author: LARSON, Justice.

text:
    Brandy CONNER, Appellant, v. MENARD, INC., Appellee.
    No. 03-1248.
    Supreme Court of Iowa.
    Oct. 21, 2005.

      Jeffrey S. Carter, Des Moines, for appellant.
    Michael S. Roling of Peddicord, Wharton, Spencer & Hook, L.L.P., Des Moines, for appellee.
   LARSON, Justice.

Brandy Conner was injured when a bundle of insulation fell on her at a Menard, Inc. store in Ankeny. Conner sued Me-nard on a theory of premises liability, and the jury returned a verdict finding Conner twenty percent and Menard eighty percent at fault. The jury assessed damages of $281,000. On Menard’s posttrial motions, the court ordered a remittitur of $150,000. Conner appealed, based on the remittitur order, and Menard cross-appealed on the grounds the district court erred in certain evidence rulings and in submitting the case to the jury on both specific allegations of negligence and res ipsa loquitur. The court of appeals reversed on the last issue and remanded for a new trial; it did not address the evidence or damage issues. On further review, we affirm the decision of the court of appeals, reverse the judgment of the district court, and remand for a new trial.

I. Facts and Prior Proceedings.

On July 13, 1999, Brandy and her husband, Jody, bought some home insulation from Menard and drove to the rear of the store to load it into their pickup. A Me-nard employee climbed up a divider separating stacks of insulation estimated to be fifteen- to eighteen-feet high. Another employee asked the Conners to put down the tailgate and open- up the topper on their pickup so the insulation could be loaded. As the Conners were getting the pickup ready, Jody testified, “there was a loud noise, and then I just.... When I stepped back, I noticed that there was a bundle of insulation on top of my wife.” According to him, the insulation bundle weighed seventy-five to one hundred twenty-five pounds and fell fifteen to eighteen feet. Neither Brandy nor her husband actually saw the bundle fall.

The plaintiff sued Menard, alleging specific acts of negligence and general negligence, or res ipsa loquitur (res ipsa). She claimed past and future medical expenses, pain and suffering, loss of function, and loss of income and earning capacity.

On appeal we do not address the district court’s rulings . on evidence or damages because we agree with the court of appeals that the case must be reversed and retried because of the res ipsa issue.

III. Analysis.

“Res ipsa loquitur (Latin for ‘the thing speaks for itself) is a type of circumstantial evidence,” which permits á jury to circumstantially infer the cause of the injury “from the naked fact of injury, and then to superadd the further inference that this inferred cause proceeded from negligence.” Clinkscales v. Nelson Secs., Inc., 697 N.W.2d 836, 847 (Iowa 2005) (quoting Benedick v. Potts, 88 Md. 52, 40 A. 1067, 1069 (1898)). We have said that,

[i]f “there is no direct evidence to show cause of injury, and the circumstantial evidence indicates that the negligence of the defendant is the most plausible explanation for thé injury,” res ipsa' loqui-tur applies.

Brewster v. United States, 542 N.W.2d 524, 529 (Iowa 1996) (citation omitted). In Iowa plaintiffs are permitted to plead, and trial courts are permitted to consider, both specific negligence and res ipsa in some cases. Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 831 (Iowa 2000); Reilly v. Straub, 282 N.W.2d 688, 693-94 (Iowa 1979).

Our cases have been 'very circumspect in their application of res ipsa. For example, the doctrine does not apply if the instrumentality of injury is under the sequential, as opposed to the simultaneous, control of more than one defendant. Novak Heating & Air Conditioning v. Carrier Corp., 622 N.W.2d 495, 498-99 (Iowa 2001). Also, control must be established in the defendant at the time of the negligent act, which is not necessarily the time of injury. Weyerhaeuser, 620 N.W.2d at 832. Notably, as pertinent to this case, the doctrine does not apply when there is direct evidence as to. the precise cause of the injury and all of the facts and circumstances attending the occurrence. Reilly, 282 N.W.2d at 694. We have said this is because, when direct evidence is presented,

the underlying reason frequently advanced for application of the res ipsa doctrine is not present: ... the chief evidence of the true cause of plaintiffs injury is practically inaccessible to plaintiff but accessible to defendant.

Id.; see also Ruud v. Grimm, 252 Iowa 1266, 1273, 110 N.W.2d 321, 325 (1961) (“Where the precise cause of the injury clearly appears the [res ipsa loquitur ] rule is inapplicable.”); Eaves v. City of Ottumwa, 240 Iowa 956, 968, 38 N.W.2d 761, 768 (1949) (“Where the precise cause of the injury clearly appears or is beyond dispute, of course there is no room for inference and the res ipsa rule has no application.”). Relying on this general rule, Menard complains that giving both instructions gives a plaintiff “two bites at the apple.” The plaintiff responds that, if there is sufficient direct evidence as to the details of the incident to justify a plaintiffs verdict, the addition of a res ipsa instruction is merely harmless error.

In this case, Menard challenged the district court’s instruction on res ipsa on the ground that such an instruction was improper in view of the detailed evidence in the record regarding the specific cause of the accident. The plaintiff responded that this case fits into the category of cases in which both general and specific allegations of negligence may be submitted because the evidence of specific acts of negligence was not so clear as to preclude application of res ipsa. She points to testimony by a Menard employee that leaves some doubt about which of Menard’s employees was responsible for the insulation falling.

The trial court gave the res ipsa instruction, based on its reading of Reilly, reasoning that

the evidence ... while it does tend to show some specific acts of negligence or could be interpreted that way, I think it also leaves the door open to the possibility that the complete explanation of the occurrence cannot be presented or is not within the knowledge of the parties at this time. And so I think both of those are available under the evidence in this case, so I’m going to allow [the res ipsa instruction].

The Reilly case, relied on by the district court and both litigants on appeal, was a medical malpractice case arising out of the defendant’s alleged negligence in the delivery of a baby. Reilly, 282 N.W.2d at 689. The plaintiff introduced evidence of specific acts of negligence that allegedly caused the injury. The experts called by the parties disagreed on some of the details of the delivery. This court concluded that it was not fatal to a res ipsa theory that a plaintiff has also introduced evidence of specific acts of negligence. We stated:

[P]roof of the cause of an injury or loss will not necessarily avoid application of the res ipsa doctrine. Care should be taken to distinguish those situations in which evidence of the cause of an injury or loss is so strong and extensive as to leave nothing for inference and those which establish the cause but still raise only an inference as to defendant’s negligence.

Id. at 694 (citation omitted). In Reilly we approved the court’s submission of res ipsa, although we characterized the case as “a close one.” Id. at 695. We noted that, despite the fact that evidence of the dynamics of the child’s injury was overwhelming, the evidence failed “to pinpoint the precise cause of the injury and all of the facts and circumstances attending the occurrence.” Id. at 696.

The evidence presented at trial was undisputed. The plaintiffs husband, who witnessed the incident, testified that a Me-nard employee tried to pull insulation from the bottom of the pile. When this did not work, the employee (and possibly two employees) climbed up the side of a divider fifteen- to eighteen-feet tall. The husband testified that a bundle of insulation fell on the plaintiff, and in fact, he believed several fell. At least one employee was at the top of the pile at the time the insulation fell. A Menard employee testified that either he or a coemployee knocked the insulation loose. An employee’s incident report' succinctly summarized the event:

“Customer was in the outside yard. Employee was pulling ... insulation down. Insulation knocked customer down injuring neck....”

This evidence was accessible to the plaintiff and was “so strong and extensive as to leave nothing for inference.” Reilly, 282 N.W.2d at 694.

In this case, the court gave the res ipsa instruction over Menard’s objection that it was inapplicable in view of clear evidence of specific negligence. We review a decision by the trial court to give a challenged instruction for correction of errors at law. In re Estate of Hagedorn, 690 N.W.2d 84, 88 (Iowa 2004). However, error in giving a challenged instruction will not result in reversal unless the challenging party has been prejudiced by it. Id.

The facts of this case are reminiscent of law school and the famous case of Byrne v. Boadle, (1863) 2 H & C 722,159 Eng. Rep. 299 (Exch.), in which a flour barrel rolled out of an upstairs window and struck the plaintiff. In that case, the court stated:

[H]ere the evidence before the court was[] that the plaintiff and his wife were passing along the Scotland Road, in Liverpool, and when they were [close] against the defendant’s warehouse, the whole of which was in his occupation, used by him as a flour dealer, there came down suddenly upon the man a barrel of flour, and thus the accident occurred to the plaintiff of which he complained. This is one of those cases in which ... a presumption of negligence by defendant is raised, and it was for him, who had all the means of evidence and knowledge within his reach, to meet it. It having been shown that the defendant had the entire possession and exclusive use of this warehouse, it would be presumed that the accident arose from his want of care, unless he gave some explanation of the cause by which it was produced, which explanation the plaintiff could not be expected to give, not having the same means of knowledge.

Byrne, 2 H & C at —, 159 Eng. Rep. at —. While the facts of the present case closely resemble those in Byrne, our res ipsa law has evolved to be significantly different. The court in Byrne applied the res ipsa inference despite the fact it was clear that somebody in the owner’s employ was responsible for the barrel’s falling. This, according to the Byrne court, coupled with the defendant’s control of the premises, was sufficient to establish the inference. Id. at --. We do not propose that result here because it does not matter which of Menard’s employees caused the insulation to fall; it is sufficient that one of its employees was responsible and that the employer would be liable under principles of respondeat superior. Under our general rule, as discussed above, direct evidence of the essential elements of the claim precludes the res ipsa inference.

The plaintiff seeks to avoid the application of this general rule by contending that submitting res ipsa together with direct evidence of the details of the incident is merely harmless error. In other words, if there is enough direct evidence to support the finding of specific negligence, why worry about adding a res ipsa instruction? Apparently, none of our cases have elaborated on this argument, but we think the answer is suggested by the dissent in Reilly. In that case, the court had instructed the jury on both specific negligence and res ipsa. The jury expressed doubt about whether it would find specific negligence. Nevertheless, it found for the plaintiff, and we affirmed. Reilly, 282 N.W.2d at 689, 697.

The dissent, however, observed:

I dissent from Division I and from the result because under this record the case should not have been submitted to the jury on the doctrine of res ipsa loquitur. The majority passes this off by saying it was a “close issue.” Really there was no issue.
Any doubt about this was resolved by what happened during jury deliberations. The jury first returned a verdict saying it found for the plaintiff but “we find the defendant not guilty of negligence.”
In the face of that finding, it was improper to send the jury back to deliberate further. The only conclusion the jury could draw was that it should find negligence which, of course, it promptly did.
None of this would have occurred if the court, as it should have done, had refused to submit the res ipsa count.

Reilly, 282 N.W.2d at 697 (LeGrand, J., dissenting).

We reject Brandy’s harmless-error argument because, in a case like this, in which evidence of the “precise cause” of the injury is clear enough that a reasonable fact finder could find negligence but might choose not to, the addition of a res ipsa alternative is prejudicial. If the jury, on finding insufficient evidence of specific acts of negligence, were able to fall back on a res ipsa theory, this would in fact give the plaintiff two bites of the apple. In this case, we do not know the basis on which the jury assessed fault. The verdict simply found the plaintiff and defendant “at fault” twenty percent and eighty percent, respectively.

We agree with the court of appeals that the case must be remanded for a new trial.

DECISION OF COURT OF APPEALS AFFIRMED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED FOR NEW TRIAL.


source: Caselaw Access Project

author: SACKETT, C.J.

license: Public Domain

text:
    Kenneth Charles FENTON, Petitioner-Appellee, v. Tammie WEBB, Respondent-Appellant.
    No. 04-1138.
    Court of Appeals of Iowa.
    Aug. 17, 2005.

      Alexander Rhoads of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, for appellant.
    Theodore Sporer of Sporer & Ilic, P.C., Des Moines, for appellee.
    Considered by SACKETT, C.J., and MAHAN and ZIMMER, JJ.
   SACKETT, C.J.

Appellant Tammie Haas and appellee Kenneth Fenton are the parents of Rachel, who was born in February of 1990. Tammie assumed Rachel’s care after her birth. In 2003, Kenneth petitioned for primary physical care. In the course of the litigation, Tammie failed to comply with certain discovery requests and the district court found her in default and determined Kenneth should be Rachel’s primary physical custodian. Tammie challenges the finding of default and the custodial award on several grounds. We affirm the finding of default. We reverse the custodial award and remand to the district court to receive such evidence as is necessary to determine what is in Rachel’s interest. Affirmed in part, reversed in part, and remanded.

I. Background Facts and Proceedings. Tammie and Kenneth were never married. At the time of Rachel’s conception, both parties lived in Florida. Tammie still resides in Florida while Kenneth now lives in Iowa. Tammie has never lived in Iowa.

Since Rachel’s birth, Tammie and Kenneth have had little contact. In January of 1996, the Florida circuit court entered an order establishing Kenneth as Rachel’s legal father and entered an order requiring that he pay child support for Rachel. In December of 2002, Rachel was experiencing problems and Tammie and Kenneth agreed that Rachel should move to Iowa to live with Kenneth. Rachel enrolled in an Iowa school. Rachel returned to Florida in July 2003. In August 2003, Rachel was sent back to Iowa. Kenneth refused to return Rachel to Florida.

On October IB, 2003, Kenneth filed a petition contending Rachel had resided in Iowa for more than six months, and requesting she be placed in the parties’ joint legal custody and he be granted primary physical care. On October 17, he filed-a motion for a temporary restraining order and/or a temporary custodial order. He indicated he was not aware of Tammie’s address and that he had concern she would remove Rachel from his care. On December 17, 2003, Tammy, through Iowa counsel, filed a motion to dismiss the action and the temporary restraining order contending Iowa was not Rachel’s home state and the Iowa court lacked personal jurisdiction over her and her appearance was made pursuant to the Iowa Rules of Civil Procedure and Iowa Code section 598B.109 (2003) and was not a consent to the jurisdiction of the Iowa court.

The district court stayed all further proceedings until jurisdiction could be determined pursuant to chapter 598B (2003). On December 30, 2003, Tammie filed in this action an application for writ of habeas corpus contending the January 16, 1996 Florida order establishing Kenneth’s paternity and ordering him to pay support placed physical care and custody of Rachel with her and that Kenneth was unlawfully restraining the child. The writ was granted and the district court quashed the temporary restraining order. Kenneth filed an application for an interlocutory appeal with the Iowa Supreme Court. The court denied the application. Rachel then returned to Florida.

On January 16, 2004, the Iowa district court conferred with the Circuit Court in Lee County, Florida, on the issue of jurisdiction. One week later, the Iowa court found it had jurisdiction to determine the issue of Rachel’s custody. In a February 27 order addressing Rachel’s temporary physical care and visitation, the district court granted Tammie physical care of Rachel until June 1, 2004. Kenneth was then to be granted physical care. Kenneth was also granted one week of visitation with Rachel in March 2004. The court further ordered a custody evaluation be performed and set trial for July 27, 2004.

Kenneth served Tammie with discovery requests on February 4, 2004. On April 12, 2004, Kenneth filed a motion to compel Tammie to respond to discovery. The court granted the motion on May 18, 2004, ordered Tammie to respond within fourteen days, and assessed Tammie $300 in attorney fees. The order provided that further sanctions, including the entry of a default judgment, would be assessed if Tammie was not in compliance with the May 18 order. On June 8, 2004, Kenneth filed a motion for discovery sanctions contending Tammie had not responded to his discovery requests in the fourteen days allowed in the May 18 order, nor did she pay the $300 in attorney fees. He requested a hearing and asked that Tammie’s answer be stricken, he be awarded attorney fees incurred in attempting to obtain discovery responses, that the court order Tammie to return Rachel to Iowa within ten days, and that the attorney fees be paid within ten days. On June 8, 2004, the court ordered Kenneth’s motion for discovery sanctions to come on for hearing on June 15, 2004. The matter came on for hearing on that date. Kenneth appeared through counsel and Tammie’s counsel appeared telephonically. No written resistance was filed. Following the hearing, the court found Tammie failed to follow the court’s order of May 18, which required responses to outstanding discovery requests by June 1, and Tammie failed to provide any justifiable excuse for her failure to comply. That court further found Tammie had failed to provide Kenneth with visitation by June 1, 2004 as previously ordered. The court then ordered that Tammie should appear on June 22, 2004 with Rachel and provide complete responses, without objection, exception, or omission, to all outstanding discovery requests. The court further ordered that a default would be entered if Tammie failed to appear or comply with discovery and bring Rachel to Iowa. The court assessed an additional $480 in attorney fees against Tammie as a sanction. On June 15, 2004, the court ordered Tammie and Rachel to appear personally on June 22, pay all attorney fees ordered to date, and to provide complete discovery responses.

Tammie failed to personally appear on June 22, 2004. The district court held a hearing and filed an order for default and custody transfer. The court noted its June 15, 2004 order directed Tammie (1) to appear with Rachel, (2) to pay $1,100 in previously ordered attorney fees or show cause why she could not pay, and (3) to produce full and complete responses to outstanding discovery requests without exception. The court found Tammie did not appear individually or with Rachel, though the court was advised Rachel was in route to Iowa. The court found that while Tammie had produced discovery responses, they were not complete and omitted certain financial records and cellular telephone bills that Kenneth’s counsel indicated were important to the case. The court noted Tammie had been represented by counsel throughout the proceedings, that it did not appear Tammie’s noncompliance with May 18 and June 15 orders was the product of misunderstanding, compliance with the provision of the June 15 order was within her ability to control, and that her noncompliance was willful and done with the knowledge the sanction of default could result. The court struck Tammie’s answer and entered default against Tammie. The court then ordered Rachel be placed in the parties’ joint legal custody and in Kenneth’s primary physical care subject to her yet to be determined rights of visitation. The court further determined that the matter should proceed to trial on July 27 on issues of visitation, support, and attorney fees, custody having been adjudicated.

Tammie first contends the court erred in issuing a default child custody judgment as a discovery sanction because in doing so it did not consider the interests of Rachel.

To address this issue we need to consider two questions. The first question is whether the district court abused its discretion in finding Tammie in default and striking her answer. The second question is whether it was appropriate for the district court to make a determination of custody without evidence the determination made was in the child’s interest.

The district court did not abuse its discretion in finding Tammie in default and striking her answer as a discovery sanction pursuant to Iowa Rule of Civil Procedure 1.517(2)(6)(3). A district court’s order imposing discovery sanctions will not be disturbed unless the court abused its discretion. In re Marriage of Williams, 595 N.W.2d 126, 129 (Iowa 1999); Troendle v. Hanson, 570 N.W.2d 753, 755 (Iowa 1997). An abuse of discretion consists of a ruling which rests upon clearly untenable or unreasonable grounds. Williams, 595 N.W.2d at 129. “Because the sanctions of dismissal and default judgment preclude a trial on the merits, the range of the trial court’s discretion to impose such sanctions is narrow.” Id. In order to justify the sanction of default, a party’s noncompliance with a court’s discovery orders must be the result of willfulness, fault, or bad faith. Id. The entry of default judgments has been affirmed where a dilatory party has failed to provide discovery responses. Id. at 130; Aquadrill, Inc. v. Environmental Compliance Consulting Servs., Inc., 558 N.W.2d 391, 396 (Iowa 1997); Smiley v. Twin City Beef Co., 236 N.W.2d 356, 360 ' (Iowa 1975).

Tammie’s response to Kenneth’s discovery requests was due March 4, 2004. Kenneth granted her an extension of time to answer, which she still failed to do. Tammie was then ordered on May 18 to make “full and complete” responses within fourteen days. In that order, the court warned that “further sanctions, including entry of default judgment” would be forthcoming in the event of noncompliance. Tammie did not comply with this order. On June 15, the court granted Tammie “one last opportunity” to comply. It ordered Tammie to personally appear with Rachel on June 22, and to make “complete and full responses, without objection, exception or omission, to all outstanding discovery.” Tammie did not appear as required, and did not provide full discovery responses. Given Tammie’s willful noncompliance with the court’s orders, a finding she was in default and striking her answer was an appropriate sanction. See In re Marriage of Williams, 595 N.W.2d 126, 130 (Iowa 1999) (holding entry of default judgment appropriate sanction for willful noncompliance with discovery requests). We affirm on this issue.

However, the district court should not have proceeded to establish primary care without establishing a factual basis for the finding and a determination it was in Rachel’s interest. A child does not lose his or her rights because a parent fails to comply with court rules. See Flynn v. May, 157 Md.App. 389, 852 A.2d 963, 975 (Spec.App.2004). We conclude the court abused its discretion in granting Kenneth physical care of Rachel upon entry of the default judgment. There was no available evidence to support the custody change. Following the entry of default judgment, the court should not have determined custody without evidence to warrant the judgment, See Iowa R. Civ. P. 1.973(2). In this case, the court should , have entertained evidence relating to the best interest of the child. See In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct.App.1996) (“In child custody cases, the best interests of the child is the first and governing consideration.”) This may include the appointment of a guardian ad litem pursuant to Iowa Code section 598.12.

We affirm the district court’s entry of default judgment. We reverse the district court’s order granting Kenneth physical care of Rachel. We remand for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Though the Florida order made no provision for custody, Florida Statute 742.031(2) (1996) provides in relevant part:
      If a judgment of paternity contains no explicit award of custody, the establishment of a support obligation or of visitation rights in one parent shall be considered a judgment granting primary residential care and custody to the other parent without prejudice. If a paternity judgment contains no such provisions, custody shall be presumed to be with the mother.


text:
    In re the MARRIAGE OF Marilyn Kay KUPFERSCHMIDT and Scott Allen Kupferschmidt. Upon the Petition of Marilyn Kay Kupferschmidt, Petitioner-Appellant, and Concerning Scott Allen Kupferschmidt, Respondent-Appellee.
    No. 04-1177.
    Court of Appeals of Iowa.
    Sept. 14, 2005.

      Dennis Naughton of Naughton Law Firm, Marion, for appellant.
    Jennifer Clemens-Conlon of Clemens, Walters, Conlon & Meyer, P.C., Dubuque, for appellee.
    Considered by SACKETT, C.J., and MAHAN and MILLER, JJ.
   SACKETT, C.J.

Marilyn Kay Kupferschmidt appeals the district court’s modifications to the child support and college support provisions of the 2000 decree dissolving her marriage to Scott Alan Kupferschmidt. We affirm as modified.

A petition to modify a decree of dissolution of marriage is triable in equity. Our review, therefore, is de novo. In re Marriage of Sojka, 611 N.W.2d 503, 504 (Iowa 2000). A party who seeks a modification of a dissolution decree must establish by a preponderance of the evidence that there has been a substantial change in circumstances since the entry of the decree or its last modification. In re Marriage of Lee, 486 N.W.2d 302, 304 (Iowa 1992).

At the time of the parties’ dissolution the district court approved the parties’ stipulated decree. The lengthy and detailed decree placed primary physical care of the parties’ two children, Katie, born in August of 1985, and Alex, born in March of 1990, with Marilyn. Scott was ordered to pay child support for the children of $213 per week. Additional parts of the decree relevant to this appeal provided that (1) “When only one child is eligible for support, support shall be recalculated;” (2)

Scott shall be allowed to claim one of the children as a tax exemption on his state and federal income tax returns so long as he is paid current on the child support obligation for the tax year in question... .. When only one child qualifies, the exemption for the child shall be alternated;

(3) some $6,780 in Series EE U.S. savings bonds purchased by Scott and Marilyn were awarded to the children, but Scott’s name was to remain on them until the children reached nineteen years of age; and (4) both children had separate accounts held under the Uniform Transfers to Minors Act (UTMA) composed of funds invested by their parents. These accounts were awarded to the children with Marilyn to remain as custodian.

In December of 2003, Scott filed a petition for declaratory judgment and a petition to modify the dissolution decree. He asked the court to determine that the tax exemption for Alex be alternated between he and Marilyn in order to allow both the parties to benefit from the child tax credit associated with claiming this exemption. He further asked that the decree' be modified to reduce his child support obligation to support for only Alex in June of 2004, as Katie would have turned eighteen and graduated from high school by that time. Marilyn answered Scott’s petition contending the petition for declaratory judgment should be dismissed. She counterclaimed asking that a college support subsidy be established and that the court deviate from the child support guidelines and order Scott to pay additional child support for Alex.

A hearing was held, and on June 3, 2004, the district court modified the decree. Katie had reached eighteen and graduated from high school, so the court fixed child support.for Alex, the one remaining child, at $598.67 per month. Scott was given Alex’s income tax exemptions for 2003 and 2004 and after that time Alex’s exemption was to be alternated with Marilyn having the exemption in 2005. The court also made provision for a postsecondary education subsidy for Katie that involved utilizing the U.S. savings bonds and the fund that had been transferred to the children under the UTMA, over which Marilyn was trustee. Marilyn was given Katie’s income tax exemption for 2003 and 2004.

Child Support. Marilyn contends the child support award should not have been modified and/or was not correctly modified because (1) there was no change in circumstances, (2) the district court averaged Scott’s income in computing his income for purposes of applying the child support guidelines, (3) the district court did. not consider Scott’s earning capacity or history of his earnings in computing his income, and (4) there should have been a deviation from the guidelines because it is more expensive to raise Alex, a boy, than it had been to raise Katie, a girl.

We recognize, as Marilyn argues, that to modify child support one must establish by a preponderance of the evidence that there has been a substantial change in the circumstances of the parties since the entry of the decree. In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999).

Clearly when a child support award is based on two qualifying children and one no longer qualifies, there has been a substantial change in circumstances. Additionally, a substantial change exists where, as here, “the court order for child support varies by ten percent or more from the amount which would be due pursuant to the most current child support guidelines.... ” Iowa Code § 598.21(9) (2003). And even if that were not the case, the parties here agreed child support would be recalculated when only one child qualified for child support. There is no basis to Marilyn’s position that the child support award was not modifiable when Katie no longer qualified for child support. That said it appears Marilyn also argues that if the child support is modified, the parties’ incomes at the time of the dissolution decree should be used to establish the child support for Alex. She also makes the alternate argument that Scott’s income should be computed based on his 2003 earnings.

Before applying the guidelines there needs to be a determination of the net monthly income of the custodial and noncustodial parent at the time of the hearing. See In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991) (holding the court must determine the parents’ current income from the most reliable evidence presented); In re Marriage of Lalone, 469 N.W.2d 695, 696 (Iowa 1991) (holding that application of child support guidelines chart first involves determination of the net monthly income of each parent); In re Marriage of Miller, 475 N.W.2d 675, 678 (Iowa Ct.App.1991) (holding that the first step in using the child support guidelines is to arrive at “net monthly income”). Yet the translation of income to “net monthly income” as defined by the guidelines is not an exact science. See In re Marriage of Gaer, 476 N.W.2d 324, 329 (Iowa 1991); State ex rel. Dep’t Human Servs., v. Burt, 469 N.W.2d 669, 671 (Iowa 1991); In re Marriage of Cossel, 487 N.W.2d 679, 682 (Iowa Ct.App.1992).

At the time of the decree Scott’s income was $54,439, in 2000 it was $48,249, in 2001 it was $47,743, in 2002 it was $52,386, and in 2003 it was $55,792. The 2003 income included a $3,000 one-time signing bonus on a six-year contract. The district court averaged Scott’s income between the years of 2001 and 2003 and set his income at $51,174 for purposes of determining child support. Marilyn wants Scott’s income set at $54,439 (time of decree) or $55,792 (2003 income including the signing bonus). Marilyn contends the income of a wage-earner should not be averaged. We are inclined to agree with Marilyn that in most cases the income of a wage-earner with steady employment need not be averaged. See In re Marriage of Hagerla, 698 N.W.2d 329, 332 (Iowa Ct.App.2005). In Hagerla we found income averaging was not supported by the facts where the noncustodial father was employed at a wage and the fluctuations in his income were the result of earnings from prior employment, as distinguished from Scott’s situation where variations in income have come from the same long-term employment. Id. Since the time of the dissolution Scott has worked at the same hourly wage. He has at all times material had occasions to work overtime. Overtime pay was considered in fixing his initial child support obligation. However, the evidence of his income since that time shows his overtime pay is variable and he received a one-time bonus in 2003. In determining a parent’s income before applying the guidelines we look both to bonus income and overtime income.

Overtime Pay. Overtime wages are not excluded as income. In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992). Overtime wages are within the definition of gross income to be used in calculating net monthly income for child support purposes. Id. This conclusion does not necessarily mean, however, that a court must steadfastly adhere to the appropriate child support amount as determined by the guidelines using overtime pay if the amount results in injustice between the parties. Id. In circumstances where overtime pay appears to be an anomaly or is uncertain or speculative, a deviation from the child support guidelines may be appropriate. Id.; see also In re Marriage of Close, 478 N.W.2d 852, 854 (Iowa Ct.App.1991). Yet a parent’s child support- obligation should not be so burdensome that the parent is required to work overtime to satisfy it. Brown, 487 N.W.2d at 333. However, the district court must make a specific finding to that effect. Id.

Scott’s overtime has not been consistent and will not be consistent, and it is somewhat voluntary, although he testified he always takes it when available, as contrasted to Brown where the court in including overtime pay. found it-had been consistent and would be consistent and found no basis for deviation from the amount of child support specified by the guidelines. See id.

Bonus Income. In considering whether to include Scott’s one-time bonus in his income for the purpose of determining child support, we evaluate the situation to see if the amount paid was consistent from year ,to year. See In re Marriage of McCurnin, 681 N.W.2d 322, 329 (Iowa 2004); In re Marriage of Nelson, 570 N.W.2d 103,105 (Iowa 1997). If the bonus was consistent, the bonus is included in the gross income figure. McCurnin, 681 N.W.2d at 329. However, in the present case we are dealing with a one-time bonus, which in Nelson, 570 N.W.2d at 105, was not included in calculating guideline child support.

In a case where the employment contract of the parent makes overtime pay inconsistent and where the bonus income was a one-time occurrence, it is reasonable for the district court to calculate the parent’s income by averaging it over the term of the contract. “It is unrealistic and unfair to fix child support obligations based solely on the most recent periodic income amounts.” In re Marriage of Robbins, 510 N.W.2d 844, 846 (Iowa 1994). Scott’s income varies and is expected to vary. The translation of the income of a self-employed person or an employed person who has varying wages to a monthly “net income” is difficult. Cossel, 487 N.W.2d at 682. We also recognize the district court needs to be given some discretion in making computations. That said the district court did, contrary to Marilyn’s argument, consider Scott’s earnings, his earning capacity, and his earnings history.

In conclusion, we have considered Marilyn’s arguments as to why the income amounts considered by the district court were not correct and why the computation of Scott’s income made by the district court was not fair and equitable and we find no valid reason to modify the trial court determination of either Scott’s or Marilyn’s net monthly income. See In re Marriage of Crotty, 584 N.W.2d 714, 718 (Iowa Ct.App.1998). We affirm on this issue.

Deviation from Guidelines. Marilyn contends the district court abused its discretion in denying her request for an upward deviation from the guidelines. She supports her argument with evidence that car insurance is more expensive for a son than for a daughter.

The child support guidelines take into account the reasonable costs of living, including educational expenses, for dependent children. In re Marriage of Gordon, 540 N.W.2d 289, 292 (Iowa Ct.App.1995). Expenses for clothes, school supplies and recreation activities are considered under the guidelines, and a separate support order covering such expenses is improper absent a finding that the guidelines amount would be unjust or inappropriate.

Iowa Court Rule 9.11 provides:

The court shall not vary from the amount of child support which would result from application of the guidelines without a written finding that the guidelines would be unjust or inappropriate as determined under the following criteria:
(1) Substantial injustice would result to the payor, payee, or child.
(2) Adjustments are necessary to provide for the needs of the child and to do justice between the parties, payor, or payee under the special circumstances of the case....

Alex is a normal child with no mental or physical disabilities and no specific special needs. The guidelines are gender-neutral and make no provision for the court to determine, as Marilyn asks here, whether the cost to raise a son is more or less than the cost to raise a daughter. The district court did not abuse its discretion in refusing to deviate from the guidelines based on the gender of the child to be supported. The trial court properly applied the child support guidelines based on its determination of the income of the parties to be applied to the guidelines and the resulting guideline amount of child support ordered is presumptively correct. See Iowa Ct. R. 9.4. We affirm on this issue.

Marilyn next contends the district court should not have used the savings bonds purchased by her and Scott and the funds they transferred to the children under the UTMA to satisfy the responsibility she and Scott had to provide a postsecond-ary education subsidy. Marilyn contends the district court exceeded its jurisdiction in so doing. She contends the property is owned by the children and the district court took it from the children without process of law.

The district court found Scott, Marilyn, and the respective child are obligated to

contribute one-third of the total expense associated with an average of the three in-state university tuition expenses. This one-third amount shall be calculated per year based on tuition, computer fees, mandatory health fees, healthy facility fees, books and housing needs of the student.

The court then went on to determine that, what it referred to as the money that has been invested for the children’s education held in bonds and UTMA accounts, should be used over a four-year period and the parental contribution shall be calculated by dividing the total investment funds by four (for the annual contribution) and then by half (for each parent) and that money should annually be first used as the parent’s contribution. After that calculation has been made, the parents shall pay the balance, and the court directed how each parent’s contribution could be paid to the child or the institution. The court, in response to a motion filed pursuant to Iowa Rule of Civil Procedure 1.904, also provided that the Hope tax credit should be subtracted before the balance the parents are to pay is determined.

There was evidence the bonds were purchased and the UTMA transfers were setup for the purpose of helping the children pay for their college educations. We agree with Marilyn that the property belongs to the children and should not be taken from them absent constitutional safeguards. Consequently, we strike that part of the district court’s order that directs how the children’s funds should be spent. However, how the children’s money should be spent was not the issue before the district court nor is it the issue here. The district court was asked to determine what subsidy, if any, Scott and Marilyn should be ordered to pay for post-secondary education of their two children.

Iowa Code section 598.21(5A) does not demand but permits a court to order either party to a divorce to subsidize the postsec-ondary educational expenses of a child if good cause is shown. See also Iowa Code § 598.1(8). The child must be between eighteen and twenty-two years of age and either regularly attend vocational/technical training, be a full-time college student, or be “accepted for admission to a college” for the next regular term. Id. The subsidy payment is known as a “postsecondary education subsidy.” Id.

This obligation to support adult children is not imposed on parents still married to each other nor is it imposed on parents who have never married. See Johnson v. Louis, 654 N.W.2d 886, 891 (Iowa 2002). The educational benefit is a quid pro quo for the loss of stability resulting from divorce hardships. Id.

To determine if good cause exists for a postsecondary education subsidy, the court considers the child’s age, postsec-ondary educational ability, financial resources, and whether the child is self-sustaining. Iowa Code § 598.21(5A)(a). The court also considers “the financial condition of each parent.” Id. If good cause exists for a subsidy, the amount is then determined by apportioning between the parents the amount of the educational expenses the child cannot reasonably be expected to pay. Iowa Code § 598.21(5A)(a)(3).

The statute directs the court to first determine the “cost of postsecondary education based upon the cost of attending an in-state [undergraduate] public institution.” Iowa Code § 598.21(5A)(a)(l). The cost must “include the reasonable cost for only necessary postsecondary education expenses.” Id. After this cost component is determined, the court next determines the amount the child “may reasonably be expected to contribute” to the payment of the costs in light of the child’s financial resources. Iowa Code § 598.21(5A)(a)(2). In determining a child’s financial resources, the court considers “the availability of financial aid whether in the form of scholarships, grants, or student loans,” as well as “the ability of the child to earn income while attending school.” Id.

The subsidized amount subject to apportionment among the parents is then determined by subtracting the amount of the child’s expected contribution from the postsecondary education expenses. Iowa Code § 598.21(5A)(a)(3); In re Marriage of Vannausdle, 668 N.W.2d 885, 887 (Iowa 2003). However, an amount apportioned to a parent cannot exceed one-third of the total postsecondary education cost. Iowa Code § 598.21(5A)(a)(3).

The two accounts established by Scott and Marilyn are available to their children for purposes of financing the children’s postsecondary education and the evidence established Scott and Marilyn set the accounts up for that purpose. Consequently, it is only fair to consider this money as a resource available to the children, as the district court did, prior to determining the parents’ subsidy. See In re Marriage of Rosenfeld, 668 N.W.2d 840, 848 (Iowa 2003). To do otherwise would discourage parents from saving for the postsecondary education of their children through the use of bonds and transfer of assets under the UTMA. If the children choose, once they become of legal age, not to spend the money for postsecondary education contrary to their parents’ initial intent that is their privilege. But the children’s right to utilize the money for other purposes should not impose on their parents a larger subsidy. Rather, it is equitable to charge the child with having the funds available to use for postsecondary education in fashioning the educational subsidy. See Rosenfeld, 668 N.W.2d at 848. In Rosenfeld, the court asserted, where the father had provided funds for college under the UTMA, “it cannot be said ‘good cause’ under Iowa Code section 598.21(5A) exists for ordering Rosenfeld [father] to contribute more than he has already done in creating Natalie’s [daughter’s] accounts.” Id. at 846. We strike the provision of the decree directing payment from the children’s funds from their savings bonds and UTMA, modifying the decree to provide that the bonds and UTMA transfers shall be considered as assets available to the children and subtracted before computing the parents’ shares in the manner provided by the district court. We address the Hope tax credit in conjunction with the children’s tax exemptions below.

Marilyn also contends the district court abused it discretion in changing the exemptions for income tax purposes. The district court gave the exemption to Scott for Alex in 2003 and 2004 and then alternated Alex’s exemption, with Marilyn taking it in 2005. Marilyn was given Katie’s exemption in 2003 and 2004. She was then to get the Hope tax credit for Katie but, as set out above, it was applied before the parents’ subsidy was determined.

While under federal law the custodial parent is presumed to be entitled to claim the exemption for a child receiving child support, the Iowa Supreme Court has suggested that the federal government does not care who takes the exemption only that the exemption is taken by just one parent. In re Marriage of Rolek, 555 N.W.2d 675, 678-79 (Iowa 1996). The court consequently has determined that tax exemptions for children subject to child support may be allocated by the district court. Additionally, the supreme court has said that allocations of these tax exemptions, being directly related to child support, are subject to the general rules for modification of child support. Id. at 675; In re Marriage of Habben, 260 N.W.2d 401, 403 (Iowa 1977).

Marilyn contends the same position should not be taken with reference to adult children who are receiving a college subsidy. We are inclined to agree.

The legislature has made no provision in section 598.21(5A) for the allocation of tax exemptions or any other tax credits. See Johnson, 654 N.W.2d at 889 (where court looked to specific language of the statute in determining an illegitimate child was not subject to the subsidy). Furthermore, in determining child support, the Child Support Guidelines specifically provide for the consideration of a parent’s state and federal income tax liability. See Iowa Ct. R. 9.5. Consequently, the amount of child support ultimately owed under the guidelines is dependent on the allocation of tax exemptions and credits. Such is not the case with a college subsidy. Furthermore, in the situation with a minor child subject to child support, it generally is only a question of which parent is entitled to the child’s exemption. With an adult child the issue becomes more complex because the child’s own claim to the exemption and the Hope credit is also an issue. The postsec-ondary education subsidy has been carefully prescribed. It does not provide for the allocation of the tax exemptions of children subject to the subsidy. Furthermore, the record here is insufficient to determine an equitable allocation of the exemption and credit. Nor is Katie, who in order for her parents to claim the exemption and the credit would be required not to claim herself as an exemption, a party to this appeal.

We strike the provision for consideration of the Hope credit in determining the education subsidy. We strike the provision allocating Katie’s exemption and the accompanying Hope credit to Marilyn for the years 2003 and 2004. We provide Marilyn shall do what is necessary to see that Scott can claim Alex’s exemptions in 2003 and future odd-numbered years when Alex is yet subject to child support and Scott should do the same for Marilyn in 2004 and in even-numbered years when Alex is yet subject to child support.

Marilyn contends she should have been awarded attorney fees by the district court and asks for attorney fees on appeal. We review for an abuse of discretion. In re Marriage of Van Ryswyk, 492 N.W.2d 728 (Iowa Ct.App.1992). The district court did not abuse its discretion in not awarding her attorney fees, and no attorney fees are awarded to either party on appeal. Costs on appeal are taxed one-half to each party.

AFFIRMED AS MODIFIED.

      . The purpose of UTMA transfers is to provide for making gifts to minors and avoid establishing a guardianship or trust. See In re Marriage of Rosenfeld, 668 N.W.2d 840, 844 (Iowa 2003). When a transfer to a minor is made under the UTMA, the donor relinquishes his or her title to the property. See In re Marriage of Hoak, 364 N.W.2d 185, 189 (Iowa 1985). Once the gift is made, it is irrevocable. Rosenfeld, 668 N.W.2d at 844. Transfers under UTMA are made as a way to gift funds to a minor while giving discretion to a designated custodian to manage the funds. Id.

      . This finding is not challenged. (Footnote added.)

      . A transfer under UTMA is governed by Iowa Code section 565B.14(1) which provides:
      A custodian may deliver or pay to the minor or expend for the minor’s benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to:
      a. The duty or ability of the custodian personally or of any other person to support the minor; or
      b. Any other income or property of the minor which may be applicable or available for that purpose.
      Iowa Code § 565B.14(1) (1999). The custodians of a transfer under UTMA may use their discretion to make expenditures on behalf of the minor. Rosenfeld, 668 N.W.2d at 844. Neither the simple creation of an UTMA account, nor the parents' educational intent in creating the account, transforms the UTMA account into a trust. Id. Testimony at trial assuring the court that the parent had taken financial measures to assure the children's educations does not elevate the UTMA accounts to a trust. Id.

      . There is a five-part test for determining whether a person can be counted as a dependent on a taxpayer's return. Internal Revenue Serv., Dep’t of the Treasury, Your Federal Income Tax (Publication 17) 29 (2004); see also 26 U.S.C. §§ 151-152 (2003). In order for a taxpayer to claim a person a dependent, the IRS, in its publication Your Federal Income Tax, advises that all of the following dependency tests must be met:
      1)Member of Household or Relationship Test. At least one of the following must be true:
      The dependent lived with the taxpayer for the entire year as a member of the taxpayer's household, except for temporary absences. Temporary absences include attending school, taking vacations, business trips, military service, and hospital stays; or the dependent is related to the taxpayer in one of the following ways: child, parent, brother/sister, stepparent, stepchild, stepbrother/stepsister, half brother/half sister, grandparent, grandchild, son-in-law/daughter-in-law, mother-in-law/father-in-law, brother-in-law/sister-in-law.
      2) Citizen or Resident Test. The dependent must be, for some part of the year, a U.S. citizen or resident, or a resident of Canada or Mexico. Foreign students who stay with you as part of an international education exchange program generally do not qualify as dependents.
      3) Joint Return Test. The dependent must be unmarried, married but not filing a joint return, or married filing a joint return only to claim a refund of withheld tax (neither the dependent nor spouse may claim personal exemptions on the joint return).
      4) Gross Income Test. The gross taxable income of the dependent may not exceed the exemption amount. In 2004 the exemption amount was $3,100. This test does not apply if the dependent is a child of the taxpayer and either under age nineteen at the end of the year, or a full-time student under age twenty-four at the end of the year.
      5) Support Test (for divorced parents).
      General rule — parent with custody for the greater part of the year is generally treated as the supporting parent; it doesn't matter whether the custodial parent actually provided more than half of the child’s financial support.
      Written declaration — the custodial parent, by use of IRS Form 8332 (or a similar statement with the required information), may release the dependent child exemption to the non-custodial parent. The exemption may be released for a single year or for a number of specified years (i.e. alternating years).

      . In general, a parent can take credits for dependent students. 33 Am. Jur. 2d Federal Taxation § 1533, at 617-18 (2005). However, if the student is not claimed as dependent only the student can claim the credits. Id. For the Hope credit, the taxpayer can take a credit of up to $1500 for qualified educational expenses (tuition and fees) of each student where the student is enrolled in a program that leads to degree, certificate or other recognized education credential and the student is taking at least one-half of a normal full-time workload. 33 Am. Jur. 2d Federal Taxation § 1526, at 616 (2005).

      . Rule 9.5 provides in part:
      In the guidelines the term "net monthly income" means gross monthly income less deductions for the following:
      (1) Federal income tax (calculated pursuant to the guideline method).
      (2) State income tax (calculated pursuant to the guidelines method).

      . There maybe situations where the record is such that the court should consider the credit as the amount the child may reasonably be expected to contribute pursuant to section 598.21(5A)(a)(2). However, the record here is insufficient for us to consider this issue.

      .Whether this can be accomplished by amended tax returns is not clear. If it cannot the parties should determine what taxes would have been under the modified order and compensate each other.


author: Sam Hanson Associate Justice

text:
    STATE of Minnesota, Appellant, v. Duane Nathaniel BARKER, Respondent.
    No. A04-1453.
    Supreme Court of Minnesota.
    Sept. 29, 2005.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the sentence of 36 months in prison for fifth-degree possession of a controlled substance while possessing a firearm in violation of Minn.Stat. § 152.025, subd. 2(1), 3(a) (2002) and Minn.Stat. § 609.11, subd. 5 (2002) be, and the same is, vacated and the case is remanded to the district court for imposition of the presumptive sentence for violation of section 152.025, subd. 2(1) and 3(a). A written opinion will follow.

IT IS FURTHER ORDERED that the Clerk of Appellate Courts shall immediately enter judgment.

BY THE COURT:

Sam Hanson Associate Justice


author: /s/Kathleen A. Blatz Chief Justice

text:
    Gary R. MEYER, Relator, v. GEORGE F. COOK CONSTRUCTION COMPANY, and State Fund Mutual Insurance Company, Respondents, and Gresser Concrete, and Liberty Mutual Insurance Company, Respondents, and Stellar Concrete & Masonry, and Lumbermen’s Underwriting Alliance, Respondents.
    No. A05-1475.
    Supreme Court of Minnesota.
    Oct. 31, 2005.
    Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for Relator.
    Kim D. Amundson, Lynn, Scharfenberg & Associates, Minneapolis, MN, for Respondent Cook and State Fund Mutual Insurance Company.
    Ross K. Menk, The Law Offices of Powell & Robinson, St. Paul, MN, for Respondent Gresser and Liberty Mutual Insurance Company.
    Julie A. Williams, Law Office of Elizabeth Holden Hill, P.A., Minnetonka, MN, for Respondent Stellar.
   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 June 27, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/Kathleen A. Blatz Chief Justice


author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Susan Rae BERKOVITZ, Appellant.
    No. A04-1722.
    Supreme Court of Minnesota.
    Nov. 3, 2005.

      John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

In September 2003, appellant Susan Rae Berkovitz shot and killed Shelley Joseph-Kordell and wounded Richard Hendrick-son. On May 4, 2004, after a trial, a jury found Berkovitz guilty of first-degree premeditated murder and attempted first-degree premeditated murder. Berkovitz filed a motion for a new trial, arguing her lawyers had coerced her into not testifying at the trial. The trial court denied the motion, finding Berkovitz’s lawyers gave her “strong” and “unequivocal” advice without using any “intimidating, high pressure, unduly persuasive words.”

On appeal, Berkovitz argues the trial court erred in denying her motion for a new trial. Berkovitz additionally claims in her pro se supplemental brief that she was not informed of her Miranda rights, that the court erroneously denied her motion to change venue, and that her trial counsel provided ineffective assistance of counsel by failing to prepare her for the trial and by not submitting her request for a substitution of the trial judge. We affirm.

Testimony at trial revealed the following. Berkovitz is the youngest of three children born to Hyman and Anna Berko-vitz. The couple’s other two children are Sherilee Feldman and Robert Berkovitz. Hyman and Anna began living in St. Paul in 1955. In 1997, Feldman and Robert Berkovitz arranged for Feldman to assume power of attorney over Hyman’s estate after Hyman began exhibiting signs of dementia. They did not inform Berkovitz because they were concerned about her reaction. In November 1997, Hyman granted Feldman the primary power of attorney and Robert Berkovitz the secondary power of attorney.

In 1999, Hyman added a codicil to his will that increased Berkovitz’s share of his estate as a secondary beneficiary from 25% to 40%. In addition to the codicil, Hyman also created a spend-down account in which money was gifted to Feldman and Robert Berkovitz to pay for some of Hy-man’s future expenses. Berkovitz, however, was not made aware of the spend-down account.

In May 1999, Berkovitz, who had been living with Hyman and Anna until July 1998, moved back to their house. In July 1999, Feldman and Robert Berkovitz moved Hyman and Anna into an apartment for senior citizens. Berkovitz was not informed of the move until shortly before it took place. Although informed that she could remain in the house until it was sold, Berkovitz became angry and contacted the Ramsey County Adult Protection Agency and reported that Feldman was abusing Hyman and Anna and was forcing them to move against their will. She also reported Feldman to the police. As a result, the police contacted Anna, who informed them that the move was voluntary.

At about the same time, Berkovitz learned that Hyman had granted Feldman his power of attorney. In August 2000, Berkovitz filed a petition for appointment of general conservator, seeking to become Hyman and his estate’s conservator. In September 2000, Anna filed an objection to Berkovitz’s conservatorship petition, stating that Berkovitz had “constantly harassed” family members and should not be granted the conservatorship. Anna subsequently requested and obtained a harassment restraining order against Ber-kovitz. To oppose the petition, Feldman and Robert Berkovitz hired attorney Richard Hendrickson to represent them in the proceedings. In December 2000, before Berkovitz’s petition was resolved, Hendrickson notified Berkovitz that she had to vacate Hyman and Anna’s house by the end of March 2001. Berkovitz refused to move, and Hendrickson filed an unlawful detainer against her. After a hearing, the district court ordered Berko-vitz to vacate the house.

In June 2001, a hearing was held on Berkovitz’s petition. After the hearing, the court found Hyman to be an “incapacitated person” and appointed Anna and Estates in Transition, Inc., a Minnesota corporation that provided services to elderly persons and was owned and managed by Hyman and Anna’s niece, Shelley Joseph-Kordell, as co-conservators of Hyman’s person. Estates in Transition was appointed as the sole conservator of Hyman’s estate. In its order, the court limited Berkovitz to supervised visits with Hyman under conditions to be determined by Estates in Transition.

Angry about the outcome of the conser-vatorship proceedings, Berkovitz filed several unsuccessful petitions to challenge the conditions of her visitation and the management of Hyman’s estate. Berkovitz focused her anger on Joseph-Kordell and Hendrickson, who had become counsel for Estates in Transition. Berkovitz subsequently made a number of unsuccessful complaints to various authorities about Joseph-Kordell and Hendrickson. As time passed, the relationship between Berkovitz and her family deteriorated to the point that, in April 2002, Anna sought another restraining order against Berkovitz.

At some point, Anna decided that she and Hyman should move to California and, in July 2002, Hyman and Anna moved to an assisted living facility in Los Angeles. When Berkovitz realized that Anna and Hyman had left Minnesota, she filed a petition to compel Hyman’s return. That petition was denied by a Minnesota district court. At the same time the court declared Berkovitz to be a frivolous litigant. As a result, the court required Berkovitz’s future communication with the court and the Probate Court Administrative Office to be in writing and barred Berkovitz from entering the Probate Court Administrative Office. In January 2003, the court heard and granted Joseph-Kordell and Hen-drickson’s petitions to prohibit Berkovitz from directly communicating with them. The court then ordered Berkovitz to only communicate with Joseph-Kordell and Hendrickson through an attorney. In April 2003, Anna, Feldman, and Robert Berkovitz transferred Hyman’s conserva-torship to California, and Feldman became the conservator for Hyman’s person and estate. On July 1, 2003, Hyman died at the age of 95.

On September 3, 2003, Berkovitz filed a harassment petition against Joseph-Kor-dell and Hendrickson, and the district court set a hearing for September 29, 2003. On the morning of the 29th, Joseph-Kordell and Hendrickson met at the Hennepin County Government Center’s information desk at about 9:30 a.m. Hen-drickson asked for security, and Michael Frost, an unarmed security guard at the government center, escorted Joseph-Kor-dell and Hendrickson to the 17th floor of the building.

After arriving at the 17th floor, Hen-drickson noticed that Berkovitz was standing in the hallway outside the courtroom. After Joseph-Kordell and Hendrickson checked in with a clerk at the district court administrative office, Joseph-Kordell indicated that she needed to use the restroom and asked Frost to escort her and not let anyone into the restroom while she was using it. She told Frost that the person she was concerned with was outside the courtroom but did not specifically identify Berkovitz. Hendrickson remained in the reception area, planning to serve Berkovitz with documents related to a pending motion to have the district court declare Ber-kovitz a frivolous litigant and to place further restrictions on her. As Hendrickson was kneeling - to get documents from his briefcase, he heard a crack and felt as if his neck was hit by a baseball bat. Hen-drickson spun around, landed on his right-hand side, and felt blood running down his shoulder. Hendrickson then saw Berko-vitz walking away from him carrying a gun. Hendrickson began repeating, “My name is Richard Hendrickson, I have just been shot by Susan Berkovitz.”

Frost was waiting outside of the restroom when he heard what sounded like a “firecracker.” Frost looked around and saw Berkovitz walking towards him holding a gun in her right hand. Unaware that Berkovitz was connected to Joseph-Feldman and Hendrickson, Frost took cover and went to notify the sheriffs department, which was located in the building. As he did so, he saw Berkovitz walk into the restroom and he heard four shots.

Shortly after the shooting, Minneapolis Police Officer Timothy Callahan entered the restroom with two other officers and immediately noticed a gun lying on the floor. The officers then found Joseph-Kordell lying in a stall, bleeding and moaning. After the paramedics placed Joseph-Kordell on a stretcher, she told Callahan that Berkovitz had shot her. Joseph-Kor-dell later died at the hospital from multiple gunshot wounds. Hendrickson survived, but his left vocal cord was paralyzed.

Minneapolis Police Officer David Shot-ley found Berkovitz standing in a women’s restroom on the other side of the government center. Officer Shotley asked Berkovitz if she was the shooter, and Berkovitz responded “yes.” Berko-vitz also stated that she had left the gun in the other women’s restroom. Officer Shotley later took Berkovitz into .the hallway and sat her on a bench, and Berko-vitz told him, “They have been taking Dad’s money for the last three years.” Officer Shotley informed Berkovitz that he only needed her identification information and that she could speak to investigators later.

Shortly after, the police took Berkovitz into a secure room for interrogation. While in the room, a police investigator informed Berkovitz of her Miranda rights, and Berkovitz stated that she would not discuss the shooting until she talked to an attorney. Later, however, Berkovitz started to volunteer information about the shooting. A police detective reminded Berkovitz that she had invoked her right to counsel and that he could not talk to her alone. Berkovitz acknowledged that she understood, but continued to talk at length about the shooting. Her statements were recorded by a video camera that was in the room. On the recording, Berkovitz stated that she “had money before all this happened.” According to Berkovitz, she . took care of her parents over the years, but her siblings “took everything.” Berkovitz stated that she had initially trusted Joseph-Kordell, but Joseph-Kordell turned against her and worked with Feldman to steal money from the estate and that Hen-drickson caused her to be evicted from her parents’ house and harassed her by continuously filing cases and motions ¿gainst her. Berkovitz stated that Hendrickson was “real intimidating” and that she became “really upset with what they did.” Berkovitz further explained that “there was a gun show last summer and I went and I looked, and I never before handled one and I did some target practicing and I — I, um — this is — this really upset me, what they did.” Berkovitz also stated that, “Well, he’s not going to take Daddy’s money any more, they’re not.”

The grand jury returned a two-count indictment against Berkovitz, charging her with the premeditated first-degree murder of Joseph-Kordell and the attempted premeditated first-degree murder of Hen-drickson. The trial court appointed Assistant Hennepin County Public Defenders Diana Lugo and Daniel Homstad (collectively, trial counsel) to represent' Berko-vitz. - '

Berkovitz’s trial began on April 12, 2004, and, on April. 20, during voir dire, Berko-vitz’s trial counsel filed a motion for a competency evaluation, claiming Berkovitz lacked the ability to understand and consult with them and was incapable of participating in her .defense. The district court granted the motion and a competency hearing was held.■■ In finding Berkovitz competent to stand trial, the trial court observed that Berkovitz had spoken in court several times and had a desire to tell the jury her story. The court commented that “when you really think about it, that is just tough because the lawyers have to give her the best advice [that is, to not to testify],” but, “if she wants to take the stand and tell the story after they told her the consequence of it, then she has a right to do it.”

During trial, Berkovitz met with her lawyers at least twice to discuss the possibility of her testifying. Those meetings occurred on April 17 .and May 2, 2004. During both of those meetings, her lawyers advised Berkovitz that she should not testify. They made it clear to her that in their view if she did testify she would be convicted. After these two meetings, Ber-kovitz decided that she would not testify. When the state rested its case, the trial court addressed Berkovitz and explained to her that whether or not she testified was her decision. Specifically, the following exchange took place:

•THE COURT: The other choice you have is to testify. And if you decide to do that your lawyer would call you as a witnesSj you would be placed under oath as all of the other witnesses have here in the trial, your lawyer would ask you questions and when he finished, [the prosecutor] could cross examine you just as your lawyers have been able to cross examine the witnesses that he had. So that is one of your choices and that is to take the stand and testify.
One of the things' you should completely understand about that is that the choicé to testify and the choice not to testify is your personal decision. It is not your lawyers’ decision. It is your decision. Now, I counsel you and I advise you to consult with your lawyers about that choice and to listen carefully to what they have to say.
They are experienced in the defense of criminal matters. And I would ask them, I would say, “Counsel, what are the advantages of remaining silent? And what are the disadvantages?” And there are advantages and disadvantages in both. [I would also ask,] “Counsel, what are the advantages of testifying? What are the disadvantages of testifying?” And there are advantages and disadvantages of both. And I would listen carefully to what they had to say. I’d give what they had to say great weight.
But in the last analysis it is your decision, not theirs. And even if they advise you to testify and you don’t want to testify, you don’t have to. And if they advise you not to testify and you want to testify, you can. The decision is yours. I repeat my counsel to' you that you should talk with them at length about it. You should listen carefúlly to what they have to say and you should give it great weight; but the decision is yours, not theirs.
Now, do you understand that you have the right to remain silent if you wish?
[BERKOVITZ]: Yes, I understand that.
THE COURT: Do you understand that if you decide to remain silent it would be up to you whether or not I mentioned it to the jury?
[BERKOVITZ]: That’s correct.
THE COURT: And do you understand that you have the right to testify if you wish providing you take the oath and by doing so you subject yourself to cross examination? Do you understand that?
[BERKOVITZ]: Yes, I do.
THE COURT: And do you understand that the choice is yours alone?
[BERKOVITZ]: That’s correct.

At the end of the trial, the defense rested without Berkovitz’s testimony.

On May 4, 2004, the jury found Berko-vitz guilty of both charges. On May 10, 2004, Berkovitz sent the trial court a letter stating that her trial counsel had refused to allow her to testify. The court considered Berkovitz’s letter as a motion for a new trial and an evidentiary hearing was held. After the hearing, determining that Berkovitz was not denied the right to testify, the trial court denied the motion for a new trial. On June 18, 2004, Berkovitz was sentenced to life in prison for the first-degree murder conviction and to a consecutive 184-month imprisonment for the attempted murder conviction.

I.

Berkovitz first claims that her trial counsel denied her the right to testify at her trial and therefore the trial court erroneously denied her motion for a new trial. In essence, she claims that her decision not to testify was coerced by her lawyers. A defendant’s right to testify is a constitutional right that can only be waived by the defendant. State v. Walen, 563 N.W.2d 742, 751 (Minn.1997) (citing State v. Rosillo, 281 N.W.2d 877, 878 (Minn.1979)). Such waiver must be made voluntarily and knowingly. Id. (citing United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987)). The defendant’s counsel cannot waive the defendant’s right to testify, and a court is required to grant a new'trial if it determines that counsel denied the defendant the right to testify. Id. at 750-51. If, however, a court determines that a defendant’s decision not to testify was adversely affected by the counsel’s failure to adequately inform the defendant about the relevant facts, a new trial will be granted only if the defendant was prejudiced by the error. Id. at 750 n. 3. A defendant has the burden of proving on appeal that she did not voluntarily and knowingly waive her right to testify. Id. at 751. Moreover, if the trial court record is silent as to waiver, a reviewing court must “presume that the decision not to testify was made by [the] defendant voluntarily and intelligently.” Id. (quoting State v. Smith, 299 N.W.2d 504, 506 (Minn.1980)). Although, in the past, we have not directly addressed the issue, other courts have stated, in determining whether a defendant’s lawyer has denied the defendant the right to testify, that coercion exists when the defendant’s lawyer uses illegitimate means to prevent the client from testifying. See, e.g., Lema v. United States, 987 F.2d 48, 53 (1st Cir.1993); Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir.1992). A trial court’s factual findings will be affirmed unless clearly erroneous. State v. Linder, 268 N.W.2d 734, 735 (Minn.1978). We review a trial court’s denial of a motion seeking a new trial for an abuse of discretion. State v. Varner, 643 N.W.2d 298, 303 (Minn.2002).

In this case, the trial court held a hearing on Berkovitz’s new trial motion to determine whether Berkovitz was denied the right to testify. At that hearing, Lugo, Homstad, and Berkovitz testified. Berko-vitz testified that she always understood she had the right to testify at trial. She also acknowledged that Homstad sent her a letter on March 29, 2004, expressly stating that she “would have the right to testify” at trial. Berkovitz insisted, however, that when they met in person on May 2, 2004, her trial counsel would not allow her to testify and told her that “if we put you on the stand we’re going to lose” because the prosecutor would take her words and use them against her. Berkovitz also testified that Homstad told her that he would not be able to present his closing argument if she testified.

According to her testimony, Berkovitz, at the end of the May 2, 2004, meeting, asked if Lugo was “a hundred percent sure” that she should not testify and Lugo responded, “A hundred five percent sure. If we should allow you to testify we are going to lose.” In response, Berkovitz “relented” and said “okay.” Berkovitz changed her mind the next day when the trial court finished advising her of her right to testify. When the court finished advising her, Berkovitz passed Homstad a note indicating she wanted to testify, at which point Homstad put his hand over the microphone and said, “Don’t say anything.” According to Berkovitz, she turned to Homstad and said, “Dan, I want to testify.” Homstad said, “You agreed with us [on] Sunday at the jail not to [testify],” and Berkovitz responded, “But it’s my decision.” Homstad then asked the court for a recess. During the recess, Berkovitz claims her attorneys indicated that “they were not going to allow me to go on the stand,” and Homstad again said, “I’m not going to be able to present my final arguments if we should allow you.” Berkovitz contends that she did not say anything in response. Berkovitz admitted that, although there were other occasions during the trial when she had disregarded her counsel’s advice and spoke in court, when they went back to the courtroom after the recess she did not tell the trial court that she wanted to testify.

At the hearing, Lugo and Homstad testified that they did not improperly pressure Berkovitz or prevent her from testifying. They indicated that they always told Ber-kovitz that the decision as to whether she would testify belonged to her. They also testified that they told Berkovitz that “we would still try to defend her against the premeditation [element] even if she did testify” and felt that they “could defend [her] against premeditation.”

According to Lugo and Homstad, to hon- or Berkovitz’s desire to testify, they met with her on April 17, 2004, to prepare her trial testimony. In reference to that meeting, Homstad testified:

We always told her that the decision to testify was hers alone. If she wanted to testify we would develop her testimony, we would prepare her with some role playing, by giving her some cross examination questions. We would go over any documents she thought might be useful to her testimony.
⅜ ⅜ * ⅜
We were frank in our advice about the effect we thought her testimony would have on the trial * * * we told her that there was only one person who knew what was going through her mind before the incident and the day of the incident and that was her. We told her that we thought [the prosecution] had some gaps in [its] evidence * * * missing some proof needed to establish premeditation. * * * We told her that if she testified in the way that she wanted to testify that she could possibly fill in those gaps and help [the prosecution] establish premeditation.

At the meeting, Berkovitz “acknowledged that [the testimony she wanted to give] didn’t help her case and in fact probably supported * * * the State’s case.”

Lugo and Homstad testified that during the May 2, 2004, meeting, Berkovitz again sought their advice about testifying at trial. Both Lugo and Homstad testified that during that meeting they stated to Berko-vitz that they felt it would be in Berko-vitz’s best interest to remain silent. Ber-kovitz repeatedly asked if they were “one hundred percent sure of [their] advice” and Homstad testified that he “told her [he] was one hundred five percent sure of that.” At the end of the meeting, Berko-vitz stated that she would not testify.

Lugo and Homstad further testified that during the recess, after the court told Ber-kovitz that the decision to testify was hers alone, Berkovitz repeatedly asked, “What should I do?” When asked what made her change her mind about testifying, Berko-vitz indicated that she thought her testimony would make a difference in her case. In response to one of her inquiries about what she should do, the lawyers told Ber-kovitz

that there was no guarantee that this course of action would result in anything other than a conviction for first-degree murder. We told her that if she did not testify, there was a chance she might be convicted only of second degree and not first degree because we believed that you, the State, had some gaps in your case regarding premeditation.

They also told her that they were one hundred percent certain of their advice that she should not testify, but that it was her decision to make. In his testimony, Homstad noted that during the recess he made a conscious decision to maintain physical distance between himself and Ber-kovitz “so that I would not appear that I was domineering over her or dominating her.” At the end of that recess, Berkovitz said “all right, I will not testify.” -

The trial court made the following findings. At the beginning of the case, Berko-vitz “expressed a desire to tell her side of the story” and her trial, counsel “met with her with a view toward preparing [her] testimony.” During the process, Berkovitz “began to get cold feet about the idea of testifying and began to ask them questions about the wisdom of testifying.” Her trial counsel told Berkovitz that “it was not in her interests for her to testify” because her testimony would “plug up holes” on the issue of premeditation, and “it would be easier for the defense to argue that premeditation was not present, if she did not testify.” As a result of these discussions, Berkovitz did not wish to testify. However, after the trial court advised Ber-kovitz on her right to testify, Berkovitz “had some misgivings about that decision” and she “indicated to her counsel that she wanted to testify.” Her counsel asked for a recess, and “they talked to her again [about whether or not she should testify].” After that conversation, Berkovitz “again decided that she didn’t want to testify,” and “[b]ased on that decision, [her trial counsel] rested the defense case without [Berkovitz’s] testimony.” Based on those findings, the trial court reached the following conclusions: .

[Berkovitz] knew she had the right to testify, that her lawyers were prepared, ready, willing and able to prepare her for testimony, that they commenced the preparation, and the only reason that they stopped the preparation was that she decided she didn’t want to testify, and I find that at the last meeting in the holding cell again she decided voluntarily that she did not want to testify.

As noted above, this court will only reverse a trial court’s factual findings if they are clearly erroneous. Linder, 268 N.W.2d at 735. Such is not the case here. Here, the record supports the trial court’s observation that “in many areas, [the parties’ versions of what had happened] aren’t contradictory, and in many areas, [Berko-vitz] just didn’t talk about some of the things that [her counsel] talked about, ,and when she did[,] she put a different spin on it.” Thus, in light of the record presented and the deference owed to the trial court’s credibility determinations,, we cannot say that the trial court erred when it found that, to the extent Berkovitz’s version of events differed from her counsel’s version, Berkovitz was wrong. Nor can we conclude, given the record presented, that the trial court’s other findings were erroneous.

We next turn to whether Lugo and Homstad’s actions denied Berkovitz the right to testify. From the record, it is clear that Berkovitz had a strong desire to testify at her trial. It is equally clear that Berkovitz both knew and understood that the right to testify was hers alone. Berko-vitz acknowledged receiving the March 29, 2004, letter from Homstad that expressly stated that she “would have the right to testify.” When the trial court explained in some detail her rights with respect to testifying, Berkovitz indicated that she understood those rights. Further, Lugo and Homstad met with Berkovitz with an eye toward preparing her testimony and told her “from very early on”' that she had the right to testify.

In that Berkovitz knew and understood that she had the right to testify and that the decision to testify was hers alone, absent some indication in the record that her lawyers coerced her into not testifying by applying undue .pressure, using illegitimate means, or otherwise depriving her of her free will, Berkovitz’s claim must fail. Our careful review of the record indicates that no undue pressure or illegitimate means were used to prevent Berkovitz from testifying. Nor was Berkovitz otherwise deprived of her free will. The fact that Berkovitz’s trial counsel told her that they were one hundred and five percent certain that she would be convicted of premeditated first-degree murder if she testified in response to her question as to whether they were one hundred percent certain did not, on the facts presented here, rise to the level of coercion.

We therefore conclude that Berkovitz was not denied the right to testify at her trial. As a result, we also conclude that the trial court did not abuse its discretion when it denied Berkovitz’s motion for a new trial.

II.

In her pro se supplemental brief, Berko-vitz claims that: (1) her conviction should be reversed because she was not informed of her Miranda rights; (2) the trial court erroneously denied her motion' for a change of venue; and (3) her trial counsel provided ineffective assistance. After a careful review of the record, we conclude that none of these claims has merit.

We note that the video recording taken while Berkovitz was being held in the secure room immediately after the shooting belies her claim that she was not advised of her Miranda rights and is therefore entitled to a new trial. Review of the video makes clear that Berkovitz was advised of her rights and, in fact, invoked them only to later spontaneously volunteer information about the shooting. Indeed, a police detective can be seen on the video reminding Berkovitz that he could not talk to her about the shooting because she had invoked her right to counsel. To the extent that she contends that the warning heard on the recording of her custodial interview was “superimposed” after the fact, it is enough to say that Berkovitz offers no support for that claim nor have we been able to find any in the record.

Berkovitz’s claim that the trial court erroneously denied her motion for a change of venue can be disposed of simply. To receive a new trial based on the denial of a change of venue motion as a result of pretrial publicity, a defendant must show that the publicity “affect[ed] the minds of the specific jurors involved in the case.” State v. Fratzke, 354 N.W.2d 402, 406 (Minn.1984). Moreover, a reviewing court will not reverse a trial court’s denial of a motion for change of venue- unless such denial constituted a clear abuse of discretion and the defendant suffered actual prejudice. Walen, 563 N.W.2d at 748. Here, Berkovitz offers no evidence suggesting that the pretrial publicity surrounding her case affected any of the jurors who sat on her case or that the denial of her change of venue motion resulted in actual prejudice to her.

In order to succeed on an ineffective of assistance of counsel claim, a convicted defendant must show both that her counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s deficient performance, the outcome of the case would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, again, Berko-vitz has failed to present any evidence supporting her claim. Moreover, our review of the record satisfies us that her counsel’s performance did not fall below an objective standard of reasonableness. There being no deficiency in counsel’s performance, Berkovitz’s claim necessarily fails the prejudice prong of Strickland as well.

Therefore, we affirm Berkovitz’s conviction.

Affirmed.

      . We additionally note that the trial court did an excellent job of advising Berkovitz of her right to testify and in setting out its post-trial findings with respect to what took place between Berkovitz and her trial counsel. In Walen, we specifically noted that "placement on the record of a defendant’s waiver of his right to testify often will save both the court and defense counsel considerable time at any postconviction proceeding.” 563 N.W.2d at 751. Here, the court's record of the colloquy and the detailed factual findings provide a similar aid to this court.


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Kristine Katherine TRUDEAU, a Minnesota Attorney, Registration No. 310372.
    No. A05-1616.
    Supreme Court of Minnesota.
    Nov. 7, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Kristine Katherine Trudeau has committed professional misconduct warranting public discipline, namely, that respondent pled guilty to gross misdemeanor interference with a 911 call and misdemeanor unauthorized computer access by installing and using an email spy-ware program. Respondent also violated a harassment restraining order and orders for protection, made false statements to police officers while intoxicated, and filed frivolous litigation against one of the persons she harassed. Respondent’s misconduct arose solely out of her personal relationships with others and did not relate to her representation of clients or client-related matters. Additionally, prior to her admission to practice law in Minnesota, respondent engaged in similar behavior involving several individuals with whom she had personal relationships, which resulted in the issuance of restraining orders. The petition alleges that respondent’s conduct violated Minn. R. Prof. Conduct 3.1, 3.4(c), and 8.4(b), (c) and (d).

The parties have entered into a stipulation in which respondent admits her conduct violated the Rules of Professional Conduct and waives her rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR). The parties jointly recommend that the appropriate discipline is indefinite suspension from the practice of law for a minimum period of 30 months with no waiver of the reinstatement hearing provided for in Rule 18, RLPR. The parties further recommend that reinstatement be conditioned upon (1) payment of $900 in costs and $578.18 in disbursements under Rule 24, RLPR; (2) compliance with Rule 26, RLPR; (3) successful completion of the professional responsibility examination under Rule 18(e), RLPR; (4) satisfaction of the continuing legal education requirements under Rule 18(e), RLPR; (5) respondent establishing through expert psychological or psychiatric evidence that she is fit to resume the practice of law; (6) respondent submitting to an independent medical examination by a medical expert chosen by the Director, with the cost thereof paid by respondent; and (7) respondent establishing evidence of sobriety for a minimum period of one year prior to filing the petition for reinstatement, which shall include completion of a chemical dependency program' along with follow through with all aftercare recommendations and regular attendance at Alcoholics Anonymous.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Kristine Katherine Trudeau is indefinitely suspended from the practice of law for a minimum of 30 months, effective 14 days from the filing of this order. Reinstatement is conditioned upon the above-stated requirements. Respondent shall pay $900 in costs and $578.18 in disbursements under Rule 24, RLPR.

BY THE COURT:

/s/ Russell A. Anderson Associate Justice