author: /s/Alan C. Page Associate Justice

text:
    James SPARKS, Deceased Employee by Carolyn SPARKS, Petitioner, Respondent, v. WARMKA TRANSPORT, INC., and General Credit Insurance Company/MIGA, Relators.
    No. C3-02-1331.
    Supreme Court of Minnesota.
    Oct. 21, 2002.
    Honorable Cheryl LeClair-Sommer, Compensation Judge, Office of Administrative Hearings.
    Gregg A. Johnson, Eric S. Westphal, Heacox, Hartman, Mattaini, Koshmrl, Cos-griff & Johnson, St. Paul, MN, for Rela-tors.
    Matthew T. Nielsen, Scott & Nielsen, P.A., Fairmont, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed July 12,’ 2002, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. Kb).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/Alan C. Page Associate Justice


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    Michelle REGENSCHEID, Claimant, Respondent, v. FARM BUREAU MUTUAL INSURANCE COMPANY, Petitioner, Appellant.
    No. CX-01-862.
    Supreme Court of Minnesota.
    Oct. 24, 2002.

      Thomas H. Schaefer, Erstad & Riemer, P.A., Minneapolis, MN, for Appellant.
    Timothy K. Dillon, Cannon Falls, MN, for Respondent.
   OPINION

PAGE, Justice.

Respondent Michelle Regenscheid was awarded $24,884.12 in a mandatory no-fault arbitration proceeding against her no-fault automobile insurance carrier, appellant Farm Bureau Mutual Insurance Company (“Farm Bureau”). Farm Bureau filed a motion in district court to partially vacate the award on the grounds the arbitrator exceeded the $10,000 jurisdictional limit on mandatory no-fault arbitration. The district court concluded that Farm Bureau waived the jurisdictional limit by proceeding to arbitration and affirmed the award. The court of appeals affirmed, concluding that Farm Bureau waived its right to object to arbitration of claims that exceeded the $10,000 jurisdictional limit because it failed to make a written objection as required by Rule 34 of the Minnesota No-Fault, Comprehensive or Collision Damage Automobile Insurance Arbitration Rules, 15 Minn.Stat. 598 (2000) (“Minn. No-Fault Arb. R.”). Because we conclude that Farm Bureau objected in writing to arbitration of claims in excess of $10,000, we reverse and remand.

Farm Bureau was the Minnesota no-fault automobile insurance carrier for Re-genscheid on April 5, 1998. Regenscheid claims that on that date she injured one of her knees while exiting her vehicle to chase her dog. Farm Bureau initially paid no-fault benefits, but after conducting an investigation, it concluded that Regen-scheid’s injury did not arise out of the maintenance or use of the motor vehicle it insured. By letters dated June 8 and July 9, 1998, Farm Bureau notified Regen-scheid that it was denying her claim for no-fault insurance benefits. On August 24, 1999, Regenscheid filed a petition for no-fault arbitration seeking $9,999 in no-fault benefits, which was within the $10,000 limit for mandatory arbitration. See Minn. No-Fault Arb. R. 6. The arbitration hearing was scheduled for May 16, 2000. On May 11, 2000, five days before the scheduled hearing, Regenscheid sought to withdraw her arbitration petition,, stating that her health insurer wished to add approximately $10,000 to the claim. That same day, Farm Bureau objected in writing to the request for withdrawal as being improper under Minn. No-Fault Arb. R. 13 because it was made less than ten days before the hearing date. Rule 13 provides that a claimant “may withdraw a petition up until ten (10) days prior to the hearing.” Minn. No-Fault Arb. R. 13. Responding to Farm Bureau’s May 11 letter, Regenscheid’s attorney stated in a letter dated May 12, 2000, that he deemed Farm Bureau’s refusal to allow withdrawal of the petition to be a waiver of the $10,000 jurisdictional limit and noted that he would include the approximately $10,000 in medical bills at the arbitration proceeding. Farm Bureau responded by letter that same day, stating:

Just so the record is clear, Farm Bureau’s refusal to allow withdrawal of the Arbitration Petition in no way should be construed as a waiver by Farm Bureau of the jurisdictional limit imposed by the Arbitration rules. Ms. Regenscheid chose her forum to pursue her dispute, and is bound by that decision and the AAA rules.

The arbitration went forward as scheduled on May 16, 2000, with the arbitrator considering the full amount of Regen-scheid’s claim, including the amounts attributable to the additional medical benefits claim. Ultimately, the arbitrator awarded $24,834.12 to Regenscheid. Because the award exceeded the $10,000 jurisdictional limit for mandatory no-fault arbitration, Farm Bureau filed a motion in district court seeking to have a portion of the award vacated. The district court concluded that Farm Bureau had waived the jurisdictional limit by proceeding with arbitration and denied the motion. The court of appeals affirmed on different grounds. It concluded that Farm Bureau had failed to object in writing to arbitration of claims in excess of the jurisdictional limit and therefore Farm Bureau had waived its right to object under Minn. No-Fault Arb. R. 34.

The issue before the court is whether Farm Bureau made a written objection to arbitration of claims in excess of $10,000 under Minn. No-Fault Arb. R. 34. Application of the law to a particular set of facts is a question of law, which we review de novo. State Farm Mut. Auto. Ins. Co. v. Great West Cas. Co., 623 N.W.2d 894, 896 (Minn.2001).

Rule 34 provides:

Any party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state an objection thereto in writing shall be deemed to have waived the right to object.

Minn. No-Fault Arb. R. 34. The “provision or requirement” that Farm Bureau contends was not complied with by the arbitrator is the jurisdictional limit set out in Minn. No-Fault Arb. R. 6.

Farm Bureau argues that in its letters of May 11 and May 12, 2000, it objected in writing, as required by Rule 34, to having the arbitrator consider that part of Regenscheid’s claim that exceeded the jurisdictional limit, and therefore did not waive its jurisdictional defense. Re-genscheid’s primary argument is that, by refusing to allow her to withdraw from the arbitration, as requested on May 11, 2000, and by proceeding with the arbitration with knowledge that she was including the cost of medical benefits paid by her health care provider in the proceeding, Farm Bureau waived the jurisdictional limit. We disagree. Rule 34 does not require that a party refuse to proceed with arbitration to preserve an objection. Rather, the rule provides that a party who proceeds to arbitration with knowledge that a provision of the rules has not been complied with and who “fails to state an objection thereto in writing” waives their right to object. Put another way, a party must object in writing to the provision or requirement of the rules that it contends was not complied with, but is not required to object to the arbitration itself. Therefore, the jurisdictional limit was waived in this case only if Farm Bureau failed to make a written objection to arbitrating Regen-scheid’s claims in excess of the jurisdictional limit.

We conclude that Farm Bureau objected in writing after becoming aware that Regenscheid intended to arbitrate claims in excess of the no-fault jurisdictional limit as required by Minn. No-Fault Arb. R. 34, and that the court of appeals erred in holding that Farm Bureau waived its right to object to consideration of the claims in excess of the jurisdictional limit. Farm Bureau’s May 12 letter, written in response to Regenscheid’s claim that Farm Bureau’s refusal to agree to the withdrawal of the arbitration petition constituted a “waiver of the $10,000.00 jurisdictional issue,” states that “Farm Bureau’s refusal to allow withdrawal of the Arbitration Petition in no way should be construed as a waiver [of its] jurisdictional limit. ” (Emphasis added.) While Farm Bureau’s letter does not specifically use the word “object,” Farm Bureau’s intent to object is clear; it was proceeding with the arbitration without waiving the jurisdictional limit. Thus, we conclude that Farm Bureau’s May 12 letter constituted an objection in writing sufficient to satisfy the requirements of Rule 34.

Because we conclude that Farm Bureau objected in writing, we also conclude that Farm Bureau did not waive the mandatory no-fault arbitration jurisdictional limit. Because Farm Bureau did not waive the jurisdictional limit, the award to Regen-scheid cannot exceed $10,000. While Farm Bureau summarily argues in its brief that this court should reduce the arbitrator’s award to $8,800, we decline to do so. After careful review, we conclude that it is not possible for this court to determine the proper amount to be included in the award from the limited record before us.

Therefore, we reverse the court of appeals and remand to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

      . Rule 6 provides, in part:
      By statute, mandatory arbitration applies to all claims for no-fault benefits * * * where the total amount of the claim, at the commencement of arbitration, is in an amount of $10,000 or less.

        Minn. No-Fault Arb. R. 6.
      Rule 6 is derived from Minn.Stat. § 65B.525, subd. 1, which requires, among other things, that the supreme court “provide for the mandatory submission to binding arbiv tration of all [no-fault] cases [when] the claim at the commencement of arbitration is in an amount of $10,000 or less.”

      . We note that, under Minn. No-Fault Arb. R. 13, Regenscheid’s attempt to withdraw the arbitration petition was untimely. Rule 13 provides, in part, that a claimant may withdraw a petition up until ten days prior to the hearing. Regenscheid was required to withdraw her arbitration petition no later than ten days before the scheduled hearing.

      . Because we conclude that the May 12 letter satisfied the requirements of Rule 34, we need not analyze Farm Bureau’s May 11 letter.


author: MEYER, Justice.

text:
    Norman F. TUREK, Relator, v. NORTHFIELD FREEZINGS, f/k/a Northfield Equipment, and Acceptance Indemnity Insurance Co., c/o Preferred Works, Respondents, Northfield Freezings, f/k/a Northfield Equipment, and National Union Fire Insurance Company, c/o GAB Robins, Inc., Respondents.
    No. C2-02-1045.
    Supreme Court of Minnesota.
    Oct. 24, 2002.

      David G. Johnson, Minneapolis, MN, for Employee/Relator.
    George W. Kuehner, Thomas L. Cummings, Lake Elmo, MN, for Employer and National Union Fire Ins. Co.
    Steven C. O’Tool, Edina, MN, for Employer and Acceptance Indemnity Ins. Co.
   OPINION

MEYER, Justice.

By writ of certiorari, employee-relator Norman F. Turek seeks review of a decision of the Workers’ Compensation Court of Appeals (WCCA) reversing the compensation judge’s award of temporary total disability benefits and deferment of the permanent partial disability claim. By notice of review, Northfield Freezings and its workers’ compensation liability insurers, Acceptance Indemnity Insurance Company and National Union Fire Insurance Company, challenge the limited extension of liability for wage loss benefits for failure to comply with the statutory procedure for discontinuance of workers’ compensation benefits. We reverse and reinstate the compensation judge’s award of temporary total disability benefits and the deferment of the permanent partial disability claim. The decision of the compensation judge, as affirmed by the WCCA in all other respects, is affirmed.

Norman Turek sustained compensable low back injuries in 1992, 1995, and 1998 while employed as a sheetmetal worker for Northfield Freezings, formerly known as Northfield Equipment. Following the third injury, the employee filed a claim petition, seeking various workers’ compensation benefits. The matter proceeded to hearing on January 15, 1999, following which the compensation judge awarded temporary total disability benefits to the date of hearing “and continuing as long as the employee’s condition warrants subject to the terms and limitations of the Minnesota Workers’ Compensation Act.” The compensation judge allocated liability between Acceptance Indemnity and National Union, the insurers on risk in 1995 and 1998 respectively, designating National Union as the paying agent with a right of reimbursement from Acceptance Indemnity pursuant to the apportioned liability. The compensation judge also determined that the employee had not yet reached maximum medical improvement from the combined effects of the 1995 and 1998 injuries and that, at the time of the hearing, it was premature to determine whether the 1998 injury was permanent in nature.

On appeal, the WCCA reversed and remanded for reconsideration. Turek v. Northfield Equip./Freezings, 1999 WL 757018, at *5 (Minn. WCCA Aug. 23, 1999) (Turek I). On reconsideration on remand, the compensation judge reinstated h'is pri- or award as modified, excluding benefits for a two-month period in the fall of 1998. National Union paid the disputed benefits through January 15, 1999, the date of the original hearing, for a total of $8,922.82. On March 1, 2000, National Union filed a Notice of Benefits Payment, documenting that payment had been made. , No wage loss benefits were paid for any period of time beyond January 15, 1999, and no notice of intention to discontinue benefits was served or filed.

On May 4, 2000, the employee filed a claim petition seeking, among other things, temporary total disability benefits from the date of the original hearing and permanent partial disability benefits. The employer and insurers were granted additional’time to obtain a medical evaluation and successfully petitioned for reassignment to a different compensation judge. Following a hearing held on July 27, 2001, the second compensation judge awarded temporary total disability benefits through September 5, 2000, the date of the employer’s medical evaluation. The permanent partial disability claim was deferred as premature. On appeal, the WCCA reversed the award of wage loss benefits and remanded that dispute for redetermination, subject to limited liability for improper discontinuance of benefits. Turek v. Northfield Freezings, 2002 WL 1377766, at *9-11 (Minn. WCCA May 30, 2002) (Turek II). The WCCA also reversed the deferral of permanent partial disability. Id. at *7. All parties have sought review.

I.

When reviewing the findings of a compensation judge, the WCCA may not disregard the compensation judge’s findings but must affirm the findings unless they are “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Pelowski v. K-Mart Corp., 627 N.W.2d 89, 92 (quoting Minn.Stat. § 176.421, subd. 1 (2000)). “Substantial evidence is evidence that a reasonable mind might accept as adequate.” Id. at 92 (citing Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59 (Minn.1984)). The WCCA must look at all the evidence in performing its review function, give due weight to the compensation judge’s evaluation of the credibility of the witnesses, and “uphold findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn.” Id.

In reversing the award of wage loss benefits, the WCCA concluded that the second compensation judge had given res judicata effect to the first compensation judge’s decision, relying on the memorandum attached to the second compensation judge’s decision. The WCCA said that the compensation judge erred in making the award “based simply on his conclusion” that prior proceedings “dictated that result in the absence of some evidence of a change in circumstances.” Turek II, 2002 WL 1377766, at *10. The WCCA determined that a remand was therefore required for reconsideration of the temporary total disability claim.

We believe, however, that a fair reading of the second compensation judge’s findings and order in its entirety, together with the judge’s explanation, leads to the conclusion that in the compensation judge’s view the evidence that covered the new period in dispute supported the determination that the employee was on total disability status until he was seen by the employer’s examiner on September 5, 2000. It seems to us the compensation judge was mindful of the interests of all of the parties, referring to but not binding himself to the prior compensation judge’s findings. Inconsistent or inaccurate statements in a memorandum attached to a decision of the factfinder need not require a reversal where findings are adequate and clear and the record supports otherwise justifiable findings. Christenson v. Pedersen Bros., 269 Minn. Ill, 115-16,130 N.W.2d 234, 237 (1964). From our independent review of the record, we conclude that the compensation judge’s decision was justifiable and that his findings were supported by evidence that a reasonable mind would accept as adequate.

The employee has also challenged the compensation judge’s findings that he had voluntarily withdrawn from the labor market and was no longer entitled to temporary total disability benefits after September 5, 2000. We have scrutinized this record and are completely satisfied that the findings, as affirmed, are not manifestly contrary to the evidence. Pe-lowsk% 627 N.W.2d at 92.

II.

The WCCA also reversed the deferral of the permanent partial disability claim, remanding the issue for determination on the existing record. Turek II, 2002 WL 1377766, at *7. Ordinarily, permanent partial disability is ascertained after maximum medical improvement. See Gibbons v. Weyerhaeuser, 482 N.W.2d 480, 482 (Minn.1992). Here, none of the medical evidence addressed the extent of permanency as of the implicitly determined date of maximum medical improvement. Where the evidence was neither conclusive nor satisfactory, we do not believe that deferring the issue to a future claim was an abuse of the compensation judge’s discretion. See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 70 (Minn.1988) (finding no abuse of discretion in deferring permanent partial disability claim where medical evidence on the percentages of disability was unclear).

Reversed and award of temporary total disability benefits and deferment of permanent partial disability claim reinstated; in all other respects, affirmed.

Employee is awarded $600 in attorney fees.

      . The compensation judge specifically found that the employee had established by a preponderance of the evidence that he had been totally disabled from January 16, 1999, through September 5, 2000. In so doing, the compensation judge considered the following evidence: testimony of the employee as to his low back pain and reduced level of functioning during the claimed period of disability; the testimony of a vocational expert for the employee who said the employee was incapable of sustained gainful employment as of the expert's evaluation in early April 1999; the testimony of the employer's vocational expert who evaluated the employee in July of 2001 and who said the employee had not been totally disabled since January 1999; and the medical records of the employee’s family physician who cared for the employee during the claimed period of disability from January 15, 1999, and ongoing. The compensation judge considered medical records from the employee's orthopedic consultant Dr. John Sherman and records from the Mayo Clinic from November 1, 1999, through some time in 2001. The compensation judge considered the report of Dr. Paul Wicklund, dated September 5, 2001, the employer's medical examiner. Dr. Wicklund concluded that the employee’s third injury was permanent, that the employee had reached maximum medical improvement, and that he was capable of light-duty work subject to restrictions on repetitive bending, twisting, stooping, sitting, standing, and lifting more than 20 pounds.

      . The employee has also taken the position that liability for wage loss benefits continues until such time as there has been compliance with the statutory procedure for the discontinuance of benefits. The Act does not, however, impose indeterminate liability for failure to file a notice of intention to discontinue benefits. See Woelfei v. Plastics, Inc., 371 N.W.2d 215, 217-18 (Minn. 1985) (holding the Workers’ Compensation Act does not impose continuing liability to pay compensation to an employee who is found to be no longer disabled by a work injury simply because the employer files a technically deficient notice of intention to discontinue benefits). In light of our disposition of the wage loss claim, we need not reach the employer and insurers’ issues raised by notice of review. See Lipka v. Minnesota Sch. Employees Ass’n, 550 N.W.2d 618, 622 (Minn. 1996) (declining to decide issues not essential to the disposition of the particular controversy).


author: TOUSSAINT, Chief Judge.

text:
    Oscar James MASON, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C4-02-673.
    Court of Appeals of Minnesota.
    Oct. 22, 2002.

      John M. Stuart, State Public Defender, Leslie Joan Rosenberg, Assistant Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy J. Klobuchar, Hennepin County Attorney, David Craig Brown, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge, TOUSSAINT, Chief Judge, and MINGE, Judge.
   OPINION

TOUSSAINT, Chief Judge.

On appeal from an order denying his postconviction challenge to a restitution order, appellant Oscar James Mason argues that the postconviction court (a) erred in reserving the restitution issue at sentencing, (b) erred in issuing its restitution order after sentencing, and (c) misinformed him about the proper procedure for challenging a restitution order. Because Mason did not request a hearing within 30 days after receiving notice of the restitution amount requested, as required by Minn.Stat. § 611A.045, subd. 3(b) (2000), we affirm.

FACTS

In April 2000, Oscar Mason pleaded guilty to second-degree burglary and to receiving stolen goods. Pursuant to the plea agreement, the district court sentenced Mason to concurrent prison terms of 36 and 26 months, and Mason agreed to pay restitution for the out-of-pocket expenses his two victims incurred as a result of his crimes. At the sentencing hearing, the district court reserved the restitution issue because it had not yet received a restitution request from one of the victims. Mason agreed to the court’s reservation of the issue and waived a presentence investigation so that he could begin serving his sentence as soon as possible. The court told Mason that if he disagreed with the restitution order, he could “object and have a hearing.” The court also told Mason that he would receive a letter informing him of the restitution amount requested and that he should let the court know “if [he] wantfed] to fight it.”

On January 23, 2001, Mason received a memorandum from the Department of Corrections notifying him that the court had ordered $1,940.70 in restitution. On March 13, 2001, Mason received notice that judgment in that amount had been entered. The March 13 notice listed the dollar amounts and specific items for which restitution had been ordered.

Later in March, Mason unsuccessfully sought the assistance of Legal Assistance to Minnesota Prisoners (LAMP) and the State Public Defender’s Office in challenging the restitution amount. In October, more than six months after receiving notification of the restitution amount requested, Mason filed a postconviction petition contesting the portion of the order awarding one of the victims restitution for the purchase and installation of a new home security system. The postconviction court heard Mason’s petition in January 2002, and later denied it, reasoning that the request for a hearing was untimely under Minn.Stat. § 611A.045, subd. 3(b) (2000). This appeal followed.

ISSUES

Did the court err by rejecting Mason’s postconviction challenge to the restitution order as untimely?

ANALYSIS

We review a postconviction court’s order to determine whether the record supports the court’s findings. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). In so doing, we defer to the court’s findings and will reverse only if the court abused its discretion. Id. But we do not defer to the court’s determinations regarding questions of law. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

As part of the disposition of a criminal charge, a victim may receive restitution for any out-of-pocket losses resulting from the crime.. Minn.Stat. § 611A.04, subd. 1(a) (2000). To be considered at the sentencing hearing, all information regarding restitution must be received by the court administrator at least three days before the hearing. Id. The court may reserve the restitution issue “if the victim’s affidavit or other competent evidence submitted by the victim is not received in time.” Id. Similarly, the court may issue a restitution order after sentencing if, among other things, “the true extent of a victim’s loss * * * [is] not known at the time of the sentencing * * * hearing.” Minn.Stat. § 611A.04, subd. 1(b) (2000).

Once restitution has been requested, a defendant may challenge the amount of restitution or specific items of restitution by (a) submitting a detailed affidavit setting forth all challenges to the restitution requested and providing specific reasons why a different restitution amount is appropriate and (b) “requesting a hearing within 30 days of receiving written notification of the amount of restitution requested, or within 30 days of sentencing, whichever is later.” Minn.Stat. § 611A.045, subd. 3 (2000). Under the statute, “[a] defendant may not challenge restitution after the 30-day time period has passed.” Id., subd. 3(b).

Mason first argues that the court improperly reserved restitution because the state knew the extent of the second victim’s loss at sentencing and simply failed to disclose it. But the statute does not condition the power to reserve restitution on whether the state knew the extent of the victim’s loss at sentencing. Instead, it provides that restitution may be reserved “if the victim’s affidavit or other competent evidence submitted by the victim is not received in time.” Minn.Stat. § 611A.04, subd. 1(a). Here, the district court did not receive the affidavit of one of the victims or competent evidence of her loss in time. Accordingly, the court properly reserved the restitution issue. Moreover, Mason not only failed to object to the court’s reservation of the issue, but also agreed to it to avoid delay and begin serving his sentence as soon as possible.

Mason next argues that the court improperly issued its restitution order after sentencing in violation of Minn.Stat. § 611A.04, subd. 1(b)(3), because the state knew the true extent of the victim’s loss but failed to disclose it at sentencing. Mason misconstrues the statutory scheme. Subdivision 1(b)(3) allows the court to issue a restitution order after sentencing if “the true extent of the victim’s loss ⅜ * * was not known at the time of the sentencing ⅜ * * hearing.” Id. (emphasis added). Subdivision 1(b)(3) does not specify whose knowledge is determinative. In this respect, it is ambiguous. Read in light of subdivision 1(a), however, subdivision 1(b)(3) should be construed to mean that the court’s knowledge, rather than the victim’s or the state’s, is determinative. See In re Condemnation by City of Minneapolis, 632 N.W.2d 586, 591 (Minn.2001) (noting that statutory provisions must be interpreted in light of each other). Subdivision 1(a) allows the court to reserve restitution if at sentencing the court has not received an affidavit or competent evidence of a victim’s loss. If the court may reserve restitution at sentencing under subdivision 1(a) because it lacks information about a victim’s loss, it may, issue a post-sentencing restitution order under subdivision 1(b)(3) if at sentencing it did not know the extent of a victim’s loss. Contrary to Mason’s claim, the statute, read as a whole, cannot reasonably be construed to condition the issuance of a post-sentencing restitution order on whether the state knew the extent of the victim’s loss but failed to disclose it at sentencing.

Last, Mason argues that he was not given notice that he had only 30 days to challenge the order and that the court misinformed him by telling him that to challenge restitution he need only let the court know of his challenge. We disagree. Mason’s ignorance of the 30-day requirement does not excuse his failure to comply. See, e.g., Kelly v. Furlong, 194 Minn. 465, 468, 261 N.W. 460, 462 (1935) (stating that ignorance of right to disaffirm contract does not excuse noncompliance); Kozisek v. Brigham, 169 Minn. 57, 60, 210 N.W. 622, 623 (1926) (stating that ignorance of statute of limitations does not excuse noncompliance). And, contrary to Mason’s claim, the court did not misrepresent the statutory requirements for challenging a restitution order; it simply did not tell Mason about the 30-day limit for requesting a hearing. Finally, a court has no statutory duty to inform a criminal defendant of the defendant’s procedural obligations. The court’s incomplete statement of applicable requirements does not excuse Mason’s noncomphanee and, therefore, does not require that the restitution order be vacated.

Although the statute does not require the court to notify a criminal defendant of the time frame for challenging a restitution order, we believe that the better practice is to inform defendants of critical time requirements. We thus urge the Department of Corrections, .when sending memoranda listing the restitution amount owed, and prosecutors, at sentencing, to inform criminal defendants that, to challenge a restitution order, they must file a request for a hearing within 30 days after receiving notice of the restitution amount requested.

Because the district court properly determined that Mason’s postconviction challenge to the restitution order was untimely, we do not address the merits of Mason’s argument that the district court abused its discretion by including the cost of one victim’s new home security system in its restitution calculation.

DECISION

Because Mason did not challenge the restitution order within 30 days after receiving notice of the restitution amount, the district court did not err in rejecting Mason’s postconviction challenge as untimely.

Affirmed.


author: PER CURIAM.

text:
    2002 ND 149
    DISCIPLINARY BOARD OF the SUPREME COURT OF the STATE of North Dakota, Petitioner v. Michael E. KELLER, Respondent.
    Nos. 20010227, 20010305, 20020018-20020020 and 20020150-20020153.
    Supreme Court of North Dakota.
    Sept. 9, 2002.
   PER CURIAM.

[¶ 1] Michael E. Keller was admitted to practice law in the courts of North Dakota on October 10, 1984, and since that time his name has appeared on the roll of attorneys. Keller was suspended from the practice of law on an interim basis on March 28, 2001, and has been suspended since that time. Disciplinary Board v. Keller, 624 N.W.2d 667, 2001 ND 63.

[¶ 2] Four Reports of the Hearing Panel involving nine complaints against Keller were referred to the Supreme Court under N.D.R. Lawyer Discipl. 3.1F(2).

No. 20010227

[¶ 3] Keller was served by publication after disciplinary counsel was unable to personally serve him with the petition for discipline. Keller did not file an answer to the petition, and disciplinary counsel filed a motion for default order which was served on Keller at his last known mailing address. Default was granted on September 14, 2001.

[¶ 4] Keller represented Robin Sposato in a domestic relations matter. On January 10, 2001, Keller signed and filed legal documents in the matter with the district court. Keller did not notify Sposato his license to practice law was suspended effective December 31, 2000.

[¶ 5] Keller violated N.D.R. Prof. Conduct 5.5(a), Unauthorized Practice of Law, and 8.4(e), engaging in conduct enumerated in N.D.C.C. § 27-14-02(3) as grounds for revocation of his certificate of admission to the bar. The Hearing Panel filed its Report on September 19, 2001, recommending Keller be disbarred and that he pay the costs and expenses of the disciplinary proceeding in the amount of $469.71.

No. 20010305

[¶ 6] On December 21, 2000, the Supreme Court remanded this matter to the Hearing Panel for further proceedings. Disciplinary Board v. Keller, 2000 ND 221, 620 N.W.2d 156 (2000). On March 29, 2001, the Hearing Panel entered an Order to Vacate Default Order and to set the matter for a hearing on the merits of the petition. Keller was notified that a hearing was set for May 22, 2001. The April 23, 2001, Certificate of Service reveals that the hearing notice was mailed to Keller at two street addresses and a post office box in Larimore, North Dakota. Keller did not appear at the hearing nor did he request a continuance.

[¶7] Mildred Carlson owned two lots, one with an office building on it. In 1990, Carlson decided to stop paying taxes on the lot without the office building and to let it go for unpaid taxes. After inquiry by Farmers Elevator, Carlson contacted Keller’s law firm and requested the firm make sure the correct lot was being sold for taxes. By letter dated April 8, 1996, Keller informed Carlson he had checked on the real estate and it appeared she still owned the property with the office building.

[¶ 8] An Auditor’s Tax Deed showed that in 1995 the lot with the office building had been transferred to Grand Forks County. A February 1996 County Deed showed the lot with the office building was transferred to Farmers Elevator. Keller’s statement in April 1996 that Carlson still owned the property was incorrect. A December 30, 1996 letter to James Odegard demonstrated that Keller was aware an error had occurred when one of the two lots Carlson owned was reassessed and the wrong lot was sold for unpaid taxes.

[¶ 9] In early 1997, Keller told Carlson that he had prepared papers to remedy the problem and given them to the Sheriff to be served. When Carlson later inquired about the matter, Keller told her the Sheriff was too busy to serve the papers. When Carlson inquired about private process servers, Keller told her they were too busy as well. In 1998, Carlson authorized Keller to contact a national research organization to assist with research in this matter and paid $500 to Keller’s law firm. Upon inquiry into the status of the research, Keller told Carlson that the research company was on vacation and later, that the company would not do the research. By the spring of 1999, Keller had taken no action to get Carlson’s land back and she terminated his services.

[¶ 10] Keller violated N.D.R. Prof. Conduct 1.1, Competence, 1.3, Diligence, 1.4(a), Communication, and Rule 1.5, Fees. On December 13, 2001, the Hearing Panel filed its Report recommending Keller be disbarred from the practice of law, pay restitution to Mildred Carlson in the amount of $500, and pay the costs and expenses of the disciplinary proceedings $4409.11.

Nos. 20020018 — 20020020

[¶ 11] Keller admitted service of the petition for discipline on November 15, 2000, and filed an answer on December 5, 2000. On January 9, 2001, disciplinary counsel served interrogatories to which Keller did not respond. Disciplinary counsel then filed a motion to compel answers. Again, Keller did not respond. On May 14, 2001, the Hearing Panel issued an order compelling discovery requiring answers within 10 days. Keller did not comply with the order. On June 11, 2001, disciplinary counsel filed a motion for default order. The Hearing Panel issued an Order of Default, finding Keller in default and providing no evidentiary hearing would be held in these matters.

[¶ 12] Keller was the attorney for personal representative of the Mary Isaacson estate. Assets from the estate were sold in 1998 and the proceeds deposited in the Keller’s law firm’s trust account rather than in a separate estate trust account.

[¶ 13] Keller was the attorney for the estate of Eleanor Bye, who died in April 1996. Richard Bye, the personal representative, terminated Keller’s representation in February 1998. Keller was terminated from his law firm on December 31, 1999. After Keller was terminated, another attorney discovered that the Eleanor Bye file contained a large amount of correspondence dated within a few days of Bye’s death in 1996, which included $20 cash.

[¶ 14] In September 1997, Vivian Sweeney executed a power of attorney designating Keller as attorney in fact. During Keller’s tenure as attorney in fact, he failed to pay Sweeney’s nursing home and pharmacy bills, and did not cash dividend checks dated between January 1998 and June 1999. From November 1997 through 1999, Keller did not cash Sweeney’s monthly social security checks. Keller did not file Sweeney’s 1998 income tax return, resulting in a penalty. Keller wrote eight checks totaling $3700, one to his law firm for $500, and the remaining to himself. In light of the services Keller provided, the fees were unreasonable.

[¶ 15] In April 1999, First National . Bank North Dakota became conservator of Sweeney’s estate. Keller was ordered by the district court to furnish a list of all of Sweeney’s assets, a full accounting of his activities during his appointment, all bank statements and other account statements received during his appointment, documentation of all bills paid on Sweeney’s behalf, Sweeney’s 1998 tax information, and documentation of all 1998 estimated tax payments made on Sweeney’s behalf. Keller did not produce the records to First National Bank.

[¶ 16] Keller violated N.D.R. Prof. Conduct 1.15(a), (b), Safekeeping Property, 1.3, Diligence, 1.16(e), Declining or Terminating Representation, 1.5, Fees, and 8.4(e), engaging in conduct enumerated in N.D.C.C. § 27-14-02(3) as grounds for revocation of his certificate of admission to the bar. The Hearing Panel filed its Report on January 17, 2002, recommending Keller be disbarred from the practice of law and that he pay the costs and expenses of the disciplinary proceedings in the amount of $555.

Nos. 20020150 — 20020153

[¶ 17] Keller was served by publication after disciplinary counsel was unable to personally serve him with the petition for discipline. Keller did not file an answer. Disciplinary counsel filed a motion for default order and served the motion on Keller at his last known mailing addresses. Keller did not respond to the motion and the Hearing Panel granted the default on June 15, 2002.

[¶ 18] Gregary Atchley retained Keller to represent Atchley in his divorce. By October 2000, the parties had reached an agreement but Keller never completed the matter. Atchley spoke with Keller in January 2001 and was told that Keller had filed the stipulation and Atchley should hear something within a week or so. Atchley then began leaving phone messages which Keller never returned. Atch-ley then learned that Keller’s license to practice law had been suspended; Keller had not informed Atchley that effective December 31, 2000, Keller was not licensed to practice law.

[¶ 19] On December 23, 1996, Keller was appointed trustee for the Adolph Johnson trust. Under the trust, income from the sale of farm land was to be distributed to Mendora Fladager during her lifetime as income became available. In 1999, the trust had income available in each of 10 months; Fladager received only four payments. In 2000, Fladager received $2,150 in payments; however, Keller paid himself $3,466.58.

[¶ 20] Keller told Fladager that some of the trust funds were being invested. It was later discovered that some of the trust funds were in a growth account with Prudential Securities, and some of the funds had been deposited with Piper Jaffray. Keller did not complete any accountings for the trust. Checks from Piper Jaffray and American Adjustable Term Trust Litigation were uncashed. Further, Keller did not properly prepare income tax returns for the trust for 1996, 1997, 1998, and 1999. Keller under-reported trust income, trust fees, and dividends and failed to report capital gains, resulting in tax penalties.

[¶ 21] Keller had power of attorney for Michael Moore for North Dakota land owned by Moore and his siblings. Keller was to collect and distribute rent from the land and pay taxes. Additionally, Keller was to pay himself $1000 per year. In 1997, Keller prepared an income and expense summary which reported that he paid $2,255.03 in taxes, when in fact, only $1,217.76 was paid. Keller also reported that he paid himself $900 when he paid himself $3,350. In 1998, 1999, 2000, and 2001, Keller paid himself $3,600, $10,400, $6,500, and $2,300, respectively. Keller did not provide accountings for 1999 and 2000. Moore last spoke with Keller in November 2000 when Keller told Moore he would send an accounting. Moore never received the promised accounting.

[¶ 22] Later, Moore tried to contact Keller but he could not be reached by phone. On March 5, 2001, Moore wrote Keller to terminate his representation. Moore was never told that Keller’s license to practice law was suspended effective December 31, 2000.

[¶ 23] Keller violated N.D.R. Prof. Conduct 1.3, Diligence, 1.4, Communication, 1.5(a)(4), Fees, 1.15(b), Safekeeping Property, N.D.R. Lawyer Discipl. 1.2A(3), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and N.D.R. Prof. Conduct 5.5(a), Unauthorized Practice of Law, and N.D.R. Lawyer Dis-cipl. 6.3A, Notice Required. The Hearing Panel filed its Report on June 17, 2002, recommending Keller be disbarred from the practice of law and that he pay the costs and expenses of the disciplinary proceedings in the amount of $448.20.

[¶ 24] Under N.D. Stds. Imposing Lawyer Sanctions 4.11, disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client. Under Standard 4.41(c), Lack of Diligence, disbarment is appropriate when a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client. Under Standard 4.51, Lack of Competence, disbarment is generally appropriate when a lawyer’s course of conduct demonstrates that the lawyer does not understand the most fundamental legal doctrines or procedures and causes injury or potential injury to a client. Standard 4.61, Lack of Candor, provides that disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another and causes serious injury or potentially serious injury to a client.

[¶ 25] Under N.D. Stds. Imposing Lawyer Sanctions 7.0, the unauthorized practice of law is a violation of a duty owed to the profession. Standard 7.1 provides disbarment is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.

[¶ 26] Under N.D. Stds. Imposing Lawyer Sanctions 9.22(a), prior disciplinary offenses constitute an aggravating factor. Keller has the following disciplinary history: Public Reprimand for violation of N.D.R. Prof. Conduct 8.4(d), Disciplinary Board v. Keller, 502 N.W.2d 504 (N.D. 1993); admonition for violation of N.D.R. Prof. Conduct 1.1 and 1.4; consent probation for violation of N.D.R. Prof. Conduct 1.1 and 1.3; and admonition for violation of N.D.R. Prof Conduct 3.5(b). Further, Keller did not comply with the Hearing Panel’s Order Compelling Discovery which is an aggravating factor under Standard 9.22(e). Finally, Keller has substantial experience in the practice of law which is an aggravating factor under Standard 9.22(i).

[¶ 27] ORDERED, the Reports of the Hearing Panels of the Disciplinary Board are adopted and Michael E. Keller is DISBARRED from the practice of law, effective immediately.

[¶ 28] FURTHER ORDERED, Michael E. Keller pay restitution in the amount of $500 to Mildred Carlson.

[¶ 29] FURTHER ORDERED, Michael E. Keller pay the costs and expenses of these disciplinary proceedings in a total amount of $5,882.02.

[¶ 30] VANDEWALLE, C.J., and KAPSNER, SANDSTROM, NEUMANN and MARING, JJ., concur.


author: NEUMANN, Justice.

text:
    2002 ND 152
    STATE of North Dakota, Plaintiff and Appellee, v. Eric Alan FALEIDE, Defendant and Appellant.
    No. 20020074.
    Supreme Court of North Dakota.
    Sept. 20, 2002.

      Richard E. Edinger, Fargo, ND, for defendant and appellant.
    Brett M. Shasky, Assistant State’s Attorney, Fargo, ND, for plaintiff and appel-lee.
   NEUMANN, Justice.

[¶ 1] Eric Alan Faleide appeals from a judgment and conviction entered on a guilty plea to the charges of carrying a concealed firearm or dangerous weapon and carrying a loaded firearm in a vehicle. He challenges a probation condition. We reverse and remand for resentencing.

[¶ 2] A Fargo police officer stopped Faleide for committing a traffic violation. As the officer approached Faliede’s vehicle, the officer observed a rifle in plain view. A subsequent search of the vehicle yielded six guns, including an AK-47 and a Ruger pistol. Faleide pled guilty to carrying a concealed firearm or concealed weapon and carrying a loaded firearm in a vehicle. As part of its sentence recommendation, the State sought forfeiture of the AK-47 and the Ruger pistol. Faleide resisted the forfeiture. The State acknowledged the offenses were not presumptive forfeiture crimes under N.D.C.C. § 62.1-01-02. The trial court ordered forfeiture of the guns as a condition of probation. Faleide appeals the judgment, arguing the trial court abused its discretion in ordering the forfeiture of Faleide’s guns as a condition of probation, without the commencement of civil forfeiture proceedings.

[¶ 3] Faleide argues the trial court imposed an illegal sentence by ordering forfeiture of his guns as a condition of probation. Faleide acknowledges a trial court could order forfeiture of his private property in a civil forfeiture proceeding under N.D.C.C. § 29-31.1-04 or possibly as a dangerous weapon used in a crime involving violence or intimidation under N.D.C.C. § 62.1-01-02, but he asserts the procedure under N.D.C.C. § 29-31.1-04 was not followed and N.D.C.C. § 62.1-01-02 does not apply in this case.

[¶ 4] Generally, a trial court is allowed the widest range of discretion in criminal sentencing. State v. McClean, 1998 ND 21, ¶ 4, 575 N.W.2d 200. “Our appellate review of a criminal sentence is very limited.” State v. Ennis, 464 N.W.2d 378, 382 (N.D.1990). Our review of a sentence is generally confined to whether the trial court acted within the statutory sentencing limits. McClean, 1998 ND 21, ¶ 4, 575 N.W.2d 200.

[¶ 5] North Dakota’s statutes allow for forfeiture of the “proceeds of criminal activity or the instrumentalities of the crime” in a separate civil proceeding. Rick Maix-ner and Sidney Hertz Fiergola, Article: Constitutional Issues in North Dakota Asset Forfeiture Law After Austin v. United States, Alexander v. United States, and United States v. Good Real Property, 70 N.D. L.Rev. 851, 851-52 (1994); N.D.C.C. § 29-31.1-04(1). “Forfeiture proceedings brought under this chapter must be conducted in accordance with the procedures established for the forfeiture of property in sections 19-03.1-36.1 through 19-03.1-36.7.” N.D.C.C. § 29-31.1-04(2). Property subject to forfeiture “may be forfeited by order of the district court only after: (1) A written consent to forfeiture executed by the owner of the property and all persons with a legal interest in the property to be forfeited has been filed with the court; or (2) Commencement of forfeiture proceedings.” N.D.C.C. § 19-03.1-36.1. If written consent of the owner is not obtained, “forfeiture proceedings must be commenced by the filing of a summons and complaint for forfeiture of the property .... ” N.D.C.C. § 19-03.1-36.3. Forfeiture may also be appropriate under N.D.C.C. § 62.1-01-02, which states: “Any firearm or dangerous weapon used or possessed while in the commission of a felony or a misdemeanor involving violence or intimidation must be seized and, upon conviction and by motion, forfeited to the jurisdiction

[¶ 6] In this case, the State did not initiate civil forfeiture proceedings under N.D.C.C. § 29-31.1-04, and the record shows the guns were not used in the commission of a crime involving violence or intimidation under N.D.C.C. § 62.1-01-02, therefore, those statutes do not apply. Here, the trial court ordered forfeiture of guns as a condition of probation. A trial court has broad discretion in ordering conditions to probation under N.D.C.C. § 12.1-32-07. The pertinent sections of that statute are:

2. The conditions of probation must be such as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life or to assist the defendant to do so. The court shall provide as an explicit condition of every probation that the defendant not commit another offense during the period for which the probation remains subject to revocation....
3. The court shall provide as an explicit condition of every probation that the defendant may not possess a firearm, destructive device, or other dangerous weapon while the defendant is on probation....
4. When imposing a sentence to probation, probation in conjunction with imprisonment, or probation in conjunction with suspended execution or deferred imposition of sentence, the court may impose such conditions as it deems appropriate....

N.D.C.C. § 12.1-32-07(2), (3) and (4).

[¶ 7] The State asserts the trial court had statutory authority to order forfeiture under N.D.C.C. § 12.1-32-07(2), (3) and (4). According to the State, because the trial court can forbid possession of a firearm as a condition of probation, it is within the trial court’s sentencing authority to order permanent forfeiture of Faleide’s guns to ensure he will “lead a law-abiding life or to assist” him in doing so. State v. Bender, 1998 ND 72, ¶¶ 9-10, 576 N.W.2d 210. We are not persuaded.

[¶ 8] Although a trial court may impose “such conditions as it deems appropriate,” under § 12.1-32-07(4), subsection (3) of that section only requires the condition to last “while the defendant is on probation.” Because subsection (3) places a time limit on the condition of probation, an order of permanent forfeiture is outside the sentencing limits of N.D.C.C. § 12.1-32-07. If the State desired forfeiture of Faleide’s firearms, it should have proceeded under N.D.C.C. § 29-31.1-04, the civil forfeiture statutes.

[¶ 9] Because the trial court did not have statutory authority to order forfeiture as a condition of probation, the trial court abused its discretion in ordering forfeiture of Faleide’s firearms. We reverse and remand for resentencing.

[¶ 10] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ„ concur.


author: VANDE WALLE, Chief Justice. SANDSTROM, Justice,

text:
    2002 ND 151
    Antonyio JOHNSON, Plaintiff and Appellee, v. Madonna L. JOHNSON, Defendant and Appellant, and Jessica Clayton, also known as Jessica Johnson, through her Guardian ad Litem, Lynn Kerbeshian; David Clayton, as the natural father of Jessica Clayton a/k/a Johnson; and Michelle Clayton as the natural mother of Jessica Clayton a/k/a Johnson, Third Party Defendants.
    No. 20010288.
    Supreme Court of North Dakota.
    Sept. 20, 2002.

      Steven James Simonson, Grand Forks, for plaintiff and appellee.
    Henry H. Howe, Grand Forks, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Madonna L. Johnson appealed from a second amended divorce judgment holding she and Antonyio Johnson had equitably adopted her grandchild, ordering Antonyio to pay child support, distributing the couple’s marital property, and refusing to.award Madonna spousal support. We conclude the trial court’s findings on property distribution and spousal support are not clearly erroneous, but we reverse the child support award and remand for re-computation of the amount of back child support owed by Antonyio.

I

[¶ 2] We detailed the facts of this case in Johnson v. Johnson, 2000 ND 170, ¶¶ 2-7, 617 N.W.2d 97, and will only briefly restate those facts necessary to an understanding of this appeal. Antonyio and Madonna married in 1986 while both were serving in the United States Air Force. In 1988, Madonna’s granddaughter, Jessica, began living with the couple and throughout the next ten years, they raised her as their own, although no formal adoption was ever completed. Madonna retired from the military in 1992 after completing 20 years of service and began receiving her pension. Antonyio has remained in the military past the 20-year mark at which he could have retired. In 1998, Antonyio, while stationed at the Grand Forks Air Force Base, sued Madonna, who was living with Jessica and working in Kentucky, for divorce.

[¶ 8] During trial, Madonna asserted she and Antonyio had equitably adopted Jessica and sought child support, spousal support and division of the parties’ military pensions. The trial court concluded North Dakota law does not recognize equitable adoptions and refused to impose a child support obligation upon Antonyio. The court divided the parties’ marital property, but refused to divide their military pensions. The court also denied Madonna’s request for spousal support.

[¶ 4] In Johnson, 2000 ND 170, ¶ 9, 617 N.W.2d 97, after noting the doctrine of equitable adoption “is an equitable remedy to enforce a contract right and, therefore, it is not intended to create the legal relationship of parent and child, with all its attendant consequences, and does not effect a legal adoption” and “despite its name, bears almost no relationship to a statutory legal adoption” a majority of this Court concluded “the doctrine of equitable adoption may be applied to impose a child support obligation upon an equitable parent when the circumstances of the case so require,” and reversed and remanded for findings on whether an equitable adoption had occurred. Id. at ¶ 34. The majority was unable to determine whether the trial court’s refusal to divide the military pensions resulted in an inequitable property division, and remanded for clarification of the court’s reasoning. Id. at ¶ 47. The majority upheld the trial court’s refusal to award spousal support to Madonna, but allowed the court to revisit its denial of spousal support in conjunction with its clarification of the property division. Id. at ¶ 51.

[¶ 5] On remand, the trial court ordered that a guardian ad litem be appointed for Jessica, and that the child and her biological parents be served and added to the litigation as third party defendants. The guardian ad litem consented on behalf of Jessica to an equitable adoption. Both biological parents also consented to an equitable adoption of Jessica.

[¶ 6] After limiting any additional evidence on remand to affidavits, the trial court found that “Jessica has been equitably adopted by Anton[y]io and Madonna” and awarded Madonna custody of the child. The court computed Antonyio’s child support obligation under the child support guidelines at $669 per month effective October 1, 2001, the month following entry of the second amended judgment. The court also ordered Antonyio to pay $500 per month child support effective August 1, 2001 to October 1, 2001. The $500 amount represents the interim child support amount which was ordered to be paid, but was terminated when the trial court initially ruled the doctrine of equitable adoption did not apply. The court again refused to divide the parties’ military pensions as part of the property distribution, and refused to order either party to pay spousal support. Madonna appealed. Antonyio did not file a cross-appeal and does not challenge the trial court’s finding that an equitable adoption occurred.

II

[¶ 7] Madonna does not argue An-tonyio’s child support obligation of $669 per month was incorrectly computed under the child support guidelines, but argues the court should have awarded back child support of $669 per month commencing January 1, 1999 through the entry of the second amended judgment in September 2001.

[¶ 8] Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review. Logan v. Bush, 2000 ND 203, ¶ 8, 621 N.W.2d 314. Because parents have a mutual duty to support their children, failure to award interim child support to a custodial parent is error as a matter of law. Ackerman v. Ackerman, 1999 ND 135, ¶ 21, 596 N.W.2d 332.

[¶ 9] The record on this issue is somewhat confusing. In Madonna’s initial September 1998 motion for an interim order she requested $500 per month as “interim child support” and asked that Antonyio maintain the $454 monthly payments on her 1994 Honda Accord as “temporary spousal support.” The trial court, however, ordered Antonyio to pay “interim spousal support in the amount of $500 per month, the amount that had been agreed upon and had actually been paid by Anto-nyio Johnson to Madonna Johnson during the period May 1997 through August 1998, with such support to commence 01 October 1998 and to be payable on the first of each and every month thereafter until further order of the court.” Antonyio was also ordered to maintain the monthly car payments as “an additional aspect of temporary spousal support.” At a January 1999 hearing on Antonyio’s motion to amend the interim order, Madonna argued for continuation of the $500 per month “child support,” which the trial court noted, “we’ve been calling ... spousal support.” Anto-nyio argued the monthly car payments he was making “alone satisfie[d][the] child support [guidelines].” The trial court ruled, “whether or not there should be something characterized as child support,” Antonyio would be allowed to offset the $454 per month payment on the 1994 Honda Accord against the $500 per month “interim spousal support effective January 1999.” The parties nevertheless continued to refer to the $500 monthly payment as “child support,” and in her post-trial brief, Madonna specifically requested “child support” of $500 per month, “commencing 01 Sep 1998, with plaintiff to be given credit for amounts paid for child support from and after that date.” In its September 1999 memorandum decision rejecting the concept of equitable adoption, the trial court said “all interim orders for interim child support from Antonyio to Jessica shall be canceled as of the first day of the first month following the entry of judgment in this case,” and the judgment was entered in September 1999. The “Child Support Master File Print” contained in the record states Antonyio’s last payment was made on March 4, 1999.

[¶ 10] In its July 2001 memorandum decision on remand, the trial court noted that “[d]uring the pendency of this action [Madonna] has been receiving $500.00 per month from Antonyio as child support for Jessica.” In ruling no retroactive effect would be given to the new computation of $669 per month under the child support guidelines, the court reasoned:

In the meantime interim child support payable by Antonyio to Madonna for Jessica shall continue at the monthly amount of $500 as previously ordered herein until judgment i[s] entered on this Memorandum Decision and Order for Judgment to be drawn therefrom. That Judgment shall decree, as of its date of entry, the existence of the equitable adoption of Jessica Clayton Johnson by Madonna and Antonyio. That effective date has been determined because the decision of the North Dakota Supreme Court authorizing equitable adoptions in divorce cases directed this Court review the facts in evidence and to enter judgment in accordance with the law as stated in the Supreme Court’s opinion. Therefore, in this Court’s opinion, no retroactive effect should be given to the determinations of monthly child support amount that will be ordered under this Memorandum Decision.

[¶ 11] The second amended judgment entered in September 2001 ordered Anto-nyio to pay $500 per month child support for August and September 2001, and to begin paying $669 per month child support effective October 1, 2001.

[¶ 12] We conclude the $500 per month awarded to Madonna in the original interim order, while technically labeled “spousal support,” was intended to be child support. The parties and the court appear to have treated this amount as child support regardless of its label. From January 1999 through March 1999, the trial court allowed Antonyio to deduct the $454 car payment he was making on Madonna’s vehicle from the $500 amount. We have said “an award of spousal support calculated primarily to offset and negate a child support obligation is inappropriate.” Corbett v. Corbett, 2001 ND 113, ¶ 22, 628 N.W.2d 312. Nevertheless, we conclude there was no error under the unique circumstances of this case. Antonyio had been sending Madonna $500 per month and making the car payment since March 1997, which became labeled additional spousal support in the interim order. The trial court ultimately concluded Madonna was not entitled to spousal support, and we affirmed that ruling in Johnson, 2000 ND 170, ¶ 51, 617 N.W.2d 97. The offset allowed Anto-nyio for spousal support by the trial court still resulted in Madonna receiving the' $500 amount ordered for interim child support.

[¶ 13] Moreover, we conclude the trial court did not err in refusing to make the $669 per month child support obligation effective January 1, 1999. Antonyio’s counsel argued to the court in January 1999 that the $500 being paid at that time exceeded the then applicable child support guideline amount. The trial court did not determine until July 2001 that Jessica had been equitably adopted by Antonyio and Madonna. Under these circumstances, we see no error in the trial court refusing to award back child support in the amount of $669 per month.

[¶ 14] However, the trial court appears to have been under the mistaken impression that Antonyio had been making continuous $500 monthly payments throughout the pendency of these proceedings. According to the “Child Support Master File Print,” Antonyio made his last payment on March 4, 1999. Madonna is therefore entitled to back child support of $500 per month from April 1999 through July 2001.

[¶ 15] We also conclude the trial court erred in ordering payment of $500 per month child support during August and September 2001, the two months it took for a formal judgment to be entered. See Olson v. Garbe, 483 N.W.2d 775, 776 (N.D.1992) (reasoning if an order increasing a child support obligation were required to be prospective only from the date of its entry, then the obligor could by dilatory tactics postpone the obligation to pay increased support almost indefinitely). The trial court determined in July 2001 that an equitable adoption had occurred and that Antonyio, therefore, had a “clear duty to support.” Edwards v. Edwards, 1997 ND 94, ¶ 17, 568 N.W.2d 394. Cf Geinert v. Geinert, 649 N.W.2d 237, 2002 ND 135, ¶ 10 (holding a modification of child support should generally be made effective from the date of the motion to modify, absent good reasons to set some other date). The trial court erred in failing to order Antonyio to pay child support of $669 per month effective August 1, 2001.

[¶ 16] Accordingly, we reverse the child support determination and remand to the trial court for the limited purpose of computing the back child support owed by Antonyio for the period from April 1999 through July 2001 at the rate of $500 per month, and to change the effective date of the $669 per month child support obligation to August 1, 2001.

Ill

[¶ 17] Madonna argues the trial court erred in distributing the parties’ marital property because the court awarded each their own military pension instead of dividing the pensions under the formula adopted in Bullock v. Bullock, 354 N.W.2d 904 (N.D.1984).

[¶ 18] Under N.D.C.C. § 14-05-24(1), a trial court must “make an equitable distribution of the property and debts of the parties.” A trial court’s determinations regarding division of marital property are treated as findings of fact that will not be reversed on appeal unless clearly erroneous. Mellum v. Mellum, 2000 ND 47, ¶ 14, 607 N.W.2d 580. There is no set formula for this division, but rather it should be based on the facts of the case. Johnson, 2000 ND 170, ¶ 43, 617 N.W.2d 97. The distribution need not be equal to be equitable, but the trial court must explain a substantial disparity. Gregg v. Gregg, 1998 ND 204, ¶ 13, 586 N.W.2d 312. Use of the Bullock formula to distribute retirement pay is not mandatory because the formula is not the only method of achieving an equitable division of marital property. See Northrop v. Northrop, 2001 ND 31, ¶ 11, 622 N.W.2d 219; Johnson, 2000 ND 170, ¶ 45, 617 N.W.2d 97; Braun v. Braun, 532 N.W.2d 367, 370 (N.D.1995); Anderson v. Anderson, 504 N.W.2d 569, 571 n. 2 (N.D.1993); Morales v. Morales, 402 N.W.2d 322, 323 (N.D. 1987).

[¶ 19] The trial court noted that Madonna was 49 years old and Antonyio was 41 years old at the time of its decision on remand. Madonna retired from the Air Force in February 1992, her earliest opportunity to do so and receive a pension after having served 20 years in the military. Antonyio enlisted in the Air Force in June 1977 and was still on active duty during these proceedings. His mandatory retirement date after 30 years of service would be June 2007. The court noted both parties held the enlisted pay grade of E-5 when they married in 1986 and both attended in-service educational courses during the marriage, with Antonyio taking classes in management and Madonna taking classes in administrative training. After her retirement from the military, Madonna obtained a position as a full-time administrative assistant at Jefferson Vocational School in Kentucky and was earning $7.50 per hour. Antonyio held a paygrade of E-8 at the time of trial. Madonna had three semesters left to complete the bachelor’s degree she wanted in school admiras-tration, and her employer was willing to pay the tuition.

[¶ 20] Madonna argued her military retirement entitlement at the time of trial was $763 per month, and under the Bullock formula, because one-half of her retirement benefits is attributable to a disability, Antonyio’s share of her retirement would amount to $51.26 per month. Madonna also argued if Antonyio retired from the military in June 2002 with a total of 25 years of service, her share of Antonyio’s retirement under the Bullock formula would be $513.66 per month. There was no evidence presented of the present value of the parties’ pensions.

[¶ 21] In refusing to apply the Bullock formula, the court focused on the tangible property already received by each party. Antonyio valued property received by Madonna at $22,500 and property received by himself at $3,533. Madonna valued property received by herself at $14,350 and property received by Antonyio at $3,700. The court also noted Antonyio made all the payments on Madonna’s car; including $3,632 paid after the trial. The court reasoned:

Even at Madonna’s conservative valuations as to her own distributions she acknowledges having received $3.87 + in value of goods for ever[y] dollar of value received by Antonyio.... In Antonyio’s analysis of the substantially similar distribution of tangible property items between himself and Madonna he asserts that the tangible property division to Madonna is more than six times as valuable as such property of the marriage that he received. By any standard of reason Madonna has been heavily and disproportionately favored in this property division.
Additionally, the Bullock formula was developed as means of dividing the property when only one of the marriage partners was a military person that would ' become entitled to military retirement pay. In Bullock the wife was a stay at home mom. She shelved her career opportunities to aid in the furtherance of her husband’s military career. She also was in need of property distribution to aid in her .training for individual employment. Here, Madonna had been an enlisted member of the Air Force for fourteen years before she married Antonyio, a fellow E-5 paygrade, Staff Sergeant while both of them were stationed at an airbase in England. There is no similarity between Bullock and this case which appeals for equitable relief in respect to. retirement pay. Following her retirement in 1992, Madonna has been gainfully employed[.][S]he has completed approximately two-thirds of her studies for a bachelors’ degree in school administration. Madonna has admitted that the cost of tuition for the remainder of her training would be paid by her employer. Such employer support augurs well for her future employment in that system.

[¶ 22] Although we have concluded the $500 monthly payments prior to trial were child support rather than spousal support, in light of the trial court’s reasoning set forth above, we nevertheless conclude the trial court did not err in refusing to divide the parties’ military pensions under the Bullock formula, and we further conclude the trial court’s property distribution is not clearly erroneous.

IV

[¶ 23] Madonna argues the trial court erred in failing to award to her, or to reserve for future consideration, temporary or permanent spousal support.

[¶ 24] To award spousal support, the trial court must find the requesting spouse’is disadvantaged. Hoverson v. Hoverson, 2001 ND 124, ¶ 31, 629 N.W.2d 573. In considering a spousal support award, the trial court must take into account the needs of the disadvantaged spouse and the supporting spouse’s needs and ability to pay. Sommer v. Sommer, 2001 ND 191, ¶10, 636 N.W.2d 423. Spousal support determinations are treated as findings of fact which will not be set aside on appeal unless clearly erroneous. Weigel v. Weigel, 2000 ND 16, ¶6, 604 N.W.2d 462.

[¶ 25] In Johnson, 2000 ND 170, ¶ 51, 617 N.W.2d 97, we affirmed the trial court’s refusal to award Madonna spousal support, but allowed the trial court to revisit the spousal support issue in conjunction with its distribution of the marital property. The trial court essentially found Madonna was not a disadvantaged spouse and again determined an award of permanent or rehabilitative spousal support was “unnecessary” in this case:

Madonna’s employer has made provision for her tuition payments if she wishes to complete her college education. In this spousal support connection the wide disparity of tangible property division in Madonna’s favor is material and that distribution has relieved her of many of the expenses of reentering civilian life and has left Antonyio with only a small fraction of the marital estate.
On the other hand, when Antonyio retires from the Air Force any further or higher education will likely be at his own expense. It appears to the Court that each of the principal parties to this divorce have enjoyed military career opportunities and success during their years of service that is consistent with their own good efforts and opportunities; and that such opportunities do not appear to have been impinged in any significant way by their mutual cooperation during their marriage from 1986 until their separation and divorce.

[¶ 26] We conclude the trial court’s refusal to award, or to reserve for Madonna, spousal support is pot clearly erroneous.

V

[¶ 27] We affirm the trial court’s decisions on property distribution and spousal support. We reverse the child support determination and remand for the limited purpose of computing the back child support owed by Antonyio and to change the effective date of his $669 per month child support obligation in accordance with this opinion. We deny Madonna’s request to reassign this ease to a different district judge on remand.

[¶ 28] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ, concur.

SANDSTROM, Justice,

concurring and dissenting.

[¶ 29] Recall that:

This is a case of a grandmother and her grandchild who have never lived in North Dakota. When the child’s parents could not or would not care for her, her grandmother took her in. The grandmother’s husband, although not the child’s grandfather, welcomed the child and treated her well. The grandmother, but not her husband, was given temporary legal custody of the child. There was talk of adoption and some steps were taken, but the grandmother’s husband did not adopt the child, nor did the grandmother adopt the child. The parental rights of the child’s natural mother and natural father were never terminated. When the marriage of the grandmother and her husband was coming to an end, the grandmother, instead of seeking support from the child’s parents, sought a declaration that her husband had “equitably adopted” the child and was therefore obligated to pay child support.

Johnson v. Johnson, 2000 ND 170, ¶ 54, 617 N.W.2d 97 (Sandstrom, J., dissenting). After being rebuffed by the trial court, the grandmother had much of her wish granted by the majority, and the case remanded.

[¶ 30] In my lengthy dissent in Johnson, I pointed out the extensive errors of the majority. A few of the identified problems were dealt with in the trial court on remand, but the fundamental misuse of judicial power remains: there is no retreat by the majority from its invasion of legislative territory; the misapplication of an intestate probate doctrine to “adoption” and child support continues; and, the principles of comity are still ignored, as are the “inconvenient” facts that if “equitable adoption” occurred, it occurred in Kentucky or New Jersey, governed by the laws of Kentucky or New Jersey, but neither Kentucky nor New Jersey recognize such “equitable adoption.” Id.

[¶ 31] The majority seeks to rehabilitate its opinion in Johnson by implying that Antonyio Johnson agrees that equitable adoption occurred, and by a quotation out of context.

[¶ 32] Antonyio Johnson does not concede that equitable adoption occurred. Rather, as his attorney stated at oral argument, an appeal on the issue would be pointless to this Court as presently constituted.

[¶ 33] The majority continues its “now-you-see-it, now-you-don’t shell game,” saying both that “equitable adoption” is and is not adoption. Johnson, 2000 ND 170, ¶ 56, 617 N.W.2d 97 (Sandstrom, J., dissenting). “But the problem for the majority is that if ‘equitable adoption’ is adoption, it has not occurred. If it is not adoption, then the majority cannot impose a child support obligation on the grandmother’s former husband.” Id.

[¶ 34] The majority, at ¶ 4, repeats the out-of-context quotation in Johnson: “the doctrine of equitable adoption % an equitable remedy to enforce a contract right and, therefore, it is not intended to create the legal relationship of parent and child, with all its attendant consequences, and does not effect a legal adoption.’ ” As I pointed out in my previous dissent, the majority omits the next sentence and the important context:

As noted by the vast majority of authorities, equitable adoption is a remedy used only for intestate succession. The majority states, at ¶ 9, “The doctrine is an equitable remedy to enforce a contract right and, therefore, it is not intended to create the legal relationship of parent and child, with all its attendant consequences, and does not effect a legal adoption” (citing 2 Am.Jur.2d, Adoption § 53 at 930 (1994)). The very next sentence of the source, omitted by the majority, states, “The need for the doctrine arises when the adoptive parent dies intestate; the doctrine is invoked in order to allow the supposed-to-have-been adopted child to take an intestate share. It is not applicable where the decedent dies testate.” 2 Am.Jur.2d, Adoption § 53 at 930 (1994) (citations omitted). The majority, at ¶ 9, suggests the term equitable adoption “bears almost no relationship to a statutory legal adoption.” Rather, the theory is used as “an equitable remedy to enforce a contract right and, therefore, it is not intended to create the legal relationship of parent and child, with all its attendant eonse7 quences.” Id. However, as noted above, in every instance in which equitable adoption was applied by this or other courts, the deceased or equitable parent must always, as a condition precedent, have had a parent-child type relationship with the person seeking to enforce a purported contract right.

Johnson, 2000 ND 170, ¶¶ 160-61, 617 N.W.2d 97 (Sandstrom, J., dissenting).

[¶ 35] Only because Antonyio Johnson does not appeal, I would affirm the judgment of the trial court.

[¶ 36] Dale Sandstrom


author: KAPSNER, Justice. MARING, Justice,

text:
    2002 ND 153
    Loretta GRAD, Mother, on behalf of the minor child, Samantha JANDA, Petitioner and Appellant, v. Alen JEPSON, Respondent and Appellee.
    No. 20020043.
    Supreme Court of North Dakota.
    Sept. 20, 2002.
    Paul H. Myerchin, Bormann & Myer-chin, LLP, Bismarck, ND, for petitioner and appellant.
    Theresa L. Zimmerman (on brief), American Legal Services, Bismarck, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Loretta Grad appealed from the trial court’s dismissal of a petition to change the surname of her minor child. We conclude the trial court did not abuse its discretion in holding the petitioner did not establish “proper and reasonable cause” to change the name of the minor child. We affirm.

I.

[¶ 2] Loretta Grad and Alen Jepson are the parents of minor child, Samantha Janda, born in December 1995. Grad and Jepson have never been married. Samantha was given her mother’s maiden name, Janda, at birth. Jepson was awarded joint legal custody and liberal visitation.

[¶ 3] On August 18, 2001, Loretta married and changed her surname from Janda to Grad. On August 28, 2001, Grad signed an affidavit and petition requesting the trial judge to change Samantha’s surname to Grad. The petition was mailed to Jep-son’s home in Brooklyn, Minnesota. Notice was given in the Star Tribune and The Bismarck Tribune.

[¶ 4] On September 28, 2001, Jepson filed an objection to the petition. A hearing was held on the matter and the trial court dismissed the name change petition. Grad appealed.

II.

[¶ 5] Grad contends the trial court erred in dismissing the name change petition of her minor child. Grad argues that changing Samantha’s surname would help Samantha identify with the Grad family unit and integrate her into the family. A trial court is vested with discretion in reviewing a petition for a name change brought under N.D.C.C. ch. 32-28. Petition of Dengler, 246 N.W.2d 758, 764 (N.D.1976). Thus, absent an abuse of discretion, a trial court’s determination on a petition for a name change will not be reversed. Matter of Mees, 465 N.W.2d 172, 173 (N.D.1991).

III.

[¶ 6] Grad petitioned to change the minor child’s surname under N.D.C.C. eh 32-28. Section 32-28-02, N.D.C.C., provides for a name change of a person when “there exists proper and reasonable cause for changing the name of the petitioner.” This statute was amended in 1999 to address name changes of minor children. The amendment to N.D.C.C. § 32-28-02 requires actual notice be sent to the noncustodial parent when a request is made to change a child’s name. N.D.C.C. § 32-28-02 (Supp.2001). The amended statute further provides that “[i]f the person whose name is to be changed is a minor, the court shall consider the appointment of a guardian ad litem.” Id.

[¶ 7] By providing for consideration of the appointment of a guardian ad litem, the legislature implicitly sought to protect the child’s interests. Thus, “proper and reasonable cause” includes consideration of the best interests of the child in the context of a petition to change a minor child’s name. In this case, Grad waived consideration of an appointment of a guardian ad litem for the child’s interests.

IV.

[¶ 8] Grad based her petition to change the child’s name on two main issues: (1) her surname and the child’s surname have always been the same, and (2) confusion by the child and third parties. Under N.D.C.C. § 32-28-02, “the district court must make findings sufficiently definitive so that on appeal we can determine whether or not the findings are arbitrary, unreasonable, or unconscionable.” Mees, 465 N.W.2d at 173-74. The trial court’s order states the following for denying the name change petition:

The fact that the name has always been the same as the petitioner’s, by itself, is an insufficient basis for changing the name just because the petitioner has chosen to change her name. The confusion issue is more important. Whatever the Court’s decision, there are going to be awkward moments in the child’s future when she will be forced to explain her name. It will be more confusing for her to explain that her stepfather is not her father though she has his last name than to explain that she has her mother’s maiden name. If the petitioner and her husband divorce, the petitioner said S.J.’s surname would remain the stepfather’s name. Not only would that be confusing, but then S.J.’s surname would be that of a man to whom she has no legal or biological connections. Finally, the Court believes allowing the name change could lead to alienation of the child from the respondent, even if there is no intent to do so.

[¶ 9] The trial court’s findings focused on the best interests of the child. The trial court held that the reasons presented by Grad were “insufficient” to establish proper and reasonable cause for changing the minor child’s surname. These statements are “sufficiently definitive” to determine that the trial court did not abuse its discretion. Cf Walbert v. Walbert, 1997 ND 164, ¶ 11, 567 N.W.2d 829 (concluding that the trial court’s finding that there is “good cause for the name change[]” is not “sufficiently definitive” to facilitate effective appellate review). We affirm the dismissal of the name change petition.

[¶ 10] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

dissenting in part and concurring in part.

[¶ 11] I agree with the majority’s conclusion that “proper and reasonable cause” under N.D.C.C. § 32-28-02 includes consideration of the best interests of the child in the context of a petition to change the name of a minor child. I also agree with the majority opinion that the standard of review for this Court is whether the trial court abused its discretion. “An abuse of discretion occurs only when the trial court acts in a arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Erizan v. Krizan, 1998 ND 186, ¶ 13, 585 N.W.2d 576. I am of the opinion, that under this standard of review, the trial court did abuse its discretion in denying the request for a name change for the minor child.

[¶ 12] The biological mother and father have never been married. At birth, the child was given her mother’s maiden name. She has always carried her mother’s maiden name and never her biological father’s surname. Despite the fact that the child carried a last name different than the biological father’s name, there is nothing in the record to indicate this difference affected their relationship. In fact, the record indicates the biological father has joint legal custody and a good, loving relationship with the child. The mother’s last name has changed as a result of her marriage. The trial court ordered that the child’s last name must remain the mother’s maiden name. The mother’s maiden name, at this point, is not the mother’s last name nor the father’s last name. If the child’s last name was her mother’s current last name and the last name of the family unit she is now a part of, it is difficult to understand how questions would arise concerning her last name. The child, however, will certainly be questioned as to why she does not carry either the last name of her mother or her father. Indeed, she will be placed in the position of explaining that her last name is her mother’s maiden name. This child will consequently be placed in the position of revealing that she is illegitimate. Placing the child in this position is not in her best interests.

[¶ 13] This is not a case where the minor child currently bears the last name of the biological father. Because the trial court did not, and he specifically stated he did not, apply what was in the best interests of the minor child, I would reverse and remand for the trial court to apply the correct standard.

[¶ 14] Mary Muehlen Maring


author: SANDSTROM, Justice.

text:
    2002 ND 154
    In the Interest of R.O. Tami Byzewski, Petitioner and Appellee, v. R.O., Respondent and Appellant.
    No. 20020228.
    Supreme Court of North Dakota.
    Sept. 20, 2002.
    Sonja Clapp, Grand Forks, for petitioner and appellee; submitted on brief.
    Rebecca Jo Heigaard McGurran, Grand Forks, for respondent and appellant; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] R.O. appeals from a Northeast Central Judicial District Court order denying his motion for continuance, finding he is a person in need of treatment, and committing him to the North Dakota State Hospital for a period not to exceed ninety days. R.O. argues the trial court did not give him notice sufficiently in advance of the hearing to allow him time to prepare, as required by N.D.C.C. § 25-03.1-12, and erred in denying his motion for continuance. We agree, and reverse the trial court’s denial of R.O.’s motion for continuance and order for involuntary treatment.

I

[¶ 2] On July 24, 2002, R.O. was.served with the Petition for Involuntary Commitment, Report of Examination, Notice of Procedures and Rights, Order Appointing Attorney, Notice of Hearing and Amended Notice of Hearing. The hearing was set for July 25, 2002, less than twenty-four hours after R.O. was served. R.O. did not receive counsel until just prior to the hearing. R.O. requested a continuance for the purpose of seeking a second opinion as to whether he was a person in need of treatment or whether a less restrictive alternative treatment was appropriate. The State did not object to a one-day continuance, but because of concerns about R.O.’s intravenous drug use, it did not want the matter to be held over through the weekend. R.O. admitted to the court he engaged in intravenous drug use several times per week after being hospitalized for pneumonia at Altru Hospital on August 8, 2002, but he denied being addicted or being a person in need of treatment. The trial court denied R.O.’s request for a continuance.

[¶ 3] Three witnesses testified at the hearing: Vicky Loyland, a licensed addiction counselor at Altru Hospital who had examined R.O. at the direction of his treating physician; Tami Byzewski, R.O.’s case manager since 1997 at Northeast Human Service Center; and Kristie Kuntz, a licensed addiction counselor at Northeast Human Service Center who was familiar with R.O.’s case.

[¶ 4] Loyland testified R.O. was addicted to methamphetamine with psychological dependence and cannabis dependence. She also testified that R.O. posed a risk to himself due to his continued intravenous drug use. She recommended R.O. be placed at a residential facility with day treatment to be completed through the local Human Service Center.

[¶ 5] Byzewski testified R.O. had not been following through on treatment for his mental illness. She identified two occasions when R.O. had been hospitalized due to drug use, and stated R.O. is a danger to himself. She stated in her petition for involuntary commitment that “a less restrictive environment is not feasible at this time due to the severity of his chemical dependency.”

[¶ 6] Kuntz recommended that R.O. be committed to the state hospital so he could be treated for both his chemical dependency and his mental illness. She also testified R.O. needed the structured environment offered by the state hospital as opposed to outpatient treatment.

[¶ 7] R.O. renewed his request for a continuance, and the court granted a short recess in the proceedings so that R.O. and his attorney could attempt to locate the primary physician who treated him at Al-tru on August 8, 2002, to obtain the physician’s recommendations. R.O. returned forty minutes later and informed the court he was unable to reach either the physician who treated him or any other physician who was familiar with his medical condition.

[¶ 8] R.O. again requested the court to grant a continuance so he could contact other professionals he knew in the community who would be able to perform an evaluation. The court denied R.O.’s request. R.O. rested and did not submit any evidence or testimony on his behalf. The court found by clear and convincing evidence that he was an individual in need of treatment and committed him to the North Dakota State Hospital for a period not to exceed ninety days. The court found alternative treatment was not appropriate. The court found R.O. would be at substantial risk of physical and even mental deterioration in his condition if the matter were to be continued. R.O. appealed, arguing: first, the court erred in denying his request for continuance; second, the court erred in ruling that R.O. was a person requiring treatment; and third, the court erred in failing to order alternative treatment. On September 10, 2002, the trial court granted an order for less restrictive treatment. The trial court ordered outpatient treatment with daily medication monitoring at Northeast Human Service Center in Grand Forks and specified that R.O. “shall remain chemically free.”

[¶ 9] The district court had jurisdiction under N.D.C.C. § 25-03.1-03. This Court has jurisdiction under N.D.C.C. § 25-03.1-29.

II

[¶ 10] Our review of an involuntary commitment order is “limited to a review of the procedures, findings, and conclusions of the lower court.” N.D.C.C. § 25-03.1-29. “Motions for continuance ... will be granted only for good cause shown....” N.D.R.Ct. 6.1(b). “We will not reverse a trial court’s decision to’ deny a continuance absent an abuse of discretion.” Interest of J.S., 545 N.W.2d 145, 146 (N.D.1996) (citing State v. Waters, 542 N.W.2d 742, 744 (N.D.1996)). “ ‘[A] trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably.’ ” Id. (quoting Waters, at 745).

[¶ 11] Section 25-03.1-12,' N.D.C.C., requires notice be given sufficiently in advance of an involuntary commitment hearing “to permit preparation for the hearing.” R.O. argues he was hot given sufficient notice to adequately prepare and the trial court abused its discretion by denying his motion for continuance. R.O. claims he was denied his state and federal due process rights of notice and a meaningful opportunity for a hearing because he was not afforded sufficient time to prepare for his hearing. Interest of J.S., 545 N.W.2d at 147. We have not stated specifically what this Court considers sufficient notice. In Interest of D.Z., the respondent was not given notice of the hearing until two days before hearing, and the trial court told D.Z. he was allowed a continuance if he needed one. See 2002 ND 132, ¶ 5, 649 N.W.2d 231. We did not address whether two days’ notice was untimely, because we concluded D.Z. waived any right he may have had to a continuance, by passing up the trial court’s offer to grant one. Id.

[¶ 12] R.O. was given less than a twenty-four hour notice and was not provided counsel until just prior to hearing. With less than twenty-four hours’ notice, R.O.’s attorney would not have had sufficient time to gather the information from her client and find physicians to testify on R.O.’s behalf. The trial court unreasonably expected that less than twenty-four hours’ notice would be sufficient time for R.O. to prepare for the hearing. The trial court unreasonably denied R.O. a continuance. The trial court stated its denial of R.O.’s request for a continuance was in R.O.’s best interest because R.O. admitted he had used intravenous methamphetamine several times per week, even after his hospitalization on August 8, 2002. If the trial court had serious health concerns about R.O., it did not need to deny his request for continuance in order to procure his safety; rather, the trial court should have implemented the seven-day emergency procedure available under N.D.C.C. §§ 25-03.1-25 and 25-03.1-26. R.O. did not waive his right to a continuance; rather, he specifically requested a continuance three times within less than a twenty-four hour period. His first request was denied, and he renewed his objection. Upon his second request, he was granted only enough time to make a few phone calls. His third request was also denied. R.O. was unable to gather any evidence to present at the hearing.

Ill

[¶ 13] The issue of whether R.O. is a person requiring treatment as defined under N.D.C.C. § 25-03.1-02(11) will need to be addressed on remand. The district court’s order for involuntary treatment is reversed and remanded.

[¶ 14] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING and CAROL RON-NING KAPSNER, JJ., concur.

      . N.D.C.C. § 25-03.1-25(2) states:
      If a petitioner seeking the involuntary treatment of a respondent requests that the respondent be taken into immediate custody and the magistrate, upon reviewing the petition and accompanying documentation, finds probable cause to believe that the respondent is a person requiring treatment and there exists a serious risk of harm to the respondent, other persons, or property if allowed to remain at liberty, the magistrate may enter a written order directing that the respondent be taken into immediate custody and be detained as provided in subsection 3 until the preliminary or treatment hearing, which must be held no more than seven days after the date of the order.
      N.D.C.C. § 25-03.1-26(2) states:
      Upon receipt of the petition and notice of the emergency detention, the magistrate shall set a date for a preliminary hearing, if the respondent is alleged to be suffering from mental illness or from a combination of mental illness and chemical dependency, or a treatment hearing, if the respondent is alleged to be suffering from chemical dependency, to be held no later than seven days after detention unless the person has been released as a person not requiring treatment, has been voluntarily admitted for treatment, has requested or agreed to a continuance, or unless the hearing has been extended by the magistrate for good cause shown. The magistrate shall appoint counsel if one has not been retained by the respondent.