author: STONEBURNER, Judge.

text:
    Mary LARSON, et al, Respondents, v. James Preston WASEMILLER, M.D., Appellant (A05-1698), Defendant (A05-1701), Paul Scot Wasemiller, M.D., et al., Defendants (A05-1698), St. Francis Medical Center, Appellant (A05-1701).
    Nos. A05-1698, A05-1701.
    Court of Appeals of Minnesota.
    July 25, 2006.

      Terry L. Wade, William J. Maddix, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, MN, for respondents.
    Louise Dovre Bjorkman, Mark A. Sol-heim, Charles A. Gross, Larson • King, L.L.P., St. Paul, MN; and M. Daniel Vo-gel, Vogel Law Firm, Fargo, ND, for appellant James Preston Wasemiller.
    Rodger A. Hagen, William M. Hart, Meagher <& Geer, P.L.L.P., Minneapolis, MN, for defendant Paul Scot Wasemiller and Dakota Clinic.
    Robert M. Mahoney, Mark W. Hardy, Geraghty, O’Loughlin & Kenney, P.A., St. Paul, MN, for appellant St. Francis Medical Center.
    Mark R. Whitmore, Charles E. Lund-berg, Bassford Remele, P.A., Minneapolis, MN, for Amici Minnesota Hospital Ass’n, Minnesota Medical Ass’n, and American Medical Ass’n.
    Diane B. Bratvold, Shanda K. Pearson, Rider Bennett, L.L.P., Minneapolis, MN, for Amicus MN Defense Lawyers Ass’n.
    Considered and decided by STONEBURNER, Presiding Judge; DIETZEN, Judge; and HARTEN, Judge.

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

   OPINION

STONEBURNER, Judge.

Respondents brought a medical-malpractice action against appellant James Preston Wasemiller, M.D. and defendant Paul Scott Wasemiller, M.D. Respondents amended the complaint to add claims against appellant St. Francis Medical Center for negligent credentialing of Dr. James Wasemiller and negligence in a joint venture. St. Francis Medical Center moved to dismiss under Minn. R. Civ. P. 12.02(e), arguing that (1) Minnesota does not recognize legal claims of “negligent credentialing” or “negligent privileging” against a hospital; (2) Minn.Stat. § 145.63, subd. 1, limits liability for review organizations; (3) the peer-review privilege, as codified in Minn.Stat. § 145.63, impliedly rejects such claims against hospitals; and (4) respondents have failed to state a claim against the hospital for liability based on joint enterprise with Dr. James Wasemil-ler . The district court denied the motion but certified two questions to this court:

1. Does the state of Minnesota recognize a common-law cause of action of negligent credentialing or privileging of a physician against a hospital or other review organization?
The district court answered in the affirmative.
2. Do Minn.Stat. §§ 145.63-.64 grant immunity from or otherwise limit liability of a hospital or other review organization for a claim of negligent credentialing or privileging of a physician?
The district court answered in the negative.

FACTS

We initially note that this matter was handled in the district court as a motion to dismiss for failure to state a claim on which relief can be granted. We have not considered any facts beyond those stated in the pleadings.

Appellant James Preston Wasemiller, M.D. and defendant Paul Scot Wasemiller, M.D. are physicians licensed in Minnesota, who hold themselves out as surgery specialists. Appellant St. Francis Medical Center (the hospital) is a Minnesota corporation that granted Drs. James P. and Paul S. Wasemiller privileges to perform surgical procedures, including bariatric surgery, on patients. According to the compliant, Dr. James P. Wasemiller performed a gastric bypass and splenectomy on respondent Mary Larson, with the assistance of Dr. Paul S. Wasemiller at the hospital, and both were negligent in her post-surgery care, causing respondents to suffer damages.

The complaint asserts that the hospital knew, or should have known, before the Larson surgery that Dr. James P. Wasem-iller posed an unreasonable danger of harm to bariatric surgery patients at the hospital and that the hospital breached its duty to Larson by granting privileges to Dr. James P. Wasemiller to perform baria-tric surgery at the hospital, causing respondents to suffer damages.

ISSUES

1. Are the certified questions important and doubtful?

2. Should Minnesota recognize a common-law cause of action for negligent credentialing or privileging of a physician against a hospital or other review organization?

3.Do Minn.Stat. §§ 145.63-.64 grant immunity from or otherwise limit the liability of a hospital or other review organization for a claim of negligent credentialing or privileging of a physician?

ANALYSIS

I. Are the certified questions important and doubtful?

This court may hear an appeal from a denial of a motion to dismiss “if the trial court certifies that the question presented is important and doubtful.” Minn. R. Civ.App. P. 103.03(i) (2004); Jostens, Inc. v. Federated, Mut. Ins. Co., 612 N.W.2d 878, 883 (Minn.2000). All parties to this action agree that no appellate court in Minnesota has recognized a cause of action for negligent credentialing or privileging of a physician against a hospital or other review organization and that the district court’s certified questions are “important and doubtful.” We agree.

Whether a question is important and doubtful is a legal question subject to de novo review. Jostens, 612 N.W.2d at 883. We balance a number of factors in determining if a question is important. Id. at 884. “A question is increasingly important if:” it has statewide impact, reversal is likely, lengthy proceedings will be terminated, and a district court’s incorrect ruling will inflict substantial harm on the parties. Id. “[A] great deal of importance should be placed on whether reversal of the question will terminate the proceedings.” Id.

The district court made extensive findings regarding the benefit of interlocutory appeal in this case. Although our answers to the certified questions will not terminate the proceedings, the answers will have a substantial impact on the scope of the litigation. Recognition of the proposed new tort would have statewide impact, and an incorrect ruling would result in substantial harm to the parties. We conclude that the issues presented are important.

A question is properly certified as doubtful if there is no controlling precedent. Jostens, 612 N.W.2d at 884. “That the question is one of first impression is not ... of itself sufficient to justify certification as doubtful; the question should be one on which there is substantial ground for a difference of opinion.” Emme v. C.O.M.B., Inc., 418 N.W.2d 176,180 (Minn.1988). Because there is no direct controlling caselaw on point and there is substantial ground for a difference of opinion, despite the widespread recognition of the tort of negligent credentialing or privileging in other states, we conclude that the questions presented are doubtful. Because the certified questions are both important and doubtful, we accept certification.

II. Does Minnesota recognize a common-law cause of action against a hospital or other review organization for negligent credentialing or privileging of a physician?

We review de novo a district court’s decision on a motion to dismiss for failure to state a claim on which relief can be granted under Minn. R. Civ. P. 12.02(e), and the question before the appellate court is whether the complaint sets forth a legally sufficient claim for relief. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn.2003). “The reviewing court must consider only the facts alleged in the complaint, accepting those facts as true and must construe all reasonable inferences in favor of the nonmoving party.” Id. (citing Marquette Nat’l Bank v. Norris, 270 N.W.2d 290, 292 (Minn.1978)).

Whether Minnesota should recognize a cause of action for negligent credentialing or privileging is a question of first impression in Minnesota and a question of law, subject to de novo review. See Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003) (stating that a reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue). It has long been established that adaptation and development of common-law principles is part of judicial power. See Lake v. Wal-Mart Stores Inc., 582 N.W.2d 231, 233 (Minn.1998) (stating that the supreme court “has the power to recognize and abolish common law doctrines.”); Silesky v. Kelman, 281 Minn. 431, 433, 161 N.W.2d 631, 632 (1968) (stating “[t]he court may modify the common law, adopting such of its principles as are applicable and rejecting such others as are inapplicable.”) (overruled on other grounds by Anderson v. Stream, 295 N.W.2d 595, 601 (Minn.1980)). But it is not our function to create new law. See Stubbs v. N. Mem’l Med. Ctr., 448 N.W.2d 78, 81, 83 (Minn.App.1989) (refusing to create a cause of action that had not been recognized by the courts or established by the legislature because “[t]he function of this court is primarily decisional and error correcting, rather than legislative or doctrinal”), review denied (Minn. Jan. 12, 1990).

Respondents argue that the district court has inherent authority to recognize a new cause of action and correctly exercised that authority in this case. Respondents argue that because a majority of other states have recognized a cause of action against a hospital for negligently granting doctors privileges, we should answer the first question in the affirmative. We disagree.

Acknowledging a district court’s inherent authority to recognize a new cause of action does not end the inquiry. The supreme court has on more than one occasion declined to exercise such power when it deems that the flexibility of the legislative process is a more appropriate avenue in a given situation. Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 808 (Minn.1979) (declining to create a new tort that would create a new duty owed by government entities to enforce the law with reasonable care, stating that such a change in the law is one that should be made by the legislature); Schumann v. McGinn, 307 Minn. 446, 467, 240 N.W.2d 525, 537 (1976) (quoting Spanel v. Mounds View Sch. Dist. No. 621, 264 Minn. 279, 292, 118 N.W.2d 795, 803 (1962), for the proposition that “[wjhile the court has the right and the duty to modify rules of the common law after they have become archaic, ... the flexibility of the legislative process — which is denied the judiciary' — -makes the latter avenue of approach more desirable.”).

The springboard for adoption of the tort of negligent credentialing or privileging independent physicians has been case law permitting the employer of negligently retained independent contractors to be held directly liable to persons injured by such contractors. Benjamin J. Vernia, J.D., Annotation, Tort Claim for Negligent Credentialing of Physician, 98 A.L.R. 5th 533 (2002). Vernia notes the traditional view that hospitals are mere venues where independent-contractor physicians practice, and are, therefore, entitled to immunity from liability for an independent physician’s malpractice “has been substantially eroded through the doctrine of negligent credentialing.” Id. at 551. We are not aware of any authority for the proposition that Minnesota has recognized a negligence claim against the employer of an independent contractor. Recognition of a tort of negligent credentialing will have implications that far exceed the narrow focus of hospitals and independent physicians, and those implications should at least be recognized and addressed in the consideration of whether Minnesota should recognize such a tort.

Appellants have raised additional issues that should be considered either by the legislature or a policy-making court, such as whether the cause of action is dependent on a prior determination of liability of the physician whose credentials or privileges are challenged. Appellants note the potential prejudice to both a physician and a hospital of trying an action for negligent credentialing together with a medical-malpractice action.

Appellants also argue that the strict confidentiality surrounding the decision-making function of a peer-review committee makes it difficult for a hospital to adequately defend against a claim of negligent decision-making. We agree. The statutes dealing with peer review contain extensive confidentiality protections. Minnesota Statute § 145.64, subd. 1(a) (2004), provides that, with an exception not applicable to this case:

data and information acquired by a review organization, in the exercise of its duties and functions, ... shall be held in confidence, shall not be disclosed to anyone except to the extent necessary to carry out one or more of the purposes of the review organization, and shall not be subject to subpoena or discovery.

The statute goes on to prohibit persons involved in the review process from disclosing

what transpired at a meeting of a review organization ... The proceedings and records of a review organization shall not be subject to discovery or introduction into evidence in any civil action against a professional arising out of the matter or matters which are the subject of consideration by the review organization. Information, documents or records otherwise available from original sources shall not be immune from discovery or use in any civil action merely because they were presented during proceedings of a review organization, nor shall any person who testified before a review organization or who is a member of it be prevented from testifying as to matters within the person’s knowledge, but a witness cannot be asked about the witness’ testimony before a review organization or opinion formed by the witness as a result of its hearings ....

Minn.Stat. § 145.64, subd. 1(a). The statutory protection of confidentiality and prohibition of discovery apply to the governing body of the review organization and are not waived by referral of a matter from the review organization to the governing body or consideration by the governing body of decisions, recommendations, or documentation of the review organization. Minn.Stat. § 145.64, subd. 1(c). “No guideline established by a review organization shall be admissible in evidence in any proceeding brought by or against a professional by a person to whom such professional has rendered professional services.” Minn.Stat. § 145.65 (2004). “Any disclosure other than that authorized by section 145.64 of data and information acquired by a review committee or of what transpired at a review meeting, is a misdemeanor.” Minn.Stat. § 145.66 (2004). We agree with appellants that the availability of original-source information does not satisfactorily explain how a hospital can adequately defend against a claim that its credentialing or privileging decision was not based on a reasonable belief that the action was warranted when the hospital cannot disclose what was actually considered or discussed by a review organization that recommended the decision.

The district court, and at least one out-of-state court that considered a hospital’s argument that such confidentiality provisions severely hamper a defendant’s ability to defend against a claim of negligent credentialing, have relied on the availability of information from “original sources” to refute the argument. See Browning v. Burt, 66 Ohio St.3d 544, 613 N.E.2d 993, 1007 (1993) (rejecting argument that Ohio’s similar confidentiality laws regarding peer review prevent a hospital from defending itself against claims for negligent peer review by merely quoting the original-source provision of the statute verbatim to “dispel any notion that [the arguments] are meritorious.”). But neither court addressed how a hospital that cannot even disclose whether such information was considered, let alone how it was used in decision-making, can actually use such information in its defense.

The proposed recognition of a negligent credentialing or privileging tort represents a significant change in the law that should not be accomplished without considering (1) implications for other areas of law; (2) the effect of such a tort on the strong policy of confidential peer review evidenced in sections 145.61-66; (3) resolution of issues such as whether the cause of action is dependent on a finding of medical malpractice; and (4) whether trials for negligent credentialing or privileging can fairly be combined with medical-malpractice actions. Neither a trial court nor an intermediate appeals court is in a good position to fairly and exhaustively consider the complex policy concerns involved. Even the supreme court may determine that the matter would be best handled by the legislature. Accordingly, we answer the first question in the negative: Minnesota does not recognize a common-law cause of action for negligent credentialing or privileging of a physician against a hospital or other review organization, and we conclude that the district court erred by holding otherwise.

III. Do Minn.Stat. §§ 145.63-.64 grant immunity from, or otherwise limit liability of, a hospital or other review organization for a claim of negligent credentialing or privileging of a physician?

Section 145.63, subd. 1 (2004), provides in relevant part:

No review organization and no person ... shall be liable for damages or other relief in any action ... by reason of the performance by the person of any duty, function, or activity of such review organization, unless the performance of such duty, function or activity was motivated by malice toward the person affected thereby. No review organization and no person shall be liable for damages or other relief in any action by reason of the performance of the review organization or person of any duty, function, or activity as a review organization or a member of a review committee or by reason of any recommendation or action of the review committee when the person acts in the reasonable belief that the action or recommendation is warranted by facts known to the person or the review organization after reasonable efforts to ascertain the facts on which the review organization’s action or recommendation is made, except that any corporation designated as a review organization under the Code of Federal Regulations, title 42, section 466 (1983) shall be subject to actions for damages or other relief by reason of any failure of a person, whose care or treatment is required to be scrutinized or reviewed by the review organization, to receive medical care or treatment as a result of a determination by the review organization that medical care was unnecessary or inappropriate.
The protections from liability provided in this subdivision shall also apply to the governing body of the review organization and shall not be waived as a result of referral of a matter from the review organization to the governing body or consideration by the governing body of decisions, recommendations, or documentation of the review organization.

Appellant St. Francis Medical Center argues that section 145.63 evinces a legislative intent to protect review organizations from claims for damages in any action by the review organization’s performance and does not contemplate a negligent-credentialing cause of action. Appellant Wasemiller argues that this court should find the hospital immune from respondent’s negligent credentialing or privileging claim as a matter of law because the complaint does not allege that the hospital “failed to act in the reasonable belief that its action regarding the credentialing or privileging of Dr. Wasemiller was warranted or that [the hospital] failed to make reasonable efforts to ascertain the relevant facts.”

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). ‘When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or unambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation omitted) (citation omitted). Neither party argues that this statutory provision is ambiguous, and we agree that the provision is not ambiguous.

Respondents acknowledge that the statute does not indicate a legislative intent to create or recognize a cause of action for negligent credentialing or privileging. Respondents argue only that the language does not evidence a legislative intent to abrogate the common-law duty to use reasonable care in credentialing decisions. But failing to act with a “reasonable belief’ based on known facts after “reasonable efforts” to obtain facts is narrower than the universe of failing to act with reasonable care. To that extent, the provision unambiguously limits the liability of hospitals and review organizations for acts relating to credentialing or privileging. Defining the parameters of that limitation is beyond the scope of this decision.

Section 145.64 has been discussed above. While nothing in that section provides immunity from a negligent credentialing or privileging cause of action, we have already noted that the section prevents any disclosure of what would appear to be information necessary to an intelligent inquiry into whether a review committee acted with a reasonable belief that its action was warranted by known facts. The confidentiality provision supports appellants’ contention that the legislature did not contemplate negligent credentialing or privileging actions and supports this court’s conclusion that recognition of such an action would best be deferred to the supreme court or the legislature for a comprehensive analysis and weighing of how the confidentiality of the peer-review process would be affected by recognition of such a cause of action. Accordingly, we answer the first part of the second question in the negative: the statute does not grant immunity from liability of a hospital or other review organization for a claim of negligent credentialing or privileging of a physician. We answer the second part of the question in the affirmative: the statute does limit such liability.

DECISION

Because we conclude that Minnesota does not now recognize a common-law cause of action for negligent credentialing or privileging of a physician by a hospital or other review organization, we answer the first question in the negative. We answer the second question partly in the negative and partly in the affirmative, according to the plain language of Minn.Stat. §§ 145.63-.64. Section 145.63 does not grant immunity from negligent credentialing or privileging actions by patients against hospitals or other review organizations, but limits any liability to actions or recommendations not made in the reasonable belief that the action or recommendation is warranted by facts known to it after reasonable efforts to ascertain the facts on which its action or recommendation is made. Section 145.64 limits the evidence that could be used to support or defend against such a claim in a manner that appears to affect the fundamental fairness of recognizing such a claim as the most effective means of monitoring the credentialing or privileging process. We reverse the district court’s denial of appellants’ motion to dismiss respondents’ claim of negligent credentialing or privileging under Minn. R. Civ. P. Rule 12.02 and remand with directions that the hospital’s motion to dismiss on this claim be granted.

Reversed and remanded; certified questions answered.

      . The denial of appellants’ motion to dismiss the claim based on joint enterprise is not involved in this appeal.

      . On a motion to dismiss for failure to state a claim, the allegations contained in the pleading must be considered as true and viewed in the light most favorable to the pleader. N. States Power Co. v. Minn. Metro. Council, 667 N.W.2d 501, 506 (Minn.App.2003), rev’d, 684 N.W.2d 485 (Minn.2004).

      . Cracraft also contains a discussion of the common-law rule, not limited in application to government tortfeasors, that "general duties owed to the entire public rather than a specific class of persons cannot form the basis of a negligence action.” Cracraft, 279 N.W.2d at 804. In the instant case, respondents and the district court emphasized the importance to the public of a hospital's grant of credentials or privileges to a physician, but without discussion presumed that any duty regarding credentialing or privileging gives rise to a private cause of action. Even if the supreme court does not defer to the legislature regarding the establishment of this new cause of action, Minnesota law appears to require at least some consideration of whether there is a private cause of action.

      . Respondents assert that a cause of action for negligent credentialing or privileging is completely separate from, and not dependent on, a finding that a credentialed/privileged physician has committed malpractice. Respondents do not address the potential prejudice to either a physician or hospital that would result from combining such claims in one action as they have done in this case.


source: Caselaw Access Project

author: PETERSON, Judge.

license: Public Domain

text:
    PILLANDCO, INC., et al., Respondents, v. STATE of Minnesota, Appellant, Henry F. Brown, et al., Defendants.
    No. A05-1611.
    Court of Appeals of Minnesota.
    July 25, 2006.

      Paul B. Kilgore, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, MN, for respondents.
    Mike Hatch, Attorney General, Amy V. Kvalseth, Assistant Attorney General, St. Paul, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; KLAPHAKE, Judge; and PETERSON, Judge.
   OPINION

PETERSON, Judge.

In this appeal from a judgment, appellant State of Minnesota contends that the district court erred in concluding that respondents demonstrated by clear and convincing evidence that they are the owners of the severed mineral interests in a 40-acre parcel of land and that the statutory requirements for filing verified statements regarding the severed mineral interests were met. We affirm in part and remand in part.

FACTS

To understand the facts relevant to the issues raised in this action, it is helpful to first understand the legal context in which the action arose. A method for identifying the owners of severed mineral interests in Minnesota is provided by Minn.Stat. §§ 93.52-.58 (2004). The purpose of the statute

is to identify and clarify the obscure and divided ownership condition of severed mineral interests in this state. Because the ownership condition of many severed mineral interests is becoming more obscure and further fractionalized with the passage of time, the development of mineral interests in this state is often impaired. Therefore, it is in the public interest and serves a public purpose to identify and clarify these interests.

Minn.Stat. § 93.52, subd. 1.

To accomplish this purpose, the statute provides that beginning January 1, 1970, every owner of a fee-simple interest in minerals that is owned separately from the surface of the property shall file for record in the county recorder office or the registrar of titles office in the county where the mineral interest is located

a verified statement citing sections 93.52 to 93.58 and setting forth the owner’s address, interest in the minerals, and both (1) the legal description of the property upon or beneath which the interest exists, and (2) the book and page number or the document number, in the records of the county recorder or registrar of titles, of the instrument by which the mineral interest is created or acquired.[]

Minn.Stat. § 93.52, subd. 2.

If the owner fails to file the verified statement

before January 1, 1975, as to any interests owned on or before December 31, 1973, or within one year after acquiring such interests as to interests acquired after December 31, 1973, and not previously filed under section 93.52, the mineral interest shall forfeit to the state after notice and opportunity for hearing as provided in this section.

Minn.Stat. § 93.55, subd. 1.

Respondents commenced an action to determine adverse claims seeking a judgment determining them to be the owners, in undivided fractions, of the severed mineral interests in a 40-acre parcel of land in St. Louis County. The parties agree that as of February 20, 1912, the mineral interests in the land were owned by Henry F. Brown (1/2); Sarah P. Gale (7/36ths); Alfred F. Pillsbury (7/36ths); and John P. Snyder, Sr. (l/9th). Respondents contend that they are the current successors of these owners and base their ownership claims on four chains of title: the Brown chain, the Gale chain, the Pillsbury chain, and the Snyder chain.

There has been no break in the Snyder chain since 1912, and there is no dispute •with respect to that undivided l/9th of the severed mineral interests. But there were breaks in the other three chains. Except for one conveyance, the details regarding the breaks in the chains of title will be discussed later. The exception is an unrecorded purported conveyance by the Henry F. Brown Holding Company of its interest to the three other original owners. The district court found that this conveyance occurred before 1938. This conveyance extinguished the Brown chain of title. The three remaining chains have been unbroken since 1966, when the property was leased to a mining company. Since 1966, the Gale chain runs to respondents Alfred P. Gale and Richard G. Ballantine; the Pillsbury chain runs to respondent Bridger Management Company; and the Snyder chain runs to respondent Trustees under the Agreement made January 10, 1968 by Nelle S. Snyder and John P. Snyder, Jr., Susan S. Miller, and Thomas S. Snyder. In 1974, the purported owners under the three remaining chains conveyed one-half of their respective interests to respondent Pillandco, Inc.

In 1969, the legislature enacted Minn. Stat. §§ 93.52- 58, which, as we have already explained, required every owner of severed mineral interests to file a verified statement setting forth the owner’s interest in the minerals. 1969 Minn. Laws ch. 829, §§ 1-7. In December 1974, the purported owners of the interests under the Gale, Pillsbury, and Snyder chains filed verified statements setting forth their owner’s interest in the severed mineral interests. On December 29, 1975, Pilland-co filed a verified statement setting forth its owner’s interest in the severed mineral interests.

On December 10, 2004, respondents commenced this action to determine adverse claims naming as defendants all individuals and entities, known or unknown, that appeared of record to claim an interest in the severed mineral interests. Only appellant State of Minnesota interposed an answer. The district court found all other defendants in default, and they are not parties to this appeal. Appellant obtained an order to show cause why the mineral interests should not forfeit to the State of Minnesota, and respondents moved for summary judgment. Appellant and respondents submitted documentary evidence and presented arguments to the district court, and by agreement of the parties that there was no need for any further evidentiary hearing, the case was submitted to the district court on the documents and arguments presented.

The district court concluded that there is clear and convincing evidence that the severed mineral interests are held in fee simple by Bridger Management Company (7/36), Alfred P. Gale (77/432), Richard G. Ballantine (7/432), Nelle Snyder Trustees (1/9), and Pillandco, Inc. (1/2). The district court also found that the verified severed-mineral-interest statements filed in December 1974 regarding the interests under the Gale, Pillsbury, and Snyder chains and by Pillandco in 1975 met the content requirements and the timing requirements of the statute and that no verified severed-mineral-interest statement needed to be filed by later owners to protect the interests from forfeiture. The district court issued its findings of fact, conclusions of law, judgment and order, and judgment was entered. There was no motion for a new trial. This appeal followed.

ISSUES

1. Does an owner of a severed mineral interest who acquired the interest from a previous owner who filed a verified statement required by Minn.Stat. § 93.52, subd. 2 (2004), need to file a verified statement within one year after acquiring the interest to avoid forfeiture of the interest under Minn.Stat. § 93.55, subd. 1 (2004)?

2. Does a verified statement of a severed mineral interest that is filed by an owner that acquired the interest after it was created and that sets forth the book and page number or the document number of the instrument by which the interest was created and does not set forth the book and page number or the document number of the instrument by which the interest was acquired satisfy the requirements of Minn.Stat. § 93.52, subd. 2?

3. Is there clear and convincing evidence that when the verified statements setting forth the ownership of the mineral interests claimed under the Gale chain, the Pillsbury chain, and the Snyder chain were filed, the parties that filed the statements were the owners of the severed mineral interests identified in the statements?

ANALYSIS

On appeal from a judgment where there has been no motion for a new trial, appellate review is limited to “whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.” Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). But a motion for a new trial is not a prerequisite for appellate review of a substantive question of law that was previously considered and addressed by the district court. Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 311 (Minn.2003). “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Minn. R. Civ. P. 52.01. “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999) (quotation omitted). An appellate court views the record in the light most favorable to the district court’s judgment. Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999). “The decision of a district court should not be reversed merely because the appellate court views the evidence differently. Rather, the findings must be manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.” Id. (citation and quotation omitted).

“Statutory construction is a question of law subject to de novo review.” Vlahos v. R & I Constr. of Bloomington, Inc., 676 N.W.2d 672, 679 (Minn.2004). The object of statutory construction is to ascertain and effectuate the legislature’s intent. Minn.Stat. § 645.16 (2004). “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Id. “If the statute is free from all ambiguity, we look only to its plain language.” Olson v. Ford Motor Co., 558 N.W.2d 491, 494 (Minn.1997).

I.

After the verified severed-mineral-interest statements setting forth the owner’s interests under the Pillsbury and Gale chains were filed in December 1974, the interest under the Pillsbury chain was conveyed to respondent Bridger Management Company and the interest under the Gale chain was conveyed to respondents Alfred P. Gale and Richard G. Ballantine. None of these respondents filed a verified severed-mineral-interest statement.

Under Minn.Stat. § 93.52, subd. 2 (2004),

every owner of a [severed mineral interest] shall file for record ... a verified statement citing sections 93.52 to 93.58 and setting forth the owner’s address, interest in the minerals, and both (1) the legal description of the property upon or beneath which the interest exists, and (2) the book and page number or the document number ... of the instrument by which the mineral interest is created or acquired.

(Emphasis added.) Citing the emphasized language, appellant argues that every owner of a severed mineral interest is required to file a statement and that there is no exception for grantees who acquire their interest from a grantor who had previously filed a required statement. Appellant contends that the district court erred in concluding that because the previous owners of the severed mineral interests had filed statements, respondents did not need to file statements to avoid forfeiture.

We agree with appellant that under the plain language of Minn.Stat. § 93.52, subd. 2, every owner of a severed mineral interest is required to file a verified statement. But Minn.Stat. § 93.52, subd. 2, does not describe the circumstances when a failure to file a verified statement results in forfeiture of a severed mineral interest. Minn. Stat. § 93.55, subd. 1 (2004), describes the circumstances when a failure to file results in forfeiture. Minn.Stat. § 93.55, subd. 1, states:

If the owner of a mineral interest fails to file the verified statement required by section 93.52 before January 1, 1975, as to any interests owned on or before December 31, 1973, or within one year after acquiring such interests as to interests acquired after December 31, 1973, and not previously filed under section 93.52, the mineral interest shall forfeit to the state after notice and opportunity for hearing as provided in this section.

(Emphasis added.)

The legislature has directed that “[p]ro-visos shall be construed to limit rather than to extend the operation of the clauses to which they refer.” Minn.Stat. § 645.19 (2004). Therefore, the operation of the clause in Minn.Stat. § 93.55, subd. 1, that states that if the owner of a mineral interest acquired after December 31, 1973, fails to file a verified statement required by section 93.52 within one year after acquiring the interest, the mineral interest shall forfeit to the state after notice and hearing, is limited by the proviso that the interest was not previously filed under section 93.52. With this limitation, the interest does not forfeit to the state if the interest was previously filed under section 93.52.

Appellant contends that the phrase, “and not previously filed under section 93.52,” created an exception from the filing requirement only for an owner of a severed mineral interest who acquired the interest on or before December 31, 1973, and filed the required verified statement under the statute in effect before Minn. Stat. §§ 93.52 and 93.55 were amended by 1973 Minn. Laws ch. 650, art. 20, §§ 5 and 6. Appellant argues that the proviso was only intended to allow owners who had filed before the statute was amended to avoid having to file again when the statute was amended and the filing requirements were changed. But in the sentence where it appears, the proviso follows two clauses, one that refers to owners who acquired their mineral interests on or before December 31, 1973, and one that refers to owners who acquired their interests after December 31, 1973. There is nothing in the sentence that provides a basis for concluding that the proviso refers to the first of the two clauses but does not refer to the second clause, which appears immediately before the proviso. When nothing in the sentence suggests that the proviso refers to only the first clause in the sentence, it is unreasonable to conclude that the proviso does not also refer to the second clause. See Minn.Stat. § 645.17(1) (2004) (in ascertaining intention of the legislature, courts presume that legislature does not intend a result that is unreasonable).

MinmStat. § 93.55, subd. 1, describes a one-year period during which an owner who acquired a severed mineral interest after December 31, 1973, is required to file a verified statement in order to avoid forfeiture of the interest to the state. Obviously, if the owner files a verified statement during this period, the filing requirement is met, and there is no reason for the owner to file another verified statement within the one-year period. It is also obvious that because the filing requirement does not apply until ownership begins, the owner could not have filed a verified statement required by section 93.52 before the one-year period started. Therefore, the reference in Minn.Stat. § 93.55, subd. 1, to a verified statement “previously filed under section 93.52” necessarily refers to a verified statement filed by a previous owner. Consequently, we conclude that if a previous owner of a severed mineral interest has filed a verified statement required by section 93.52, an owner who acquires the interest after December 31,1973, is not required to file a verified statement within one year after acquiring the interest to avoid forfeiture of the interest to the state.

Because previous owners of the severed mineral interests that respondents Bridger Management Company, Alfred P. Gale, and Richard G. Ballantine acquired after December 31, 1973, had filed verified statements required by section 93.52, respondents did not need to file verified statements within one year after acquiring the interests to avoid forfeiture to the state.

II.

Appellant argues that the severed mineral interests of respondents Bridger Management Company, Alfred P. Gale, and Richard G. Ballantine could not be shielded from forfeiture by the verified statements filed by the previous owners because those verified statements did not comply with the content requirements of Minn.Stat. § 93.52, subd. 2, and the timeliness requirements of Minn.Stat. § 93.55, subd. 1. Appellant contends that at the time the previous owners filed their verified statements, they were simply claimants to the interests who referred to an instrument that created the severed mineral interests, and they were not able to refer to an instrument by which they acquired their claimed interests.

Minn.Stat. § 93.52, subd. 2, requires that a verified statement set forth “the book and page number or the document number ... of the instrument by which the mineral interest is created or acquired.” Appellant appears to interpret this requirement to mean that if the owner who files the verified statement acquired the mineral interest after it was created, the verified statement must identify the instrument by which the mineral interest was acquired. But the plain language of the statute requires that a verified statement set forth “the instrument by which the mineral interest is created or acquired.” The verified statements filed by the previous owners of the severed mineral interests that respondents Bridger Management Company, Alfred P. Gale, and Richard G. Ballantine acquired after December 31, 1973, set forth document number 578403 and indicate that the document appears at book 677, page 680. The abstract in the record indicates that the document that appears at book 677, page 680, is a warranty deed dated November 1, 1938, and filed December 10, 1938, which transfers 40 acres to Clark Fisk Corey Agency, Incorporated, a Minnesota corporation, “[rjeserving and excepting all minerals, with the right to mine and remove the same.” The grantors named in the deed are Alfred F. Pillsbury and Eleanor F. Pillsbury, his wife; Sarah P. Gale and Edward C. Gale, her husband; and John P. Snyder and Nelle S. Snyder, his wife. By reserving and excepting all minerals, this instrument created the mineral interests that Bridger Management Company, Alfred P. Gale, and Richard G. Ballantine purportedly acquired after December 31, 1973, and setting forth this instrument in the verified statement satisfies the requirement in Minn.Stat. § 93.52, subd. 2.

III.

Appellant argues that even if the verified statements setting forth the ownership of the mineral interests claimed under the Gale chain, the Pillsbury chain, and the Snyder chain met the content and timing requirements of Minn.Stat. §§ 93.52, subd. 2, .55, subd. 1, the district court erred in concluding that when the verified statements were filed, the parties that filed the statements were the owners of the severed mineral interests identified in the statements. Therefore, appellant contends, because Minn.Stat. § 93.52, subd. 2, requires the owner of a severed mineral interest to file a verified statement, the verified statements did not comply with the statute, and the mineral interests should forfeit to the state.

The district court’s findings demonstrate that the court began its analysis of the ownership of the mineral interests in the 40-acre parcel by recognizing that in 1912, the mineral interests were owned by Henry F. Brown (1/2); Sarah P. Gale (7/36ths); Alfred F. Pillsbury (7/36ths); and John P. Snyder, Sr. (l/9th). The abstract in the record indicates that the mineral interests were severed in 1938 when a warranty deed dated November 1, 1938, and filed December 10, 1938, transferred the 40 acres to Clark Fisk Corey Agency, Incorporated, a Minnesota corporation, “[rje-serving and excepting all minerals, with the right to mine and remove the same.” But the grantors named in the warranty deed are Alfred F. Pillsbury and Eleanor F. Pillsbury, his wife; Sarah P. Gale and Edward C. Gale, her husband; and John P. Snyder and Nelle S. Snyder, his wife. Henry F. Brown was not a grantor, which means that the deed does not account for the one-half undivided interest in the minerals that Brown owned in 1912, and there is a gap in the chain of title. To account for this gap, the district court considered documents from both before and after 1938.

The district court found that Brown’s one-half interest had been transferred to the other three owners of interests in the property before the mineral interests were severed in 1938. This finding was based on a warranty deed dated October 29, 1938, and filed January 5, 1939, which granted the State of Minnesota an easement over a portion of the property for highway purposes. The grantors named in this deed were the same as the grantors in the November 1, 1938 deed that severed the mineral interests; Brown was not a grantor. The district court found that the fact that Brown was left out of the deed that granted the easement suggested that Brown’s interest in the property had been transferred to the other three owners, at least with respect to surface rights.

Appellant argues that this evidence is insufficient to prove that Brown’s one-half interest in the mineral interests in the 40 acres was transferred to the other three owners before the mineral interests were severed in 1938. Appellant contends that the fact that Brown was left out of the 1938 deed that granted the highway easement does not support an inference that Brown’s mineral interests had been transferred to the other three owners because that deed involved only surface lights. Citing abstract entry number 31, appellant argues that in 1938, Brown could not have conveyed any interest in the surface because the undisputed evidence is that Brown only owned a one-half interest in the minerals in the 40 acres. But entry 31 is for a 1907 quit-claim deed that grants Brown an undivided 9/18ths interest in the 40 acres and grants the remaining undivided 9/18ths interest to other grantees. The entry does not indicate that the deed grants Brown only mineral interests.

Furthermore, the district court’s finding that Brown’s one-half interest had been transferred to the other three owners was not based only on the 1938 deed that granted the highway easement. The district court also found that a 1966 mining lease that leased the mineral rights in the 40 acres and in adjoining properties to Syracuse Mining Company stated that all of the mineral interests in the 40 acres were owned by claimants under the Pillsbury, Gale, and Snyder chains in fractional shares that were consistent with the shares that they would own if Brown’s one-half interest had been transferred to them. Also, the district court found that the lease indicated that some of the mineral rights in the adjoining lands that were leased to Syracuse Mining Company were owned by the Henry F. Brown Holding Company, which meant that the Henry F. Brown Holding Company participated in the overall leasing arrangement and did not claim an interest in the mineral rights in the 40 acres.

It is apparent that based on the fact that the Henry F. Brown Holding Company participated in the overall leasing arrangement and did not claim an interest in the mineral rights in the 40 acres, the district court inferred that Brown’s interest in the 40 acres had been conveyed to someone else. And it is also apparent that based on the fact that the fractional shares attributed to the Pillsbury, Gale, and Snyder chains in the lease were consistent with the shares that they would own if Brown’s one-half interest in the 40 acres had been transferred to the other three owners before the mineral interests were severed in 1938, the district court inferred that Brown’s interest had been conveyed to the other three owners. These are inferences that the district court was free to make, if the evidence supports the underlying findings of fact.

But there is a problem with the district court’s underlying finding of fact that the fractional shares attributed to the Pillsbury, Gale, and Snyder chains in the lease were consistent with the shares that they would own if Brown’s one-half interest in the 40 acres had been transferred to the other three owners. The district court’s findings indicate that the fractional shares attributed to the Pillsbury, Gale, and Snyder chains in the 1966 mining lease were based on legal advice that Syracuse Mining Company presumably received before entering into the lease. The record contains documents that appear to have been created around 1966 that state the fractional shares attributed to the Pillsbury, Gale, and Snyder chains in the 1966 mining lease. The documents also identify the owners of the fractional shares in 1966. However, the documents only state conclusions about the fractional shares and their ownership in 1966; they do not explain the evidentiary bases for reaching the conclusions. The documents do not identify any events that occurred between 1938 and 1966 that would place ownership of the fractional mineral interests in the owners identified in the 1966 mining lease and, therefore, would support the district court’s inference that Brown’s interest in the minerals was transferred to the other three owners.

In order to support a particular verdict, circumstantial evidence need not be such that it must exclude every other theory, but the theory embraced by the verdict must outweigh any conflicting inferences. Where the evidence, viewed cumulatively, could sustain with equal justification either of two inconsistent inferences, the proponent of the theory has failed to meet its burden of proof.

Republic Nat’l Life Ins. Co. v. Marquette Bank & Trust Co., 312 Minn. 162, 168, 251 N.W.2d 120, 124 (1977) (citations omitted). The 1966 lease and the documents created around 1966 are circumstantial evidence of ownership of the mineral interests identified in the lease. They support the inference that the owners identified in the lease owned the mineral interests in 1966. But the record also contains the title documents for the mineral interests that have been recorded in St. Louis County, and this evidence supports the inference that after the mineral interests were severed in 1938, they were not transferred to new owners.

It is not apparent why, after viewing all of the evidence, the district court determined that the inference supported by the 1966 lease and the other documents created around 1966 outweighed the inference supported by the recorded title documents. The district court found that no other parties asserted any rights to ownership of the mineral interests and appears to have inferred from this fact that the owners identified in the lease owned the mineral interests. But the fact that no other parties asserted ownership rights is also consistent with the inference that the mineral interests were not transferred after 1938 because if the interests were not transferred, no other party would have a basis for claiming ownership.

Because we cannot discern from our reading of the district court’s findings of fact how the district court determined that the owners identified in the 1966 lease had acquired the fractional interests attributed to them in the lease, we remand to the district court to permit it to make specific findings regarding the ownership of the mineral interests in the 40 acres between 1938 and 1966. The district court may open the record to receive evidence and may amend its conclusions of law and judgment in accordance with any findings it makes.

DECISION

The district court did not err when it concluded that the verified statements filed with respect to severed mineral interests in the 40 acres met the content and timeliness requirements of Minn.Stat. §§ 93.52, subd. 2, .55, subd. 1. Also, the district court did not err when it concluded that because previous owners of the severed mineral interests that respondents Bridger Management Company, Alfred P. Gale, and Richard G. Ballantine acquired after December 31, 1973, had filed verified statements required by section 93.52, those respondents did not need to file verified statements within one year after acquiring the interests to avoid forfeiture to the state. Because we cannot discern the basis for the district court’s finding that the owners of the fractional mineral interests identified in the 1966 lease had acquired the fractional interests attributed to them in the lease, we remand that issue.

Affirmed in part and remanded in part.

      . A mineral interest may be severed from, and exist as a fee interest independent of, a surface estate. Wichelman v. Messner, 250 Minn. 88, 102-03, 83 N.W.2d 800, 814 (1957).

      . This filing requirement does not apply to any mineral interest owned by the United States of America, the State of Minnesota, or any American Indian tribe or band owning reservation lands in Minnesota. Minn.Stat. § 93.52, subd. 3 (2004).

      . Appellant argues that under this interpretation of Minn.Stat. § 93.55, subd. 1, no devisee who acquires a severed mineral interest from an ancestor who acquired the interest before December 31, 1973, and filed a verified statement required by section 93.52 would need to file a verified statement. But the filing requirement under section 93.52, subd. 2, applies to every owner of a severed mineral interest regardless of whether a previous owner has filed a verified statement. This interpretation of Minn.Stat. § 93.55, subd. 1, only limits the forfeiture of a severed mineral interest to the state for failing to file a verified statement required by section 93.52.

      . Abstract entry 33 is for a quit-claim deed in which the grantees under the quit-claim deed described in entry 31, other than Brown, grant Brown an undivided one-half interest in the mineral rights in the 40 acres.

      . The abstract in the record includes entries indicating that by 1917, Henry F. Brown had died. Probate records indicate that Brown owned the one-half interest when he died. The abstract indicates that in 1925, Brown’s heirs conveyed the one-half interest to Henry F. Brown Holding Company, a Minnesota corporation.


author: WILLIS, Judge.

text:
    In the Matter of the WELFARE OF M.A.R.
    No. A05-1687.
    Court of Appeals of Minnesota.
    Aug. 1, 2006.

      Leonardo Castro, Fourth District Public Defender, Melissa Haley, Assistant Public Defender, Minneapolis, MN, for appellant M.A.R.
    Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by LANSING, Presiding Judge; WILLIS, Judge; and PARKER, Judge.

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

   OPINION

WILLIS, Judge.

In this appeal from a delinquency adjudication of felony possession of a pistol by a minor, appellant argues that the district court should have suppressed the pistol, which was discovered when police stopped appellant for a curfew violation and searched him before placing him in a squad car for transportation to the Minneapolis curfew center. Because the police had a valid, reasonable basis under Minn. Stat. § 260C.175 (2004) to place appellant in the squad car, we affirm.

FACTS

In June 2005, at 1:09 a.m. on a weekday, Minneapolis police officer James Archer saw two males who appeared to be under the Hennepin County curfew age of 18 standing at a bus stop on Hennepin Avenue between 7th and 8th Streets in downtown Minneapolis. Because it was approximately two hours after the weekday curfew, Archer stopped his squad car, got out, approached the two individuals, and asked them how old they were. Both of the individuals, one of whom was later identified as appellant M.A.R., answered that they were 17 years old.

When an officer encounters a juvenile who is in violation of the curfew, it is Minneapolis police-department policy for the officer to transport the juvenile to the Minneapolis curfew center, where the center staff calls the juvenile’s parents to have the juvenile picked up. Intending to drive both juveniles to the Minneapolis curfew center, Archer conducted a patdown search of M.A.R. while another officer who arrived at the scene as back-up did the same to the other juvenile. Archer found a pistol in M.A.R.’s waistband. M.A.R. was charged with one count of possession of a pistol by a minor, in violation of Minn.Stat. § 624.713, subd. 1(a) (2004). It was later determined that M.A.R. was actually 16 years old at the time.

M.A.R. moved to suppress the pistol, arguing that it was obtained in violation of his constitutional right to be free from unreasonable searches and seizures. The district court denied his motion. The district court adjudicated M.A.R. a delinquent and placed him on juvenile probation. M.A.R. now appeals from the district court’s order denying his motion to suppress the pistol.

ISSUE

Did the district court err by not suppressing the pistol found on M.A.R.?

ANALYSIS

When reviewing the denial of a motion to suppress evidence, we independently review the facts and determine, as a matter of law, whether the district court erred by not suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). The United States and Minnesota constitutions protect individuals from unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. When a police officer has a “valid reasonable basis for placing a lawfully stopped citizen in a squad car, a frisk will often be appropriate without additional individual articulable suspicion.” State v. Varnado, 582 N.W.2d 886, 891 (Minn.1998); see also State v. Curtis, 290 Minn. 429, 437, 190 N.W.2d 631, 636 (1971) (providing that police may, for their own protection, search a person before placing him in a squad car).

M.A.R. argues that after he was stopped for violating the Hennepin County curfew ordinance, Archer had no valid, reasonable basis for placing M.A.R. in the squad car, which prompted the patdown search, and for transporting him to the Minneapolis curfew center. M.A.R. argues that, therefore, the patdown search was unconstitutional and the pistol found during that search should have been suppressed.

M.A.R. does not dispute that a police officer is justified in conducting a patdown search of a person when the officer has a valid, reasonable basis for placing that person in a squad car. But M.A.R. argues that once Archer determined that M.A.R. was in violation of the Hennepin County curfew ordinance, Archer should have determined if one of the defenses listed in the curfew ordinance, such as being engaged in a lawful employment activity or being on an errand for a parent, applied; and if no defense applied, Archer should have issued a citation to M.A.R. and then either released him or called his parents to pick him up.

Relying on the reasoning in this court’s unpublished decision in In re Welfare of S.D.N., No. C3-02-1958, 2003 WL 21061115 (Minn.App. May 13, 2003), the district court concluded that Archer had a reasonable basis under Minn.Stat. § 260C.175 (2004) to take M.A.R. into custody. In S.D.N., this court reversed a district-court order suppressing a pistol that was found during a patdown search of a juvenile who was being cited and taken into custody for violating the St. Paul curfew ordinance. 2003 WL 21061115, at *1-*2. This court concluded that the officer was authorized to take S.D.N. into custody for the curfew violation and to first pat-search S.D.N. under Minn.Stat. § 260C.175, subd. 1(b)(2), which provides that an officer may take a child into immediate custody “when a child is found in surroundings or conditions which endanger the child’s health or welfare or which such peace officer reasonably believes will endanger the child’s health or welfare,” and 3(a), which provides that an officer who takes a child into custody under the section may “perform a protective pat-down search of the child in order to protect the officer’s safety.” Id., at *2 (quoting Minn. Stat. § 260C.175, subds. 1(b)(2), 3(a) (2002)). This court concluded that the pistol found on S.D.N. was admissible under Minn.Stat. § 260C.175, subd. 3(c), which provides that “[ejvidence discovered in the course of a lawful search under this section is admissible.” Id. (quoting Minn.Stat. § 260C.175, subd. 3(c) (2002)).

In S.D.N., this court concluded that, although the St. Paul ordinance did not include a statement of its purpose, the officer’s actions were consistent with the intent of the ordinance, which was “to give police officers the authority to remove juveniles from environments where they may be in danger of becoming victims of crime or may themselves participate in illegal conduct.” Id. Ultimately, this court concluded that it would be “absurd” to determine that an officer must leave a child “in possible danger and permit the curfew violation to continue” and that “[t]he moment the officers were required to transport S.D.N. in the squad car, the pat-down search was necessary for the officers’ protection.” Id., at *3. We find the court’s analysis in S.D.N. persuasive here.

M.A.R. argues that S.D.N. is distinguishable because the St. Paul curfew ordinance at issue there differs from the Hennepin County curfew ordinance in two respects: First, the Hennepin County curfew ordinance includes a stated purpose. M.A.R. argues that, therefore, this court may not supply a purpose for the curfew ordinance as it did in S.D.N. But review of the purpose section of the Hennepin County curfew ordinance shows that it is consistent with what this court found to be the purpose of the St. Paul ordinance. See Hennepin County, Minn., Juvenile Curfew Ordinance No. 16, § 1 (2002). Therefore, we conclude that this is a distinction without a difference.

Second, M.A.R. argues that because the Hennepin County curfew ordinance “specifically provides that violations of the curfew law will be prosecuted as petty misdemeanors pursuant to Minn.Stat. § 260B.235 [ (2004) ],” which does not authorize taking a petty-misdemeanor violator into custody absent circumstances not present here, Minn.Stat. ■ § 260C.175 does not apply. See id., § 5 (providing that curfew violations “will be prosecuted pursuant to Minn.Stat. § 260B.235 and will be subject to the penalties therein”). But the provision in the Hennepin County curfew ordinance for application of section 260B.235 to the prosecution of curfew violations does not preclude the application also of section 260C.175 to a juvenile in violation of a curfew ordinance because such a person is necessarily a child “found in surroundings or conditions which endanger the child’s health or welfare or which such peace officer reasonably believes will endanger the child’s health or welfare.” See Minn.Stat. § 260C.175, subd. 1(b)(2).

We agree with the court’s conclusion in S.D.N. that Minn.Stat. § 260C.175 authorizes an officer to transport to a safe location a juvenile in violation of a curfew. Therefore, Archer had a reasonable basis for placing M.A.R. in the squad car and, for his own safety, to conduct a patdown search of M.A.R. first.

DECISION

Because Minn.Stat. § 260C.175 (2004) authorizes.an officer to transport to a safe location a juvenile in violation of a curfew ordinance, there was a valid, reasonable basis to place M.A.R. in the squad car and, for the police officer’s safety, for first conducting a patdown search of M.A.R. We conclude, therefore, that the district court did not err by denying M.AR.’s motion to suppress the pistol.

Affirmed.


author: KAPSNER, Justice. MARING, Justice, VANDE WALLE, Chief Justice,

text:
    2006 ND 153
    Christopher GIETZEN, Plaintiff and Appellant v. Jessica GABEL, n/k/a Jessica Bay, Defendant and Appellee.
    No. 20050268.
    Supreme Court of North Dakota.
    July 18, 2006.

      Robert A. Keogh, Keogh Law Office, Dickinson, N.D., for plaintiff and appellant.
    Robert J. Schultz, Conmy Feste, Ltd., Fargo, N.D., for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Christopher Gietzen appeals from a judgment awarding Jessica Gabel sole physical custody of their minor child, granting Gietzen visitation, and ordering Gietzen to pay Gabel child support. We conclude the district court failed to correctly apply the law and make necessary findings about domestic violence, and we reverse and remand for further proceedings.

I

[¶ 2] Gietzen and Gabel have never been married, and in 1996, they had a son together. Gietzen and Gabel have had a tumultuous and sporadic relationship. From the date of the child’s birth through the summer of 2000, Gietzen and Gabel generally lived together in Bismarck, but there were times when they were separated and the child lived with Gabel. During one period when they were separated, Ga-bel had a relationship with another man, and she has a child from that relationship. In the summer of 2000, Gietzen and Gabel moved to Fargo and lived together until they ended their relationship in October 2001. According to Gietzen, their relationship ended when Gabel began a relationship with her current husband, David Bay, whom she married in October 2002. According to Gietzen, although his relationship with Gabel ended in October 2001, they continued to have some contact until January 2002, so both he and Gabel could take care of the child while the other worked.

[¶ 3] Gabel claimed Gietzen physically abused her on a regular basis from 1995 until shortly after their relationship ended. Gabel claimed that following an argument in December 2001, Gietzen grabbed her by the throat, pushed her against a wall, lifted her up in the air, and choked her until she passed out. Gietzen admitted choking Ga-bel until she passed out, but claimed she had come after him with a knife. In January 2002, Gabel called police and reported Gietzen had been threatening her with a pocket knife. Gietzen claimed he was using the knife to clean his fingernails and no charges were filed. Later in January 2002, while Gabel was on a date with Bay, Gietzen called Gabel several times for a haircut. Gabel eventually agreed to cut Gietzen’s hair later that evening, and during the haircut, the parties began arguing and Gabel cut Gietzen in the face, chest, and hand with a scissors. Gietzen was treated for the injuries at the emergency room, and Gabel was initially charged with attempted murder, but subsequently pled guilty to assault.

[¶ 4] After the January 2002, incident with the scissors, Cass County Social Services took custody of the child for a period of time. The child eventually began living with Gietzen, and Gabel had visitation. In the fall of 2003, Gietzen moved with his child to Halliday, and the child attended school in Killdeer. In August 2003, Giet-zen sued Gabel to establish paternity, to obtain custody of his child, and to set visitation and establish Gabel’s child support obligation. Gietzen obtained an ex parte order granting him temporary custody of his child and granting Gabel’s visitation. The child lived with Gietzen and attended school in Killdeer from 2003 through the trial in early 2005. At the trial, both Gietzen and Gabel claimed they were victims of domestic violence. The district court ultimately awarded Gabel physical custody of the child, granted Giet-zen visitation, and ordered Gietzen to pay Gabel child support.

II

[¶ 5] Gietzen argues several of the district court’s findings of fact are not supported by the evidence and the court misapplied the law on domestic violence. He claims the court failed to make a finding on whether there was credible evidence of domestic violence and erred in measuring the amount of domestic violence committed by both parties.

[¶ 6] An award of custody is treated as a finding of fact and will not be reversed on appeal unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Cox v. Cox, 2000 ND 144, ¶ 9, 613 N.W.2d 516. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Kjelland v. Kjelland, 2000 ND 86, ¶8, 609 N.W.2d 100.

[¶ 7] Under N.D.C.C. § 14-09-06.1, a district court must award custody of a child to the person who will promote the best interests and welfare of the child. Cox, 2000 ND 144, ¶ 10, 613 N.W.2d 516. Section 14-09-06.2(1), N.D.C.C., outlines several factors for determining the best interests and welfare of a child. A district court has substantial discretion in a custody decision, but it must consider the relevant custody factors in N.D.C.C. § 14-09-06.2(l)(a)-(m). Cox, at ¶ 10. A separate finding is not required for each statutory factor, but the court’s findings must be stated with sufficient particularity so we can understand the factual basis for the court’s decision. Id.

8] Section 14-09-06.2(1)0), N.D.C.C., creates a rebuttable presumption against awarding custody of a child to a perpetrator of domestic violence and provides:

Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child’s nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, “domestic violence” means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1.

Section 14-07.1-01(2), N.D.C.C., defines domestic violence to include:

physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.

[¶ 9] This Court has said that when there is credible evidence of domestic violence, it is the predominate factor in custody decisions under N.D.C.C. § 14-09-06.2(1). Thompson v. Olson, 2006 ND 54, ¶ 10, 711 N.W.2d 226; Lawrence v. Delkamp, 2000 ND 214, ¶8, 620 N.W.2d 151. A determination whether the presumption under N.D.C.C. § 14-09-06.2(l)(j) is applicable is a finding of fact, which will not be reversed on appeal unless clearly erroneous. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 6, 700 N.W.2d 711. When a district court addresses whether evidence of domestic violence triggers the presumption under that statute, we require specific findings and conclusions regarding the presumption so we are not left guessing as to the court’s rationale regarding the application of the presumption. Id. Specific factual findings are not required when the evidence of domestic violence does not rise to the level to trigger the domestic violence presumption, but that evidence can still be considered by the court as one of the best interest factors. Cox, 2000 ND 144, ¶ 17, 613 N.W.2d 516.

[¶ 10] Our analysis of Gietzen’s argument about his claims of domestic violence by both parents requires a brief explanation of the evolution of domestic violence as a factor for child custody decisions. In 1989, the legislature amended N.D.C.C. §§ 14-05-22 and 14-09-06.2(1) to require a district court to consider evidence of domestic violence as a factor in determining child custody and visitation. 1989 N.D. Sess. Laws. ch. 178, §§ 1, 2. In 1991, the legislature amended N.D.C.C. §§ 14-05-22(3) and 14-09-06.2(l)(j) to provide that if the court finds credible evidence that domestic violence has occurred, that evidence shall create a rebuttable presumption that awarding custody or granting visitation to the abusive parent is not in the best interests of the child. 1991 N.D. Sess. Laws ch. 148, §§ 1, 2. The 1991 amendments required the court to cite specific findings of fact to show that the custody or visitation arrangement best protects the child, parent, and other household members who are the victim of domestic violence. Id. at § 2. In Schestler v. Schestler, 486 N.W.2d 509, 511-13 (N.D.1992), a majority of this Court upheld an award of custody of two children to a perpetrator of domestic violence, concluding the domestic violence factor did not have priority over the other statutory factors for deciding custody and affirming the district court’s finding that the presumption had been rebutted.

[¶ 11] In 1993, in response to Schestler, the legislature again amended N.D.C.C. §§ 14-05-22(3) and 14-09-06.2(1)0) to strengthen the rebuttable presumption by requiring that custody could not be awarded to the perpetrator of domestic violence unless there was a showing by clear and convincing evidence that the best interests of the child requires the perpetrator’s participation as a custodial parent. 1993 N.D. Sess. Laws ch. 144, §§ 1, 2. See Hearing-on HB 1393 Before the House Human Servs. Comm., 53rd N.D. Legis. Sess. (Jan. 27, 1993) (written testimony of Bonnie Palecek, Executive Director, North Dakota Council on Abused Women’s Services). Under the 1993 amendments, if necessary, the court may award custody to a suitable third person to protect the welfare of the child. 1993 N.D. Sess. Laws ch. 144, § 2. After the 1993 amendments, this Court indicated the presumption applied even though the evidence of domestic violence may have been isolated or remote in time. Kasprowicz v. Kasprowicz, 1998 ND 68, ¶ 17, 575 N.W.2d 921; Anderson v. Hensrud, 548 N.W.2d 410, 413 (N.D.1996).

[¶ 12] In construing and applying the 1993 amendments, we adopted a roughly proportional standard to assess situations when domestic violence has been committed by both parents. Krank v. Krank, 529 N.W.2d 844, 850 (N.D.1995). We held that when domestic violence has been committed by both parents, the district court must measure the amount and extent of domestic violence inflicted by both parents. Id. If one parent inflicts significantly greater domestic violence than the other, the presumption against custody applies only to the parent inflicting the greater violence. Id. However, if the district court finds the amount and extent of violence inflicted by one parent is roughly proportional to the violence inflicted by the other parent, and both parents are otherwise found to be fit parents, the presumption against awarding custody to either perpetrating parent ceases to exist. Id.

[¶ 13] In 1997, the legislature again amended N.D.C.C. §§ 14-05-22 and 14-09-06.2(l)(j) to further define the circumstances giving rise to the presumption and to clarify the degree of domestic violence required to invoke the presumption. 1997 N.D. Sess. Laws ch. 147, § 1-3. See Dinius v. Dinius, 1997 ND 115, ¶ 18, 564 N.W.2d 300. Under the 1997 amendments, if the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, the combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of the child and the presumption may be overcome only by clear and convincing evidence that the best interests of the child requires that parent’s participation as a custodial parent. N.D.C.C. § 14-09-06.2(1)©. The 1997 amendments retained the language authorizing a custody award to a suitable third person if necessary to protect the welfare of the child.

[¶ 14] The legislative history for the 1997 amendments does not specifically discuss the situation of competing presumptions and the roughly proportional analysis for situations when both parents claim domestic violence has been committed by the other. In Huesers v. Huesers, 1998 ND 54, ¶ 9, 574 N.W.2d 880, however, this Court said the 1997 amendments made no change to the required proportional analysis when both parents have committed domestic violence.

[¶ 15] Here, the district court’s finding about domestic violence provides:

Both parties claim to be the victims of domestic violence. Jessica has testified that Christopher physically abused her during their relationship from 1995 for the final time in early 2002. She testified that Christopher punched her, shoved her, pinched her, snapped his fingers against her head, grabbed her hands and forced her to hit herself and choked her. She also testified that Christopher was verbally abusive to her. As the parties spiraled downward towards their final separation the violence and intimidation escalated. Jessica testified that in December of 2001, Christopher choked her until she was unconscious. Christopher admitted choking Jessica but testified that she was extremely agitated and was coming at him with a knife.
The parties were again together in 2002. Jessica contacted the police stating that Christopher had threatened her with his pocket knife. Christopher maintained that he had chosen that particular time to use the knife to clean his fingernails. No charges were filed. On January 6, 2002, Christopher called Jessica several times that evening requesting that she give him a haircut. Jessica initially declined and offered to pay for him to get a haircut. He insisted and eventually Jessica went to his home to give him the haircut. Given the current state of their relationship this was an extremely bad idea. An argument ensued. Tempers flared. Jessica intentionally wounded Christopher with the scissors. Although initial police reports described the offenses as attempted murder, terrorizing, and domestic violence (aggravated assault) Jessica pled guilty to an Amended Information charging her with Assault. She was sentenced to 1 year in prison, first to serve[ ] 45 days in the custody of the Cass County Sheriff and the balance of 320 suspended for a period of 2 years during which time she was placed on supervised probation. She was ordered to pay $915.41 in restitution, ordered to attend a Domestic Violence Assessment and Evaluation and follow through on all recommendations and to not have contact with Christopher unless approved in advance and in writing by her supervising probation officer. No evidence was presented that she violated any of the terms and conditions of her supervised probation.
Since January 7, 2002 it appears that the parties have cooperated in [the child’s] parenting. Other than some argument on visitation or visitation transportation, the parties appear to be working cooperatively. Both parties have indicated that they have matured since January of 2002 and have been better at working out their differences.
If the Court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which results in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. It appears in this case that domestic violence has been committed by both parties in this case. Accordingly, the Court must “measure the amount and extent” inflicted by both parents[.] Krank v. Krank, 529 N.W.2d 844, 850 (N.D.1995) [Krank I]. If one parent has inflicted a “substantially greater” amount and extent of domestic violence than the other, the presumption against awarding custody is applied to that parent. Id. If the amount and extent of domestic violence by the parties is “roughly proportional,” this Court “is not bound by any presumption, but may consider the remaining customary best interest factors in making its custody decision.” Id. While in this case it appears that both parties have previously perpetrated domestic violence on the other, the facts of this case including the recent past behavior of the parties and their current circumstances indicate that domestic violence between the parties is unlikely to occur in the future.
This factor favors neither.

[¶ 16] The district court’s finding stated both parties had perpetrated domestic violence, but the court did not specifically state if the violence was of a sufficient degree to trigger the presumption or specifically measure the amount and extent of domestic violence inflicted by each parent. Instead, the court cited the proportionality test and stated the facts and parties’ circumstances indicate the domestic violence is unlikely to occur in the future and this factor favors neither party. This Court has recognized that “domestic violence is a learned pattern of behavior aimed at gaining a victim’s compliance,” and “[w]hile separation may be more successful than rehabilitation in ceasing the violence, separation ‘does not change the psychological characteristics of the parties.’ ” Engh v. Jensen, 547 N.W.2d 922, 926 (N.D.1996) (quoting Heck v. Reed, 529 N.W.2d 155, 164-65 (N.D.1995) and Krank v. Krank, 541 N.W.2d 714, 718 (N.D.1996)).

[¶ 17] Here, the district court’s analysis and explanation focused on the likelihood of domestic violence occurring between the parties in the future. From the court’s findings and explanation, however, we are unable to discern if the court found the presumption was triggered, or measured the amount or extent of domestic violence by both parents. Although the court said the domestic violence factor favored neither parent, the court did not make a specific finding on the amount and extent of domestic violence and the court did not address the possible application of the presumption. This Court has recognized that “[b]ecause of the more detailed analysis necessarily involved in determining which parent may get the presumption when reciprocal abuse is alleged, we require a trial court to focus its findings more carefully and specifically on the degree of violent behavior by each parent.” Reeves v. Chepulis, 1999 ND 63, ¶ 14 n. 1, 591 N.W.2d 791 (citing Zimmeman v. Zimmerman, 1997 ND 182, ¶ 9, 569 N.W.2d 277 and Owan v. Owan, 541 N.W.2d 719, 722-23 (N.D.1996)). If the court finds domestic violence that triggers the presumption, the court then must analyze whether the presumption has been overcome in favor of a parent by evidence that is clear and convincing, or whether other suitable custodial arrangements with a third person should be made. N.D.C.C. § 14-09-06.2(l)(j) (“This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent.”).

[¶ 18] Gabel nevertheless claims that even if her domestic violence is greater than Gietzen’s, he is not entitled to custody because of his purported continuing drug use. Although Gietzen admitted he used and sold illegal drugs until January 2002, the district court specifically found “no credible evidence that [Gietzen] has used illegal drugs since January of 2002.” Ga-bel’s reliance on Gietzen’s claimed continuing drug use to sustain the court’s decision is not supported by the court’s findings.

[¶ 19] From the district court’s findings, we are unable to say the court correctly applied the law for domestic violence, and we therefore reverse the custody award and remand for appropriate findings and application of N.D.C.C. § 14-09-06.2(1)®.

III

[¶ 20] Gietzen also claims several of the district court’s findings on issues other than domestic violence are not supported by the evidence. He generally claims the findings describe some events without giving benefit to his version of the events, understate other facts, and are inconsistent. We have reviewed the other findings challenged by Gietzen, and we are not left with a definite and firm conviction the court made a mistake. On this record, we conclude those findings are not clearly erroneous.

IV

[¶ 21] We reverse the judgment and remand for findings under the correct application of the law for domestic violence.

[¶ 22] SANDSTROM, J., concurs.

MARING, Justice,

dissenting.

[¶ 23] I respectfully dissent. I believe the trial court did adequately set forth the standard for evaluating the impact of domestic violence on a child custody determination and properly applied that standard. Our Court’s standard for evaluating the impact domestic violence committed by both parents has on a child custody determination requires:

[T]hat if domestic violence has been committed by both parents, the trial court measure the amount and extent of domestic violence inflicted by both parents. If the amount and extent of domestic violence inflicted by one parent is significantly greater than that inflicted by the other, the statutory presumption against awarding custody to the perpetrator will apply only to the parent who has inflicted the greater domestic violence, and will not apply to the parent who has inflicted the lesser. However, if the trial court finds that the amount and extent of the violence inflicted by one parent is roughly proportional to the violence inflicted by the other parent, and both parents are otherwise found to be fit parents, the presumption against awarding custody to either perpetrating parent ceases to exist. In such a case, the trial court is not bound by any presumption, but may consider the remaining customary best-interests factors in making its custody decision.

Krank v. Krank, 529 N.W.2d 844, 850 (N.D.1995) (footnote omitted).

[¶24] The majority argues that because our statute governing the impact of domestic violence was amended in 1997, this amendment altered our standard for dealing with situations when domestic violence is committed by both parents. Instead of following our long-settled Krank standard, the majority would have the presumption against custody arise against both parents whenever evidence is present of domestic violence sufficient to trigger the presumption under N.D.C.C. § 14-09-06.2(l)(j) for both parents. The effective impact of such a change would be to require that custody of a child is awarded to a third person whenever the statutory presumption against both parents arises under N.D.C.C. § 14-09-06.2(l)(j), unless one of the parents is able to present clear and convincing evidence that rebuts the presumption. This Court has set a very high threshold for overcoming the presumption. This would be the result even in situations when the levels of domestic violence perpetrated by both parents are grossly disproportionate.

[¶ 25] The change in N.D.C.C. § 14-09-06.2(1)0) enacted in 1997 simply provides no justification for such a change:

Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this evidence combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parent’s participation as a custodial parent. The court shall cite specific findings of fact to show that the custody or visitation arrangement best protects the child and the parent or other family or household member who is the victim of domestic violence. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court. If the court awards custody to a third person, the court shall give priority to the child’s nearest suitable adult relative. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. As used in this subdivision, “domestic violence” means domestic violence as defined in section 14-07.1-01. A court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter H-07.1.

1997 N.D. Sess. Laws ch. 147, § 2.

[¶ 26] Support for the majority’s sea change in our child custody jurisprudence is also non-existent in the legislative history, which does not indicate a departure from the Krank standard.

SB 2235 does not change the impact of domestic violence in a custody determination. What it does do, however, is to allow the court to also look for a pattern or, if a single act, the severity as well as to the proximity of the acts. When the court finds credible evidence of domestic violence the court need also examine whether there was one incident of domestic violence which resulted in serious! ] bodily injury or involved the use of a dangerous weapon, or a pattern of domestic violence, all within a reasonable time proximate to the proceeding. If violence exists through a serious single act or a pattern the presumption kicks in that the perpetrator should not have sole or joint custody. The burden to rebut the presumption is on the perpetrator. Through these changes SB 2235 does not remove domestic violence from its importance in making the custody decision, but rather sketches in its connection.

Hearing on S.B. 2235 Before the Senate Judiciary Comm., 55th N.D. Legis. Sess. (Jan. 27, 1997) (testimony of Sherry Mills Moore, Chair of North Dakota State Bar Association Family Law Task Force). It is also clear from the legislative history of the 1997 change that the legislature was aware of our application of N.D.C.C. § 14-09-06.2(l)(j) in the context of situations in which both parents inflict domestic violence. See Hearing on S.B. 2235, supra (memorandum of Billie Brunsoman, intern, p. 3). Yet, the legislature elected not to change the statute to address the Krank standard.

[¶ 27] We recognized that the legislature’s amendment of N.D.C.C. § 14-09-06.2(l)Cj) did not alter the Krank standard for dealing with two parents who have each committed domestic abuse. In Huesers v. Huesers, 1998 ND 54, ¶ 9, 574 N.W.2d 880, we explained:

When domestic violence has been committed by both parties, the court must measure the amount and extent of domestic violence inflicted by both. Krank v. Krank, 529 N.W.2d 844, 850 (N.D.1995). If one parent inflicts significantly greater domestic violence than the other, the presumption against custody applies only to the parent inflicting the greater violence. Id. When there is equal violence by both parents, the presumption does not apply. Id. The amended language makes no change to this required proportional analysis tuhen both parents have committed domestic violence. The court must determine which parent has committed the greater pattern of violence at times reasonably close to the divorce action.

(Emphasis added.)

[¶ 28] Today, with little explanation and no justification, the majority has suddenly decided to legislate its own new course. I cannot agree. The changes made in 1997 to N.D.C.C. § 14-09-06.2(l)(j) have been before this Court numerous times and we have never questioned the continuing validity of the Krank standard following the 1997 amendments. See Thompson v. Olson, 2006 ND 54, ¶ 16, 711 N.W.2d 226; Schumacher v. Schumacher, 1999 ND 149, ¶ 19, 598 N.W.2d 131; Reeves v. Chepulis, 1999 ND 63, ¶ 14 n. 1, 591 N.W.2d 791 (emphasis added) (stating “[w]hile section U-09-06.2(l)(j) does not specifically set forth a procedure for addressing reciprocal domestic violence, we have said the trial court must ‘measure the amount and extent of domestic violence inflicted by both parents,’ and ‘make detailed findings’ determining whether the presumption arises as to one parent or not at all”); Zimmerman v. Zimmerman, 1997 ND 182, ¶ ¶ 7-8 n. 1, 569 N.W.2d 277. Section 14-09-06.2(1)0), N.D.C.C., does not specifically provide for situations when both parents have committed domestic violence. Reeves, 1999 ND 63, ¶ 14 n. 1, 591 N.W.2d 791. We fashioned a response in Krank that reflects the concerns of the legislature and the legislature, despite clear evidence that they were aware of our response, did not see fit to chart a new course in 1997, or at any point thereafter. If support existed in the legislative history of the 1997 amendments that this Court erred in its use of the Krank standard, I might be persuaded otherwise.

[¶ 29] I would apply, as the trial court clearly did, our existing standard. Here, the trial court outlined the evidence of domestic violence committed by both parties. The trial court first established proof of a pattern of domestic violence by Giet-zen and then a single serious incident by Gabel. The trial court next outlined the N.D.C.C. § 14-09-06.2(l)(j) standard for domestic violence sufficient to give rise to the presumption against custody. The trial court then concluded by stating: “It appears in this case that domestic violence has been committed by both parties.” The majority believes the trial court did not make a finding that domestic violence had occurred that raised the presumption. However, if such a finding was not made, it appears the trial court proceeded to engage in superfluous verbosity by then outlining the Krank standard and concluding both committed domestic violence. Clearly, the trial court found both parties had committed domestic violence that raised the presumption. The trial court also found the level of violence committed by both parties was roughly proportional. Although not specifically stating “I find the level of violence committed by both parties to be roughly proportional,” I cannot accept, as the majority does, that the trial court would lay out the correct standard in one sentence and then ignore what it just said in the next. The trial court concluded the factor favored neither party, implying the domestic violence was proportional.

[¶ 30] The trial court also stated: “While in this case it appears that both parties have previously perpetrated domestic violence on the other, the facts of this case including the recent past behavior of the parties and their current circumstances indicate that domestic violence between the parties is unlikely to occur in the future.” This also indicates that the trial court found the level of violence perpetrated by both parties was roughly proportional, thus the presumption against custody arose against neither.

[¶ 31] By evaluating the possibility for future violence, the trial coui't is not injecting an impermissible consideration into the best-interest factors. The court merely indicated that, while the presumption has not arisen against either party, the fact of the past violence is still a consideration, as it should be. A trial court, when faced with a situation in which the presumption against custody due to domestic violence either has never arisen or has been overcome should not then be required to turn a blind eye to the fact of the violence. Section 14-09-06.2(l)(j), N.D.C.C., does not limit the trial court’s consideration of domestic violence-in a best-interests determination to only those situations when the presumption has arisen.

[¶ 32] This case involves one instance of admittedly severe and unacceptable violence committed by Gabel, and a continuing pattern of domestic violence committed by Gietzen. The majority would have a presumption against custody arise against both parents; a presumption that can only be overcome by clear and convincing evidence. This is a difficult burden for a parent to overcome and, in many cases, will result in neither parent being granted custody under the statute. In enacting its 1997 amendments, I do not believe the legislature intended to tear children from both parents and place them with a third party in every case in which both parents have committed domestic violence. Undoubtedly, situations may arise when violence is committed by both parents and placing the child with a third party will be in that child’s best interest. However, the existing Krank standard allows trial courts to do just that when the circumstances so require.

[¶ 33] I would affirm.

[¶ 34] Mary Muehlen Maring

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 35] I concur in the result of the majority opinion insofar as it remands for specific findings of fact including whether or not the findings of domestic violence raise the presumption under N.D.C.C. § 14 — 09—06.2(l)(j).

[¶ 36] I concur in the dissent insofar as it sets forth the standard to be used in applying the presumption under § 14-09-06.2(1)©.

[¶ 37] Crothers, J., concurs.