text:
    STATE of Minnesota, Respondent, v. Brian Victor MYRLAND, Appellant.
    No. A03-1646.
    Court of Appeals of Minnesota.
    June 22, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County Attorney, Hastings, MN, for respondent.
    Jeffrey C. Dean, Dean Law Office, Minneapolis, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; RANDALL, Judge; and FORSBERG, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

HUDSON, Judge.

Appellant Brian Victor Myrland challenges his convictions for possession of pictorial representations of minors under Minn.Stat. § 617.247 (2002). Because the evidence is insufficient to support the convictions, we reverse on that basis. We do not reach the other issues raised by appellant, but we do note that trial errors occurred which, taken cumulatively, might also have justified a new trial in this matter.

FACTS

On May 14, 2001, students at Highland Elementary School in Apple Valley approached the school’s computer lab monitor, Lisa Losure, to tell her that they had found something “icky” at a printer in the lab. Losure investigated and found two printed Internet photographs, both depicting adult men with exposed genitals. Losure immediately suspected appellant Brian Myrland, a fifth-grade teacher, of having viewed and printed the images. This was because some months earlier, Myrland had approached Losure and told her that he had viewed some “inappropriate” websites on his classroom computer. Because he seemed genuinely contrite and embarrassed, Losure helped Myrland “clean up” his computer to ensure that the computer did not contain any inappropriate images that students might stumble across. Losure did not. look at any of the websites Myrland had visited and she did not report his conduct to school administration. After discovering the pictures on May 14, Losure walked through the school to determine which computers were running the Internet at that time. She found four computers that had Internet browsers open, including the computer in Myrland’s classroom.

After the incident in the computer lab, school officials conducted a search of Myr-land’s classroom computer, focusing on the computer’s “cookie” files, including several URLs with pornographic references such as “boys” and “sex teens.” They found numerous images and references to all manner of pornographic material. The school confronted Myrland, and he admitted to having used several other school computers as well to view adult male pornography during non-school hours. These computers were located in the classrooms of other teachers. His practice was to find images on the Internet that pleased him, then print them off on school printers, and take them home.

During the school’s examination of the other computers Myrland admitted to having used, school personnel found references to several websites that appeared to contain sexual images of minors, and contacted the police. The websites contained terms that police associated with child pornography, such as “illegal teens” and “hardcore action of teen boys.” Myrland told police he had never viewed or even attempted to view sexual images of minors, and that he had no interest in such material. Myrland indicated that his primary interest was adult, male, gay pornography. When police searched Myrland’s home, they found some adult homosexual pornography, but no child pornography.

Myrland was charged with one count of possession of pictorial representations of minors under Minn.Stat. § 617.247 (2002). On Myrland’s motion, the district court dismissed the complaint, finding the statute unconstitutional because it impermissi-bly shifted the burden of proof on an essential element of the crime (the age of the person depicted) to the defendant. The state appealed the ruling, and this court reversed in State v. Myrland, 644 N.W.2d 847 (Minn.App.2002), review denied (Minn. Aug. 6, 2002), cert. denied 587 U.S. 1019, 123 S.Ct. 537, 154 L.Ed.2d 426 (2002). The complaint against Myrland was reinstated, but was later amended to charge Myrland with three separate counts of possession of pictorial representations of minors in violation of Minn.Stat. § 617.247, subd. 4 (2002). Each count corresponded to a computer on which child pornography was found.

After numerous pre-trial motions and hearings, a three-day trial was held before a jury. Witnesses for the state testified that searches of the computers • Myrland admitted to using revealed thousands of pornographic images, a few of which depicted what appeared to be young teenage boys engaged in sexual behavior. On cross-examination, witness Bonnie Halvor-son, the school district’s technical support manager, admitted that it was impossible to determine who originally downloaded the images or viewed them, and that anyone with access to the computers could have done so. The school district’s human resources manager also testified for the state, stating that when the investigation into Myrland’s activities began, Myrland was placed on administrative leave. Myr-land objected to this testimony and the objection was overruled. Myrland objected again when the witness testified that when the investigation became a criminal investigation, he recommended that the school district terminate Myrland’s employment.

Jim Boyer, a Bureau of Criminal Apprehension computer analyst, testified for the state that all the images found on the computers came from “unallocated space” on the computers’ hard drives, and that-there was no way to tell who had viewed them or if they had been viewed at all. He also admitted on cross-examination that some of the websites referenced could have been accessed inadvertently or could have appeared on the screen when a computer user accessed another site. ' !

Myrland acknowledged a homosexual orientation and also acknowledged that he had viewed adult male pornography on school computers during after-school hours, but testified he had never viewed or searched for any images of minors engaged in sexual behavior. He stated (and the state concedes) that all teachers had access to all school computers using the same access code. Myrland testified that he could not remember a code change during the period in which he admitted to viewing adult pornography on the computers. The computers were available during the summer, when Myrland was not present in the school, and he admitted that he often left the Internet running on his computer during school hours when he was not in the classroom.

The jury found Myrland guilty of two counts of possession of pictorial representations of minors and acquitted him of the third count. Myrland’s sentence was stayed pending this appeal.

ISSUES

I. Is the evidence sufficient to support appellant’s convictions for possession of pictorial representations of minors?

II. Do trial errors entitle appellant to a new trial?

III. Should this court revisit the constitutionality of Minn.Stat. § 617.247?

ANALYSIS .

I

When considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

After a careful review of all of the evidence presented at trial, we conclude that the evidence is insufficient to support appellant’s convictions for possession of pictorial representations of minors under Minn.Stat. § 617.247 (2002). When a conviction is based on circumstantial evidence, that evidence must “form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude ‘beyond a reasonable doubt’ any reasonable inference other than guilt.” State v. Jones, 516 N.W.2d 545, 549 (Minn.1994) (quotations omitted). The evidence does not do so here, and we must reverse appellant’s convictions.

First, the evidence does not prove beyond a reasonable doubt that appellant in fact possessed the illegal images or exercised exclusive control over the computers on which they were found. Minn.Stat. § 617.247, subd. 4(a) (2002), states that it is a felony to possess “a pornographic work or a computer disk or computer ... containing a pornographic work.” “Pornographic work” is essentially defined as a visual depiction of a minor engaged in sexual conduct. Minn.Stat. § 617.246, subd. 1(f) (2002).

Most other child pornography cases involving the Internet and a multi-user computer involve an eyewitness account that the defendant was seen viewing illegal material. See, e.g., State v. Sisler, 177 N.J. 199, 827 A.2d 274 (2003); State v. Roberts, 796 So.2d 779 (La.App. 3 Cir.2001), writ denied, 825 So.2d 1163 (La.2002) (both involving a defendant who used a public library computer to view child pornography). Because appellant here was not seen viewing the images or using the computers to do so, the state was required to prove that he had constructive possession of the computers by showing that he exercised dominion and control over them. See State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975) (constructive possession may be shown where a strong inference exists that the defendant once possessed the illegal item and continues to exercise dominion and control over it).

Certainly, appellant admitted to using the computers to view adult pornography, which shows that he did have access to the computers and the Internet. But the un-controverted evidence showed that the Internet access code was the same for all teachers on all of the school’s computers, and that any number of students, teachers, substitute teachers, and visitors may also have had access to the computers. That appellant was one of potentially hundreds of people who could have accessed the computers in question does not prove beyond a reasonable doubt that he possessed the computers or the illegal images for purposes of Minn.Stat. § 617.247 (2002).

Second, the evidence does not prove beyond a reasonable doubt that appellant possessed the images knowing their content. Minn.Stat. § 617.247, subd. 4(a) (2002), requires that the defendant possess the images “knowing or with reason to know its content and character.”

Testimony presented at trial by the state’s witness James Boyer showed that there are any number of ways that images or text can be stored to the “unallocated space” of a computer’s hard drive. Boyer testified that pop-up advertisements, unsolicited emails, and banner advertisements could contain illegal images or text suggestive of illegal material, and even if the computer user ignored them or deleted them, that text could be stored to the computer’s hard drive. Further, a computer user could view legal adult pornographic materials at the top of a web page, and any illegal child pornographic material at the bottom of the page would be stored to the computer’s hard drive, even if the user never “scrolled down” or viewed the material and was unaware of its presence.

Of the many thousands of pornographic images and texts found in the unallocated space of the computers in question, only a tiny fraction-less than 100 images total, appeared to depict minors. That text containing the words “boys” or “teens” appeared on the computers, without more, does not prove that the words actually referred to illegal materials. Testimony showed that some of the “websites” discovered on the hard drives were really just text references within other websites, rather than sites actually visited by the computer user.

The evidence simply does not prove beyond a reasonable doubt that appellant accessed child pornography knowing or with reason to know of its content.

This court has reviewed all of the evidence presented at trial, including a number of photographic images that appear to depict minor boys engaged in sex acts. These images are graphic and repugnant. But, the fact that the images are disturbing and repulsive is not proof that appellant possessed or intended to possess child pornography. The evidence at trial does not prove beyond a reasonable doubt that appellant is guilty of the charged crimes, and we must reverse his convictions.

II

Appellant also argues that various trial errors, viewed cumulatively, denied him his right to a fair trial. Because we reverse his convictions due to insufficiency of the evidence, we need not address each of the claimed errors. However, we agree with appellant that errors did occur, and those errors, considered cumulatively, draw the fairness of appellant’s trial seriously into question, and thus we note them here.

First, the district court erred in allowing the school district’s human resources director, over appellant’s objection, to testify regarding what employment actions were taken against appellant during the investigation. That testimony was irrelevant to the criminal charges and could have improperly influenced the jury to believe that the school district considered appellant guilty of the charges, a fact that had no bearing on the jury’s decision.

More seriously, the district court allowed the prosecutor, over objection, to make improper remarks during her closing argument. The test for prosecutorial misconduct is strict. A new trial based on prosecutorial misconduct will only be granted if “the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.2000).

In general, it is improper for the prosecutor “to urge the jury to protect society with its verdict.” State v. Hoppe, 641 N.W.2d 315, 320 (Minn.App.2002), review denied (Minn. May 14, 2002). Prosecutors are not to make closing arguments intended to “inflame the passions or prejudices of the jury,” or to attempt to divert the jury from the facts of the case by making broad policy arguments. State v. Salitros, 499 N.W.2d 815, 818 (Minn.1993) (quotations omitted).

The prosecutor here was permitted to argue that once an image of a child reaches the Internet, that child is victimized again and again every time the image is viewed. She also stated that in order for child pornography to exist, “there had to be a kid who either had to be sexually abused, who was required to perform some type of sexual act.” These statements are irrelevant to the facts of the case, and are highly inflammatory. There was no allegation whatsoever that appellant sexually abused any child or children or created the images in question. Appellant was a well-liked teacher who had never, in 20 years of teaching, been accused of improper behavior toward a student. Appellant was accused of viewing images created by others and placed on the Internet. The prosecutor’s statements were clearly designed to appeal to the jury’s disgust over the content of the images and to divert the jurors’ attention from the fact that the state failed to prove that appellant was in fact guilty of the charged crimes. Again, this conduct alone might not justify granting a new trial, but we would be remiss if we did not take note of its impropriety.

Ill

Finally, appellant argues that Minn.Stat. § 617.247 (2002) is unconstitutional and asks us to revisit our decision in State v. Myrland, 644 N.W.2d 847 (Minn.App.2002), in which this court upheld the validity of the statute. Because we reverse for insufficiency of the evidence, we need not reach this issue here.

We also note that we deny the state’s motion to strike from consideration four citations appellant submitted to this court after briefing was concluded. The motion is denied.

DECISION

Because the evidence presented at trial is insufficient to support appellant’s convictions for possession of pictorial representations of minors under Minn.Stat. § 617.247 (2002), we reverse.

Reversed.

      . "URL” is the acronym for "universal resource locater,” which is the universal address of an Internet web page.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2004 ND 118
    Lonnie FLADELAND and Pamela Fladeland, Plaintiffs and Appellees v. Kaye GUDBRANSON and Carl Erickson, Trustees of the Kaye Gudbranson Living Trust and Deborah Baklenko and Larry Baklenko, Trustees of the Deborah Baklenko Living Trust, Defendants and Appellants.
    No. 20030319.
    Supreme Court of North Dakota.
    June 7, 2004.

      Peter H. Furuseth, Furuseth Law Firm, P.C., Williston, ND, for plaintiffs and ap-pellees.
    Monte L. Rogneby (argued), Vogel Law Firm, Bismarck, ND, and R. James Max-son (appeared), Maxson Law Office, Minot, ND, for defendants and appellants.
   VANDE WALLE, Chief Justice.

[¶ 1] Kaye Gudbranson and Carl Erickson, trustees of the Kaye Gudbranson living trust, and Deborah and Larry Bak-lenko, trustees of the Deborah Baklenko living trust, (“Trustees”) appealed a district court judgment requiring them to convey property to Lonnie and Pamela Fladeland (“Fladelands”). We reverse.

I

[¶ 2] In May 1991, Joseph Gudbranson (“Gudbranson”) purchased approximately 4,014 acres of land (“Strobeck land”) in Mountrail County from Steven, Karen, and Kristine Strobeck for $337,000. The Stro-becks inherited the land from their father, Aldon Strobeck. Lonnie Fladeland had been working on the land since 1978, and he and his wife, Pamela, began residing on the land in 1979. They continued working and residing on the land after the sale. In April 1993, Gudbranson purchased another 280 acres of land (“Feehan land”) south of the Strobeck land for $47,000. Since the purchases, the Fladelands have farmed and ranched the combined tracts of land (collectively referred to as “the ranch”). The Fladelands made semi-annual payments to Gudbranson for their use of the ranch, but there was no written agreement concerning their use of the property. Gudbranson, and later his daughters, paid the real estate taxes on the land, while the Fladelands paid for the necessary insurance for their farming and ranching operation. In January 1994, Gudbranson died and the ranch passed to his daughters, Kaye Gudbranson and Deborah Baklenko. There were two failed attempts to sell the ranch to the Fladelands between 1994 and 2002, and the parties’ existing relationship continued until March 11, 2002, when they entered into a written cash farm lease. Title to the ranch was subsequently transferred to the daughters’ respective living trusts.

[¶ 3] On March 22, 2002, the Flade-lands initiated a specific performance action against the Trustees, alleging they and Gudbranson entered into an oral contract for the sale of the ranch to the Fladelands for the purchase price at zero percent interest. The Fladelands alleged the semi-annual payments were to be applied toward the purchase price, along with a portion which was used to pay the real estate taxes. The Trustees denied the existence of an oral contract, and asserted statute of frauds, laches, and statute of limitations defenses. After a bench trial, the trial court found Gudbranson purchased the ranch on behalf of the Flade-lands and ordered the Trustees to convey title to the Fladelands in exchange for $109,729.70, the unpaid balance of the purchase price.

[¶ 4] The parties disputed whether Gudbranson purchased the ranch with the intent to lease it to the Fladelands or whether he purchased it to allow the Fladelands an opportunity to acquire the land. Testimony at trial indicated the Fladelands never asserted the oral contract existed in response to the daughters two attempts to sell the ranch to them. The deposition of Aldon Strobeck’s estate attorney, Fred Whisenand, was also admitted at trial. His notes from a conversation with Steven Strobeck indicated the following:

Telephone conference with Steve Stro-beck 3/22-91
He is going to sell the Ranch
They had it appraised by Don Bintliff for $337,000—
2000 earnest money
It is going to be a cash sale
Lonnie Fladeland the long time tenant
Actually, Mr. Joe Gudbranson from NewTown
is going to put up the money and will back the purchase
All mineral reserved

Along with the Fladelands’ testimony, the trial court considered the evidence from Whisenand’s deposition as the “clincher” on the issue of whether Gudbranson orally agreed to sell the ranch to the Fladelands.

[¶ 5] The trial court found an oral contract existed between Gudbranson and the Fladelands. It found the terms were: “1. ‘The Strobeck land’-, (a) $337,000.00 purchase price; (b) no money down; (c) no interest; (d) annual lease payments in an unspecified amount, to be applied against the principal; and, (e) reimbursement of real estate taxes paid by Joe Gudbranson at time of payoff.” Its findings for the Feehan land were identical except the purchase price was $47,000. The Fladelands’ total lease payments over the term of the contract were $331,785.86 and the real estate taxes paid by Gudbranson and his daughters were $57,515.56. These figures were used to arrive at the $109,729.70 remaining principal balance to be paid by the Fladelands. The trial court found the Strobecks would not have sold the land to Gudbranson if the Fladelands were not destined to become the owners of the property, and that Gudbranson intended to give the Fladelands “a very good deal.”

[¶ 6] On appeal, the Trustees allege the trial court erred by finding Gudbranson and the Fladelands entered into contracts for deed and not leases with options; the alleged oral leases and options were canceled by the parties when the cash farm lease was executed in 2002; and the alleged oral contracts violated the statute of frauds. We need only address the statute of frauds issue because it is dispositive of this case.

II

[¶ 7] In an appeal from a bench trial, the trial court’s findings of fact are reviewed under the clearly erroneous standard of N.D.R.Civ.P. 52(a) and its conclusions of law are fully reviewable. Fargo Foods, Inc., v. Bernabucci, 1999 ND 120, ¶ 10, 596 N.W.2d 38. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite, and firm conviction a mistake has been made. Moen v. Thomas, 2001 ND 95, ¶ 19, 627 N.W.2d 146. “In a bench trial, the trial court is ‘the determiner of credibility issues and we do not second-guess the trial court on its credibility determinations.’ ” Id. at ¶ 20.

[¶ 8] The statute of frauds provides that an agreement for the sale of real property is “invalid, unless the same or some note or memorandum thereof is in writing and subscribed by the party- to be charged, or by his agent.” Kuntz v. Kuntz, 1999 ND 114, ¶ 10, 595 N.W.2d 292 (quoting N.D.C.C. § 9-06-04). It is intended to prevent fraud and perjury and should not be used as an instrument to accomplish fraud. Mellon v. Norwest Bank of Mandan, 493 N.W.2d 700, 704 (N.D.1992). Absent a-written contract or agreement, N.D.C.C. § 47-10-01 allows a “court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof.” “The most important question is whether the part performance ‘is consistent only with the existence of the alleged oral contract.’ ” Johnson Farms v. McEnroe, 1997 ND 179, ¶ 19, 568 N.W.2d 920 (quoting Buettner v. Nostdahl, 204 N.W.2d 187, 195 (N.D.1973), overruled on other grounds Shark v. Thompson, 373 N.W.2d 859, 867 (N.D.1985)). Valuable, substantial, and permanent improvements may be considered part performance, removing an oral contract from the statute of frauds. Green v. Gustafson, 482 N.W.2d 842, 848 (N.D.1992) (quoting Williston Cooperative Credit Union v. Fossum, 459 N.W.2d 548, 551 (N.D.1990)). However, “[i]f the improvements indicate some other relationship, such as landlord and tenant, or can be accounted for through the application of some other hypothesis, they are not sufficient” to constitute part performance removing the contract from the statute of frauds. Robar v. Ellingson, 301 N.W.2d 653, 661 (N.D.1981).

[¶ 9] In Johnson Farms, we recognized the following three general categories of acts by a purchaser that may make an oral contract énforceable: “paying the contract price, taking possession of the property, and making improvements.” 1997 ND 179, ¶ 18, 568 N.W.2d 920.

Although cases in this jurisdiction usually rely on the taking of possession and the making of valuable, substantial and permanent improvements to sustain part performance to take an oral agreement out of the statute of frauds, we discern no ironclad rule of prerequisites in the cases that conflicts with the broad, flexible approach described in [14 R. Powell and P. Rohan, Powell on Real Property ¶880[2] (1997)]. Indeed, our cases may evidence an approach more flexible than Powell. We have said partial payment of the purchase price is not necessary to establish part performance. Although we have also said partial payment of the purchase price alone will not constitute part performance sufficient to enforce an oral contract, we have recognized partial payment considered in connection with other facts, such as the making of substantial improvements, will remove the contract from the statute of frauds.

Id. at ¶ 19 (citations omitted). In this case, the trial court concluded the following evidence removed the alleged oral contract from the statute of frauds.

1. Fladelands have made regular semiannual payments under the oral contracts, totaling $331,785.86; 2. Flade-lands have resided on the ranch since 1979, and have been in exclusive possession of the same since 1991 (the “Stro-beck land”)/1993 (the “Feehan land”); 3. Fladelands have made substantial, valuable and permanent improvements to the ranch during their occupancy; 4. Fladelands have paid for all necessary insurance coverage for the farming/ranching operation they’ve conducted on the property during their occupancy; and, 5. Fladelands have obligated themselves to make reimbursement for the total amount of money expended by Joe Gudbranson and his estate in payment of real estate taxes assessed against the property during Fladelands’ occupancy.

[¶ 10] Lonnie Fladeland testified that there was not a contract for deed but rather “a lease option to buy out the principal balance at zero interest at any time [he] was ready less the real estate taxes that had been paid.” The partial perform-anee relied upon by the trial court to remove the alleged oral contract from the statute of frauds in this case is not consistent only with the alleged agreement. The semi-annual payments and possession by the Fladelands are consistent with a contract for deed and a lease, with or without an option to purchase. The insurance payments made by the Fladelands are also not consistent only with the alleged contract because the Fladelands did not share agricultural profits with Gudbranson.

[¶ 11] We have “determined that in cases where improvements are relied upon as constituting part-performance, the improvements must unmistakably point to the existence of the claimed agreement. If the improvements indicate some other relationship, ... or can be accounted for through the application of some other hypothesis, they are not sufficient.” Robar, 301 N.W.2d at 661. The improvements relied upon in this case do not unmistakably point to the existence of the alleged oral contract. The Fladelands relied on the following improvements to remove the alleged oral contract from the statute of frauds:

(a) a tack room and pens, with a cement floor;
(b) a well with a 3/4 HP sump pump and two (2) pressure tanks;
(c) a deck, a new sewer line and a new water line for Troy Fladeland’s mobile home;
(d) a new water line, a cement pad and an automatic waterer for the pole barn;
(e) a new water hydrant in the wood-frame barn, a new electric motor in the pump house and a new Ritchie automatic waterer in the corral;
(f) a 250' windbreak constructed out of lumber purchased by Fladelands;
(g) paint purchased by Fladelands and used by them to paint the house, quonset, bunk house and barn;
(h) a coal furnace in the garage;
(i) new shingles purchased by Flade-lands and used by them to re-shingle the roof of the house;
(j) a 20' cattle guard, along with several steel gates;
(k) improvements made to the interior of the house, including: a new door in the bathroom; wallpapering; ceiling fans and painting;
(.I) a new sewer stack for the house;
(m) installation, of waterways;
(n) 110 acres of land seeded to alfalfa;
(o) a large number of trees planted by Fladelands, and fencing constructed to protect the same;
(p) installation of water tanks (and pumps);
(q) construction of a 150' X 275' roping arena;
(r) posts, wire, planks and any other lumber and fencing supplies used to construct and maintain fences on the property; and,
(s) money expended on blading and rebuilding roads.

[¶ 12] These improvements, while numerous, are not consistent only with the alleged oral contract. Many of the improvements were made in conjunction with the Fladelands’ farming and ranching operation and are consistent with a lease without an option to purchase. Additionally, the tack room and roping arena were installed as a result of the Fladelands’ rodeo activities. It is not consistent only with the alleged oral contract for the Fladelands to pay for improvements used to engage in their own interests or hobbies. In fact, the improvements are consistent with the Fladelands’ conduct before any alleged option to purchase existed. Steven Strobeck stated in his deposition, which was admitted into evidence at trial, that “Lonnie [Fladeland] moved [to the ranch] with his family and really fixed the place up, made it look a lot more cozy, moved his furniture around, did some things; but he treated the ranch like it was his own home, even at that time.” Although the record does not indicate the extent of these improvements, Strobeck’s testimony is evidence that the Fladelands made improvements to the ranch even before Gudbranson purchased the property and the alleged option to purchase came into existence. Taken as a whole, the improvements, when considered with the other evidence presented at trial, are not consistent only with the alleged oral contract and do not unmistakably point to the existence of an option to purchase.

[¶ 13] In concluding the alleged contract was outside the statute of frauds, the trial court also relied on the Flade-lands’ assertion that they would be obligated to reimburse Gudbranson or the Trustees for the property taxes they paid. However, this alleged contract term does not indicate partial performance removing the oral contract from the statute of frauds.

[¶ 14] The alleged oral contract is not removed from the statute of frauds because there was not partial performance consistent only with the existence of the alleged contract. This situation is precisely the type of conflict sought to be avoided by the statute of frauds, and we are left with a definite and firm conviction the trial court erred in determining the alleged oral contract is removed from the statute of frauds.

[¶ 15] Accordingly, we reverse the district court judgment requiring the Trustees to convey the ranch to the Fladelands.

[¶ 16] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., and WILLIAM F. HODNY, S.J., concur.

[¶ 17] The Honorable WILLIAM F. HODNY, S. J., sitting in place of KAPSNER, J., disqualified.


text:
    2004 ND 119
    Rachel M. DIETZ, f/k/a Rachel M. Kautzman, Plaintiff and Appellee v. Robert A. KAUTZMAN, Defendant and Appellant.
    No. 20030361.
    Supreme Court of North Dakota.
    June 7, 2004.
    Rehearing Denied July 6, 2004.

      Steven A. Johnson, Vogel Law Firm, Fargo, ND, for plaintiff and appellee.

      Jonathan T. Garaas, Garaas Law Firm, Fargo, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Robert A. Kautzman appealed from an order imposing sanctions against him and his attorney, Jonathan Garaas and the Garaas Law Firm, for filing a frivolous motion and requiring them to pay Rachel M. Dietz $3,000 for attorney fees incurred by her in defending the motion. We hold the trial court did not abuse its discretion in imposing sanctions, and we affirm.

I.

[¶ 2] This case involves a divorce action which was initiated in 1995. This is the seventh appeal to this Court in a long line of litigation involving the trial court’s property division and award of spousal support to Dietz. This Court’s opinion in Kautzman v. Kautzman, 2003 ND 140, 668 N.W.2d 59 (Kautzman VI), provides a summary of the factual history of this case. We will recite here only those facts necessary to an understanding of our resolution of the dispositive issues on this appeal.

[¶ 3] Kautzman brought a motion, dated December 13, 2002, apparently filed on December 23, 2002, to vacate a bench warrant, to allow him to determine the allocation of bond proceeds to Dietz, and to declare that Dietz no longer had a right to enforce her equitable liens. On January 3, 2003, Dietz served Kautzman with notice of her intent to file a Rule 11 motion for sanctions against him for bringing a frivolous motion. When he brought the motion, Kautzman scheduled a hearing on it for January 14, 2003, and he did not attempt to delay or continue the hearing after he received notice of Dietz’s intent to request Rule 11 sanctions. After the hearing, the court entered an order on January 16, 2003 denying Kautzman’s motion. Dietz filed her motion for sanctions against Kautzman and his attorney on January 27, 2003. On February 4, 2003, Kautzman filed a notice of appeal from the court’s order of January 16, 2003. On February 14, 2003, the trial court held a hearing on Dietz’s motion for sanctions, and on March 3, 2003, the court entered an order postponing a decision on that motion until after this Court had ruled on Kautzman’s appeal from the order denying his December 13, 2002 motion. In Kautzman VI, at ¶ 30, this Court affirmed the trial court’s denial of Kautzman’s motion. On December 3, 2003, the trial court entered its order imposing sanctions against Kautzman and his attorney from which Kautzman has filed this appeal.

II. Safe Harbor Provision

A.

[¶ 4] Dietz filed her motion for sanctions under N.D.R.Civ.P. 11 and N.D.C.C. § 28-26-01(2), asserting Kautzman and his attorney brought the December 13, 2002, motion for the improper purposes of harassing her and causing unnecessary and needless increase in the cost of litigation. She also asserted the motion was not brought in good faith and that it was frivolous.

[¶ 5] Section 28-26-01(2), N.D.C.C., authorizes the award of reasonable actual and statutory costs, including reasonable attorney fees, for defending a frivolous claim. Matrix Properties Corp. v. TAG Investments, 2002 ND 86, ¶ 33, 644 N.W.2d 601, cert. denied, 537 U.S. 976, 123 S.Ct. 448, 154 L.Ed.2d 333 (2002). Similarly, N.D.R.Civ.P. 11 authorizes the court to impose sanctions against a party and his attorney if they violate any of the following provisions of that rule:

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,—
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or are reasonably based on a lack of information or belief.

Rule 11(c)(1)(A), N.D.R.Civ.P., requires that the motion for sanctions, brief,' and any other supporting papers “must be served ... but must not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” The rule also provides that the motion “must be made separately from other motions or requests and must describe the specific conduct alleged to violate” its provisions.

[¶ 6] Kautzman asserts Dietz is not entitled to sanctions under N.D.R.Civ.P. 11, because she did not afford Kautzman and his attorney 21 days to withdraw or correct the motion to avoid sanctions. The purpose of the 21-day safe harbor provision is to give an offending party the opportunity, after service of the motion for sanctions, to withdraw the offending motion or pleading and thereby escape sanctions. See Barber v. Miller, 146 F.3d 707, 710 (9th Cir.1998) (construing Fed.R.Civ.P. 11, which is substantially similar to our N.D.R.Civ.P. 11). Kautz-man asserts he was not given 21 days to withdraw, or correct his motion, because the hearing on his motion, and the trial court’s decision to deny the motion, occurred within 21 days after Kautzman was served with Dietz’s motion for sanctions.

[¶ 7] The United States Court of Appeals for the Fourth Circuit has held that the 21-day safe harbor provision is not jurisdictional and may be waived by the party to whom its protections are afforded. Rector v. Approved Federal Savings Bank, 265 F.3d 248, 253 (4th Cir.2001) (construing Fed.R.Civ.P. 11). Our rule is patterned after the federal rule, and the federal courts’ interpretations are, therefore, highly persuasive. See Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 27, 660 N.W.2d 558. We conclude that the protections of the safe harbor provision under Rule 11, like the protections under the federal rule, can be waived by the party to whom they are afforded., ■

[¶ 8] Dietz served her motion for sanctions upon Kautzman on January 3, 2003, and did not file the motion with the court until. January 27, 2003, which is after the 21-day period provided by N.D.R.Civ.P. 11, thereby affording Kautzman adequate time to withdraw or correct the objectionable motion. Instead, Kautzman made no objection to the hearing being held within the 21-day safe harbor period, nor did he ask for a continuance of the hearing so he could reconsider whether to withdraw or correct his motion. In its order awarding sanctions, the trial court specifically found that Kautzman “set the hearing,” for that time and there is nothing in this record which contradicts the court’s finding. Furthermore, after the trial court denied the motion, Kautzman filed an appeal from the trial court’s decision. By that action, Kautzman continued to advocate his claim rather than withdraw or correct it. Kautzman cannot continue to advance his objectionable motion within the safe harbor period and then object that he was not afforded 21 days to withdraw it. Under these circumstances, we conclude Kautz-man waived his right to the 21-day safe harbor period. By continuing to advocate his motion Kautzman waived the safe harbor protections and subjected himself to sanctions.

[¶ 9] Kautzman relies upon the reasoning in the case of Truelove v. Heath, 86 F.3d 1152 (4th Cir.1996), to support his position that the trial court’s dismissal of his motion within the 21-day safe harbor period precludes the court from awarding sanctions. In November 1994, Truelove filed a civil action alleging the defendants violated his constitutional rights by making false statements. On April 21, 1995, defendants Frank Meadows and Harry Ol-thoff sent Truelove a letter informing him that, under Fed.R.Civ.P. 11, he had 21 days to withdraw or dismiss his complaint, otherwise they would file a motion for sanctions. On May 2, 1995, within the 21-day safe harbor period, Meadows and Ol-thoff moved to dismiss Truelove’s civil action, and the federal district court granted the motion. On June 2, 1995 Meadows and Olthoff filed a motion for sanctions, which was granted by the district court. On appeal, Truelove asserted Meadows and Olthoffs motion did not satisfy the safe harbor provision under Fed.R.Civ.P. 11, because the case was dismissed before the 21-day period had expired. The Fourth Circuit Court of Appeals, in an unpublished opinion, agreed with Truelove and reversed the district court’s ■ order granting Meadows and Olthoffs motion for sanctions. We conclude the Truelove case is substantively distinguishable from this case.

[¶ 10] Meadows and Olthoff delayed serving Truelove with a motion for sanctions until five months after Truelove’s objectionable complaint was filed. Here, Dietz served her motion for sanctions upon Kautzman within three weeks after Kautz-man had filed his objectionable motion. Within the safe harbor period, Meadows and Olthoff moved the federal district court to dismiss the objectionable claim, and the court granted their request. After Truelove’s claim was dismissed within the 21-day safe harbor provision, Truelove did not appeal the dismissal or otherwise continue to advocate his claim. Here, Kautz-man set the hearing on his motion within the safe harbor period, and he neither objected to the hearing being held during the 21-day safe harbor period nor did he ask for a continuance of the hearing. Also, when the trial court denied Kautzman’s motion, Kautzman appealed from the trial court’s decision after the 21-day safe harbor period had run. Consequently, the facts of this case are substantively and legally distinguishable from the circumstances in Truelove. We conclude Kautz-man’s conduct constituted a waiver of his right to a 21-day safe harbor period under N.D.R.Civ.P. 11, because he continued to advocate and pursue his objectionable motion rather than withdraw or correct it.

B.

[¶ 11] Rule 11, N.D.R.Civ.P., requires that the person bringing a motion for sanctions do so separately from other motions or requests and that he describe the specific conduct alleged to violate the rule. Kautzman asserts Dietz did not adequately describe how Kautzman’s motion was frivolous, made in bad faith, or brought for improper purpose. We disagree.

[¶ 12] In her motion for sanctions, Dietz alleged that Kautzman’s December 13, 2002 motion was not brought in good faith and was not warranted by existing law or a non-frivolous argument for the extension of existing law and his motion was brought for the improper purposes of harassing her and causing unnecessary and needless increase in the cost of litigation. In her brief opposing Kautzman’s December 13, 2002, motion, Dietz specifically addressed why the issues raised by Kautzman in his motion were frivolous:

As he has done numerous times before in this ease, Robert has raised several frivolous and nonsensical arguments. Even more egregious is the fact that Robert continues to assert arguments that he has raised previously, often repeatedly, even though such arguments have been previously rejected by not only this Gourt but also by the North Dakota Supreme Court. For these reasons, Robert’s current motion must be rejected. ,

While Dietz’s allegations could have been more specific, we conclude that, the circumstances of this case, with its long convoluted history of litigation and appeals, Dietz’s motion adequately apprised Kautz-man of the reasons why his motion was frivolous and without proper purpose and why Dietz was seeking sanctions. The frivolous nature of Kautzman’s motion was apparent to any reasonable person, as it was to the trial court.

III. Sanction Merits

[¶ 13] Kautzman asserts his December 13, 2002, motion was made in good faith for proper purposes and was not frivolous.

[¶ 14] Dietz’s request for sanctions was brought under both N.D.R.Civ.P. 11 and N.D.C.C. § 28-26-01. Rule 11 requires a trial court to award sanctions against an attorney, or a represented party, or both, if the requirements of the rule are violated by them. See Williams v. State, 405 N.W.2d 615, 624 (N.D.1987). Section 28-26-01(2), N.D.C.C., allows the court, in its discretion, to award costs and attorney fees if a claim is determined to be frivolous. A claim is frivolous when there is such a complete absence of actual facts or law that a reasonable person could not have expected that a court would render judgment in his favor. Peterson v. Zerr, 477 N.W.2d 230, 236 (N.D.1991).

[¶ 15] An award of attorney fees under the statute lies within the sound discretion of the trial court and its determination will be disturbed on appeal only for an abuse of discretion. Matrix, 2002 ND 86, ¶ 35, 644 N.W.2d 601. Similarly, we will not distprb the trial court’s determination regarding .a request for sanctions under N.D.R.Civ.P. 11 unless the trial court has abused its discretion. See In re Estate of Dion, 2001 ND 53, ¶¶ 45-46, 623 N.W.2d 720. If there are any factual determinations relevant to the .sanction issue, we review the trial court’s findings under a clearly erroneous standard. See Napoleon Livestock Auction, Inc. v. Rohrich, 406 N.W.2d 346, 361 (N.D.1987).

[¶ 16] In concluding that sanctions were warranted in this case, the trial court made detailed findings in its order granting the motion:

In his Motion, [Kautzman] was arguing the position that [Kautzman] had the right to allocate the $150,000 payment of the supersedeas bond by Alerus Financial to his spousal support. However, case law, State Bank of Streeter v. Nester, 385 N.W.2d 95 (N.D.1986), directly addressed the particular question and was in direct opposition to [Kautzman’s] argument. [Kautzman] did not attempt to make a good faith argument that the existing law should be changed. [Kautz-man] also made arguments against the equitable liens [Dietz] was granted in property in previous Court Orders. This subject had previously been affirmed upon appeal. The arguments made by [Kautzman] and [Kautzman’s] attorney in [Kautzman’s] December 23rd, 2002 Motion were frivolous and without merit. No reasonable person would have thought a court would render any ruling in [Kautzman’s] favor. [Dietz] is entitled to costs and attorney’s fees pursuant to Section 28-26-01(2) of the North Dakota Century Code.
[Kautzman’s] December 23rd, 2002 filing also violates Rule 11 of the North Dakota Rules of Civil Procedure for the above-stated reasons_
The fact that [Kautzman] has continued to raise arguments that have previously been decided by this Court and by the Supreme Court does not support the fact that nothing will be deterred by the entry of an Order for Sanctions. [Kautzman] and his attorney have shown their lack of acceptance of prior court orders by filing a frivolous Motion. Sanctions at this time will hopefully deter this conduct in the future.
No legal contentions that were made “were warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law [or] the establishment of new law.” Therefore, monetary sanctions are appropriate against [Kautzman], a represented party. N.D.R.Civ.P. 11(c)(2)(A). Further, this Court believes that the December 23rd, 2002 Motion was made for an improper purpose, such as to cause delay and increase the costs of litigation. Monetary sanctions are also appropriate against [Kautzman’s] attorney, Jonathan Garaas as well as the Garaas Law Firm, N.D.R.Civ.P. 11(c), 11(c)(2).... Regardless if [Kautzman] is the impetus, [Kautzman’s] attorney is providing [Kautzman] a conduit with which to present these arguments to the Court. It shall not be tolerated. Monetary sanctions are appropriate, jointly and severally, against [Kautzman], Jonathan Garaas, and the Garaas Law Firm.

These findings by the court are supported by the record evidence and are not clearly erroneous. N.D.R.Civ.P. 52(a). We conclude the trial court did not abuse its discretion in imposing sanctions against Kautzman under N.D.R.Civ.P. 11 and N.D.C.C. § 28-26-01(2). We deem other issues raised by Kautzman in this appeal are without merit.

IV.

[¶ 17] Dietz has asked this Court to award her attorney fees for this and for her prior appeal on the ground that both appeals were frivolous. Under N.D.R.App.P. 38 this Court may award attorney fees upon finding that an appeal is frivolous. An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which evidences bad faith. Torgerson v. Torgerson, 2003 ND 150, ¶ 23, 669 N.W.2d 98. Dietz’s request for attorney fees for her prior appeal is not timely. In any event, we conclude these appeals are not so devoid of merit as to warrant an award of attorney fees. Consequently, Dietz’s request for an award of attorney fees under N.D.R.App.P. 38 is denied.

[¶ 18] The order imposing sanctions against Kautzman and his attorney, Jonathan Garaas and the Garaas Law Firm, is affirmed.

[¶ 19] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., and BENNY A. GRAFF, S.J., concur.

[¶ 20] The Honorable BENNY A. GRAFF, S.J., sitting in place of KAPSNER, J., disqualified.


author: KAPSNER, Justice.

text:
    2004 ND 120
    T.E J., Plaintiff and Appellant v. T.S. and L.R.S.-J., a minor child, by and through her guardian, T.S., Defendants and Appellees.
    No. 20030337.
    Supreme Court of North Dakota.
    June 16, 2004.

      Arnold V. Fleck, Fleck Law Office, Bismarck, ND, for plaintiff and appellant.

      Cynthia Wagner Goulet, Kelsch, Kelsch, Ruff & Kranda, Mandan, ND, for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] T.E.J. (“Ted”) appealed from a second amended judgment declaring him the biological father of L.R.S.-J. (“Lisa”), setting his child support obligation, and awarding visitation. We hold the trial court did not err in determining Ted’s child support obligation or in setting the visitation schedule, and we affirm.

I

[¶2] Ted and the child’s mother, T.S. (“Tina”), were never married but lived together for about nine years prior to Lisa’s birth on October 4, 1997, in the state of Washington. Tina moved with Lisa to Mandan, North Dakota in August 1999. After helping Tina and Lisa settle in Man-dan, Ted returned to Washington. Prior to March 1999, Ted worked at various jobs across the country as an engineering design consultant. However, after Lisa’s birth, Ted decided he did not want to continue to work the long hours required by his consulting jobs. He then started a business providing temporary employees to other businesses and also began operating a cherry orchard. Neither business has been profitable.

[¶ 3] Ted brought this paternity action on May 24, 2002. After a hearing, the trial court declared Ted to be Lisa’s biological father, set past and future child support, and awarded visitation.

II

A

[¶ 4] On appeal, Ted asserts the trial court erred in setting his child support arrears and his future support payments. Child support determinations involve questions of law subject to the de novo standard of review, findings of fact subject to the clearly erroneous standard of review, and may involve matters of discretion subject to an abuse of discretion standard of review. Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450. A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines established by the Department of Human Services. Id. Section 14-09-09.7(3), N.D.C.C., creates a rebuttable presumption the amount of child support resulting from application of the guidelines is the correct amount of child support. Longtine v. Yeado, 1997 ND 166, ¶ 7, 567 N.W.2d 819. The presumptive amount of child support is the scheduled amount, which is based upon the obligor’s monthly net income and the number of children for whom support is being sought. Id.

[¶ 5] Using Ted’s tax returns, and making certain deductions and adjustments required or allowed by the guidelines, the court separately determined Ted’s support arrears for the years 1999, 2000, and 2001. See N.D. Admin. Code § 75-02-04.1-01(7). The court also determined Ted’s future support obligation by imputing income to Ted under N.D. Admin. Code. § 75-02-04.1-07(9), because the court found Ted had voluntarily changed his employment, resulting in a reduced income which was not reflective of his earning capability.

[¶ 6] Relevant to determining Ted’s support obligation, the trial court made the following findings:

[Ted] made a voluntary change in his employment in 1999 which resulted in reduction of his income. He was formerly employed in a technical field, as an electrical engineer, for about 15 years. That occupation required [Ted] to periodically re-locate within the country, and to work long hours. In 1999, [Ted] chose to discontinue the pattern of taking positions as an electrical engineer which required periodic relocation, and to instead become involved in businesses which are not successful or which have failed, but which have required significant investments of his time and finan-, cial resources.

Ted concedes he and Tina jointly agreed after Lisa’s birth that Ted should not continue to work the long hours his electrical engineering design job required. Although Ted now argues he has not been able to find electrical engineering jobs, the record supports the trial court’s finding that Ted’s decision to stop working in electrical design and to instead take up self-employment was voluntary. We conclude the court’s finding that Ted voluntarily changed his employment is supported by the record and is not clearly erroneous.

B

[¶ 7] Ted , asserts the court erred in computing his child support arrears, because the court did not take into account the substantial losses Ted has incurred in his self-employed businesses, and, in particular, his cherry orchard. Under the guidelines, income includes “net income from self-employment.” N.D. Admin. Code § 75 — 02—04.1—01(5)(b). The guidelines define “net income from self-employment” to mean “total income,' for internal revenue service purposes,” with certain reductions. N.D. Admin. Code § 75-02-04.1-05(1). Torgerson v. Torgerson, 2003 ND 150, ¶ 15, 669 N.W.2d 98. However, under the guidelines, an obli-gor’s ability to pay child support is not determined solely upon actual income, but also takes into account the obligor’s earning capacity. Logan v. Bush, 2000 ND 203, ¶ 9, 621 N.W.2d 314.

[¶ 8] Generally, it is appropriate to establish child support arrears by using the obligor’s actual past annual income. In Interest of E.H., 1997 ND 101, ¶ 7, 564 N.W.2d 281. However, when there is a voluntary change in employment the guidelines specifically authorize the court, in its discretion, to impute income to the obligor. N.D. Admin. Code § 75-02-04.1-07(9); Logan, 2000 ND 203, ¶ 14, 621 N.W.2d 314. The court regarded Ted’s self-employed losses to be the result of Ted’s voluntary change of employment and not reflective of Ted’s earning capability. Courts do not operate in a vacuum in determining child support and must apply the guidelines using common sense in consideration of the circumstances. Minar v. Minar, 2001 ND 74, ¶ 20, 625 N.W.2d 518. Considering the circumstances here, and using, a common sense approach, the court computed Ted’s past child support, obligation for the years 1999, 2000, and 2001 based upon Ted’s actual income from all sources, but without deducting the self-employment losses, because those losses did not accurately reflect Ted’s earning capability. We conclude it was not' an abuse of discretion for the court to'refuse to deduct those losses from Ted’s other income in determining Ted’s child support arrears.

[¶ 9] The court determined that Ted had a support obligation of $830 per month for October through December 1999, for a total arrearage of $2,490, that he had a support obligation of $588 per month in the year 2000, for a total arrearage of $7,056, and that he had a support obligation of $427 per month for the year 2001, with a total arrearage of $5,124. We conclude the trial court’s determination of support for 1999, 2000, and 2001 is in accordance with the guidelines and is not clearly erroneous.

C

[¶ 10] Ted also asserts the trial court erred in using the standard deduction, exemptions, and tax tables for 2002 to determine Ted’s net income for the years 1999, 2000, and 2001, rather than using the standard deduction, exemptions, and tax tables for each of those years. Tina concedes the court used the 2002 tax tables but she argues this had a negligible impact on the court’s calculations. She asserts Ted offered to provide the court with the appropriate forms and numbers but did not do so.

[¶ 11] A court can judicially notice tax rates and tax tables. See Berg v. Ullman, 1998 ND 74, ¶ 23, 576 N.W.2d 218. However, absent any showing by Ted that the court’s use of the 2002 rates and tables for the years in question had an actual impact on the child support calculation, we conclude this is a de minimis error that does not justify reversal. See Halvorson v. Halvorson, 482 N.W.2d 869, 872 (N.D.1992).

D

[¶ 12] Ted asserts the trial court erred in determining his future support obligation by imputing income to Ted. Under N.D. Admin. Code § 75-02-04.1-07(9), the court may impute income to determine an obligor’s future support obligation when there is a voluntary change in employment:

Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed.

This provision authorizes the trial court to impute prior income of the obligor for the specified period if the obligor voluntarily leaves his job for a lower paying job. Harger v. Harger, 2002 ND 76, ¶ 12, 644 N.W.2d 182. The trial court specifically found that Ted voluntarily changed his employment in 1999 from engineering design work to operating his unprofitable self-employed businesses.

[¶ 13] Ted concedes that by 2005 he should realize profits of $40,000 or more from his self-employed business. Section 75-02-04.1-02(8), N.D. Admin. Code, provides:

Calculations made under this chapter are ordinarily based upon recent past circumstances because past circumstances are typically a reliable indicator of future circumstances, particularly circumstances concerning income. If circumstances that materially affect the child support obligation are very likely to change in the near future, consideration may be given to the likely future circumstances.

(Emphasis added).

[¶ 14] We conclude it was appropriate for the trial court to consider that Ted’s self-employment would become profitable in the near future. The court found that Ted’s 2002 reported income of $16,859 was not an accurate indicator of Ted’s earning capability. Consequently, the court utilized Ted’s 2001 income of $31,275 to compute Ted’s support obligation for 2002 and beyond. The guidelines unambiguously allow the court to impute, within the court’s discretion, “income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding.” The court found that Ted’s 2001 income, which was incurred within the 36-month time frame prior to commencement of the proceeding, most accurately reflected Ted’s earning capability. The court, therefore, imputed income to Ted for that 12-month .period as allowed by the guidelines to determine the support obligation going forward. Rather than impute Ted’s highest twelve consecutive months income during the relevant period, the court imputed the twelve consecutive months income which, in the court’s opinion, most closely reflected Ted’s future earning capability. We conclude the trial court did not, under the circumstances, abuse its discretion in applying N.D. Admin. Code § 75-02-04.1-07(9) and did not err in computing Ted’s support obligation to be $427 per month for the year 2002 and beyond.

E

[¶ 15] Ted asserts the court also erred in determining the support amount, because the court should have imputed only Ted’s “earnings” or “wages” and should not have considered other income received by Ted during 2001. We are not persuaded the court erred in making its computation. The court found that Ted’s total realized income for 2001 most accurately reflected his earning capacity going forward for purposes of determining his support obligation. His 2001 income, which the court utilized to determine Ted’s capability to pay future support, was $31,275. That income included $17,600 of wages or earnings, $6,866 of interest and dividend income, $943 of rent income, and $5,866 of unemployment benefits. Under the guidelines, net income is computed by first determining gross income, which is broadly defined to mean “income from any source, in any form.” N.D. Admin. Code § 75-02-04.1-01(5)(a). To determine the proper amount of support the court must determine net income “from all sources.” Hieb v. Hieb, 1997 ND 171, ¶ 7, 568 N.W.2d 598. We are not convinced the trial court erred in considering Ted’s 2001 income of $31,275 from all sources, to compute Ted’s support obligation for 2002 and beyond. The. court expressly found that in using this income figure to set the support obligation the court was “balancing [Ted’s] declining opportunities in his technical field and his apparent ability.” We find no error in the court’s determination.

. F' ■

[¶ 16] Ted also argues that the trial court erred in not giving him credit •toward his support obligation for jet skies he gave Tina to sell and for $2,500 he gave her to invest. Ted claims both items were supposed to be used toward child support, but Tina asserts those items were not given to her in partial satisfaction of Ted’s support obligation. The trial court implicitly found those items were not given by Ted to Tina as child support. That finding is not clearly erroneous, and we conclude the court did not err in refusing to credit those items .against Ted’s support obligation.

Ill

[¶ 17] Ted asserts the visitation set by the trial court is erroneous. The court awarded Ted a minimum of 40 days visitation with Lisa during the summer months of July and August. The court also awarded Ted up to seven consecutive days of visitation with Lisa in the fall and spring of each school year, but the court restricted those visitations to “the city where [Lisa] resides or at the place of [Ted’s] residence.” The court also scheduled visitation during Christmas break to be equally divided between the parties. In addition, the court awarded Ted weekend visitations with Lisa from 8:00 p.m. Friday until 8:00 p.m. Sunday, once each month in the city of Lisa’s residence. Ted asserts the court erred, because the visitation award is too limited and too restrictive.

[¶ 18] The trial court’s award of visitation is a finding of fact which will not be reversed on appeal unless it is clearly erroneous. K.L.G. v. S.L.N., 2001 ND 33, ¶ 9, 622 N.W.2d 232. When there is a long distance between the homes of the custodial and non-custodial parents, the court may provide less frequent, but extended, visitation periods to preserve the non-custodial parent’s ability to foster and develop a relationship with the child. Id. at ¶ 12. Under N.D.C.C. § 14-05-22(2), a court must grant such rights of visitation as will enable the non-custodial parent and child to maintain a parent-child relationship, and the court may restrict or deny this right only if visitation is likely to endanger the child’s physical or emotional health. See also Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332.

[¶ 19] In awarding visitation, the court stated that Ted “is a fit and proper person to have reasonable visitation rights with the parties’ child, which rights take into consideration the distance which the parties currently live apart; the age of the child; the school and school vacation schedules of the child; and the current work schedules of the parents.” The court did not, however, clearly indicate its rationale for restricting the location of the seven-day visitations in the spring and fall of each year. Consequently, under N.D.R.App.P. 35(a)(3), this Court temporarily remanded the case with instructions the trial court provide its rationale for the restriction. Upon remand, the trial court provided written explanation:

[Ted] and [Tina] do not communicate well with each other. It is difficult for them to agree on anything, and to the extent possible, I believed it would be in the best interest of the child to be very specific about visitation and how it should occur. [Ted] claims to have very limited resources, and so visits at the place of residence of one of the parties seemed to be the most reasonable way to have visitation accomplished.
[Ted] has demonstrated some poor judgment in planning for the child’s needs and age-appropriate visitation plans.

We acknowledge the trial court’s location restriction on the spring and fall visitations is an appropriate attempt by the trial court to facilitate visitations in a situation where Ted and Tina have poor communication and are not working to harmonize visitations in Lisa’s best interest. We conclude the trial court’s award of visitation in this case serves to preserve Ted’s capacity to foster and develop a relationship with Lisa and is not clearly erroneous.

IV

[¶ 20] Tina requests an award of attorney fees on appeal. In paternity actions a court, in its discretion, may award attorney fees if the parties have an agreement about the attorney fees or if a party has a frivolous claim. N.D.C.C. §§ 14-17-15 and 28-26-01; Lukenbill v. Fettig, 2001 ND 47, ¶ 15, 623 N.W.2d 7. Tina does not claim the parties have reached an agreement about attorney fees in this case and there is no assertion that Ted’s claims are frivolous. Consequently, the request for attorney fees on appeal is denied.

V

[¶ 21] We conclude the trial court’s award of child support is in accordance with the law and its award of visitation is not clearly erroneous. We, therefore, affirm the judgment, and costs are awarded to the appellees.

[¶ 22] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and WILLIAM: A. NEUMANN, JJ., and LAWRENCE A. LECLERC, District Judge, concur.

[¶ 23] The Honorable LAWRENCE A. LECLERC, District Judge, sitting in place of SANDSTROM, J., disqualified.

      . The names of the parties are pseudonyms.


author: KONENKAMP, Justice.

text:
    2004 SD 70
    In re Dorothy DAVIS, Bankruptcy Debtor.
    No. 22935.
    Supreme Court of South Dakota.
    Argued Feb. 18, 2004.
    Decided May 26, 2004.

      Lawrence E. Long, Attorney General, David D. Wiest, Assistant Attorney General, Pierre, South Dakota, Attorneys for Intervenor.
    James A. Craig, Sioux Falls, South Dakota, Attorney for Bankruptcy Debtor Dorothy Davis.
    John S. Lovald of Olinger, Lovald, MeCahren and Reimers, Pierre, South Dakota, Chapter 7 Bankruptcy Trustee.
   KONENKAMP, Justice.

[¶ 1.] The United States District Court for the District of South Dakota, the Honorable Lawrence L. Piersol, Chief Judge, certified two questions for this Court: (1) Whether the last sentence of SDCL 43-45-3(2) violates Article VI § 18 of the South Dakota Constitution. (2) Whether the last sentence of SDCL 43-45-3(2) violates Article XXI § 4 of the South Dakota Constitution. On the first question, we rule in the negative, but on the second question, we hold that because the last sentence of SDCL 43-45-3(2) fails to set a limit on the amount of a homestead exemption that may be claimed by persons seventy or older, it violates Article XXI § 4 of our Constitution.

Background

[¶ 2.] The debtor, Dorothy Davis, filed a Petition for Relief under Chapter 7 of the United States Bankruptcy Code. At the time, she was seventy-five years of age. Because she was over seventy, she sought a homestead exemption for the entire equity of her home. The value of the claimed exemption surpassed $30,000.

[¶ 3.] The bankruptcy trustee objected to this unlimited exemption on the ground that it violates the South Dakota Constitution. Specifically, the trustee questioned whether the last sentence of SDCL 43-45-3(2) violates either Article VI § 18 or Article XXI § 4 of the South Dakota Constitution. Because resolving these issues would have required a federal court to determine whether a South Dakota statute violated the South Dakota Constitution, the questions were certified to this Court for consideration.

Analysis and Decision

[¶ 4.] Homestead exemptions protect the security of the home and family against the claims of creditors. Speck v. Anderson, 318 N.W.2d 339, 343 (S.D.1982). This Court has always jealously guarded these exemptions guaranteed in both our Constitution and statutes. Id. Our primary duty is to our Constitution. Laws violating the Constitution cannot stand. We presume that statutes are constitutional unless shown otherwise beyond a reasonable doubt. Accounts Management, Inc. v. Williams, 484 N.W.2d 297, 299 (S.D.1992). If possible, we interpret statutes reasonably to find them constitutional and valid. State v. Krahwinkel, 2002 SD 160, ¶ 43, 656 N.W.2d 451, 466. The party asserting the unconstitutionality of a statute bears the burden of persuasion. Id.

I.

[¶ 5.] Question 1: Whether the last sentence of SDCL 43-45-3(2) violates Article VI § 18 of the South Dakota Constitution. The trustee argues that SDCL 43-45-3(2) violates Article VI § 18 of the South Dakota Constitution by creating two classes of debtors. Article VI § 18 provides:

No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.

“[W]hen a statute has been called into question because of an alleged denial of equal protection of the laws,” we employ our traditional two-part test. Accounts Management, 484 N.W.2d at 299-300. First, we determine whether the statute creates arbitrary classifications among citizens. City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331, 333 (1975). Second, if the classification does not involve a fundamental right or suspect group, we determine whether a rational relationship exists between a legitimate legislative purpose and the classifications created. Accounts Management, 484 N.W.2d at 300.

[¶ 6.] Homestead laws are designed to protect societal and familial interests centered on a secure home, by restricting the circumstances where a home may be taken for payment of debts. Gross v. Gross, 491 N.W.2d 751, 753 (S.D.1992); Kingman v. O’Callaghan, 4 S.D. 628, 637-38, 57 N.W. 912, 915 (1894). The final sentence in SDCL 43-45-3(2) grants an unlimited homestead exemption to those over the age of seventy. Effectively, then, the statute creates two distinct classes of debtors: those who have attained the age of seventy and those who have not.

[¶ 7.] Nonetheless, we cannot say that the Legislature’s creation of the separate classes was arbitrary. We consider such classifications arbitrary only if they were made “[w]ithout adequate determining principle.” Accounts Management, 484 N.W.2d at 300. As pointed out by Amicus Curiae, AARP, approximately 73,-000 of South Dakota’s citizens who are seventy years of age or older live outside of an institutionalized setting. Of these, nearly half have some disability. In addition, the income of elderly South Dakotans is significantly less 'than that of the general population. We believe that such obvious discrepancies between elderly South Dako-tans and all others provide an adequate “determining principle” upon which the Legislature may have deemed it appropriate to create the separate classifications. Therefore, SDCL 43-35-3(2) meets the first part of our test.

[¶ 8.] Under the second part, the State need only show that a rational relationship exists between the creation of the classifications and some legitimate state interest. Accounts Management, 484 N.W.2d at 300. Numerous courts have found that age classification promotes legitimate and rational state interests. See, e.g., Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) (higher welfare benefits); Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir.1974) (low income housing); Action Alliance for Senior Citizens of Greater Philadelphia v. Shapp, 400 F.Supp. 1208 (E.D.Pa.1975)(property tax relief); Ex parte Melof, 735 So.2d 1172 (Ala.1999) (tax exemption for state retirees); Kahn v. Thompson, 185 Ariz. 408, 916 P.2d 1124, 1128 (1995) (discounts at local businesses); Doran v. Cullerton, 51 Ill.2d 553, 283 N.E.2d 865 (1972) (homestead exemption for persons 65 and older); State ex rel. Harvey v. Morgan, 30 Wis.2d 1, 139 N.W.2d 585 (Wis.1966) (tax relief). In accord with the same principles, we believe public policies assisting older South Dako-tans to stay in their homes as they age is rationally related to a legitimate state interest.

[¶ 9.] The trustee cites as controlling our earlier decision in O’Leary v. Croghan, 42 S.D. 210, 173 N.W. 844 (1919). In O’Leary, this Court held that the Legislature’s attempt to create separate classes of debtors was not authorized by Article XXI § 4 of the Constitution and was “expressly prohibited by the provisions of [Article VI § 18].” 173 N.W. at 845. The Court reasoned that “[t]he discriminations that have been attempted by the Legislature may be wise and in the interest of the public at large, but until the Constitution has been changed the Legislature is without authority to make them.” Id. While the Constitution has not changed, our test for deciding when a statute violates the “Privileges and Immunities Clause” has. See City of Aberdeen, 89 S.D. 412, 233 N.W.2d 331. A strict reading of that clause is limited to matters involving suspect classes or fundamental rights. See Accounts Management, 484 N.W.2d at 300. Therefore, insofar as our opinion in O’Leary contradicts our conclusion here, it is overruled.

II.

[¶ 10.] Question 2: Whether the last sentence of SDCL 43-45-3(2) violates Article XXI § 4 of the South Dakota Constitution. Our constitutional provisions do not confer power upon the Legislature,rather they impose limitations on legislative authority. Breck v. Janklow, 2001 SD 28, ¶ 9, 623 N.W.2d 449, 454. As such, in determining the constitutionality of statute, our first task is to ascertain the limitations on legislative authority set down by our Constitution.

[¶ 11.] Article XXI § 4 of the South Dakota Constitution declares:

The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced sale a homestead, the value of which shall be limited and defined by law, to all heads of families, and a reasonable amount of personal property, the kind and value of which to be fixed by general laws.

[¶ 12.] We have not dealt directly with the question how the Constitution requires the Legislature to limit the value of a homestead exemption. However, this Court has determined that in regard to the personal property exemption, the Constitution mandates a monetary limit. In Skinner v. Holt, 9 S.D. 427, 69 N.W. 595, 597 (1896), this Court ruled that a legislative act, which provided that proceeds received by a debtor from a life insurance policy were exempt without limit from the payment of debts, violated Article XXI § 4 of the Constitution. Reasoning that an unlimited exemption “furnishe[d] no basis for computation or measure of value,” the Court held that such an unlimited exemption was “clearly repugnant to ... the [Constitution of this [S]tate.” Id.

[¶ 13.] The debtor points to our discussion in Hansen v. Hansen, 40 S.D. 114, 166 N.W. 427 (1918), as standing for the proposition that the Legislature need not impose a monetary.limit on the amount that may be exempted. This argument is unpersuasive. The issue presented in Hansen was whether, by statute, the Legislature had limited the value of a homestead, not whether our Constitution mandated that the value of a homestead exemption be limited. In concluding that our Constitution did not mandate a limit on the value of a homestead, the Hansen Court differentiated between a statute limiting and defining the value of a homestead with one limiting and defining the value of a homestead exemption. Id. The Court reasoned:

At first glance, this section appears to contain, or rather to recognize, a limitation on the value of the homestead. But such is not the case. [This section] does not purport to define or limit the homestead itself. It merely provides what portion, in value, of the homestead that has been created and defined by some other provision of law shall be exempt from levy or sale on execution. The mere fact that the law provides that the homestead, to the extent of $5,000 in value, shall be exempt from levy or sale on execution, does not necessarily imply that the homestead can in no case exceed $5,000 in value[.]

Id. at 428. It is important to note that the Court’s analysis focused on a statute, not on a constitutional provision. This holding merely recognized that the creation of a statute defining and limiting the amount of a homestead exemption in accord with constitutional mandate did not serve to redefine a homestead. Thus, the Court remarked that Article XXI § 4 is related only to homestead exemptions, not the creation, definition, or limitation of the homestead itself.

[¶ 14.] We also disagree with the debt- or’s assertion that “nothing in [the decision] suggests the Legislature [does not have] the power to set a dollar limit, or not, as it chooses, with respect to the homestead.” An ■ early member of this Court, Judge Samuel Polley, alluded to such a requirement- when he wrote, “[T]he most that can-be said for.-this provision of the Constitution is that it admonished the Legislature, in eases where the homestead, as it is defined and limited by [statute], exceeds a valuation to be fixed by the Legislature, to subject the portion thereof in excess of such valuation to the payment of the owner’s debts.” Id. Clearly, Judge Polley recognized that the provision imposed a requirement on the Legislature to set a limit on a claimed homestead exemption.

[¶ 15.] The debtor next. - argues that the Court, in- State v. Knudtson, 65 S.D. 547, 276 N.W. 150 (1937), rejected the precise argument presented by the trustee. The debtor’s reliance on that Court’s opinion is misplaced. The decision in Knudtson rested on an entirely separate constitutional provision dealing with taxation. As the Knudtson Court made clear, a constitutional amendment was adopted “abrogating] limitations contained in the Constitution upon the legislative power to exempt property from taxation.” Id. at 153. The Court succinctly held, “It is hardly necessary to state that the limitation upon exemptions contained in the constitutional provisions relating to homesteads has no reference to taxation.” Id. However, the opinion of the Knudtson Court does reveal that it .too recognized that the Legislature was constitutionally bound to set a, limit upon homestead exemptions. . In explaining the Hansen opinion, the- Court stated:

.The opinion recognizes that the part exempt from the claims of creditors is not “the whole homestead” referred- to in section 466; that section 2658 does not define or limit .the homestead itself, but merely provides what portion and value of the homestead created and defined by other provisions of law shall be exempt from levy or sale on execution; and that the constitutional mandate does not require a limitation upon the value of the homestead itself.

Id. at 152 (emphasis added). What constitutional mandate was the Court referring too? — the mandate that the , Legislature “provide[] what portion and value of the homestead ... shall be exempt- from levy or sale on execution[.]” Id.

[¶ 16.] The plain language of Article XXI § 4 and our early decisions point to the conclusion that the Legislature must limit that portion of a homestead which may be exempted from forced sale. However, both the State and the debtor argue that a homestead’s exemption value is already limited and defined by law. This argument is based on an interpretation that a monetary limitation is not required and, instead, that an area limitation suffices to limit the “value” of the exemption. Specifically, the debtor points to SDCL 43-31-1 through 43-31-4 as limiting the value of the homestead by limiting what may constitute a homestead. Those statutes provide:

SDCL 43-31-1:
The homestead of every family, resident in this state, as hereinafter defined, so long as it continues to possess the character of a homestead is exempt from judicial sale, from judgment lien, and from all mesne or final process from any court, to the extent and as provided in this code, except that a creditor or lien holder of a mobile home classified as a homestead under § 43-31-2 prior to January 1, 1973 shall not be cut off or subject to a homestead exemption. In addition, the homestead of a person seventy years of age or older and the unre-married surviving spouse of such person, so long as it continues to possess the character of a homestead, is exempt from sale for taxes.
SDCL 43-31-2:
The homestead must embrace the house used as a home by the owner thereof, being either, real property or a mobile home as hereinafter defined, and if he or she has two or more houses or mobile homes thus used at different times and places, such owner may select which he or she will retain as a homestead.
It must not embrace more than one dwelling house or any other buildings except such as are properly appurtenant to the homestead as such; but a shop, store, or other building situated on real property and really used or occupied by the owner in the prosecution of his own ordinary business may be deemed appurtenant to such homestead.
Mobile homes shall include any vehicle without motive power which can provide adequate, comfortable, all season quarters for the purpose of making a residence thereof and which vehicle is larger than two hundred forty square feet, measuring at the base thereof. Such mobile home must be registered in South Dakota at least six months prior to the claim of exemption.
SDCL 43-31-3:
The homestead may contain one or more lots or tracts of land with the buildings thereon and other appurtenances, subject to the limitations contained in this code, but must in no case embrace different lots and tracts unless they are contiguous, or unless the are habitually and in good faith used as part of the same homestead.
SDCL 43-31-4:
If within a town plat the homestead must not exceed one acre in extent, and if not within a town plat, it must not embrace in the aggregate more than one hundred sixty acres. If the homestead is claimed upon any land, the title or right of possession to which was acquired or claimed under the laws of the United States, relating to mineral lands, then the area of the homestead, if within a town plat, shall not exceed one acre, and if without a town plat it must not exceed forty acres, if title thereto has been acquired as a placer claim, but if the title has been acquired under the laws of Congress as a lode mining claim, the area of such homestead shall not exceed five acres.

[¶ 17.] The debtor argues that by enacting these provisions, the Legislature has sufficiently “limited and defined the value of the homestead.” While we agree that these provisions of South Dakota law limit and define a homestead, we do not believe that such provisions adequately set forth a limitation on the value of a homestead exemption. Our early precedent makes clear that those statutes serve only to limit what may constitute a homestead and do not necessarily limit what portion of the value of a homestead may be exempted; nevertheless, we need not rest on that authority. The record of the Constitutional Debates of 1885 reveals the delegates’ intent in regard to the constitutional provision at issue here.

[¶ 18.] During the Constitutional Debates of 1885, the delegates addressed the homestead provision. 1 Constitutional Debates, South Dakota, pp. 551-62 (1885). They debated about what sum might be placed within the provision. Id. At least some of the delegates felt that the provision should specify a monetary limitation. Id. Those delegates condemned as “repulsive” a similar exemption in Kansas that permitted an unlimited value. Id. at 554. They reasoned that citizens might use the provision as a means for discharging otherwise valid debts, thus, adversely affecting the credit of all South Dakotans. Id. at 554-55. One delegate urged, “Let us place these exemptions low, and force every man to be honest as far as we can.” Id. at 553. Some proposed that the homestead exemption be limited to $300. Id. at 559. Others, however, recognized the wisdom of placing the onus of the limitation squarely on the Legislature. Delegate Neill, of Grant County, thoughtfully asserted:

I think we are getting into the subject of legislation in this discussion of the minority report. We are here dealing with fundamental principles; the principle that is embodied in the majority report, it is necessary to put into the Constitution; we must trust something in the [L]egislature; they can certainly fix this satisfactorily to the temper of the people at the time they are elected.

Id. at 553. The delegate from Turner County also spoke of the prudence of deferring any determination on the amount of the exemption to the Legislature when he stated:

The majority of the Committee who framed this article for the Constitution had in view the article from Wisconsin, thinking it would answer the purpose for Dakota just as it would for Wisconsin.
It exempts simply the homestead, and leaves the [Legislature to determine its value; whatever they may determine is the reasonable value to place upon the homestead, it will so remain. We thought it was going too much into legislation for this Convention to fix that amount.
It also exempts a reasonable amount of personal property, it does not state the amount; we think the necessity for exemptions is liable to change at any time; what may be a reasonable exemption of personal property today in ten or twenty years from now may be very unreasonable. So it was thought better to leave this matter entirely to the [Legislature and let them fix the amount of the exemptions, real and personal; as they think the people demand. The [LJegislature comes directly from the people and they will know just exactly what they want.
We are of the opinion that this matter ought to be left entirely to the [Legislature.

Id. at 555. Ultimately, those urging that the Legislature be vested with the responsibility of setting the limit prevailed. However, the debates leave no question that the delegates contemplated that the Legislature would place a monetary limit on the exemption.

[¶ 19.] Having resolved the question whether our Constitution confers the responsibility on the Legislature to place a monetary limit on the amount of an exemption that may be claimed by a debtor in the affirmative, we next ascertain whether our Legislature has acted within the parameters set by the Constitution.

[¶ 20.] SDCL 43-45-3 provides:

A homestead:
(1) As defined and limited in chapter 43-31, is absolutely exempt; or
(2) In the event such homestead is sold under the provisions of chapter 21-19, or is sold by the owner voluntarily, the proceeds of such sale, not exceeding the sum of thirty thousand dollars, is absolutely exempt for a period of one year after the receipt of such proceeds by the owner. Such exemption shall not be limited to thirty thousand dollars for a homestead of a person seventy years of aye or older or the unremarried surviving spouse of such person so long as it continues to possess the character of a homestead.

(Emphasis added.) It is clear that the Legislature has fulfilled its constitutional mandate of establishing a homestead exemption limit for those citizens who are under the age of seventy.

[¶ 21.] At issue here, however, is whether the last sentence of the section violates that mandate. This sentence was added to the statute in 1980. We cannot reconcile the phrase “[s]uch exemption shall not be limited” with the constitutional requirement that the homestead exemption shall be “limited.” The language of the statute is incompatible. An exemption that “shall not be limited” is not “limited.” Therefore, we declare the statute unconstitutional insofar as it purports to confer an unlimited homestead exemption for those over seventy years of age. We also conclude that this sentence is entirely severa-ble from the remainder of the statute, and thus, only the last sentence is unconstitutional. See South Dakota Educ. Ass’n v. Barnett, 1998 SD 84, ¶ 33, 582 N.W.2d 386, 394.

[¶22.] Our decision does not, as the State suggests, “subvert[] the intent of the Legislature to provide a potentially broader homestead right to those over the age of seventy.” Clearly, the Legislature has broad and liberal discretion of setting the exemption limit. However, that discretion is not boundless. The Legislature simply must place a monetary value on that limit.

[¶ 23.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . Judge Deighton Corson was a delegate to both the 1885 and 1889 Constitutional conventions. He joined in the 1896 Skinner decision. It seems unlikely that had the constitutional conventions intended that no limit be set by the Legislature that he would have concurred only seven years later in Skinner.

        . As noted by the Court, at issue in Hansen were the following provisions of the political code:
      Section 3223:
      It [the homestead] may contain one or more lots or tracts of land with the buildings thereon and other appurtenances, subject to the limitations contained in the next section. ...
      Section 3224:
      If within a town plat it must not exceed one acre in extent, and if not within a town plat it must not embrace in the aggregate more than 160 acres....
      [S]ection 3215:
      The homestead of every family resident in this state, as hereinafter defined, to the extent of $5,000 in value, whether such homestead be owned by the husband or wife, so long as it continues to possess the character of a homestead, shall be exempt from judicial sale, from judgment lien, and from all mesne or final process from any court.... Hansen, 166 N.W. at 428.

      . The State points to our decision in Beck v. Lapsley, 1999 SD 49, 593 N.W.2d 410, as significant here. It is not. In Beck, the constitutionality of the statute was not in issue.