considerations in custody battles. See, e.g., In re W.G., 1999 SD 85, ¶ 22, 597 N.W.2d 430, 434 (stating “[t]he best interest of the children must always prevail.”); Zepeda v. Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d 48, 53 (stating “our brightest beacon remains the best interest of the child”). We should place the child’s interest upon such a pedestal in all custody cases, decreasing the emphasis on the fitness of the parent when a non-parent seeks custody. Cf. In re Guardianship of Sedelmeier, 491 N.W.2d 86, 87 (S.D.1992) (holding that unfitness of parent must be established before the best interest of the child can be addressed in a parent versus non-parent custody battle).

[¶ 65.] Although I do not disagree with a presumption of custodial entitlement on behalf of a biological parent, one should be able to trump that presumption with the best interest of the child. “[T]he welfare of the child is superior to the claim of the parent so that the right of the natural parent must yield where it clearly appears that the child’s welfare requires that custody be granted to another.” Doe v. Doe, 92 Misc.2d 184, 399 N.Y.S.2d 977, 982 (N.Y.Sup.Ct.1977). If a child develops a secure, stable and continuing parent-child relationship with a third party who has become a psychological parent, then “the presumption that, absent extraordinary circumstances, a child should be in the custody of the natural parent should be rebuttable.” Id. See also, Fisher v. Fisher, 99 Nev. 762, 670 P.2d 572, 573 (1983) (stating that a growing number of cases focus on the best interest of the child, and citing Doe, supra, approvingly). Aso, in the case of In re Paternity of L.K T., 665 N.E.2d 910 (Ind.Ct.App.1996), the Indiana Court of Appeals was involved in a custody dispute between a parent and non-parent, and stated as follows:

In Turpen v. Turpen, 537 N.E.2d 537 (Ind.Ct.App.1989), this court rejected the “mechanical approach” ... in evaluating evidence in custody actions. The Turpén court recognized that preeminent in the court’s consideration is the best interest of the child, and that there might be reasons for preferring a non-parent over a parent ... This view, i.e., preeminence of the child’s best interest over other considerations, was impliedly reaffirmed in Atteberry v. Atteberry, 597 N.E.2d 355 (Ind.App.1992): ‘Our law clearly prefers to consider the best interest of the child over the presumption that custody must be in a natural parent.’ Id. (other citations omitted).

Id. at 912. I submit that South Dakota should also place the best interest of the child as the paramount factor in this type of custody dispute so that the presumption of custody for a natural parent is subordinate to the child’s best interest.

[¶ 66.] The case at hand did not involve the traditional “Leave It To Beaver” family where mom, dad and kids all ate supper together under the same roof each evening. In this case, the biological father was not living with his biological son. Importantly, the traditional “Cleaver” family is becoming less and less common in contemporary society. As society changes, some of our laws become antiquated and fail to provide just results. If a child’s best interest is with a non-parent, we should not permit outdated laws to prohibit such conduct.

This concept, of psychological parent-child relationship, has gained increasingly greater acceptance in the courts where the phenomena has been observed at close hand and where psychiatric experts have testified to its being well grounded. Where a psychological parent-child relationship has developed, disruption of this relationship can be even more traumatic and devastating on occasion than severing the tie with a natural parent.

Doe, 399 N.Y.S.2d at 982 (internal citations omitted). Thus, our custody laws should adapt to our changing social situations. A biological parent should not be deemed the proper custodian simply because they are a biological parent; rather, we must place our emphasis on what is best for the child.

[¶ 67.] This writing should not be interpreted as approving any conduct by the psychological parent, such as having the minor child on national television, having television cameras present at the time the child was transferred, or any other manipulative acts which cannot be construed as being in the best interest of the child. Therefore, this type of conduct is still to be considered by the trial court when determining what is in the best interest of the child.

[¶ 68.] In this case, the minor child has been thrust into an environment not necessarily of his choosing based on the conduct of the parents and Novotny. Therefore, I would remand for a determination on the best interest of the child so that this critical decision is not the mechanical act of plugging a peg in the right hole.

      . A very disturbing argument against Meld-rum on both fitness and abandonment is that, despite the temporary order entered on December 26, 1995, granting Novotny physical custody over T.D.M., with visitation in Nancy, Meldrum did not initiate any activity to assert custody over T.D.M. until after Nancy's death in 1998.

      . The result of the writings of Chief Justice Gilbertson, Justices Konenkamp and Amund-son is to "remand for a determination on the best interest of the child.” However, this has already been determined. The burden was on the appellants to make a sufficient showing that extraordinary circumstances existed. They failed to make a sufficient showing on the best interest of the child for the long-term. The trial court determined this and it has not been shown to be in error.
      If we reverse here, we open the floodgates to revenge, boyfriends, neighbors and ex-neighbors, babysitters and would-be foster parents. We should affirm.

      . The definitions of ADHD appear to be a description of its characteristics. ADHD results in selective attention, distractibility, im-pulsivity and hyperactivity. Sears and Thompson, The ADD Book 8 (1998). "Most professionals now believe that ADHD consists of three primary problems in a person’s ability to control behavior: (1) difficulties in sustained attention, (2) impulse control or inhibition, and (3) excessive activity. Some researchers ... would add the additional problems of: (4) difficulty following rules and instructions, and (5) the presence of excessive variability in response to many situations, especially schoolwork.” Martin, The Attention Deficit Child 21 (1998).
      Behavioral characteristics of ADHD include high activity levels, impulsivity and lack of self-control, difficulty with transitions and changing activities, aggressive behavior, easily overstimulated, social immaturity, low self-esteem and high frustration. However, not all symptoms apply to each child and symptoms may vary in degree. "Each child is unique and displays a different combination of behaviors, strengths, weaknesses, interests, talents and skills.” Rief, How to Reach and Teach ADD/ADHD Children 2-3 (1993). Despite these difficulties, children and adults with ADHD are often of high intelligence and can excel if properly motivated and educated. Individuals who are in the "ADD Hall of Fame” include Mozart, Sir Winston Churchill and Thomas Edison. Sears, supra at 4.

      . Haffield testified:
      Well, based on the — on the behaviors when they’re a small child one of the things that you have to do as a parent or guardian or person that’s in charge of the child is to teach them that they must structure or plan what they’re going to do and say — and choose things to do small sections at a time. Like, okay, [T.D.M.], if you have — if you have math to do let's not worry about three pages, let’s do this one thing. Also, when you're planning an activity what can I do within this amount of time and accomplish it in that time and then finish the other part later.
      And so if they learn to do these small things when they’re younger and they learn to understand when they’re losing control, when — when they’ve lost concentration to pull back and regroup, so to speak, then hopefully these skills are going to transfer into their adulthood. They’ll choose vocations. They’ll make the kind of choices that they need to do to compensate with ADHD because they know they suffer from it.

      . In an interesting contrast, the trial court made a conclusion of law that extraordinary circumstances did exist for the purposes of visitation between T.D.M. and Novotny. In ordering such visitation, the trial court relied upon Mouw-Quinn, 1996 SD 103, 552 N.W.2d 843. This has not been appealed by Meldrums.

      . The transfer of T.D.M.'s custody from No-votny to Meldrum took place this summer. This would allow timely home studies of both residences in a setting where T.D.M. has recently lived, or is currently living.

      .Two statutory avenues are available for non-parents to obtain custody of a child in South Dakota, one is through the abuse and neglect laws, SDCL ch. 26-88, and the other is through the Guardianship and Conservator-ship Act, SDCL ch. 29A-5. Crouse v. Crouse, 552 N.W.2d 413, 418 (S.D.1996).

      . We acknowledged this point in Meldrum v. Novotny (Meldrum I), 1999 SD 127, 599 N.W.2d 651, by remanding so that appointed counsel could represent the child’s best interest. In fact, we stated that the best interest of the child is "our brightest beacon” at “every stage in child custody proceedings” in Meldrum I. Id. at ¶ 10 (internal citations omitted).


author: GILBERTSON, Chief Justice.

text:
    2002 SD 17
    Patrick BURKE, Plaintiff and Appellant, v. BUTTE COUNTY, Defendant and Appellee.
    No. 21976.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 7, 2002.
    Decided Feb. 6, 2002.

      Patricia de Hueck, Pierre, SD, Attorney for plaintiff and appellant.
    Jim D. Seward, Butte County State’s Attorney, Belle Fourche, SD, Attorney for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Patrick Burke (Burke) is the owner of 12,977.29 acres of agricultural land in the north central part of Butte County (County). Burke testified he had the land, which is used primarily for grazing, appraised in 1994 and updated in 1998. Based on this appraisal, as well as his own knowledge of the property and surrounding land sales, Burke testified that he estimated the value to be $55 per acre. County, however, assessed the property at $99.19 per acre for a total valuation of $1,287,096.30. The Office of Hearing Examiners (OHE) affirmed County’s assessment. Burke appealed to the circuit court, which affirmed the decision of OHE. Burke now appeals the circuit court’s decision. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Burke’s property, almost entirely made up of rangeland used for grazing sheep and cattle, was originally appraised in 1994 for the purpose of a family transfer. The appraisal was then updated in 1998. Based on this appraisal, as well as his knowledge of the land’s composition and a neighboring land sale, Burke testified that he estimated the property value at $55 per acre. Yet, Burke did not provide any specific details about this land sale, he did not present the actual appraisal as evidence, nor did his appraiser testify at trial.

[¶ 3.] County assessed the land on November 1, 1999, at an average of $99.19 per acre, totaling $1,287,096.30. The assessment was performed by Barbara Potter (Potter). Potter was the County Director of Equalization at the time of the assessment, but she has since resigned her position and did not testify at the hearing.

[¶ 4.] John Widdoss (Widdoss) was hired by County to review agricultural land sales and determine top-dollar land values. Widdoss prepared a summary, entitled Rural Land Study and Productivity Analysis Report, which includes various land sales in County from 1995 through 1999. Widdoss did not actually assess Burke’s property, nor did he review all agricultural land transfers in County during 1999.

[¶ 5.] OHE made findings of fact that Burke provided little evidence in support of his position and that the conclusion of value by Burke’s private appraiser was inadmissible hearsay. OHE also found that, because Burke provided no details regarding the sales information he used in estimating his land’s value, his testimony was not persuasive. Therefore, OHE concluded that Burke had not met his burden because he “failed to present sufficient evidence to show the assessed valuation of the subject property was higher than full and true, lacked uniformity, or was discriminatory.”

[¶ 6.] The circuit court affirmed OHE’s determination on the basis that it was not clearly erroneous. The court held that even if Burke could overcome the presumption in favor of the assessors, he still had not met the required showing that the tax was unjust and inequitable. Like OHE, the court pointed to Burke’s failure to present evidence supporting his position. Furthermore, Burke failed to independently establish a market value for the land.

[¶ 7.] The circuit court also upheld the admission of Mr. Widdoss’ testimony, notwithstanding the fact that he was not a certified appraiser. In addition, the court upheld the exclusion of Burke’s private appraiser’s conclusions as inadmissible hearsay because the appraiser did not testify. Therefore, Burke raises the following issues for appeal:

1. Whether Widdoss is a competent expert witness as to property valuation in County, notwithstanding the fact that he is not a certified appraiser.
2. Whether Burke’s private appraiser’s conclusions were inadmissible hearsay and entitled to no weight.
3. Whether the assessors were entitled to a presumption of correctness and, if so, whether Burke failed to overcome the presumption.

STANDARD OF REVIEW

[¶ 8.] On an appeal from an administrative agency, this Court reviews the decision according to the standard set forth in SDCL 1-26-36, which provides:

The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in light of the entire evidence in the record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
A court shall enter its own findings of fact and conclusions of law or may affirm the findings and conclusions entered by the agency as part of its judgment. The circuit court may award costs in the amount and manner specified in chapter 15-17.

“When the issue is a question of fact, we ascertain whether the administrative agency was clearly erroneous.” Butte County v. Vallery, 1999 SD 142, ¶ 8, 602 N.W.2d 284, 286-87 (quoting Moose Lodge v. Pennington County, 1997 SD 80, ¶ 5, 566 N.W.2d 132, 133 (additional citations omitted)). When, however, the issue is a question of law, we review the decisions of both the administrative agency and the circuit court de novo. Vallery, 1999 SD 142 at ¶ 8, 602 N.W.2d at 286-87.

[¶ 9.] Our standard for reviewing admissibility of expert testimony is also well settled. This Court has stated that:

[w]e review questions of admissibility of an expert witness’ testimony under an abuse of discretion standard. We have long acknowledged that the trial court has broad discretion concerning the admission of expert testimony. The trial court’s decision on such matters will not be reversed absent a clear showing of an abuse of discretion.

Maroney v. Aman, 1997 SD 73, ¶ 33, 565 N.W.2d 70, 78 (quoting Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 6, 552 N.W.2d 801, 805 (citations omitted)). Accordingly, for a reversal, Burke must show that no “judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” State v. Barber, 1996 SD 96, ¶ 14, 552 N.W.2d 817, 820 (citation omitted).

ANALYSIS AND DECISION

[¶ 10.] 1. Whether Widdoss is a competent expert witness as to property valuation in Butte County, notwithstanding the fact that he is not a certified appraiser.

[¶ 11.] Burke asserts that because Wid-doss is not a certified appraiser, as is required for all assessing officials under SDCL 10-3-1.1, he should not be allowed to testify to the value of Burke’s land on behalf of County. We disagree.

[¶ 12.] SDCL 10-3-1.1 does not set forth any requirements for expert witnesses. It requires only that an assessing or appraising official “hold[ ] an appropriate certificate issued by the Department of Revenue.... ” Widdoss, however, did not actually perform the assessment of Burke’s land; the officer who did do the assessment merely used his research. Therefore, this statute’s certification requirement is irrelevant for determining the admissibility of Widdoss’ testimony as an expert in the field of land valuation.

[¶ 13.] Notwithstanding his lack of certification, Widdoss possesses other qualifications that OHE could have deemed sufficient for admitting his testimony on land valuation. The standard for allowing expert testimony is set forth in SDCL 19-15-2:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Widdoss was a fee appraiser for twenty-three years, during which he did several private appraisals in County. Widdoss also authored four 40-hour courses used to instruct other rural appraisers. Based upon his experience, the circuit court held “Widdoss was well qualified to testify as an expert regarding agricultural valuations.” The court also noted that because Widdoss did not actually do the appraising, “the Examiner gave his value the proper weight.” We see no abuse of discretion in the decision to admit Widdoss’ expert testimony.

[¶ 14.] 2. Whether Burke’s private appraiser’s conclusions were inadmissible hearsay and entitled to no weight.

[¶ 15.] Burke argues that his appraiser’s conclusions should be admissible, despite Burke’s failure to call him as a witness. We disagree. Burke did not even attempt to have the actual appraisal admitted. Thus, the only evidence of the appraiser’s conclusions came from Burke himself. It was second-hand information offered to prove the truth of the matter asserted. County properly objected to Burke’s testimony of the appraiser’s conclusions as inadmissible hearsay. We find no abuse of discretion in denying the admission of this evidence.

[¶ 16.] Burke also asserts that OHE improperly concluded that Burke’s testimony regarding his estimation of value should be given no weight. This, however, is not what the record reflects. OHE specifically concluded “Petitioner is, of course, competent to testify as to the value of his property, but without something more to substantiate that value it is only an assertion and is not persuasive.” Thus, Burke’s testimony, in light of his knowledge of the land, was considered but found to be unpersuasive without supporting evidence. OHE is entitled to weigh the credibility of the witnesses and is free to choose between conflicting testimony. See Foley v. State ex rel. S.D. Real Estate Comm’n, 1999 SD 101, ¶ 9, 598 N.W.2d 217, 220. OHE simply found County’s evidence to be more persuasive. Its decision is supported by evidence in the record and is not clearly erroneous.

[¶ 17.] 3. Whether the assessors were entitled to a presumption of correctness and, if so, whether Burke failed to overcome the presumption.

[¶ 18.] “All real property in South Dakota is to be assessed for tax purposes at its true and full value.” Vallery, 1999 SD 142 at ¶ 11, 602 N.W.2d at 287 (citing SDCL 10-6-33). Agricultural land is assessed in accordance with SDCL 10-6-33.1, which provides:

The true and full value in money of agricultural land, as defined by § 10 — 6— 31, which has been in primarily agricultural use for at least five successive years immediately preceding the tax year for which assessment is to be made, shall be the market value as determined for each county through the use of all comparable sales of agricultural land based on consideration of the following factors:
(1) The capacity of the land to produce agricultural products as defined in § 10-6-33.2; and
(2) The soil, terrain and topographical condition of the property including but not limited to capability, the land’s use, climate, accessibility and surface obstructions which can be documented through an analysis of land selling prices;
The comparable sales that are used shall be evidenced by an instrument recorded with the register of deeds of the county in which the land is located, if the date of such instrument and the recording date is not more than two years prior to the assessment year.

“There is a presumption that tax officials act in accordance with the law and not arbitrarily or unfairly when assessing property, and the taxpayer bears the burden to overcome this presumption.” Vallery, 1999 SD 142 at ¶ 11, 602 N.W.2d at 287 (citations omitted). To overcome this presumption, “[the] [t]axpayer must produce sufficient evidence to show the assessed valuation was in excess of true and full value, lacked uniformity in the same class[,] or was discriminatory.” Id. (citations omitted).

[¶ 19.] Burke maintains that-County is not entitled to the presumption in this case because it did not comply with the proper procedures and requirements. Specifically, Burke alleges that the assessment was in error because: (1) Potter used information gathered by Vavra, in violation of SDCL 10-3-1.1; (2) Potter used the market analysis completed by Widdoss, in violation of SDCL 10-3-1.1; and (3) the market analysis contained only two sales from 1999 and contained sales from more than two years prior to the assessment year, in violation of SDCL 10-6-33.1.

[¶ 20.] As explained above, SDCL 10-3-1.1 only requires certification of the assessing official. Potter, the individual who performed the assessment, was certified in compliance with the statute. The statute says nothing about the qualifications of experts who may aid the Director in gathering data. Thus, there is no violation of SDCL 10-3-1.1.

[¶ 21.] County did, however, use improper data by incorporating land sale values from more than two years prior to the assessment date. County used Wid-doss’ market analysis, which incorporated sales from 1995 through 1999. County also failed to incorporate sufficient data from sales in 1999. These data, however, actually served to lower the land value, not increase it. “Even if the director of equalization fails to fully comply with statutory mandates, rendering the assessment void, a taxpayer cannot avail himself of such invalidity without also showing that the tax levied was unjust and inequitable.” Poindexter v. Hand County Bd. of Equalization, 1997 SD 71, ¶ 12, 565 N.W.2d 86, 89-90 (citation omitted).

[¶ 22.] Burke’s failure to submit any evidence,. other than his own testimony, did not satisfy his burden. In the very least, Burke was required to submit an alternate appraisal establishing that Potter’s assessment was in question. “Without an appraisal showing [Director’s] assessment was erroneous, [Taxpayer] has not overcome the presumption of correctness. Simply asserting that the valuation was in excess of the true and full value does not make it so. Taxpayer must demonstrate that the assessment was unjust and inequitable.” Richter Enterprises, Inc. v. Sully County, 1997 SD 61, ¶ 14, 563 N.W.2d 841, 845 (internal citations omitted).

[¶ 23.] Given the lack of evidence and authority presented by Burke, as well as our deference to OHE in determining the credibility of the witnesses and the weight to be* given to their testimony, we cannot say that the decision of OHE is clearly erroneous. Therefore, we affirm the decisions of both OHE and the circuit court in this case.

[¶ 24.] SABERS, AMUNDSON, and KONENKAMP, Justices, and GORS, Acting Justice, concur.

      . Apparently, Widdoss’ calculations were used in assessing Burke's land. Widdoss conceded, however, that he only reviewed two 1999 land sales in County when making his calculations. Widdoss determined that the average selling price for top-rated soil was $339 per acre, with a median selling price at $285 per acre. The top-rated soil was then given the rating of 1.00. All other soil was converted to that scale by determining how many acres with lesser grade soil it would take to equal the production of the acres with top-rated soil. For example, soil rated at .25 would require four acres to yield the same production of top-rated (1.00) soil.

      . Burke testified that he was not familiar with the agricultural land market in Butte County, nor did he give any specific reasons for his valuation.

      . The rules of evidence apply to administrative hearings. See SDCL 19-9-14.

      . Even if Burke had achieved admission of the appraisal testimony, it does not mandate an opposite result as far at this case is concerned. Such oral testimony, even if accepted, has been regarded to be of minimal evi-dentiary weight in appropriate instances:
      In South Dakota, we recognize and use the “adverse inference rule.” This rule provides that if a party has evidence under its control and does not present that evidence, an inference may be drawn that the evidence would not support that party's claim. Amert v. Lake County Bd. of Equalization, 1998 SD 66, ¶ 28, 580 N.W.2d 616, 621 (quoting Sabhari v. Sapari, 1998 SD 35, ¶ 14, 576 N.W.2d 886, 891 n. 6 (quoting Matters v. Custer County, 538 N.W.2d 533, 536 (S.D.1995))). See also Klinker v. Beach, 1996 SD 56, ¶ 15, 547 N.W.2d 572, 576 n. 2 (stating that because a relevant document was not offered in support of any claims made by the plaintiff, the court will "assume it would not provide such support”) (citing Matters, 538 N.W.2d at 536).

        Wuest ex rel. Carver v. McKennan Hosp., 2000 SD 151, ¶ 10, 619 N.W.2d 682, 686 (citing In re Estate of Klauzer, 2000 SD 7, ¶ 17, 604 N.W.2d 474, 478).

      . SDCL 10-6-33.19 provides that sales in previous years may only be used when there are less than 15 sales of agricultural land in the county. The record established that there were more than 15 good sales within County in 1999.