author: PER CURIAM.

text:
    2007 ND APP 2
    Roland C. RIEMERS, Plaintiff and Appellant and Johnathan P. Riemers, Plaintiff v. STATE of North Dakota, Douglas Herman, Gerald W. VandeWalle, Carol Ronning Kapsner, Mary Muehlen Maring, and Dale V. Sandstrom, Defendants and Appellees.
    No. 20060382CA.
    Court of Appeals of North Dakota.
    April 27, 2007.
    Review Denied July 3, 2007.

      Roland C. Riemers (pro se), Emerado, ND.
    Douglas Alan Bahr, Solicitor General, Office of Attorney General, Bismarck, ND, for defendants and appellees.
   PER CURIAM.

[¶ 1] Roland Riemers appeals from a district court judgment dismissing his case against the State of North Dakota, District Judge Douglas Herman, Chief Justice Gerald W. VandeWalle, Justice Carol Ronning Kapsner, Justice Mary Muehlen Maring, and Justice Dale V. Sandstrom (referred to collectively as “the State”). We affirm the judgment and remand to the district court to determine the State’s attorney fees for this appeal.

I

[¶ 2] Riemers sued the State claiming his legal and constitutional rights were denied during proceedings stemming from his divorce. See, e.g., Riemers v. Peters-Riemers, 2004 ND 153, 684 N.W.2d 619; Peter s-Riemers v. Riemers, 2004 ND 28, 674 N.W.2d 287; Peter s-Riemers v. Riem-ers, 2003 ND 96, 663 N.W.2d 657. Riem-ers essentially alleged judicial decisions by District Judge Herman and four Justices of the North Dakota Supreme Court were unlawful and violated his constitutional rights. Riemers requested declaratory and injunctive relief to change the venue of his child support action from Cass to Grand Forks County, for a retroactive child support review hearing, for a finding that absolute judicial immunity is unconstitutional, and any other injunctive relief available. He also requested over $2 million in damages and all reasonable costs and disbursements, including attorney fees. The State moved to dismiss the complaint under N.D.R.Civ.P. 12(b)(vi) for failure to state a claim upon which relief can be granted. The district court granted the State’s motion and dismissed the case with prejudice after concluding Riem-ers’ claims were barred by collateral estop-pel and judicial immunity.

II

[¶ 3] “The purpose of a N.D.R.Civ.P. 12(b)(vi) motion is to test the legal sufficiency of the statement of the claim presented in the complaint.” Ziegelmann v. DaimlerChrysler Corp., 2002 ND 134, ¶ 5, 649 N.W.2d 556. We review the complaint in a light most favorable to the plaintiff, taking as true the well-pleaded allegations in the complaint. Id. The complaint should not be dismissed unless “ ‘it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.’ ” Id. (quoting Lang v. Schafer, 2000 ND 2, ¶7, 603 N.W.2d 904). If we cannot discern a potential for proof to support the claim we will affirm a judgment dismissing the complaint. Ziegel-mann, at ¶ 5.

A

[¶ 4] Riemers argues the district court erred in dismissing the complaint because his claims for damages are not barred by judicial immunity. He contends common law judicial immunity no longer exists, judicial immunity is unconstitutional, and judicial immunity does not apply in this case because the judges’ actions were unlawful and outside the scope of their employment.

[¶ 5] Judicial immunity is a long-standing common law doctrine that protects judges from civil liability for their judicial decisions:

The principle of judicial immunity recognizes that although unfairness and injustice to a litigant may result on occasion, it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Thus, judges are not liable in civil actions for their judicial acts unless they have acted in the clear absence of jurisdiction. Moreover, a judge will not be deprived of immunity even if the action was in error, was done maliciously, was in excess of his authority, and even if his exercise of authority is flawed by the commission of grave procedural errors.

Brokaw v. Mercer County, 235 F.3d 1000, 1015 (7th Cir.2000) (citations and quotations omitted).

[¶ 6] Section 32-12.2-02(3)(d), N.D.C.C., codified common law judicial immunity and states:

Neither the state nor a state employee may be held liable under this chapter for
d. A claim resulting from a decision to undertake or a refusal to undertake any judicial or quasi-judicial act....

[¶ 7] Although Riemers claims N.D.C.C. § 32-12.2-02 ended common law judicial immunity, the statute says, “[t]his chapter does not create or allow any claim that does not exist at common law....” N.D.C.C. § 32-12.2-02(5). Riemers claims judicial immunity is unconstitutional, but he fails to provide any reasoning or authority supporting his argument. Statutes carry a strong presumption of constitutionality, and a party challenging a statute must submit more than a bare assertion that it conflicts with the state or federal constitutions to adequately raise the issue. Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 11, 688 N.W.2d 167. Judicial immunity is a well-established, long-standing legal principle, and we reject Riemers’ claim it is unconstitutional.

[¶ 8] Riemers also claims judicial immunity does not apply in this case because the judges disregarded clear statutory and case law, and therefore their acts were illegal and were not judicial acts. We conclude his argument is not persuasive. Judicial immunity is defined by the governmental functions it protects, not the motives of the officer performing those functions. 46 Am.Jur.2d Judges § 64 (2007) (“Judges are not deprived of immunity from a suit for money damages merely because of allegations that they committed grave procedural errors or acted maliciously, corruptly, or with evil motive, intent, personal interest, bad faith, or outright malevolence”). Even if the judges disregarded clear case or statutory law, their actions were judicial acts, and judicial immunity bars Riemers’ claims for money damages.

B

[¶ 9] Riemers’ claims for declaratory and injunctive relief are also barred. Res judicata and collateral estoppel are well-established doctrines that bar relitigation of claims and issues and promote the finality of judgments. Witzke v. City of Bismarck, 2006 ND 160, ¶ 8, 718 N.W.2d 586.

Although collateral estoppel is a branch of the broader law of res judicata, the doctrines are not the same. Res judica-ta, or claim preclusion, is the more sweeping doctrine that prohibits the re-litigation of claims or issues that were raised or could have been raised in a prior action between the same parties or their privies and which was resolved by final judgment in a court of competent jurisdiction. On the other hand, collateral estoppel, or issue preclusion, generally forecloses the relitigation, in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit.

Id. (quoting Simpson v. Chicago Pneumatic Tool Co., 2005 ND 55, ¶ 8, 693 N.W.2d 612).

[¶ 10] Riemers’ current litigation attempts to challenge decisions Judge Herman and four Justices of the North Dakota Supreme Court made in proceedings stemming from his divorce action. If Riemers was unhappy with the courts’ decisions in his prior litigation, his remedy was to appeal the decision or petition for rehearing. Riemers failed to use the remedies available to redress any wrongs he may have suffered, and the well-established doctrine of collateral estoppel bars him from relit-igating these issues in a second action. Riemers’ claims for injunctive and declaratory relief are barred.

C

[¶ 11] Riemers argues his complaint should not have been dismissed under N.D.R.Civ.P. 12 because the court accepted evidence outside the pleadings and therefore should have treated the motion as one for summary judgment. Under N.D.R.Civ.P. 12(c), “[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. ...” Riemers claims the State inappropriately cited some of Judge Herman’s decisions in Riemers’ divorce proceedings in its supporting brief.

[¶ 12] We conclude Riemers’ arguments are without merit. It was appropriate for the district court to examine and consider the judicial decisions Riemers was challenging. See, e.g., 61A Am.Jur.2d Pleading § 584 (2007) (“the court may examine and rely on documents which the plaintiff was aware of and relied on in framing the complaint ... ”). The district court did not rely on evidence outside the pleadings, and therefore the complaint was properly dismissed under Rule 12.

III

[¶ 13] The State requests attorney fees for this appeal. An award of costs, including reasonable attorney fees, is authorized under N.D.R.App.P. 38 for a frivolous appeal. An appeal is frivolous if it is “ ‘flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith.’ ” Riemers v. O’Halloran, 2004 ND 79, ¶ 16, 678 N.W.2d 547 (quoting Questa Res., Inc. v. Stott, 2003 ND 51, ¶ 7, 658 N.W.2d 756). Judicial immunity and collateral estoppel are well-established and long-standing legal doctrines. We conclude Riemers’ appeal is flagrantly groundless, devoid of merit, and demonstrates persistence in the course of litigation which evidences bad faith. We therefore conclude Riemers’ appeal is frivolous, and the State is entitled to attorney fees for this appeal. The State did not submit any documentation of its attorney fees, and we remand to the district court for a determination of reasonable attorney fees for this appeal.

IV

[¶ 14] We affirm the judgment of dismissal and remand to the district court for a determination of reasonable attorney fees.

[¶ 15] BENNY A. GRAFF, Surrogate Judge, Chief Judge, WILLIAM F. HOD-NY and EVERETT NELS OLSON, Surrogate Judges, concur.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2007 SD 44
    Lonnie Ray McKITTRICK, Plaintiff and Appellant, v. Wanda Lynn McKITTRICK, Defendant and Appellee.
    No. 24253.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 13, 2007.
    Decided April 25, 2007.

      Linda Lea M. Viken of Viken Law Firm, Rapid City, South Dakota, Attorney for plaintiff and appellant.
    John R. Von Wald of Von Wald Law Offices, Selby, South Dakota, Attorney for defendant and appellee.
   MEIERHENRY, Justice.

[¶ 1.] Lonnie McKittrick appeals a child support order recommended by a child support referee and affirmed by the circuit court. As part of a 2004 divorce settlement agreement, Lonnie and Wanda McKittrick set the terms of the custody and child support obligations of their minor child, Parker. Less than three years later, Wanda sought an increase in child support. The child support referee increased Lonnie’s monthly support obligation and extrapolated above the child support schedule. The circuit court affirmed and we reverse.

FACTS

[¶ 2.] The parties stipulated in a divorce agreement to share joint legal custody of their minor child, Parker. Wanda had primary physical custody; Lonnie had liberal visitation. The parties agreed that Lonnie would pay $1,000.00 per month child support beginning January 1, 2004, maintain Parker’s health insurance, pay 88% of Parker’s uncovered health costs over $250.00, pay 88% of Parker’s extracurricular activity expenses and establish a college fund for the child.

[¶ 3.] Disputes arose over the payment of expenses. The first dispute arose when Wanda asked Lonnie to pay for travel and lodging expenses for her and her sister when they attended one of Parker’s out-of-town athletic events. Lonnie claimed that he was only responsible for Parker’s extracurricular expenses not for Wanda’s lodging. The second dispute involved expenses for a dog Lonnie purchased for Parker. Before purchasing the dog, Lonnie and Wanda agreed that the dog could live at Wanda’s home if Lonnie paid for the dog’s food, neutering, and shots. When other dog-related costs arose, Lonnie only agreed to pay a pro-rata share of 88%. Wanda wanted 100% reimbursement.

[¶ 4.] Subsequently, Wanda petitioned to modify child support on March 20, 2006. At the modification hearing, the child support referee determined that Wanda’s net monthly income was $2,424.00 and Lonnie’s net monthly income was $20,868.00 for a combined net monthly income of $23,292.00. Since Lonnie and Wanda’s combined net monthly income of $23,292.00 exceeded the child support schedule’s top income level of $10,000.00, see SDCL 25-7-6.2, the referee set child support above the schedule. The referee determined that the parties’ combined net monthly income exceeded the top level of the schedule by a multiple of 2.3, that is, their combined income of $23,292.00 was 2.3 times $10,000.00. The referee then multiplied 2.3 times the top level of child support for one child to arrive at $3,340.00 (2.3 X $1,452.00 = $3,340.00). Since Lonnie’s income constituted 90% of the combined income, the referee set Lonnie’s child support obligation at $3,006.00 (90% of $3,340.00). Lonnie objected to the referee’s report. The circuit court affirmed and adopted the referee’s findings of fact and conclusions of law. Lonnie appeals and raises the following issues:

ISSUES
1. Whether it was err to increase Lonnie’s child support without a showing of a substantial change in circumstances.
2. Whether it was err to extrapolate upward from the child support schedule without a showing of the child’s actual needs and standard of living.
STANDARD OF REVIEW

[¶ 5.] This Court reviews findings of fact under the clearly erroneous standard. Laird v. Laird, 2002 SD 99, ¶ 13, 650 N.W.2d 296, 299; Watson-Wojewski v. Wojewski, 2000 SD 132, ¶ 13, 617 N.W.2d 666, 669-70. To overturn a circuit court’s findings, there must be a definite and firm conviction that a mistake has been made. Laird, 2002 SD 99, ¶ 13, 650 N.W.2d at 299. Questions of law are reviewed de novo. Id.

[¶ 6.] “An award of child support will not be disturbed unless the trial court clearly abused its discretion. An abuse of discretion is defined as 'a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Laird, 2002 SD 99, ¶ 14, 650 N.W.2d at 299 (citing Billion v. Billion, 1996 SD 101, ¶ 18, 553 N.W.2d 226, 230).

ANALYSIS

1. SDCL 25-7-6.13 vs. SDCL 25-7A-22(1)

[¶ 7.] The threshold question is whether Wanda must show a substantial change in circumstances in order to obtain an increase in child support. Generally, a child support order may not be modified without a showing of substantial change in circumstances if the request is filed within three years from the date of the prior child support order. SDCL 25-7A-22 (l). The Legislature, however, waived the change of circumstances requirement when it revised the child support schedule, under SDCL 25-7-6.2, and provided as follows: “All orders for support entered and in effect prior to July 1, 2005, may be modified in accordance with this chapter without requiring a showing of a change in circumstances from the entry of the order.” SDCL 25-7-6.13. Lonnie argues Wanda should be required to show a substantial change in circumstances. His rationale is that the 2005 changes to the child support schedule did not affect his child support obligation because no changes were made to the upper levels of the schedule. Specifically, the maximum income level of $10,000.00 along with the commensurate support obligation did not change. He argues that SDCL 25-7-6.13 only applies if, after applying the revised schedule, the amount of child support, owed by a parent, changes. Lonnie relies on comments in the Report of the South Dakota Commission on Child Support, which indicated that the purpose of SDCL 25-7-6.13 was to allow a parent affected by the revisions to seek modification without showing a change in circumstances.

[¶ 8.] Although Lonnie’s argument seems reasonable, we are bound by the plain meaning of the statute which clearly directs that “all” prior support orders “may be modified ... without a showing of a change in circumstances.” SDCL 25-7-6.13; Reider v. Schmidt, 2000 SD 118, ¶ 9, 616 N.W.2d 476, 479 (stating that this Court may not resort to a report by the South Dakota Commission on Child Support unless the statute is found ambiguous and some interpretation is required). “When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.” Anderson v. City of Tea, 2006 SD 112, ¶5, 725 N.W.2d 595, 597 (additional quotations and citations omitted). Consequently, the referee did not err when he considered the child support modification without a showing of substantial change in circumstances.

%. Calculating Child Support Above the Schedule

[¶ 9.] Lonnie argues that the referee and circuit court erred by setting his child support obligation by extrapolating above the schedule without a showing of the child’s actual needs and standard of living. We agree. Our analysis begins with a review of the changes to the upper levels of the schedule beginning in 1997.

[¶ 10.] Prior to 1997, the upper level of the schedule, under SDCL 25-7-6.2, topped at $4,000.00. In 1997, the Legislature increased the top level from $4,000.00 to $10,000.00. SD Sess. Laws 1997 ch. 154, § 6. In recommending the 1997 increase, the South Dakota Commission on Child Support (the Commission) reported that the increase would allow more uniformity since more families would fall within the guidelines. Report of the South Dakota Commission on Child Support 15 (1997). The Commission noted that there was “insufficient economic data available relating to child rearing expenditures above [the $10,000.00] income level.” Id. Thus, the Commission recommended that “[a]bove the $10,000 income level, child support should continue to be based upon the actual needs and standard of living of the child.” Id. The Commission concluded that “Policy Studies indicate that straight extrapolation is not appropriate. Economic studies indicate that the proportion of net income spent on children declines as income increases.” Id. In adopting the Commission’s recommendations, the Legislature left intact the requirement that child support above the schedule be based on the “actual needs and standard of living of the child.” SDCL 25-7-6.9. The statute provides:

For a combined net income above the schedule in § 25-7-6.2, the child support obligation shall be established at an appropriate level, taking into account the actual needs and standard of living of the child.

Id. The Commission reviewed the schedule in 2000 and 2005 but recommended no change to the upper level of the schedule.

[¶ 11.] Notably, South Dakota’s child support statutes have never recognized extrapolation as an appropriate method of calculating support above the schedule. SDCL 25-7-6.9 (enacted in 1989); Bloom v. Bloom, 498 N.W.2d 213, 217 (S.D.1993) (citing Earley v. Earley, 484 N.W.2d 125, 127-28 (S.D.1992) (stating that Earley yielded the rule that the trial court may calculate support obligations by mathematical extrapolation where proof exists of the actual needs and standard of living of the child)). In fact, straight extrapolation is at odds with the language of SDCL 25-7-6.9. Black’s Law Dictionary defines extrapolate as “to estimate an unknown value or quantity on the basis of the known range, esp. by statistical methods.” Black’s Law Dictionary 607 (8th ed. 2004). Thus, to extrapolate above the child support schedule is to estimate a child support amount based on the known ranges or amounts in the schedule. The extrapolated estimate, however, may be skewed. As the Commission pointed out, current studies show that the needs of a child do not increase at the same rate that family income increases once the monthly net income reaches $10,000.00. Thus, the Legislature capped the schedule at $10,000.00 and based child support above the schedule on the child’s actual needs and standard of living. Using straight extrapolation or some other statistical or mathematical formula is contrary to the plain meaning of the statute and may not reflect the child’s actual needs and standard of living.

[¶ 12.] Since the 1997 schedule change, we have only reviewed two child support cases where the parents’ combined income exceeded $10,000.00. Laird, 2002 SD 99, 650 N.W.2d at 296 (examining the standard of living of the child prior to the parents’ divorce); Watson-Wojewski, 2000 SD 132, 617 N.W.2d at 666 (remanding for specific findings as to child’s actual needs and standard of living). Neither of these cases should be read to approve of straight extrapolation above the schedule. Watson-Wojewski v. Wojewski is particularly instructive. Id. There, the circuit court extrapolated above the child support schedule and set child support at $4,200.00 per month. Id. ¶ 19. Although the custodial parent submitted a budget showing monthly expenses, the parent failed to prove which expenses were allocated to the child. Id. Consequently, we reversed because we could not ascertain the basis of the support amount. Id. On remand, we directed the court to focus on “the child’s needs and standard of living.” Id. ¶ 20 (emphasis in original). We said that “[t]he custodial parent has the burden of proving that his or her claimed expenses reflect the child’s needs and standard of living,” not the custodial parent’s needs. Id. We also noted the necessity of adequate findings of facts in order to render a meaningful review. Id. ¶¶ 17, 24. We reversed because the record lacked the required proof or adequate findings of facts. Id. ¶ 24.

[¶ 13.] The same deficiency appears in the case before us. Wanda presented no evidence and the referee made no findings of Parker’s actual needs or standard of living. Wanda’s proof centered on her recent dispute with Lonnie about reimbursement for her travel expenses to Parker’s sporting event and her dog-care expenses. The only reference to the child’s needs and standard of living in the referee’s findings appeared as follows:

The recommended child support amount represents 14.3% of Lonnie’s net income, and is a significant amount of money. The testimony established, however, that Parker is engaged in a number of activities with the support of his father, who attends these activities in many instances. He has also provided him things such as a hunting dog for which $1,000 was paid and which costs a certain amount of money to properly maintain. As Parker grows older, his tastes will become more expensive, his activities will continue to become more extensive and expensive, and he will face the prospect of higher education.
The extrapolated support value should not be used without regard to the child’s needs and standard of living. The increased child support offers the prospect of supporting Parker’s lifestyle, reducing the tension between the parents who do not agree upon reimbursement for some of these activities, and providing for the expense of many activities in which Parker is engaged.
SDCL 25-7-6.10(6) would be a factor, but it appears that the agreement between the parents regarding Lonnie’s payment of 88% of extracurricular activity expenses is becoming problematic. Lonnie did not want to pay Wanda for her sister to go shopping on one of Parker’s road trips, and he didn’t realize that he would have to pay all costs and expenses associated with the dog that he gave to Parker. A fixed amount upon which all parties can rely should eliminate the disagreements and unpaid bills that have potential for stress in the future, to the child’s detriment. The revised support would supersede the terms of the stipulation relating to payments for activities, pet needs and the like.

[¶ 14.] Although the referee recognized he should consider the child’s needs and standard of living, he failed to do so. The referee generally referred to the “prospect” of supporting Parker’s future activities and educational needs; however, Wanda had not presented evidence that these needs were unfunded. In fact, the parties had provided for these needs in their divorce stipulation. Lonnie agreed to pay 88% of Parker’s extra-curricular activities and establish a college savings fund. However, the referee set a fixed amount of support and eliminated the stipulated agreement provisions as to extra-curricular expenses and college savings.

[¶ 15.] The referee’s rationale for increasing the child support and eliminating the agreement provisions was to reduce the conflict between Lonnie and Wanda. The referee stated that “the increased child support offers the prospect of ... reducing tension between the parents who do not agree upon reimbursement of some of these activities.” Although trying to reduce conflict between divorced parents is an admirable goal, it has little to do with setting an appropriate amount for child support. The focus when setting appropriate child support above the schedule must be on the child’s actual needs and standard of living. SDCL 25-7-6.9; see also Bloom, 498 N.W.2d at 217-18.

[¶ 16.] Here, Wanda failed to provide the referee with sufficient evidence of Parker’s actual needs or standard of living. Her limited testimony about Parker’s standard of living centered on the vacations she and Parker had taken since the divorce, including trips to New York, Minneapolis, the Bahamas, and Europe. When asked whether Parker’s lifestyle had decreased since the divorce, Wanda responded, “No, because I try to keep it that way.” Lonnie agreed with Wanda that Parker’s lifestyle had not diminished since the divorce. The record reflects no other evidence of Parker’s actual needs or standard of living concerns.

[¶ 17.] Wanda had the burden of showing that the child support sought reflected Parker’s actual needs and standard of living. See Watson-Wojewski, 2000 SD 132, ¶ 20, 617 N.W.2d at 671. Wanda failed to meet that burden. Furthermore, the referee’s findings of fact and conclusions of law supporting the child support increase bore no relationship to Parker’s actual needs and standard of living. The child support increase merely relied on a mathematical formula based on the schedule’s upper level and the parties’ combined monthly net income. Consequently, the circuit court abused its discretion when it adopted the referee’s recommended child support amount.

3. Appellate Attorney Fees

[¶ 18.] Wanda and Lonnie both filed motions for appellate attorney fees accompanied by itemized statements of expenses. “To determine whether attorney fees are proper in domestic relation cases, we consider, ‘the property owned by each party, the relative incomes, the liquidity of the assets and whether either party unreasonably increased the time spent on the case.’ ” Dejong v. Dejong, 2003 SD 77, ¶ 30, 666 N.W.2d 464, 471 (quoting Peterson v. Peterson, 434 N.W.2d 732, 738 (S.D.1989)) (additional citations omitted). Considering these factors under the facts of this case, we determine that each party shall be responsible for their own attorney fees.

[¶ 19.] Reversed.

[¶ 20.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . The stipulation provided for alimony of $1,000.00 per month for fifteen years irrespective of cohabitation, remarriage or Lonnie’s death. Wanda also received $55,000.00 as property settlement.

      . Wanda earned $922.06 bi-weekly as an employee at the Oahe Child Development Center in Pierre, South Dakota. Her income from a part-time job at Mesaba Aviation was not included in the child support calculations. Lonnie worked as a health insurance division manager with Fischer, Rounds & Associates in Pierre, South Dakota.

      . This represented 14.2% of Lonnie's net income.

      . SDCL 25-7A-22 provides, in part:
      If the support order was entered in this state and this state maintains continuing exclusive jurisdiction over the support order in accordance with chapter 25-9B, or if the support order was registered in this state and the requirements of § 25-9B-611 or 25-9B-613 are satisfied, an obligor, an obligee, or the assignee may file a petition, on forms prescribed by the department, to increase or decrease child support. For any support order entered or modified after July 1, 1997:
      (1) The order may be modified upon showing a substantial change in circumstances if the petition is filed within three years of the date of the order; or
      (2) The order may be modified without showing any change in circumstances if the petition is filed after three years of the date of the order.

      . The child support order was entered on February 2, 2004.

        . The Commission's report provided the following comment:
      The South Dakota Supreme Court has approved straight extrapolation above the current guidelines. It is not, however, mandatory to extrapolate. Policy Studies indicate that straight extrapolation is not appropriate. Economic studies indicate that the proportion of net income spent on children declines as income increases. A review of South Dakota's existing guidelines by Policy Studies reveals that the current guidelines may be too high at the upper income levels because of South Dakota’s previous reliance on Epenshade’s estimate.
      By raising the guidelines to $10,000, more families will fall within the guidelines, and more uniformity in establishing obligations will naturally occur. The Commission does not recommend that the guidelines exceed $10,000 because there is insufficient economic data available relating to child rearing expenditures above this income level. Above the $10,000 income level, child support should continue to be based upon the actual needs and standard of living of the child(ren).

      . Cases decided prior to the 1997 change in the maximum income level are of questionable precedent to the issue of extrapolation.

      . On appeal, Lonnie claimed that the referee and circuit court erred by modifying the parties’ divorce agreement. However, he failed to cite any authority to support his claim and admitted in his reply brief that a circuit court has authority to modify a child support agreement. We have consistently held that failure to cite authority waives the issue. Chapman v. Chapman, 2006 SD 36, 713 N.W.2d 572; State v. Pellegrino, 1998 SD 39, ¶22, 577 N.W.2d 590, 599 (quoting State v. Knoche, 515 N.W.2d 834, 840 (S.D.1994); State v. Dixon, 419 N.W.2d 699, 701 (S.D.1988)).

      . Wanda receives free air travel due to her part-time employment with Mesaba.


author: SABERS, Justice.

text:
    2007 SD 41
    In the Matter of the CONSERVATORSHIP OF Lela IRWIN, A Protected Person.
    No. 24216.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2007.
    Decided April 25, 2007.

      Thomas H. Frieberg of Frieberg, Nelson & Ask, Beresford, South Dakota, Attorneys for appellant Mary Lou Young.
    Lucille M. Lewno, Fox, Youngberg & Lewno, Yankton, South Dakota, Attorneys for appellee, Stephanie Maxon.
   SABERS, Justice.

[¶ 1.] Mary Lou Young (Young) was appointed for her mother, Lela Irwin (Irwin), as her conservator and guardian. After Irwin’s death, Young attempted to have the circuit court approve the conser-vatorship’s final accounting. A granddaughter of Irwin, Stephanie Maxon (Max-on), and the attorney appointed for Irwin objected to the final accounting. Young appealed after the circuit court refused to approve the accounting and “surcharged” Young for over $70,000. We reverse in part, affirm in part and remand.

FACTS

[¶ 2.] Jn 1999, eighty-three-year-old Irwin was placed at the Human Services Center (HSC) in Yankton, SD. Shortly thereafter, Young, Irwin’s only living child, petitioned the circuit court to become Irwin’s guardian and conservator. The court initially approved Young as a temporary guardian and conservator, and later Young was approved as the permanent guardian and conservator.

[¶ 3.] Almost immediately after her permanent appointment, Young petitioned the circuit court in South Dakota to transfer the guardianship and conservatorship to North Dakota. Young resided in North Dakota. In the transfer petition, she informed the circuit court that she had moved Irwin to a care facility in Jamestown, North Dakota. Irwin was not actually moved to North Dakota until fifteen months later.

[¶ 4.] When Young did not file the statutorily required annual guardian report or annual account as conservator, Irwin’s counsel asked the circuit court to issue an order to show cause requiring Young to file the reports. Young filed the annual report and Irwin’s counsel objected to the report.

[¶ 5.] On October 9, 2001, a hearing was held on the show cause order, the motion to transfer and the objections to the annual report. Young filed an amended annual report at the hearing. She sent it to three of the grandchildren, but they did not have an opportunity to file objections as it was sent the day of the hearing. The circuit court approved the annual report but decided to retain jurisdiction over the conservatorship until Young commenced proceedings in North Dakota.

[¶ 6.] The circuit court ordered Young to sell some personal property that had been purchased for Irwin’s care but retained in Young’s home after Irwin was moved to the care facility. It also ordered her to sell Irwin’s trailer and contents after notice was given to all interested parties and to post a $200,000 bond. The court forbade Young from making any payments to herself or from moving Irwin from the North Dakota care facility without prior court approval and from denying the grandchildren access to Irwin.

[¶ 7.] On February 13, 2002, Young again petitioned to transfer the guardianship and conservatorship to North Dakota. She provided the circuit court with an order from the North Dakota circuit court that appointed her guardian and conservator effective upon the termination of South Dakota’s jurisdiction. Irwin’s counsel objected to the transfer, but the circuit court granted the guardianship transfer. The court retained jurisdiction over the conser-vatorship until a final accounting was approved.

[¶ 8.] After thirteen months, Young submitted a second annual report and motion to transfer. Irwin’s counsel again objected to the report to which Young filed responses. A hearing was held on April 15, 2003 where the circuit court found Young breached her fiduciary duties by allowing Irwin’s assets to be deposited into joint accounts instead of a guardianship account. The motion to transfer was denied because Irwin’s HSC bill had not been paid. The circuit court ordered Young to prepare an amended accounting comprised of all the income and disbursements since the last approved account and to separate the income into a guardianship account. On July 29, 2003, Young filed the amended annual report, but did not obtain a hearing to receive court approval.

[¶ 9.] Irwin died on October 19, 2003. Young did not notify the South Dakota or North Dakota court. The South Dakota court was informed of the death when Maxon asked the court to order Young to file a final accounting, terminate the life estates that existed in various lands and probate Irwin’s will. The North Dakota court was informed when the surety company contacted it about the status of the bond.

[¶ 10.] Irwin’s attorney requested and was granted $1,145.78 in attorney’s fees. Young filed the second amended annual report and a final accounting on March 9, 2004. Attorneys for Irwin and Maxon filed objections to the reports. At that time, Young’s attorney, David Hosmer, filed responses to Maxon’s and Irwin’s attorney’s motions and made his own motion for approval and payment of his attorney’s fees.

[¶ 11.] Young filed an amended final accounting in August 2004, but did not schedule a hearing to obtain the court’s approval. Again, Irwin’s attorney and Maxon objected to the amended final accounting. Attorney Hosmer filed a subsequent motion for attorney’s fees and a motion to withdraw because Young was not communicating with him. The court approved his fees and his withdrawal from the case.

[¶ 12.] Although Young repeatedly stated she did not want compensation for her services, on January 5, 2006, she filed a petition seeking payment of $25,125 for her services as guardian and conservator, which was subsequently denied. That same day, Irwin’s attorney filed a motion for an additional $2,614.35 in attorney’s fees from the estate, which was granted.

[¶ 13.] The final hearing in this case was held on January 6, 2006. Young was the only witness. After hearing her testimony and counsel’s arguments, the trial court ruled in favor of Maxon and Irwin’s attorney. It found Young had breached her fiduciary duty and engaged in self-dealing by accessing funds held jointly with Irwin and the other grandchildren without prior court approval. Young was “surcharged” for $70,041.58. This amount consisted of $1,720 for the premiums paid on the North Dakota bond, $3,280 in North Dakota attorney’s fees and the balance is the amount of the estate accessed without prior court approval. Young appeals and raises the following issues:

1. Whether the circuit court was clearly erroneous when it failed to approve the final accounting.
2. Whether the circuit court erred in holding Young breached her duty of care as conservator.
3. Whether the circuit court erred in entering the $70,041.58 judgment against Young.

STANDARD OF REVIEW

[¶ 14.] “In guardianship proceedings, the trial court’s findings of fact are reviewed under the ‘clearly erroneous’ standard.” In re Guardianship and Conservatorship of Miles, 2003 SD 34, ¶ 11, 660 N.W.2d 233, 236 (quoting In re Guardianship of Larson, 1998 SD 51, ¶ 13, 579 N.W.2d 24, 27) (additional citations omitted). Under this test, “[w]e will not overturn the trial court’s findings unless, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake was made.” Id. Any legal questions and conclusions of law are reviewed de novo. Estate of Howe, 2004 SD 118, ¶ 16, 689 N.W.2d 22, 27 (additional citations omitted).

[¶ 15.] Whether Young breached her duty of care as conservator and should be surcharged for the entire amount of funds accessed without prior court approval.

[¶ 16.] SDCL 29A-5-411 explains that “[a] conservator ... shall act as a fiduciary and in the best interests of the ... protected person....” The conservator “shall apply the income and principal of the estate as needed for the protected person’s support, care, health, and if applicable, habilitation or therapeutic needs.” SDCL 29A-5-405. Moreover, the conservator must “act in the protected person’s best interests and exercise reasonable care, diligence, and prudence.” Id.

[¶ 17.] The circuit court held Young breached her fiduciary duty by utilizing assets of the estate to pay for Irwin’s care that were held jointly by Irwin and various grandchildren. Some conservatorship statutes authorize the conservator to pay claims and pay any bill incurred for the benefit of the protected person without prior court authorization. See SDCL 29A-5-411. However, SDCL 29A-5-420(7) requires the conservator seek prior court authorization before “withdrawing] funds from a multiple-party bank account....” Young did not obtain prior court authorization.

[¶ 18.] Citing SDCL chapter 55-2 et seq., the circuit court reasoned that not only does a conservator have a fiduciary duty to care for the protected person and his or her estate, but he also acts as trustee in managing the protected person’s property and must protect any beneficiaries’ interests as well. In that respect, Maxon argued and the circuit court agreed, that Young engaged in self-dealing by accessing jointly held assets (Maxon’s joint accounts and bonds) in order to pay for Irwin’s care, instead of using other sources (Young’s and her children’s accounts). It noted that some of Young’s children’s accounts were accessed, but Young was not the one who accessed them. Instead, Marquette Bank accessed these accounts when it was overseeing the con-servatorship.

[¶ 19.] According to Maxon and the circuit court, this self-dealing resulted in Young and her children receiving more than their intended share of Irwin’s estate. During the last hearing, Irwin’s counsel presented a spreadsheet which purported to demonstrate the value of the estate at the start and end of the conservatorship along with the beginning percentage of the estate Young and each grandchild was to receive and the percentage each individual received once Irwin died. According to the document, Maxon was to receive 22.78% of the estate in the beginning of the conservatorship and received 20.46%. Young was to receive 40.45% and received 56.79%.

[¶ 20.] In most conservatorship cases, the conservators are found to have breached their fiduciary duty when the estate money is used for personal reasons and not used for the care of the protected person. See Ward v. Lange, 1996 SD 113, ¶ 15, 553 N.W.2d 246, 251 (finding breach of fiduciary duty where fiduciaries commingled trust funds with their own and failed to set aside funds for protected person); In re Estate of Gardner, 114 N.M. 793, 845 P.2d 1247, 1254 (N.M.Ct.App.1992) (noting a conservator has similar duties as an executor and case law demonstrates it is improper for executor to buy personal items with estate funds). Or when the conservator loses estate property or money by placing it in unsafe investments. In re Taylor’s Estate, 58 S.D. 365, 236 N.W. 365, 367 (1931) (finding guardian liable when he permitted funds to be deposited in a bank he knew was unsafe). This case is peculiar in that there is not an allegation that the money spent was not used for the care of the protected person, but rather the wrong money was used to care for the protected person.

[¶ 21.] We agree that Young breached her fiduciary duty by failing to meet the statutory requirements. She did not obtain court approval before accessing joint accounts as required by SDCL 29A-5-420(7). However, to remedy this breach, the circuit court required total reimbursement of funds accessed without court approval. While it does appear that Young and some of her children received more than their initial share, the proper remedy is not surcharging Young for the entire amount cashed from joint accounts. According to the circuit court’s own memorandum opinion, “[a] guardian is chargeable not only with the entire estate of the ward, both real and personal ... but also with money or property lost by reason of the guardian’s negligence or failure of duty ...(citing 59 Am.Jur.2d, Guardian and Ward, § 214). See also In re Taylor’s Estate, 58 S.D. 365, 236 N.W. at 367. Technically, no money was “lost” from the estate. The improperly accessed joint account money went for Irwin’s care. If none of Maxon’s money had been accessed, she would have received more than her initial percentage of the estate. Therefore, Young should only be surcharged to the extent that she benefited from the breach of duty. At the beginning of the conservatorship, Marquette Bank utilized Young’s family’s money to pay for Irwin’s care. Young should not be punished to the extent she attempted to equalize the estate, even though she failed to get court approval.

[¶ 22.] In this respect, we reverse the circuit court and remand. Young should only be surcharged to the extent she improperly benefited from cashing the bonds without permission. If Young had sought court permission before accessing the joint accounts, some of Maxon’s money would have been accessed to pay for Irwin’s care and Young’s family would not be required to pay the entire bill. She should not be held strictly liable for noncompliance with the statute and forced to pay the entire $65,041.58 accessed without court permission. The surcharged amount should then be distributed to all the heirs according to their beginning percentage.

[¶ 23.] The circuit court did not err in determining Young should pay the North Dakota attorney’s fees of $3,820 and the North Dakota bond premiums. SDCL 29A-5-411(18) authorizes the conservator to “employ persons, including attorneys, accountants, investment advisors, or agents; to act upon their recommendations without independent investigation; to delegate to them any power, whether ministerial or discretionary; and pay them reasonable compensation....” However, the estate should not be charged for the fees because neither the estate nor Irwin was benefited. See Guardianship and Conservatorship of Miles, 2003 SD 34, ¶¶ 30-31, 660 N.W.2d at 238-39. While she initiated proceedings in North Dakota, she never completed the transfer of the conservator-ship to North Dakota, despite having almost two years to do so. This appears to be from her lack of diligence and care, so she, not the estate, should be responsible for these attorney’s fees.

[¶ 24.] The same rationale applies to the bond premiums. Young purchased a bond that was never useful to Irwin’s estate as the conservatorship was never within North Dakota jurisdiction. The estate should not be liable for the bond premium of $1,720.

[¶ 25.] Maxon made a motion for appellate attorney’s fees in this case of $1,693.88. “[A]ttorney fees are allowed when there is a contractual agreement that the prevailing party is entitled to attorney fees or there is statutory authority authorizing an award of attorney fees.” Fuller v. Croston, 2006 SD 110, ¶ 41, 725 N.W.2d 600, 612 (additional citations omitted). SDCL 15-17-38 provides in relevant part that, “[t]he court may award attorneys’ fees from trusts administered through the court as well as in probate and guardianship proceedings.” Furthermore, SDCL 29A-3-720 permits an award of beneficiary’s attorney’s fees when the services resulted “in a substantial benefit to the estate.” Estate of Seefeldt, 2006 SD 74, ¶ 22, 720 N.W.2d 647, 654-55. We award no attorney’s fees as this appeal did not result in a substantial benefit to the estate.

[¶ 26.] We reverse the circuit court’s decision to surcharge Young the entire amount of joint account funds accessed without prior court approval and remand for a determination of a proper surcharge consistent with this opinion. In all other aspects, we affirm.

[¶ 27.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Surcharge means: "1. To impose additional ([usually] excessive) tax, charge, or cost.” or ”3. (Of a court) to impose a fine on a fiduciary for breach of duty.” Black’s Law Dictionary 682 (Bryan A. Garner ed., 2d pocket ed. 2001).

      . The circuit court noted in its memorandum opinion that Young represented herself as Irwin’s "only living relative.” Later, the court discovered there were seven grandchildren.

      . The other four grandchildren are Young's children.

      . The accounts were held in Irwin's and various grandchildren's names.

      . During the appeal, Maxon objected to Appendix A of Young’s reply brief. No response was filed and the objection was granted on February 26, 2007.

      . We have combined the relevant issues.

      . Young used Marquette Bank to manage Irwin’s estate for the first eighteen months of the conservatorship.

      . The spreadsheet is attached to the opinion.

      . Upon remand, the bonds should be calculated at the redeemed value, not the face value. Irwin’s estate needed to cash these bonds early in order to pay the HSC and other bills and the calculated amount should be the redeemed value, not the face value as the bonds had not yet matured.

      . While Young appears to have received 17% more and Maxon seems to have received 2.32% less than originally allocated, it is difficult to ascertain from the record. The spreadsheet offered by Irwin’s counsel contains some errors. For example, the beginning and ending guardianship balances listed at the top do not match the Totals in the spreadsheet. If the beginning guardianship balance of $555,854.23 is used, then Maxon was to receive 20.9% of the estate, rather than the 22.78% given as her beginning percentage. She actually received 20.46% of the estate for a difference of - .44%.


author: CADY, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Gregory Alan JOHNSTON, Appellant.
    No. 06-1362.
    Supreme Court of Iowa.
    May 25, 2007.

      Mark McCormick of Belin Lamson McCormick Zumbach Flynn, Des Moines, for appellant.
    Charles L. Harrington and Wendell J. Harms, Des Moines, for appellee.
   CADY, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) charged Gregory Alan Johnston with numerous violations of the Iowa Code of Professional Responsibility for Lawyers for his involvement in a business transaction with a client. The Grievance Commission of the Supreme Court of Iowa (Commission) found Johnston violated the Iowa Code of Professional Responsibility for Lawyers and recommended he be suspended from the practice of law for a minimum period of six months. Upon our review, we indefinitely suspend Johnston’s license to practice law with no possibility of reinstatement for three months.

I. Background Facts and Proceedings.

Johnston is an Iowa lawyer. He was admitted to practice law in 1977, and is a sole practitioner in Muscatine. He was publicly reprimanded in 1991 for failing to file Iowa and federal income tax returns from 1984 to 1988. He has no other record of discipline. He is known as a bright and innovative advocate by other lawyers in his community.

Johnston represented Nelson Electric, Inc. In 2000, the corporation obtained a judgment of $4000 against a Muscatine building contractor named Thomas Corcor-an. In 2001, the corporation obtained a second judgment against Corcoran for $1170.84. Several other individuals and businesses also acquired judgments against Corcoran during this period of time. One of the creditors, Jeff King, Inc. (King), executed on its judgment against two parcels of real estate owned by Cor-coran in Muscatine, known as the blue building and the red building. The properties were subsequently purchased by King at a sheriffs sale for $5868. Corcor-an was allowed a period of 180 days to redeem the property. The Nelson Electric judgment of $4000 was the only senior lien, and King paid the judgment, plus interest. Upon the apparent insistence of Nelson Electric, Johnston then set out to protect the remaining Nelson Electric judgment of $1170.84, in a rather complex and unusual manner.

Johnston first proposed to protect Nelson’s junior judgment by preparing an involuntary bankruptcy petition against Cor-coran, but eventually decided to personally meet with Corcoran to discuss the situation. Johnston met with Corcoran on February 17, 2002, the day before Corcoran’s right of redemption would expire, in an Illinois jail where Corcoran was imprisoned. After discussing the situation, Johnston and Corcoran mutually agreed the best course of action was for Corcoran to assign his right of redemption to Johnston as agent for Nelson Electric, with Corcoran reserving the right to purchase the property back within a certain amount of time. Johnston believed this would allow Nelson Electric to protect its judgment by redeeming the property, and would also give Corcoran the ability to retain his property by buying it back at a later date. Accordingly, Corcoran signed a written acknowledgment indicating the assignment of his redemption rights to Johnston. The writing did not mention Corcoran’s right to purchase the property back, or explain whether Johnston was acquiring redemption rights for himself or as an agent for Nelson Electric. Johnston then paid Corcoran all the money he had with him — $20 in cash — in part payment of the $250 purchase price. Johnston told Corcoran he would visit him the next day so the parties could complete their business.

The next day, the day Corcoran’s period of redemption would expire, Corcoran and Johnston discussed the matter again. Johnston told Corcoran he believed the interest rate imposed on the judgment by King, the creditor who purchased the property at the sheriffs sale, was excessive. Johnston offered to represent Cor-coran in an action to challenge the interest rate, which, if successful, would reduce the amount needed to redeem the properties. In doing so, he mentioned it would conflict with his representation of Nelson Electric.

Johnston then obtained the oral consent of Nelson Electric to represent Corcoran, and visited Corcoran later in the day to finalize the assignment of Corcoran’s right of redemption and to represent Corcoran to challenge the interest rate. Johnston provided Corcoran with a written letter that disclosed the conflict of interest presented by representing him while also representing Nelson Electric. The letter disclosed that Johnston was only representing Corcoran to reduce the interest rate, and further stated that Johnston might ultimately purchase the properties. Johnston also had Corcoran sign two warranty deeds that he “anticipated using to transfer the title.” The deeds, however, did not name a grantee. At the time Johnston did not know if he, Nelson Electric, or a partnership between them would take title to the properties.

Later that day Johnston filed papers with the district court to redeem the properties. In doing so, Johnston deposited $11,497.01 with the clerk of court. Johnston obtained the funds to redeem the property from Nelson Electric, even though the redemption amount included $4556.14 to reimburse King for the amount it had previously paid Nelson Electric in discharging Nelson Electric’s senior lien.

Johnston also filed an objection to the amount of the redemption, and asked the clerk to hold the redemption funds until the court determined the correct amount of the redemption. In all documents filed with the court, Johnston identified himself as the attorney for Corcoran and that he was filing the redemption and objection on behalf of Corcoran.

Johnston then promptly met with King’s attorney to begin negotiations over the objection to the redemption amount. On February 28, Johnston filed a stipulation in the King foreclosure action indicating King and Corcoran agreed the amount of redemption was $10,632.32, and the excess amount deposited with the clerk would be payable to Johnston as the attorney for Corcoran. On March 1, the district court approved the redemption amount and ordered the funds to be distributed.

Around this same time Johnston discovered Corcoran had deeded his interest in the blue building to a friend named Laura Enke. Johnston promptly negotiated an agreement to purchase her interest for $500 in exchange for a deed to the property. When the deed was signed on March 25, 2002, it did not name a grantee. By the time the deed was recorded on January 6, 2003, Welch Apartments, an entity owned by Johnston, was named the grantee.

Corcoran contacted Johnston by letter on April 5, 2002 to clarify the agreement regarding the property. In the letter he indicated he would like to sell the red building for $60,000 to pay off all his debts. He also intimated he would like Johnston to rent the blue building to pay the building’s taxes and insurance, with remaining proceeds placed into his checking account. Corcoran said he would sign a power of attorney to enable Johnston to act for him, and concluded by saying, “I hope you hang with me and charge or pay whatever you feel necessary.”

Johnston and Corcoran subsequently spoke over the phone about the letter. Johnston said it was not his job to find a buyer for Corcoran, and that he would not be his manager for the properties. Cor-coran next communicated with Johnston in November of 2002. At this time Corcoran sent another letter to Johnston and stated he hoped Johnston was still helping him, and that “we should get down to business.” Corcoran specifically wanted Johnston to try to sell his properties to Tom Meeker for $65,000, and told Johnston he could keep $40,000 from the sale. Johnston did not respond to this letter because he believed Corcoran’s right to buy back the properties had expired. Johnston acknowledged, however, that it was “probably very poor practice to not respond,” and that he “should have responded and said ... you’re wrong, you’re done.”

Corcoran mailed another letter to Johnston in December of 2002. In this letter, Corcoran told Johnston that Meeker had agreed to buy his properties for $60,000, and that Johnston could keep $40,000 of it to pay off Corcoran’s debts. Corcoran also mentioned that he had a year in which to buy back the property according to their agreement, and that he “still [has] two months to spare.” Johnston again did not respond to this letter. He believed Corcoran was attempting to extract money from him, and discontinued further discussions with him.

Nelson Electric, the entity whom Johnston claimed was the moving force for the legal maneuvering to collect the judgment of $1170.84, later decided it did not wish to pursue the collection any further. As a result, Johnston acquired the interest of Nelson Electric in the properties by giving Nelson Electric a credit of $20,000 for the legal services it owed him. This allowed Johnston to continue to pursue his interest in the property. The properties remain encumbered by substantial debt and are the subject of current litigation to quiet title.

II. The Board’s Complaint.

The Board charged Johnston with multiple violations of the Iowa Code of Professional Responsibility for Lawyers. These violations included DR 1-102(A)(1) (lawyer shall not violate a disciplinary rule), DR 1-102(A)(6) (lawyer shall not engage in other conduct that adversely reflects on the fitness to practice law), DR 2-101(B)(4)(a) (lawyer shall not engage in the in-person or telephone solicitation of legal business), DR 2-103(A) (lawyer shall not recommend his or her own employment), DR 2-104(A) (lawyer shall not accept employment resulting from unsolicited advice), DR 5-101(A) (lawyer shall not accept employment under certain circumstances unless client consents and there is full disclosure), DR 5-103(A) (lawyer shall not acquire a propriety interest in client matters), DR 5-103(B) (lawyer shall not advance or guarantee financial assistance to clients), DR 5-104(A) (lawyer shall not enter into a business transaction with a client when there are differing interests), DR 5-105(B) (lawyer shall decline proffered employment in some circumstances), DR 5-105(C) (lawyer shall not continue multiple employment in some circumstances), DR 5-105(D) (lawyer may represent multiple clients in some circumstances), DR 7-101(A)(3) (lawyer shall not intentionally prejudice or damage a client), and DR 7-102(A)(8) (lawyer shall not knowingly engage in other illegal conduct or conduct contrary to a disciplinary rule). Johnston admitted he violated DR 2-101(B)(4)(a), DR 2-103(A), DR 2-104(A), and as a result also admitted he may have violated DR 1-102(A)(1).

The Commission found Johnston violated all of these rules except DR 2-104(A), DR 5-103(B) and DR 7-101(A)(3). It made several key findings to support the violations. The Commission found Johnston not only represented Corcoran in the action to challenge the interest rate, but also sought out Corcoran and ultimately represented him in the redemption of the property. It also found the representation continued after the interest rate matter was settled, and that Johnston not only inserted his own interests into the transaction, but represented the differing interests of Nelson Electric and Corcoran at the same time. Finally, the Commission found Johnston failed to fully compensate Corcoran for the purchase of his redemption rights in the properties.

The Commission recommended Johnston be suspended from the practice of law with no possibility of reinstatement for six months. It also recommended Johnston pay Corcoran $230 to satisfy the purchase of assigning the redemption rights.

On our review, Johnston challenges the Commission’s conclusions that he violated certain disciplinary rules. He also attacks certain factual findings made by the Commission. Ultimately he requests we impose a sanction that does not include the suspension of his law license.

III. Standard of Review.

We review attorney disciplinary matters de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bernard, 653 N.W.2d 373, 375 (Iowa 2002). We give the findings of the Commission weight, but are not bound by them. Id.

IV. Contested Factual Findings.

Johnston alleges the Board failed to establish numerous findings made by the Commission. We consider these claims in addressing the disputed violations raised by Johnston on appeal.

V.Violations.

We only address the violations Johnston contests on appeal. In the end, we agree he violated the disciplinary rules as determined by the Commission.

A. Solicitation.

It is axiomatic in Iowa that a lawyer may not engage in the in-person solicitation of legal business. DR 2-101(B)(4)(a). The Commission found Johnston violated this rule of ethics when he offered to represent Corcoran in a claim to challenge the amount of the redemption. Johnston asserts the ethics prohibition does not apply because he did not solicit Corcoran for the purpose of pecuniary gain.

Even assuming Johnston did not solicit Corcoran for pecuniary gain, DR 2-101(B)(4)(a) prohibits in-person solicitation “under any circumstance.” DR 2-101(B)(4)(a). We have no pecuniary gain requirement. This approach recognizes that face-to-face solicitation by lawyers is “a practice rife with possibilities for overreaching, ... undue influence, and outright fraud.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 641, 105 S.Ct. 2265, 2277, 85 L.Ed.2d 652, 666 (1985). The circumstances of this case, looking back, breathe life into these unwanted possibilities and confirms our strict approach against in-person solicitation. Johnston violated DR 2-101(B)(4)(a) when he recommended his employment to challenge the amount of the redemption.

B. Fitness to Practice.

Ethical misconduct is defined in many ways under the rules of professional responsibility. DR 1-102 identifies the types of misconduct, including “illegal conduct involving moral turpitude,” DR 1-102(A)(3), “conduct involving dishonesty, fraud, deceit or misrepresentation,” DR 1-102(A)(4), conduct “prejudicial to the administration of justice,” DR 1-102(A)(5), and “any other conduct that adversely reflects on the fitness to practice law,” DR 1-102(A)(6) (emphasis added). This approach of listing the various forms of misconduct followed by “other” conduct reveals the broad nature of misconduct involving activities that adversely reflect on the fitness to practice law. It involves conduct other than the specific conduct identified in the rule, and focuses on matters that “lessen[ ] public confidence in the legal profession.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 882 (Iowa 1996). We have also said it “implicates more than legal competence. It also embraces one’s character and one’s suitability to act as an officer of the court.” low a Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Shinkle, 698 N.W.2d 316, 324 (Iowa 2005) (citation omitted).

The Commission found Johnston’s conduct during the transaction violated this disciplinary rule in several ways, including pursuing the redemption in Corcoran’s name after attaining an assignment of his right of redemption, backdating the assignment, failing to pay Corcoran the amount promised for the assignment, taking deeds to the property without a designated grantee, and failing to record the deeds to the property. Johnston claims this conduct either did not occur or falls short of conduct that adversely reflects on fitness to practice law.

We disagree with Johnston. He violated DR 1-102(A)(6) in at least one of the respects found by the Commission. Generally, the conduct cited by the Commission to support the violation of the rule may or may not adversely reflect on Johnston’s fitness to practice law. We are not prepared to say this conduct alone reflects adversely on his fitness to practice law. Only if this conduct is accompanied by an illegal or unethical purpose, motive or intent are we prepared to say he violated the rule. The commission obviously found such an intent when it rejected Johnston’s testimony that Corcoran waived the remaining payment in lieu of Johnston’s fee for representing Corcoran. We give weight to this finding and come to the same conclusion in our de novo review of the record.

A lawyer who fails to satisfy a financial obligation under a contract based on a false claim that the obligation was waived in exchange for legal services engages in conduct that adversely reflects on the practice of law. No attorney should assert loose, unsupported claims for attorney fees as a means to avoid contractual obligations. We agree with the Commission that Johnston engaged in conduct that adversely reflected on his fitness to practice law in violation of DR 1-102(A)(6).

C. Acquiring Interest in Litigation.

DR 5-103(A) prohibits a lawyer from acquiring “a proprietary interest in the cause of action or subject matter of the litigation being conducted for the client,” subject to exceptions not applicable in this case. DR 5-103(A). The Commission found Johnston violated this rule by representing Corcoran when he had purchased the assignment of his redemption rights. Johnston claims he did not violate the rule because there was no “litigation being conducted” for Corcoran once Johnston acquired Corcoran’s redemption rights. In other words, Johnston claims he acquired Corcoran’s interest in the litigation prior to representing him in the litigation.

Lawyers are generally prohibited from injecting themselves into the legal affairs of clients. See Comm. on Prof'l Ethics & Conduct v. Bitter, 279 N.W.2d 521, 523 (Iowa 1979). While DR 5-104 addresses the prohibition against engaging in business with clients, DR 5-103(A) specifically targets the acquisition of a proprietary interest in litigation being conducted by an attorney for a client. Recognizing the limitation in DR 5-103(A), Johnston attempts to sidestep the rule with his claim that Corcoran had no actual legal interest in the pending foreclosure litigation once Corcoran became his client.

While we recognize the obvious inconsistency in Johnston’s claim, the record shows Johnston inserted himself into Cor-coran’s litigation and agreed to represent Corcoran in the litigation as a part of the same transaction. Clearly, Johnston’s conduct violated DR 5-103(A). The rule captures conduct where a lawyer is both a litigator for a client in litigation and a party to the litigation.

D. Conflict of Interest.

A client has a right to expect loyalty and independent judgment from an attorney. See Comm. on Prof'l Ethics & Conduct v. Minette, 499 N.W.2d 303, 305 (Iowa 1993). Many specific rules embrace this concept, including the final three disciplinary rules Johnston argues he did not violate: DR 5-101(A) (refusing employment when professional judgment may be affected by attorney’s own interest), DR 5-104(A) (limiting business relations with clients), and DR 5-105(C) and (D) (multiple client representation). These rules do not apply if client consent has been obtained after full disclosure. See DR 5-101(A); DR 5-104(A); DR 5-105(0, (D).

The Commission found each rule was violated based on Johnston’s multiple representation of Nelson Electric and Corcor-an, as well as the presence of his own interests, including his apartment operation. We agree the multiple interests involved in the transaction implicated DR 5-101(A), DR 5-104(A) and DR 5-105(0, (D). We are not persuaded by Johnston’s argument that he did not violate DR 5-105(C) because he stopped representing Corcoran before he purchased Enke’s deed to the blue building. Even though Johnston may have ended his representation of Corcoran before acquiring a deed to the property, he still represented Corcoran and Nelson Electric at a time when the exercise of his “independent professional judgment on behalf’ of one client would be adversely affected by the representation of the other client. DR 5-105(C). During this time, both Nelson Electric and Cor-coran had competing interests in the redemption of the property. Johnston could not exercise independent judgment for one client without adversely affecting his representation of the other. Because the consent obtained by Johnston failed to satisfy the full disclosure standard, which he admits, Johnston violated these disciplinary rules. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Fay, 619 N.W.2d 321, 326 (Iowa 2000).

VI. Discipline.

“The nature of the alleged violations, the need for deterrence, the protection of the public, maintenance of the reputation of the [Bar] as a whole, and the respondent’s fitness to continue” to practice law are all relevant when determining the appropriate discipline. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Walters, 646 N.W.2d 111, 113-14 (Iowa 2002). In addition, all aggravating and mitigating circumstances are considered. Id. Ultimately, discipline is imposed based on the particular facts of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. McKittrick, 683 N.W.2d 554, 563 (Iowa 2004).

We disagree with the Commission’s factual finding that there are no mitigating circumstances in this case. We believe the testimony demonstrated Johnston to be a generally honest lawyer. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Isaacson, 565 N.W.2d 315, 317 (Iowa 1997) (“We consider a lawyer’s general character for honesty ... in applying sanctions.”). In addition, he acknowledged he violated our disciplinary rules in certain respects. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Tofflemire, 689 N.W.2d 83, 93 (Iowa 2004) (“A mitigating factor is the attorney’s recognition of some wrongdoing.”). Furthermore, the prior discipline imposed on Johnston carries little weight as an aggravating factor under the circumstances of this case. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 656 (Iowa 2002) (recognizing a previous reprimand was an aggravating circumstance “warranting more severe discipline”). Johnston’s previous discipline was imposed more than eighteen years ago, was based on conduct unrelated to the present misconduct and no other discipline has been imposed since the past misconduct.

The misconduct engaged in by Johnston was unusual, and there is little precedent to serve as a guide in the imposition of discipline. Generally, sanctions in cases involving improper business transactions between lawyers and clients range from a public reprimand to revocation. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999). While egregious violations of the canon 5 conflict of interest rules have resulted in lengthy periods of suspension, other violations have resulted in suspensions ranging from one to three months. See Iowa Supreme Ct. Attorney Disciplinary Bd. v. Clauss, 711 N.W.2d 1, 4-5 (Iowa 2006) (citing cases). Moreover, we have observed that an attorney who engages in a series of actions that collectively reveal a general indifference to the core responsibilities owed to the client and the legal system as a whole warrants a suspension. See, e.g., McKittrick, 683 N.W.2d at 563 (three-month suspension).

Johnston violated numerous disciplinary rules by acquiring ownership rights in property that was the subject of his clients’ litigation. In the end, the overall transaction engaged in by Johnston illustrates the reasons for the rules that discourage attorneys from becoming involved in client matters and that require lawyers to serve clients with the utmost loyalty and confidence. Under all the circumstances, we conclude Johnston should be suspended from the practice of law for a period of three months.

The Commission has requested that as part of Johnston’s sanction we direct the clerk to tax the costs of reporting Corcor-an’s depositions to Johnston. Finding this request unopposed, we grant the Commission’s request.

VIL Conclusion.

We suspend Johnston’s license to practice law in Iowa indefinitely, with no possibility of reinstatement for a period of three months from the date of filing of this opinion. The suspension imposed applies to all facets of the practice of law as provided by Iowa Court Rule 35.12(3), and requires notification to clients as provided in Iowa Court Rule 35.21. The costs of this proceeding are taxed against Johnston pursuant to Iowa Court Rule 35.25(1), and Johnston shall pay the costs of Corcoran’s depositions.

LICENSE SUSPENDED.

All justices concur except TERNUS, C.J., who takes no part.

      . Notably, Johnston claims Corcoran's right to redeem the property was only extended by six months pursuant to their agreement entered February 18, 2002. Thus, Johnston believes Corcoran’s right to redeem the property expired in August of 2002, and therefore Johnston and Nelson, or whomever the grantee of the deeds would become, were the owners of the property. Their agreement in February of 2002 concerning Corcoran's right to redeem the properties was not reduced to writing, and therefore there is nothing that states whether Corcoran’s right to redeem the properties was extended by six months as Johnston claims or by one year as Corcoran claims.

      . Rule 7.3 of the ABA’s Model Rules of Professional Conduct generally prohibits solicitation "when a significant motive for the lawyer’s doing so is the lawyer's pecuniary gain.” Model Rules of Profl Conduct R. 7.3 (2003). That is not the approach under DR 2-101(B)(4)(a), or the approach under our new rules. See Iowa R. of Profl Conduct 32:7.3(a) (“A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client.”).