author: SANDSTROM, Justice.

text:
    2006 ND 67
    Anita MANNING, n/k/a Anita Marchant, Plaintiff and Appellee v. Phillip C. MANNING, Defendant and Appellant.
    No. 20050065.
    Supreme Court of North Dakota.
    March 29, 2006.

      Anita L. Marchant (submitted on brief), West Fargo, ND.
    Phillip C. Manning (submitted on brief), Crystal, ND.
   SANDSTROM, Justice.

[¶ 1] Phillip Manning appealed from a judgment granting custody of his two children to his former wife, Anita Marchant; from an order denying his motion for a stay and a new trial; and from an order denying his motion for relief from the judgment. We dismiss the appeals from the judgment and from the order denying the motion for a new trial and a stay because those appeals were not timely filed. We conclude the district court did not abuse its discretion in denying Manning’s motion for relief from the judgment and, therefore, we affirm that order.

I

[¶ 2] The parties were married in 1989, in Ohio, when Marchant was 19 years old and Manning was 34 years old. The parties lived in various states during the early part of the marriage until their daughter was born in 1996. In 1997, they moved to North Dakota and Marchant enrolled at the University of North Dakota and obtained part-time employment. Their son was born in 1998. Manning was primarily unemployed and cared for the children while Marchant attended classes. In 2000, Marchant enrolled at the University of North Dakota School of Law, Manning cared for the children while Marchant attended classes, and Marchant cared for the children when she did not attend classes.

[¶ 3] The parties’ relationship eventually deteriorated and Marchant filed for divorce in October 2001. Before the divorce action began, Manning wrote to Marchant that he would not agree to a divorce and threatened that a divorce would come with “a price that I know you don’t want to pay.” Manning later told Marchant he wanted to “destroy” her. A divorce judgment was entered in May 2002, in accordance with a stipulated agreement giving Marchant sole physical custody of then-son and Manning sole physical custody of their daughter, and establishing a visitation schedule that would allow the children to spend time together during the weekends.

[¶ 4] The parties’ cooperation over visitation crumbled rapidly after the divorce became final. Manning reported to Grand Forks County Social Services that his son may have been struck by Marchant’s boyfriend. The ensuing investigation, however, revealed Manning told the child to say he had been slapped and Manning had been degrading Marchant in front of the children. Investigators found the report of abuse may not have been filed in good faith. In August 2002, Manning again claimed Marchant had abused the children and refused to return the son to Marchant at the conclusion of a weekend visitation. Following a hearing, the court ordered the son to be returned to Marchant and admonished the parties to comply with the terms of the divorce judgment. In November 2002, Manning again refused to return the son from visitation because he claimed the child was being abused in Marchant’s home. Following an evidentia-ry hearing, the court ordered Manning to return the child to Marchant.

[¶ 5] Marchant subsequently moved to modify the parenting schedule in the divorce judgment and Manning moved for sole custody of the two children. Mar-chant responded by also filing a motion seeking sole custody of the children. Manning subsequently filed a petition for writ of supervision or stay of proceedings which was denied by this Court and launched a recall effort against the district court judge handling the case. The district court judge recused herself and another judge was assigned to the case.

[¶ 6] Following a hearing on the motions in March 2004, the district court, on May 20, 2004, amended the original divorce judgment and granted sole custody of both children to Marchant and set forth a visitation schedule for Manning. The court found Manning had not proven his various allegations against Marchant and her boyfriend. The court said:

[Manning] has done what he threatened to do. He engaged in a course of litigation that can best be described as a “scorched earth” approach and one by which he intended to win at all costs. To that end, he corresponded with University of North Dakota officials alleging academic fraud, corresponded with various prosecutors seeking criminal charges against [Marchant], involved himself in [Marchant’s] law licensure process, and brought a separate lawsuit against [Marchant] and others whom he perceived had acted in ways adverse to his own interests.

[¶ 7] The court expressed “concern ... whether [Manning] can overcome his anger and bitterness about the divorce,” whether he could “overcome his urge to exact revenge on [Marchant],” and whether “his future actions [will] be consistent with the best [interest] of his children.” The court also expressed concern over Marchant’s “ability to act in the best interest of the children.” The court found that “[w]hile both parties love their children and are capable of appropriate parenting, there has been a substantial change of circumstances since entry of Judgment ... which requires a change of custody in order to serve the best interests of the children,” because “[Manning’s] actions have poisoned the relationship between [Mar-chant] and the children and it is necessary to modify the custodial arrangements in order to mitigate that damage and to protect the children’s emotional health.”

[¶ 8] On June 8, 2004, Manning moved for a new trial and a stay. On June 10, 2004, Marchant moved to enforce the amended judgment, claiming Manning had refused to deliver their daughter to her. On June 18, 2004, the district court ordered Manning to comply with the amended judgment and on August 80, 2004, the court issued an order suspending his visitation because he had gone to Canada with the children in violation of the court’s order. On September 24, 2004, the Regional Child Support Enforcement Unit moved to amend the May 20, 2004, amended judgment to set Manning’s child support obligation. Manning did not file a response. On October 11, 2004, the district court entered an order denying Manning’s motion for a new trial and a stay in the proceedings leading to entry of the amended judgment granting custody of the children to Marchant. A second amended judgment was entered on October 15, 2004, which added child support provisions to the amended judgment. Manning filed a notice of appeal on February 22, 2005, indicating he is appealing from the second amended judgment and from the order denying the motion for a new trial and a stay. On May 6, 2005, this Court remanded the case for the filing and disposition of Manning’s N.D.R.Civ.P. 60(b) motion for relief from the May 20, 2004, amended judgment. The district court denied the Rule 60(b) motion in an order entered on August 4, 2005. Manning appealed from that order on August 15, 2005.

II

[¶ 9] Manning has appealed from “the Judgment entered against ... Manning ... on the 19th day of October, 2004,” “the Order denying the motion for stay and new trial entered ... on October 11, 2004,” and from the district court’s August 4, 2005, denial of his N.D.R.Civ.P. 60(b) motion for relief from the May 20, 2004, amended judgment granting Marchant custody of the parties’ two children.

[¶ 10] Before we can consider the merits of an appeal, we must have jurisdiction. Dietz v. Kautzman, 2004 ND 164, ¶ 6, 686 N.W.2d 110. The right to appeal is a jurisdictional matter which this Court will consider on its own, and even if the parties do not question appealability, we must dismiss on our own motion if we conclude that we do not have jurisdiction. In re A.B., 2005 ND 216, ¶ 5, 707 N.W.2d 75.

[¶ 11] Manning’s February 22, 2005, appeal from the second amended judgment entered in October 2004 was filed well beyond the 60-day time limit provided under N.D.R.App.P. 4(a)(1). The 60-day period for filing a notice of appeal begins to run upon “service of notice of entry of the judgment or order being appealed.” Id. The record reflects that notice of entry of the second amended judgment was filed October 19, 2004, indicating it was mailed to Manning on October 18, 2004, more than four months before the notice of appeal was filed.

[¶ 12] We also conclude Manning failed to timely appeal from the order denying his motion for a new trial and a stay. The record shows notice of entry of the order denying the motion for new trial and stay was served by mail on December 21, 2004, 63 days before Manning’s February 22, 2005, notice of appeal was filed. Although the appeal would be timely if the three-day extension for service by mail under N.D.R.App.P. 26(c) was applied, Manning’s attorney served notice of entry of the order on Marchant and her attorney. In LaRocque v. LaRocque, 1998 ND 143, ¶ 5, 582 N.W.2d 645, this Court held the three-day extension for filing a notice of appeal does not apply when the extension is sought to be used by the party who served notice of entry of the judgment or order. Furthermore, although under N.D.R.Civ.P. 77(d), the prevailing party must serve a notice of entry of the judgment, and Manning was not the prevailing party, actual notice of entry of judgment starts the running of-the time for appeal. See Hilgers v. Hilgers, 2004 ND 95, ¶ 14, 679 N.W.2d 447. The record shows Manning’s attorney had actual notice of the order at least by December 21, 2004, and February 22, 2005, is more than 60 days after that date. We therefore dismiss the appeals from the second amended judgment and from the order denying Manning’s motion for a new trial and a stay.

[¶ 13] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Manning’s appeal from the order denying his N.D.R.Civ.P. 60(b) motion for relief from the judgment is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

Ill

[¶ 14] Manning, argues the district court erred in denying his N.D.R.Civ.P. 60(b) motion for relief from the judgment.

[¶ 15] In Gonzalez v. Tounjian, 2004 ND 156, ¶ 9, 684 N.W.2d 653 (quoting Knutson v. Knutson, 2002 ND 29, ¶ 7, 639 N.W.2d 495 (citations omitted)), we summarized the standard of review in appeals from decisions denying a motion for relief from judgment:

A trial court’s decision to deny relief finder N.D.R.Civ.P. 60(b) will not be overturned on appeal absent an abuse of discretion.' We do not determine whether the court was substantively correct in entering the judgment from which relief is sought, but determine only whether the court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not established. An abuse of discretion occurs only when the trial court acts in an arbitrary, unconscionable, or unreasonable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Rule 60(b) attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done, and, accordingly, the rule should be invoked only when extraordinary circumstances are present.

A

[¶ 16] Manning argues the district court erred in failing to find Marchant and her boyfriend committed domestic violence sufficient to raise a presumption under N.D.C.C. § 14-09-06.2(l)(j) against granting custody of the children to her.

[¶ 17] There was conflicting evidence presented at the hearing on the motions for change of custody whether Marchant or her boyfriend had abused the children. Marchant was investigated by social services agencies on several occasions, but the agencies found no grounds to take action against her. The district court found that “[n]either of the children were physically abused” by Marchant or her boyfriend and that Manning’s other allegations of inappropriate behavior “were not proven and were either untrue or greatly exaggerated.” The district court simply did not believe Manning’s allegations of abuse. The district court is the determiner of credibility issues in a bench trial and we do not second guess the district court on its credibility determinations. Gonzalez v. Gonzalez, 2005 ND 131, ¶ 10, 700 N.W.2d 711.

[¶ 18] We conclude the district court did not abuse its discretion in denying the motion for relief from the judgment on this ground.

B

[¶ 19] Manning argues the district court erred in allowing an attorney to serve as both a guardian ad litem and custody investigator during the proceedings.

[¶ 20] “A guardian ad litem is not to act as a custody investigator by preparing a custody investigation report or giving testimony.” N.D.R.Ct. 8.7, Explanatory Note; see also Paulson v. Paulson, 2005 ND 72, ¶ 5, 694 N.W.2d 681. Here, the district court relieved the attorney of his duties as a custody investigator in October 2003, but allowed him to continue serving as the guardian ad litem. The guardian ad litem did not offer testimony or file a formal report. Although the district court requested a custody recommendation from the guardian ad litem during the proceedings, and one was given, a guardian ad litem, as an advocate for the children, may give a custody recommendation. See Foster v. Foster, 2004 ND 226, ¶ 18, 690 N.W.2d 197.

[¶ 21] The district court did not abuse its discretion in denying relief on this ground.

C

[¶ 22] Manning argues the district court judge violated N.D.Code Jud. Conduct Canon 3B(7) by conducting an independent investigation into his criminal background.

[¶ 23] During the proceedings on the motions to change custody, there was testimony concerning a warrant for Manning’s arrest, and the judge questioned Manning about it. Manning claims the judge questioned him about the warrant “using a police report obtained during in chamber, extrajudicial, ex parte communications.” The district court in the N.D.R.Civ.P. 60(b) proceedings rejected Manning’s argument:

Despite Mr. Manning’s assertion, Judge Foughty did not “assume the role of prosecutor” when he questioned him about the outstanding warrant. The issue was raised through the testimony of the plaintiff, and the court questioned the defendant about it at trial. There is no evidence that the judge directed law enforcement to take action on the warrant or otherwise acted adversely to the defendant in this regard. This issue was previously raised and argued in the defendant’s motion for new trial and stay of execution, filed June 8, 2004. It was rejected by the court in its Order denying motion for stay and New Trial of October 11, 2004. Based on its review of this case, this court also rejects this argument [and] finds that Judge Foughty’s actions did not violate the defendant’s right of due process.

[¶ 24] We agree with the district court and conclude this argument does not entitle Manning to relief from the judgment.

D

[¶ 25] Manning argues the district court erred in failing to find that Marchant destroyed computer evidence relevant to the change of custody proceedings.

[¶ 26] The district court considered the opposing affidavits of two computer experts on the spoliation issue and found insufficient evidence that there was a deliberate attempt to destroy evidence. A district court’s choice between two permissible views of the weight of the evidence is not clearly erroneous. L.C.V. v. D.E.G., 2005 ND 180, ¶ 9, 705 N.W.2d 257. We conclude the court did not abuse its discretion in refusing to provide relief from the judgment on this ground.

E

[¶ 27] Manning argues the district court misapplied the law governing modification of custody.

[¶ 28] Because a court in a Rule 60(b) proceeding does not determine whether the court was substantively correct in entering the judgment from which relief is sought, Tounjian, 2004 ND 156, ¶ 9, 684 N.W.2d 653, this argument does not provide a ground for Rule 60(b) relief. In any event, child custody may be modified if the district court finds there has been a significant change in circumstances and the significant change compels, in the child’s best interests, a change in custody. Kelly v. Kelly, 2002 ND 37, ¶ 44, 640 N.W.2d 38. Here, the district court specifically found “there has been a substantial change of circumstances ... which requires a change of custody.” The district court did not misapply the law.

F

[¶29] Manning argues the district court violated his due process rights by limiting the length of the evidentiary hearing on the motions for change of custody.

[¶ 30] A district court has broad discretion over the presentation of evidence and the conduct of trial, but it must exercise its discretion in a manner that best comports with substantial justice. Gullickson v. Kline, 2004 ND 76, ¶ 15, 678 N.W.2d 138. A court may impose reasonable restrictions on the length of a hearing and the number of witnesses allowed. Id. at ¶ 16. Manning was given one and one-half days to present his case while Mar-chant was given one day to present her case. Manning has not established that he was not given a meaningful and reasonable opportunity to present evidence on the relevant issues.

G

[¶ 31] Manning argues the district court erred in failing to find that Grand Forks County Social Services and Pembina County Social Services were biased against him and committed fraud upon the court. This argument is without merit.

[¶32] We conclude the district court did not abuse its discretion in denying Manning’s motion for relief from the judgment.

rv

[¶ 33] We dismiss Manning’s appeals from the judgment and from the order denying his motion for a new trial and a stay. We affirm the order denying Manning’s motion for relief from the judgment.

[¶ 34] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: CROTHERS, Justice. SANDSTROM, Justice,

license: Public Domain

text:
    2006 ND 57
    Theresa L. SACK, Plaintiff, Appellee and Cross-Appellant v. Trent D. SACK, Defendant, Appellant and Cross-Appellee.
    No. 20050167.
    Supreme Court of North Dakota.
    March 29, 2006.

      Joseph J. Cichy (argued), Joseph J. Cichy, P.C., and Orell Schmitz (on brief), Bismarck, N.D., for defendant, appellant and cross-appellee.
    Daniel H. Oster, Neubauer & Oster, Bismarck, N.D., for plaintiff, appellee and cross-appellant.
   CROTHERS, Justice.

[¶ 1] Trent Sack appeals from that portion of a district court judgment and divorce decree awarding Theresa Sack rehabilitative spousal support for six years. He argues Theresa is not a “disadvantaged spouse” and is not entitled to support. Theresa cross-appeals from that portion awarding Trent certain personal property in the court’s property division. We affirm the district court’s judgment.

I

[¶ 2] Theresa Sack brought this divorce action in 2003. Trent and Theresa were married in 1998 and had lived together since 1993. Three children were born of the marriage.

[¶3] When the couple met in 1993, Trent was attending technical college receiving training in heavy equipment operation and Theresa was attending business college studying secretarial work. Trent completed his studies. Theresa claims Trent told her “anybody can get a job, that a certificate wouldn’t do it,” prompting her to quit school in 1994. Trent denies discouraging Theresa from continuing her education. Theresa did not attempt to resume her education either before or during the marriage.

[¶ 4] Trent earns approximately $60,000 annually working at a mine. Theresa held numerous seasonal or temporary positions during the marriage. Her ability to work full time was limited by Trent’s volatile shift schedule. Theresa largely stayed home with the children and worked in positions that were part time or short term and paid an hourly rate high enough to cover daycare expenses. Theresa earned no more than $18,500 annually during the course of the marriage and was unemployed at the time of trial.

[¶ 5] Trent and Theresa stipulated Theresa would retain primary custody of the children and court-ordered visitation was not necessary. The district court ordered Trent to pay child support and divided the marital property. The district court ordered spousal support for Theresa, finding she was a “disadvantaged spouse” because of her lower income earning capacity and her time spent largely as a stay-at-home mother.

II

[¶ 6] A district court’s spousal support determinations are findings of fact that are disturbed on appeal only if they are clearly erroneous. N.D.R.Civ.P. 52(a); Sommer v. Sommer, 2001 ND 191, ¶ 8, 636 N.W.2d 423. Trent argues the district court’s spousal support determination was clearly erroneous because the court failed to adequately make the required finding that Theresa was a “disadvantaged spouse,” citing Riehl v. Riehl, 1999 ND 107, ¶ 9, 595 N.W.2d 10. Theresa argues the district court did make a finding of her “disadvantage” and also posits there are no “rigid rules for determining whether or not to award [spousal support],” other than the Ruff-Fischer guidelines. In support, Theresa cites our decisions in Beals v. Beals, 517 N.W.2d 413, 416 (N.D.1994) and Ingebretson v. Ingebretson, 2005 ND 41, ¶ 7, 693 N.W.2d 1. Because of the issues framed by the parties, together with our duty to correctly apply the law, it is necessary to examine whether the separate “disadvantaged spouse” finding remains a viable requirement before we reach the question whether the district court’s determination was clearly erroneous.

[¶ 7] “Disadvantaged spouse” was first used in North Dakota as a descriptive term. We explained in Bullock v. Bullock, 376 N.W.2d 30, 31 (N.D.1985) that “Rehabilitative spousal support is designed to provide education, training, or experience that will enable the disadvantaged spouse to achieve ‘suitable’ and ‘appropriate’ self-support.” The phrase was originally a label for the party in a divorce who would be receiving support, id., and was used by this Court in a descriptive sense for nearly a decade. See Rustand v. Rustand, 379 N.W.2d 806, 807 (N.D.1986); Hanson v. Hanson, 404 N.W.2d 460, 466 (N.D.1987); Roen v. Roen, 438 N.W.2d 170, 172 (N.D.1989); Wahlberg v. Wahlberg, 479 N.W.2d 143, 144-45 (N.D.1992); Beals, 517 N.W.2d at 416.

[¶ 8] This complementary relationship between “rehabilitative spousal support” and “disadvantaged spouse” ended with Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D.1994), when “disadvantaged spouse” was changed from a description to a requirement. Wiege first stood for the proposition that a “spouse must be disadvantaged as a result of the divorce for rehabilitation or maintenance to be appropriate.” Id. (emphasis added).

[¶ 9] Since Wiege, the “disadvantaged spouse” requirement has continued to evolve and now mandates that “the district court must find the requesting spouse to be ‘disadvantaged,’ ” by assessing whether the spouse has “ ‘forgone opportunities or lost advantages as a consequence of the marriage and ... has contributed during the marriage to the supporting spouse’s increased earning capacity.’ ” Weigel v. Weigel, 2000 ND 16, ¶ 11, 604 N.W.2d 462 (citations omitted).

[¶ 10] Here, the district court found Theresa was a “disadvantaged spouse” entitled to spousal support by virtue of her years spent as a homemaker and her lack of full-time employment throughout the marriage. Trent argues Theresa was not a disadvantaged spouse entitled to support because she did not directly contribute to his increased earning capacity. We disagree with the suggestion that Theresa’s contributions as a homemaker and caretaker for the children did not directly help Trent advance to his current position and salary. Theresa is therefore “disadvantaged” under the current law. However, we find ourselves unable to explain why such a separate finding must be made.

[¶ 11] Any spousal support award is supposed to be based upon consideration of the Ruff-Fischer guidelines. Ingebretson, 2005 ND 41, ¶ 7, 693 N.W.2d 1. Ruff-Fischer evaluates the propriety and necessity of spousal support, weighing:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Staley v. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182 (citing Sommer, 2001 ND 191, ¶ 9, 636 N.W.2d 423). Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). Because such a thorough weighing of factors by the district court is already required through Ruff-Fischer, we cannot reasonably justify requiring a separate proof of “disadvantage.” Such a requirement appears to be no more than a repetitive and onerous exercise for the parties and the courts, which are already faced with considerable procedural and substantive burdens. Nor is a separate test consistent with our case law which has clearly, though sporadically, emphasized the lack of “rigid rules for determining whether or not to award [spousal support] and the amount of such an award.” Beals, 517 N.W.2d at 416.

[¶ 12] “When precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule’s creator to destroy it.” Francis v. Southern Pac. Co., 333 U.S. 445, 471, 68 S.Ct. 611, 92 L.Ed. 798 (1948) (Black, J., dissenting). We are unable to justify what has grown into the “disadvantaged spouse” doctrine and its overshadowing, if not obliteration of the underlying concept of rehabilitative spousal support. Therefore, we elect to dispose of the “disadvantaged spouse” doctrine and reemphasize the importance of a comprehensive analysis under the Ruff-Fischer guidelines when determining the appropriateness of rehabilitative spousal support. In doing so, we do not retreat from the reasons and rationale for rehabilitative support. Rather, we are directing focus back onto the Ruff-Fischer guidelines and away from a sub-test or further potential development of a separate or free-standing “disadvantaged spouse doctrine.”

[¶ 13] Employing the Ruff-Fischer guidelines, Theresa was entitled to rehabilitative spousal support. Theresa has a substantially lower income-earning capacity than Trent, capable of making only minimum wage, compared to Trent’s current income of $60,000. The marriage was relatively short-term, but the parties had lived together for a total of ten years. Trent is in good health, but Theresa has a number of health problems requiring regular treatment. Theresa has very little property and significant debt, while Trent has a house and other assets. Under Ruff-Fischer, therefore, the district court did not err by concluding Theresa was entitled to rehabilitative support.

[¶ 14] We find the district court did not abuse its discretion in awarding Theresa support due to her status as a “disadvantaged spouse” because that same analysis supports the award under the Ruff-Fischer guidelines. However, we overrule Wiege and its progeny inasmuch as they require a separate or independent “disadvantaged spouse” finding as a prerequisite to awarding rehabilitative support.

III

[¶ 15] Theresa argues some specific items of personal property should have been awarded to her in the property distribution. A district court’s determinations on valuation and division of property are findings of fact which are reversed on appeal only if they are clearly erroneous. Kautzman v. Kautzman, 1998 ND 192, ¶ 8, 585 N.W.2d 561.

[¶ 16] Theresa stated in court that Trent could have the particular items at the values he had given them. Therefore, the district court’s decision to award Trent these items is supported by the record and not clearly erroneous.

IV

[¶ 17] We affirm the judgment of the district court awarding Theresa rehabilitative spousal support and distributing the marital property.

[¶ 18] MARY MUEHLEN MAKING, and CAROL RONNING KAPSNER, JJ., concur.

I concur in the result GERALD W. VANDE WALLE, C.J.

SANDSTROM, Justice,

dissenting.

[¶ 19] The majority radically alters our divorce law by abandoning the requirement of a disadvantaged spouse before spousal support can be awarded. I dissent for four reasons. First, the parties did not raise the issue here or in the court below. Second, abandoning the disadvantaged spouse requirement is unnecessary to resolve this case. Third, the majority misapprehends the history and legal basis for the disadvantaged spouse requirement for spousal support. Fourth, the majority’s action is contrary to clear legislative intent.

I

[¶ 20] The parties did not raise the issue here or in the court below. In this case, Trent Sack argued only that Theresa Sack was not a disadvantaged spouse and attempted to distinguish this case from this Court’s past cases on the disadvantaged spouse requirement. At no time did either party argue the disadvantaged spouse requirement had outgrown its usefulness or was superfluous in light of the Ruff-Fischer guidelines. We have repeatedly refused to address issues raised for the first time on appeal. E.g., Wenzel v. Wenzel, 469 N.W.2d 156, 158 (N.D.1991) (“We have repeatedly held that issues not raised in the trial court cannot be raised for the first time on appeal.”). Furthermore, this Court does not decide cases on the basis of arguments not brought before it. See Owens v. State, 2001 ND 15, ¶ 32, 621 N.W.2d 566 (“We decide only issues which have been thoroughly briefed and argued.”). The majority has impermissi-bly extended its reach into an issue not properly before this Court.

II

[¶ 21] Abandoning the disadvantaged spouse requirement is unnecessary to resolve this case. The majority affirms the district court’s findings of fact, conclusions of law, and order for judgment. The district court addressed both the disadvantaged spouse requirement and the Ruff-Fischer guidelines and decided Theresa Sack was a disadvantaged spouse entitled to spousal support. The award of spousal support was not clearly erroneous. Therefore, this case has not presented a need to reevaluate the disadvantaged spouse requirement, and the majority did not need to address the issue. Issues unnecessary to resolving an appeal need not be addressed. Olander Contracting Co. v. Gail Wachter Investments, 2002 ND 65, ¶ 48, 643 N.W.2d 29. Further, it is imprudent to decide a significant issue without briefing and argument. E.g., Owens, 2001 ND 15, ¶ 32, 621 N.W.2d 566 (“We decide only issues which have been thoroughly briefed and argued.”); Sande v. City of Grand Forks, 269 N.W.2d 93, 99 (N.D.1978) (“We are therefore reluctant to base an opinion upon failure to file a claim within a short period, in the absence of briefing and argument on the possible constitutional question.”).

Ill

[¶ 22] The majority misapprehends the history and legal basis for the disadvantaged spouse requirement for spousal support. The majority apparently believes this Court manufactured the “disadvantaged spouse” doctrine out of whole cloth in 1985 for no apparent reason. In fact, as Professor Marcia O’Kelly of the University of North Dakota School of Law has explained, the doctrine was announced years earlier to save the constitutionality of spousal support.

[¶ 23] The majority states at ¶ 7 that “ ‘disadvantaged spouse’ was first used in North Dakota as a descriptive term,” citing Bullock v. Bullock, 376 N.W.2d 30, 31 (N.D.1985). This statement misses nine years and eleven prior opinions of this Court’s relying on the relationship between spousal support and the disadvantaged spouse.

[¶ 24] Professor O’Kelly outlined the history of spousal support. Marcia O’Kelly, Entitlements to Spousal Support After Divorce, 61 N.D. L.Rev. 225 (1985). Professor O’Kelly explains that historically, alimony was a continuation of the husband’s duty to support his wife. Id. at 235.

Before 1976, North Dakota cases reflected unqualified acceptance of statutory alimony as the common-law concept of continuation after divorce of the husband’s duty to support and maintain his wife during marriage.

Id. Professor O’Kelly points out that this concept was explicitly endorsed by this Court in Nugent v. Nugent, 152 N.W.2d 323, 327 (N.D.1967). O’Kelly, supra, at 235 n. 50.

[¶ 25] But the legal landscape changed in 1971, when the United States Supreme Court, in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), “decided for the first time that the equal protection clause of the Constitution significantly limits the power of government to differentiate treatment, entitlements, or duties on the basis of gender.” O’Kelly, supra, at 240. Professor O’Kelly explains that the “court correctly recognized the need to replace the old notion of marital support in order to preserve the constitutionality of the alimony statute” when the alimony statute of North Dakota was challenged as impermissibly discriminating against husbands on the basis of sex. Id. at 241 (discussing Bingert v. Bingert, 247 N.W.2d 464 (N.D.1976)).

[¶ 26] It was in Bingert v. Bingert, that this Court first discussed the concept of a disadvantaged spouse and spousal support. 247 N.W.2d at 468. The issue before the Court was whether the alimony statute of North Dakota impermissibly discriminated against husbands on the basis of sex. Id. at 466. The appellant argued North Dakota’s alimony statute, located at that time in N.D.C.C. § 14-05-24, was unconstitutional because it was based in part on the husband’s common-law duty to support his wife during marriage, which he contended was also unconstitutional sex discrimination. Id. at 468. Upholding the constitutionality of North Dakota’s alimony statute, this Court concluded the duty to pay spousal support was not a continuation of the husband’s duty to support his wife during marriage, but was an independent duty. Id. at 468-69. In doing so, Justice Vogel stated, “We believe that the trend in modern domestic-relations law is to treat alimony as a method for rehabilitating the party disadvantaged by the divorce. This seems to be the basis of the Uniform Marriage and Divorce Act, adopted in at least four States, not including North Dakota.” Id. at 469 (emphasis added). The Court ultimately held that North Dakota’s spousal support statute was neutral on its face regarding sex, applied equally to men and women, and therefore, passed constitutional muster. Id.

[¶ 27] Since 1976 and prior to Bullock in 1985, this Court continued discussing the need of a disadvantaged spouse in spousal support cases. See Nastrom v. Nastrom, 262 N.W.2d 487, 491 n. 1 (N.D.1978); Carr v. Carr, 300 N.W.2d 40, 46 (N.D.1980); Williams v. Williams, 302 N.W.2d 754, 758 (N.D.1981); Jochim v. Jochim, 306 N.W.2d 196, 199 (N.D.1981); Svetenko v. Svetenko, 306 N.W.2d 607, 611 (N.D.1981); Martin v. Martin, 307 N.W.2d 541, 544 (N.D.1981); Herrick v. Herrick, 316 N.W.2d 72, 75 (N.D.1982); Gooselaw v. Gooselaw, 320 N.W.2d 490, 493 (N.D.1982); Briese v. Briese, 325 N.W.2d 245, 249 (N.D.1982); Smith v. Smith, 326 N.W.2d 697, 700 (N.D.1982); Jondahl v. Jondahl, 344 N.W.2d 63, 72 (N.D.1984); Seablom v. Seablom, 348 N.W.2d 920, 924 (N.D.1984).

[¶ 28] Without recognizing the legal or historical significance of the disadvantaged spouse requirement, the majority now spontaneously and without warning casts it aside as superfluous next to the Ruff-Fischer guidelines. The majority incorrectly notes the time the disadvantaged spouse concept gained prominence in the law. Then, it trivializes it, stating this Court used it as “a. descriptive term,” rather than an emerging trend in the law. And finally, without discussing whether modern spousal support jurisprudence has changed again, the majority discounts the disadvantaged spouse requirement as no longer needed. I would not cast aside so readily a concept of the law that is well established in caselaw and emerged to meet changing societal norms.

IV.

[¶ 29] Finally, the majority’s action is contrary to clear legislative intent of the North Dakota Legislative Assembly.

[¶ 30] The requirement that a person be a disadvantaged spouse in order to be entitled to receive spousal support has been settled caselaw in North Dakota for 30 years.

[¶ 31] “It is a settled rule of statutory construction that when a statute or a clause or provision thereof has been construed by a court of last resort, and the same is substantially reenacted, the legislature may be regarded as adopting such construction.” Lembke v. Unke, 171 N.W.2d 837, 852 (N.D.1969); see also 73 Am.Jur.2d Statutes § 221 (2001) (“Since it is presumed that the legislature knew a construction, long acquiesced in, given by the courts to a statute reenacted by the legislature, there is a presumption of an intention to adopt the construction as well as the language of the prior enactment.”).

[¶ 32] Such a reenactment has occurred in North Dakota resulting in legislative adoption of the disadvantaged spouse requirement. In 2001, the Legislative Assembly amended and reenacted N.D.C.C. § 14-05-24 and adopted N.D.C.C. § 14-05-24.1, which separated North Dakota’s property division and spousal support statutes. 2001 N.D. Sess. Laws ch. 149, § 10; 2001 N.D. Sess. Laws ch. 150, § 1. Senate Bill 2046, the bill that enacted a new statute for spousal support, was intended to be a house-keeping measure, simply intended to “clean up and coordinate” the family law statutes without making any substantive changes. Hearing on S.B.2046 Before the Senate Judiciary Comm., 57th N.D. Legis. Sess. (Jan. 24, 2001) (testimony of Sherry Mills Moore, State Bar Ass’n of N.D. Family Law Task Force); Hearing on S.B.2046 Before the House Judiciary Comm., 57th N.D. Legis. Sess. (Mar. 14, 2001) (testimony of Sherry Mills Moore, State Bar Ass’n of N.D. Family Law Task Force).

[¶ 33] The disadvantaged spouse requirement was adopted by this Court long before the 2001 statutory amendments. The legislature adopted a new spousal support statute that was intended to clean up the family law statutes, and it did not intend any substantive change to spousal support law. We presume the legislature knew of this Court’s application of the disadvantaged spouse requirement and intended to adopt it when it amended the family law statutes in 2001. Therefore, the majority has now altered law that the legislature acquiesced to without any indication from the legislature that a change of law was needed.

V

[¶ 34] In conclusion, the majority has extended its reach further than necessary or appropriate for this case. The majority raises on its own and dispatches without briefing or argument the issue of whether the disadvantaged spouse requirement should be abandoned, an issue not properly before this Court and the resolution of which is unnecessary to resolve this case. The majority changes the law while misapprehending the history and legal basis for the disadvantaged spouse requirement and defying the intent of the legislature. Therefore, I dissent.

[¶ 35] DALE Y. SANDSTROM, J.

      . Although earlier cases referenced one spouse's "disadvantage,” e.g., Bingert v. Bingert, 247 N.W.2d 464 (N.D.1976), the phrase "disadvantaged spouse” did not appear in our case law until 1985.


text:
    2006 ND 64
    Cheryl Rae KRAMER, Plaintiff and Appellee v. Kenneth Leroy KRAMER, Defendant and Appellant.
    No. 20050222.
    Supreme Court of North Dakota.
    March 29, 2006.

      Samuel S. Johnson, Johnson Law Office, Ltd., Wahpeton, N.D., for plaintiff and ap-pellee.
    Tracey R. Lindberg, Tracey R. Lind-berg Law Firm, Breckenridge, MN, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Kenneth Kramer appeals from a divorce judgment that incorporated a property settlement agreement between Cheryl Kramer and him. He argues the district court erred in failing to review the settlement agreement for unconscionability, erred in enforcing the agreement, and erred in issuing a protective order. We affirm.

I

[¶ 2] In May 2002, Cheryl Kramer and Kenneth Kramer signed a “legal separation agreement/property settlement agreement” that provided:

9. SUBSEQUENT DIVORCE. Nothing herein contained shall be deemed to prevent either of the parties from maintaining a suit for absolute dissolution of marriage against the other in any jurisdiction based upon any past or future conduct of the other nor bar the other from defending any such suit. The husband and wife agree that the husband was served with a Summons and Complaint seeking a divorce, and the wife agrees to not prosecute said Complaint until providing notice in writing to the husband that she does intend to dissolve the marriage, giving him at least twenty (20) days notice before proceeding on the same, said notice to be provided to the husband by certified mail, return receipt requested, or by personal service, if necessary.
Both parties further agree that, in the event the wife shall seek a divorce, after proper notice has been given, that this Legal Separation Agreement shall act as a Property Settlement Agreement and may be submitted to the Court as such. At the time this Agreement is entered into, both the husband and wife contemplate that a divorce may subsequently be granted. In the event that such divorce is granted, they hereby stipulate and agree that the applicable Court shall distribute property, apportion bills and obligations and specifically the Court shall carry out all terms of this entire Agreement.
Both parties agree that the property of the parties shall be divided by the parties such that the wife receives the property listed in Exhibit I, and' the husband receives the property listed in Exhibit II. The parties further agree to the special terms and conditions listed in Exhibit III. The parties agree that the debts, bills and other obligations of the parties shall be divided as listed in Exhibit IV.

[¶ 3] In October 2004, Cheryl Kramer provided Kenneth Kramer with notice of her intent to seek a divorce and again served an action for divorce upon him. Kenneth Kramer asked the district court to not approve the property settlement agreement, claiming it was unconscionable and he signed it under undue influence when he was not represented by counsel. He also sought discovery from Cheryl Kramer. Cheryl Kramer asked the court to approve the settlement agreement and moved for a protective order. After an evidentiary hearing, the court decided Kenneth Kramer knew and understood the terms of the agreement before signing it and voluntarily consented to the agreement. The court decided the agreement was a fair and reasonable disposition of the parties’ property and incorporated the agreement into a divorce judgment. The court also granted Cheryl Kramer’s motion for a protective order.

[¶ 4] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Kenneth Kramer’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 5] Kenneth Kramer argues the district court failed to review the property settlement agreement for unconscionability. He claims neither the court’s memorandum decision, nor its findings of fact indicate the court reviewed the agreement for unconscionability. He asserts the court’s statement the agreement was a fair and reasonable disposition of the property was not sufficient to demonstrate the court reviewed the agreement for unconsciona-bility. He claims the agreement should be analyzed for unconscionability, because (1) it provided for an unequal distribution of the parties’ assets; (2) it was signed in contemplation of potential reconciliation without following the procedural safeguards set forth in Peterson v. Peterson, 313 N.W.2d 743 (N.D.1981); and (3) it failed to divide or account for assets accumulated by Cheryl Kramer after it was signed.

A

[¶ 6] When a divorce is granted, a district court “shall make an equitable distribution of the property and debts of the parties.” N.D.C.C. § 14-05-24. In making an equitable distribution of the parties’ property, however, this Court has encouraged district courts to recognize valid settlement agreements between divorcing parties. Weber v. Weber, 1999 ND 11, ¶ 9, 589 N.W.2d 358; Clooten v. Clooten, 520 N.W.2d 843, 846 (N.D.1994); Peterson, 313 N.W.2d at 745. Public policy favors the “ ‘prompt and peaceful resolution of [marital] disputes.’ ” Clooten, at 846 (quoting Wolfe v. Wolfe, 391 N.W.2d 617, 619 (N.D.1986)). “[T]o the extent that competent parties have voluntarily stipulated to a particular disposition of their marital property, a court ordinarily should not decree a distribution of property that is inconsistent with the parties’ contract.” Wolfe, at 619.

[¶ 7] District courts, however, should not blindly accept property settlement agreements. Weber v. Weber, 548 N.W.2d 781, 783 (N.D.1996). A district court’s duty to make an equitable distribution of marital property under N.D.C.C. § 14-05-24 includes the authority to decide whether a settlement agreement was executed as a result of mistake, duress, menace, fraud, or undue influence under N.D.C.C. § 9-09-02(1). Weber, 548 N.W.2d at 783. A district court also may set aside a settlement agreement that is unconscionable. Crawford v. Crawford, 524 N.W.2d 833, 835-36 (N.D.1994). This Court has said “[u]nconscionability is a doctrine by which courts may deny enforcement of a contract ‘because of procedural abuses arising out of the contract formation, or because óf substantive abuses relating to the terms of the contract.’ ” Weber, 1999 ND 11, ¶ 11, 589 N.W.2d 358 (quoting Black’s Law Dictionary 1524 (6th ed.1990)). In Weber, we said an unconscionable agreement is an “agreement no rational, undeluded person would make, and no honest and fair person would accept.” Weber, 1999 ND 11, ¶ 15, 589 N.W.2d 358. See also Crawford, 524 N.W.2d at 836 (vacating judgment based on stipulation that was “blatantly one-sided” and “rankly unfair”).

[¶ 8] Our decisions thus require district courts to review settlement agreements to determine whether the agreement was entered freely and knowingly, without fraud, duress, menace or undue influence, and whether the agreement was unconscionable. Weber, 548 N.W.2d at 783. Here, although the district court did not specifically state the agreement was “not unconscionable,” the court’s amended findings of fact state the agreement was “a fair and reasonable disposition of the property of the parties.” Kenneth Kramer nevertheless claims the court’s findings, which were prepared by Cheryl Kramer’s counsel, altered the court’s memorandum decision. The court, however, directed Cheryl Kramer’s counsel to prepare the findings, and the findings and amended findings prepared by counsel became the court’s findings when the court affixed its signature to those findings. Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 858 (N.D.1995). The court’s findings are sufficient to understand the basis for its decision and are tantamount to a decision that the agreement was not unconscionable. We therefore conclude the district court reviewed the agreement for unconseionability-

B

[¶ 9] Kenneth Kramer nevertheless claims he did not read the agreement before he signed it, and he signed the agreement in contemplation of potential reconciliation without the benefit of counsel and without the procedural safeguards set forth in Peterson.

[¶ 10] In Peterson, 313 N.W.2d at 744-46, this Court reversed a judgment modifying a property settlement agreement and held the district court was not authorized to ignore or rewrite a validly written separation agreement absent statutory grounds for rescission. This Court recognized the parties’ intent was a major consideration for enforcing the agreement and emphasized both parties employed competent attorneys, negotiated with the express intention of finally adjusting their property rights, and agreed to be bound by the terms of the agreement in the event of divorce. Id. at 745.

[¶ 11] Here, there is some evidence Kenneth Kramer had contacted a Minneapolis attorney about the agreement and was pleased Cheryl Kramer’s attorney could prepare the agreement for half of what the Minneapolis attorney had quoted. Cheryl Kramer testified Kenneth Kramer had told her that he had spoken with an attorney about the agreement, and the court found he had spoken with an attorney. Even if Kenneth Kramer did not consult with an attorney about the agreement, this Court has recognized that merely because parties are not represented by counsel when they sign a written agreement dividing their marital property is not, by itself, sufficient justification for relief from a judgment. Fleck v. Fleck, 337 N.W.2d 786, 790 (N.D.1983). Whether a party could have done better with an attorney is not the test for assessing the validity of a property settlement agreement. Rather, a court must consider whether the agreement was entered freely and knowingly, without fraud, duress, menace, or undue influence, and whether the agreement was unconscionable. Weber, 548 N.W.2d at 783.

[¶ 12] Cheryl Kramer testified there had been 50-60 conversations about the agreement during the two months before the parties signed it, and the court found there had been 50-60 conversations regarding negotiations about the agreement. Cheryl Kramer testified she and Kenneth Kramer met and discussed the agreement for more than two hours on the day it was signed. A stipulation in a divorce proceeding which occurs rapidly and without benefit of counsel may be viewed with skepticism. Weber, 1999 ND 11, ¶ 18, 589 N.W.2d 358; Peterson v. Peterson, 555 N.W.2d 359, 362 (N.D.1996). Here, however, there is evidence the parties engaged in multiple discussions regarding the agreement and Kenneth Kramer voluntarily executed it. Although Kenneth Kramer disputes the extent of the discussions, the district court found contrary to his claims and decided there was no evidence he entered the agreement by mistake, or that his signature was obtained by fraud, duress, menace, or undue influence. Moreover, to the' éxtent Kenneth Kramer asserts he did not read the agreement before he signed it, his claim is not persuasive. See David v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 440 N.W.2d 269, 274 (N.D.1989) (stating person having capacity and opportunity to read contract without being misled as to its contents cannot avoid contract on ground of mistake if person signs contract without reading it).

[¶ 13] Relying on Christmann v. Christmann, 1997 ND 209, 570 N.W.2d 221, Kenneth Kramer also claims the district court erred in incorporating the property settlement agreement into the divorce judgment because the agreement was executed in contemplation of potential reconciliation, not divorce. In Christmann, at ¶ 3, a wife filed for dissolution of a marriage in 1985, but the parties eventually reconciled and executed a property agreement to settle their financial differences. The agreement left the parties’ farmland in joint tenancy, placed some of their savings into separate accounts and certificates of deposit, and established a joint passbook savings account for family expenses. Id. The parties thereafter continued the marriage until 1994, when the wife again filed for divorce. Id. In that divorce proceeding, the husband claimed the district court should have accepted the 1985 property agreement as a final division of the marital property. Id. at ¶ 5. This Court distinguished Peterson because in Peterson the parties entered into a separation agreement expressly providing they would be bound by the terms of the agreement in a future divorce and the property settlement agreement was intended to adjust all of the parties’ property rights. Christmann, at ¶ 5. In Christmann, the parties’ property agreement was in contemplation of reconciliation, not divorce, and the agreement did not state that it was a final adjustment of all the parties’ property rights or the parties would be bound by the agreement in future divorce proceedings. Id. This Court also said that during the nearly ten years of marriage after the parties executed the property agreement, they commingled assets and largely ignored the agreement’s provisions. Id. We concluded the district court did not err in ignoring the earlier property agreement for purposes of dividing the parties’ marital property. Id.

[f 14] Here, although the parties’ agreement mentioned reconciliation, the plain language of the agreement contemplated it would govern if the parties decided to pursue a divorce. The agreement plainly included a separate provision about “SUBSEQUENT DIVORCE,” which stated “[njothing herein contained shall be deemed to prevent either of the parties from maintaining a suit for absolute dissolution of marriage against the other.” That provision further stated that at the time the agreement was entered “both the husband and wife contemplate that a divorce may subsequently be granted.” The agreement also stated it was executed “to ascertain whether or not their differences might be reconciled or if they will eventually seek to dissolve their marriage.” The agreement clearly stated it would resolve the parties’ property distribution “in the event [Cheryl Kramer] shall seek a divorce.” We conclude the parties’ agreement expressly contemplated divorce, and Christmann is not controlling.

C

[¶ 15] We further conclude the agreement is not unconscionable because of any claimed disparity in the award of marital property. The property settlement agreement said the parties were married on October 6, 1973. The agreement gave Cheryl Kramer her personal property, a 1981 Chevy Malibu, a mattress, all the money in her checking and savings accounts, and a $15,000-$20,000 motor vehicle that Kenneth Kramer agreed to immediately purchase for her. The agreement awarded Kenneth Kramer his personal property, all the money in his checking and savings accounts, a 2001 Harley Davidson motorcycle, a 1991 S-10 pickup, and a 1998 pickup. The agreement recognized the parties would continue to jointly own a house in Oakes and awarded Kenneth Kramer exclusive use of the house with responsibility for paying a $36,000 mortgage plus taxes and insurance for the house. The agreement said in the event of a divorce, the parties agreed the value of the house was $80,000 and the equity in the house would be divided equally between them. The agreement required Kenneth Kramer to maintain his current life insurance policy with Cheryl Kramer named as the beneficiary, to continue to provide health insurance for her, and to pay all her non-covered medical costs. The agreement required'Kenneth Kramer to continue to contribute to his pension plan and, in the event of divorce, his pension would be evenly divided between the parties. The agreement also required Kenneth Kramer to pay Cheryl Kramer $500 per month in spousal support until she remarries or dies. From our review of the record and the parties’ financial circumstances, we conclude the agreement cannot be characterized as one that “no rational, undeluded person would make, and no honest and fair person would accept,” Weber, 1999 ND 11, ¶ 15, 589 N.W.2d 358, or one that was “blatantly one-sided” and “rankly unfair.” Crawford, 524 N.W.2d at 836.

D

[¶ 16] Kenneth argues the district court erred in enforcing the agreement because the parties failed to follow the agreement and the admitted facts demonstrate a change in their circumstances.

[¶ 17] We reject Kenneth Kramer’s claim the parties failed to follow the agreement. The parties lived separately after the agreement was signed and did not commingle their assets. To the extent Kenneth Kramer argues the parties disregarded the agreement because he failed to pay Cheryl Kramer’s medical expenses and he used a vehicle awarded to her without buying her a new vehicle as required by the agreement, his claims are not persuasive. Although the parties may not have completely complied with every term of the agreement, we agree with the district court’s assessment that the parties followed most of the provisions of the agreement.

[¶ 18] We also reject Kenneth Kramer’s claim the parties’ circumstances have changed since the separation agreement. Property settlement agreements that do not require an immediate divorce implicitly contemplate there may be some minor changes in the parties’ circumstances before the divorce. We agree with the district court’s conclusion that the parties’ assets and financial circumstances had not changed in a material way since the parties executed the agreement. We conclude the court did not err in deciding the parties freely and voluntarily entered into a settlement agreement that was fair and reasonable and the court did not err in enforcing the agreement and incorporating it into the divorce judgment.

Ill

[¶ 19] Kenneth Kramer argues the district court abused its discretion in issuing a protective order that limited the evidence available to him to attack the settlement agreement. He claims he was entitled to discovery to apprise the court of all evidence of unconscionability and to permit him to effectively cross-examine Cheryl Kramer. He asserts he was entitled to learn about Cheryl Kramer’s present financial situation to demonstrate that enforcement of the agreement was unconscionable.

[¶ 20] A district court’s ruling on discovery motions is reviewed under the abuse of discretion standard. Guskjolen v. Guskjolen, 391 N.W.2d 639, 641 (N.D.1986). A court abuses its discretion when it acts in an arbitrary, unreasonable, or conscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law. North Dakota Human Rights Coalition v. Bertsch, 2005 ND 98, ¶ 11, 697 N.W.2d 1.

[¶ 21] Under the circumstances of this case, we conclude discovery of Cheryl Kramer’s current financial circumstances was not relevant to whether the agreement was freely and voluntarily entered and was unconscionable. We conclude the court’s post-hearing issuance of a protective order was not arbitrary, capricious, or unreasonable and therefore was not an abuse of discretion.

[¶ 22] We conclude, however, the parties’ agreement and the judgment does not preclude Kenneth Kramer from seeking a modification of spousal support upon a change of circumstances in the future. Wheeler v. Wheeler, 419 N.W.2d 923, 925 (N.D.1988).

IV

[¶ 23] The judgment is affirmed.

[¶ 24] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.


author: SANDSTROM, Justice. KAPSNER, Justice,

text:
    2006 ND 58
    Annmarie BECKLER, Plaintiff and Appellant v. BISMARCK PUBLIC SCHOOL DISTRICT, Defendant and Appellee.
    No. 20050195.
    Supreme Court of North Dakota.
    March 29, 2006.

      Steven L. Latham, Wheeler Wolf, Bismarck, ND, for plaintiff and appellant.

      Mitchell D. Armstrong (argued) and Randall J. Bakke (on brief), Smith Bakke Porsborg & Schweigert, Bismarck, ND, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Annmarie Beckler appeals the district court’s grant of summary judgment in favor of Bismarck Public School District (“Bismarck Public Schools”). She sued Bismarck Public Schools after she slipped and fell on stairs located at Rita Murphy Elementary. We affirm.

I

[¶ 2] On January 28, 2003, at sometime between 12:30 and 12:45 p.m., Beckler and her husband went to Rita Murphy Elementary School to deliver some cookies to her daughter’s classroom for her birthday. The children had just returned from noon recess. Beckler testified in her deposition that she walked through some snow as she approached the school’s south entrance. When she entered, she wiped the snow off her shoes on the rug in the entry. While going down a set of stairs inside the building near the entrance, she slipped and fell, allegedly injuring herself. Beckler testified that after she fell and crawled back up the stairs to signal her husband, who was waiting outside, she noticed her pants were wet, although she does not know whether the moisture came from the stairs or from the rug in the entryway. Beckler testified she did not recall seeing water on the stairs after she fell. A custodian at the school stated by sworn affidavit that after Beckler fell, he checked for water on the stairs and found none.

[¶ 3] Beckler sued Bismarck Public Schools, claiming Bismarck Public Schools was negligent for failing to keep the stairs free of water that could make the stairs slippery. During discovery, Beckler deposed the school’s principal, one of its custodians, and her daughter’s teacher. All three testified water in the entryway and on the stairs was a common occurrence during the winter months. The teacher testified she had also slipped down the stairs once, but she believes the fall was her fault because her shoes were snowy and wet from cutting across the snow rather than walking on the cleared sidewalk.

[¶ 4] Bismarck Public Schools moved for summary judgment, arguing Beckler could not prove there was water on the stairs when she fell. Beckler resisted the motion, arguing the information gathered during discovery precluded summary judgment because there was a question of fact as to whether the stairs were wet. The district court granted Bismarck Public Schools’ motion and dismissed the case.

[¶ 5] On appeal, Beckler argues the discovery gathered in the case precludes summary judgment because a question of fact exists as to whether the stairs were wet. Bismarck Public Schools argues summary judgment was appropriate because there is no specific evidence that there was water on the stairs.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.

II

[¶ 7] Rule 56(c), N.D.R.Civ.P., states, in part, “Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Summary judgment:

is a procedural device under N.D.R.Civ.P. 56 for prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result.

Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257. The party moving for summary judgment must show that there are no genuine issues of material fact and that the case is appropriate for judgment as a matter of law. Id. “On appeal, the evidence must be viewed in the light most favorable to the opposing party, and that party must be given the benefit of all favorable inferences.” Hurt v. Freeland, 1999 ND 12, ¶ 7, 589 N.W.2d 551. The party resisting the summary judgment motion cannot, however, merely rely on the pleadings, briefs, or unsupported and conclusory allegations. Fast v. State, 2004 ND 111, ¶ 6, 680 N.W.2d 265.

The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.

Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991). The nonmoving party cannot rely on speculation and must present “enough evidence for a reasonable jury to find for the plaintiff.” Iglehart v. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343. This Court reviews the district court’s grant of summary judgment de novo. Makeeff v. City of Bismarck, 2005 ND 60, ¶ 12, 693 N.W.2d 639.

Ill

[¶ 8] To succeed in a negligence claim, the plaintiff must prove that the defendant owed a duty to the plaintiff, the defendant breached that duty, and the plaintiff has suffered an injury that was proximately caused by the defendant’s negligence. Fast, 2004 ND 111, ¶ 7, 680 N.W.2d 265. A landowner owes a duty of care to lawful entrants to keep its property in a reasonably safe condition, considering all the circumstances, which include “the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.” Makeeff, 2005 ND 60, ¶ 25, 693 N.W.2d 639. That duty includes a responsibility to keep stairs safe from dangerous conditions that may cause someone to slip and fall. See id. at ¶¶ 25-28 (summary judgment was improper because a reasonable jury could have concluded that the defendant was on notice that its outdoor stairway was slippery and could have taken other measures to prevent a slippery stairway).

[¶ 9] Negligence involves questions of fact and is generally inappropriate for summary judgment. Fast, 2004 ND 111, ¶ 7, 680 N.W.2d 265. When the evidence is such that a reasonable fact-finder can reach only one reasonable conclusion, however, negligence becomes a question of law and is appropriate for summary judgment. Id. Summary judgment is appropriate when the nonmoving party cannot show a factual dispute on an element that the party must prove at trial. Hurt, 1999 ND 12, ¶ 8, 589 N.W.2d 551. When a nonmoving party does not bring forward any evidence on an element of the claim, it is assumed no evidence exists to support the element. Collette v. Clausen, 2003 ND 129, ¶ 8, 667 N.W.2d 617.

[¶ 10] Beckler argues evidence obtained during discovery shows there should have been water on the stairs when Beckler fell. She fell sometime between 12:30 and 12:45 p.m. Her fall occurred almost immediately after the children had returned from noon recess at 12:35, using the south door. During the winter, the stairs are often wet after recess because of the children coming in from outside with snow on their shoes. The stairs are regularly mopped after the noon recess to remove the snow brought in by the children. Beckler’s daughter’s teacher had previously fallen on the stairs. Beckler had to crawl back up the stairs to signal her husband for help. After she crawled up the stairs, she noticed her pants were wet. Her pants could have become wet if she crawled up wet stairs, but they also could have become wet from her lying on a wet rug. Finally, Beckler’s husband told her the stairs had water on them after he returned from getting help, although the water could have been from his own shoes because he had not wiped them off before going down the stairs.

[¶ 11] This evidence, however, becomes speculative in light of direct evidence that no water was on the stairs on the day she fell. Beckler testified she did not recall seeing water on the stairs. Although her pants were wet after she crawled back up the stairs, she does not know whether the moisture came from the stairs or from the rug at the top of the stairs. She wiped her feet on the rug before she fell, because she had tracked some snow in from outside, so her shoes were already wet. The custodians inspected the stairs after her fall and found no water on the stairs. No one else who used the stairs while attending to Beckler immediately after her fall had any trouble using them.

[¶ 12] Beckler has not met her burden of presenting competent evidence establishing the existence of water on the stairs when and where she fell. She speculates that since water is normally on the stairs after recess, there had to be water on the stairs after recess on the day she fell. No witness at the scene can state, however, that there was water on the stairs at the time of her fall. In fact, the custodian who inspected the stairs conclusively states the opposite: he checked for water after she fell and found none. Although Beckler claimed her husband observed water on the stairs, this claim is unsupported and not competent under N.D.R.Civ.P. 56 because her husband did not sign an affidavit nor was he deposed. Conclusory speculations regarding a scintilla of evidence are not sufficient to defeat a summary judgment motion. Iglehart, 2003 ND 154, ¶ 10, 670 N.W.2d 343. Therefore, Beckler’s speculations and conclusions that there had to be water on the stairs because there often is after recess is insufficient to defeat Bismarck Public Schools’ summary judgment motion without some proof that there was water on the stairs when and where she fell. Summary judgment is appropriate when the nonmoving party cannot show a factual dispute on an element that the party must prove at trial. Hurt, 1999 ND 12, ¶ 8, 589 N.W.2d 551. When a nonmoving party does not bring forward any evidence on an element of the claim, we assume no evidence exists to support the element. Collette, 2003 ND 129, ¶ 8, 667 N.W.2d 617. Because Beckler presents no evidence that Bismarck Public Schools allowed water to stand on the stairs, creating a danger of someone slipping, the element of breach fails and summary judgment is appropriate.

[¶ 13] Furthermore, Beckler did not establish that water on the stairs caused her fall and injuries. “A proximate cause is a cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and -without which it would not have occurred.” Kimball v. Landeis, 2002 ND 162, ¶ 7, 652 N.W.2d 330. Beckler has provided no evidence Bismarck Public Schools created a condition that caused her to slip. What the record does provide is first, that she tracked snow inside on her shoes and had to wipe her shoes on the rug at the top of the stairs, so her shoes were wet. Second, the school’s principal testified in her deposition that Beckler was very apologetic after the fall, saying she was clumsy and she was sorry for being so clumsy. Although under North Dakota’s comparative fault law provided for in N.D.C.C. § 32-03.2-02, Beckler’s own negligence would not absolve Bismarck Public Schools of possible liability, she must present evidence that Bismarck Public Schools proximately caused her injuries. When a nonmoving party does not bring forward any evidence on an element of the claim, we assume no evidence exists to support the element. Collette, 2003 ND 129, ¶ 8, 667 N.W.2d 617. Because no evidence supports that water on the stairs was a proximate cause of her fall, her negligence claim fails and summary judgment is appropriate.

[¶ 14] The judgment of the district court is affirmed.

[¶ 15] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

KAPSNER, Justice,

dissenting.

[¶ 16] I respectfully dissent.

[¶ 17] The trial court based its decision to grant summary judgment and dismiss the case on the determination that Beckler had not provided sufficient evidence to show there was water on the school steps.

In this case Beckler asserts that melted snow does accumulate on these steps from time to time and that BPS should have provided signs warning of that possibility. But the undisputed evidence is that BPS regularly mopped up any melted snow and that at the time of Beck-ler’s fall on the steps there was no evidence of any melted snow being present. No deposition testimony of any witness, including Beckler, states that the steps were wet. Beckler herself testified that she wiped her shoes on the rug at the top of the landing before she stepped onto the steps. After her fall she testified she crawled back up to the landing to signal her husband who was waiting outside in them car. She did testify that her pants were wet, but she did not know if that wetness came from the steps or from the rug.
Becker’s claim in her Complaint is that the stairs were wet and that they were wet as a result of melted snow and/or ice. Her expert’s opinion is based on his understanding that the stairs were wet. Her only evidence that the stairs were wet is her conclusion that they get wet every day from 100s of children coming in and out that door from portable classrooms. Paraphrasing our Supreme Court in Fast, Beckler cannot “rely upon unsupported, conclu-sory allegations.” Rather she “must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.” The Court finds she has failed to do so.
Defendant’s Motion for Summary Judgment is GRANTED and Beckler’s Complaint is DISMISSED. Having so held, Plaintiff Annmarie Beckler’s Motion to Amend Complaint is MOOT and is therefore DISMISSED.

[¶ 18] However, this places greater burden on Beckler than is permitted under our laws on summary judgment. Whether there was water on the stairs is a fact material to this litigation. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257.

[¶ 19] Beckler has submitted evidence from which a reasonable inference can be drawn that the steps were wet. Beckler testified she went to her child’s school in January, shortly after the noon recess when the children had been outside. There was snow in the schoolyard which she crossed to get to the door she entered. Deposition testimony from the school’s principal, from one of its custodians, and from her daughter’s teacher indicated that water in the entryway and on the stairs was a common occurrence during the winter months. She testified she wiped her shoes on a rug when she entered. After her fall on the stairs, she testified that her pants were wet when she crawled back up the stairs to get her husband to assist her.

[¶ 20] This is all evidence from which a reasonable inference can be drawn that the steps were wet; this material fact is in issue because the school district asserts that those steps were not wet and provided evidence in support of its position.

[¶ 21] The majority opinion says that this evidence becomes “speculative in light of direct evidence that no water was on the stairs on the day she fell.” Majority opinion at ¶ 11. That assertion is contrary to the jurisprudence that requires a reviewing court to give the non-moving party the benefit of all favorable inferences. Makeeff v. City of Bismarck, 2005 ND 60, ¶ 12, 693 N.W.2d 639. The majority recognizes that it is a reasonable inference that wet stairs caused her pants to get wet. “Her pants could have become wet if she crawled up wet stairs.” Majority opinion at ¶ 10.

[¶ 22] The only reason given by the trial court for dismissing the action, that the stairs were not wet, can only be reached by failing to give Beckler the benefit of the favorable inferences of the testimony she provided. This was error.

[¶ 23] Perhaps as troubling, the majority opinion is written as if the trial court had made determinations which the trial court did not make. The majority opinion is written as if the trial court had made a determination that Beckler failed to present evidence that the school district had breached its duty to maintain its premises in a reasonably safe condition or failed to provide evidence that the school district created a condition that caused her to slip. Majority opinion at ¶ 13.

[¶ 24] The trial court did not comment on the quality of evidence relating to duty or proximate cause. On the narrow ground that the trial court did decide the motion, it did so contrary to the standards for granting summary judgment. I would reverse and remand for further proceedings. Therefore I dissent.

[¶ 25] Carol Ronning Kapsner


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 61
    Steve Lee PARIZEK, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20050260-20050262.
    Supreme Court of North Dakota.
    March 29, 2006.

      DeWayne A. Johnston, Grand Forks, ND, for petitioner and appellant. Submitted on brief.
    Lonnie Olson, State’s Attorney, Devils Lake, ND, for respondent and appellee. Submitted on brief.
   VANDE WALLE, Chief Justice.

[¶ 1] Steve Parizek appealed from an order dismissing his application for post-conviction relief. Parizek was convicted of manufacturing methamphetamine, possession of marijuana, possession of drug paraphernalia, and possession of methamphetamine. Parizek appealed those criminal judgments to this Court challenging an order denying suppression of evidence and we affirmed in State v. Parizek, 2004 ND 78, 678 N.W.2d 154. Parizek subsequently filed the application for post-conviction relief which is the subject of this appeal. We reverse and remand for further proceedings in accordance with this opinion.

I

[¶ 2] On September 4, 2002, officers from the Devils Lake Police Department were dispatched to a mobile home park to check on a disturbance at Ryan Miller’s home. Miller had informed police someone was repeatedly knocking on his door. When the officers arrived at the mobile home park just after midnight, they approached with their vehicle lights turned off. The officers parked their vehicle some distance from Miller’s home. There was a blue van in Miller’s driveway. One person was inside the van and two people were standing by the mobile home door talking to Miller. One officer approached the people standing by the door and the other officer remained near the van. Pari-zek was one of the individuals standing by the door. Officers grew suspicious of Pari-zek when he became “jumpy” and continuously reached into his pockets. The officers were able to see directly into the back of the van. In the van, officers saw most or all of the components necessary for a meth lab. Officers determined the van belonged to Parizek based on a registration sticker in the window of the van. Officers also found a metal cylinder belonging to Parizek.

II

[¶ 3] In his application for post-conviction relief, Parizek alleged numerous claims of ineffective assistance of counsel and claims of prosecutorial misconduct. No supporting documentation was 'filed with Parizek’s application. An attorney, subsequently appointed for Parizek, filed a supplement to Parizek’s application for post-conviction relief. The State opposed the application for post-conviction relief. The district court found Parizek’s seventeen statements to be nothing more than conclusory comments that were not supported. The district court found Parizek did not set forth factual specifics and did not provide details about the allegations. The district court found Parizek failed to raise any genuine issues of material fact which would justify an evidentiary hearing and summarily dismissed Parizek’s application for post-conviction relief.

III

[¶ 4] This Court reviews an appeal from a summary denial of post-conviction relief as it reviews an appeal from a summary judgment. Berlin v. State, 2005 ND 110, ¶ 6, 698 N.W.2d 266. “The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evi-dentiary hearing if a reasonable inference raises a genuine issue of material fact.” Id. “Although we have stated claims of ineffective assistance of counsel are ordinarily unsuited to summary disposition without an evidentiary hearing, we have upheld summary denials of post-conviction relief when the applicants were put to their proof, and summary disposition occurred after the applicants then failed to provide some evidentiary support for their allegations.” Steinbach v. State, 2003 ND 46, ¶ 15, 658 N.W.2d 355. Section 29-32.1-09(1), N.D.C.C., provides:

The court may grant a motion by either party for summary disposition if the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

[¶ 5] “The statute does not expressly allow the court to dismiss on its own motion an application for post-conviction relief.” Berlin v. State, 2005 ND 110, ¶ 7, 698 N.W.2d 266. “It says the court ‘may grant a motion by either party for summary disposition.’ ” Id. “However, a summary dismissal of a post-conviction application is analogous to dismissal of a civil complaint under N.D.R.Civ.P. 12(b) for failure to state a claim upon which relief can be granted.” Id. “In such cases, we have held that a trial court may, on its own initiative, and in the cautious exercise of its discretion, dismiss a complaint for failure to state a valid claim under Rule 12(b).” Id. “We have warned this power must be exercised sparingly and with great care to protect the rights of the parties, and the court should dismiss under Rule 12(b) only when certain it is impossible for the plaintiff to prove a claim for which relief can be granted.” Id. “[T]he trial court possesses the same inherent authority under N.D.C.C. § 29-32.1-09 to summarily dismiss an application for post-conviction relief when the statutory triggering conditions are met, i.e., there is no genuine issue as to any material fact and the party in whose favor the dismissal is entered is entitled to judgment as a matter of law.” Id.

[¶ 6] “A trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Vandeberg v. State, 2003 ND 71, ¶ 5, 660 N.W.2d 568. “The initial burden is on the moving party to show there is no genuine issue of material fact.” Id. “If the movant initially shows there is no genuine issue of material fact, the burden shifts to the non-movant to demonstrate there is a genuine issue of material fact.” Id. “For the summary disposition of a petition for post-conviction relief, the moving party bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts, and that the movant is entitled to judgment as a matter of law.” Id. “A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts.” Id.

[¶ 7] “A movant may discharge his burden of showing there is no genuine issue of material fact by pointing out to the trial court there is an absence of evidence to support a petitioner’s ease.” Id. at ¶ 6. “Once the movant shows the trial court there is no record evidence to support the petitioner’s claim and, therefore, there is nothing the State can point to in support of its assertion no such evidence exists, ‘the movant has put the petitioner on his proof and a minimal burden has shifted to the petitioner to provide some competent evidence to support his claim.’ ” Id. “The State is permitted to shift the burden in this manner only in those cases in which it would otherwise be required to prove the complete absence of any evidence supporting the nonmovant’s claims and allegations in order to meet its initial burden of showing there are no contested issues of material fact.” Id. “Otherwise, the moving party’s initial burden must still be met before the burden can be shifted to the nonmov-ant to produce evidence prior to the hearing to support his claim.” Id.

[¶ 8] Here, the State did not file a motion for summary dismissal of Parizek’s application for post-conviction relief but only filed an opposition to the application for post-conviction relief which appears to be in the nature of an answer to the application. The State did not move for nor did it ask for summary dismissal of Parizek’s application. Rather, the district court summarily dismissed Parizek’s application on its own accord. We review its decision in that light.

[¶ 9] In its opposition to the application, the State argued Parizek’s application was not supported by proper documentation and Parizek’s two citations to the trial transcript were not relevant to the effectiveness of his trial counsel. The State did not contend it was impossible for Parizek to prove a claim for which relief can be granted or that there was an absence of evidence to support Parizek’s claims. As in Vandeberg, “the State did not argue, as it did in Weaver [v. State, 2003 ND 47, 658 N.W.2d 352], that nothing in the underlying criminal case supported [Parizek’s] claims, nor did the State point out to the trial court how the record contradicted [Parizek’s] allegations.” Vandeberg, 2003 ND 71, ¶ 7, 660 N.W.2d 568. The “State must not merely ‘respond’ to put a petitioner on its proof; it must show the trial court it is entitled to judgment as a matter of law in its motion for summary disposition.” Id. Because the State’s response to Parizek’s application was not sufficient to put Parizek on his proof, the burden did not shift to Parizek to produce competent evidence, prior to the evidentia-ry hearing, to support his claims.

[¶ 10] Although we have said the district court possesses the authority to summarily dismiss an application for post-conviction relief when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, before the district court can summarily dismiss the application under N.D.C.C. § 29-32.1-09, there must be no dispute as to either the material facts or the inferences to be drawn from undisputed facts. Berlin, 2005 ND 110, ¶ 7, 698 N.W.2d 266.

[¶ 11] In Berlin, we concluded the petitioner’s claims presented a problem for summary dismissal because the district court did not conclude they were facially invalid, but, rather, the district court merely concluded the “ ‘[petitioner provides no evidence to support his claims.’ ” Id. at ¶ 9. We held Berlin should have been afforded an evidentiary hearing because “a petitioner need not provide evidence with an application.” Id. Here, the district court’s order denying Parizek’s application for post-conviction relief concludes Parizek did “not set forth factual specifics nor provide detail about his accusations and conclusions.” The district court also concluded Parizek “offered nothing but hollow conclusions about the prosecutor” and the record did “not establish any prosecutorial misconduct.”

[¶ 12] The district court did not conclude Parizek’s claims were facially invalid but reviewed the record to determine whether there was evidence supporting Parizek’s claims without giving Parizek an opportunity to demonstrate there is a genuine issue of material fact. This is not a case where the court found the allegations facially invalid, thus justifying summary dismissal similar to a judgment on the pleadings. It was error to summarily dismiss Parizek’s claims without an evidentia-ry hearing and we reverse and remand for further proceedings consistent with this opinion.

[¶ 13] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.