author: KAPSNER, Justice.

text:
    2005 ND 130
    In the Interest of C.H. William Pryatel, M.D., Petitioner and Appellee v. C.H., Respondent and Appellant.
    No. 20050209.
    Supreme Court of North Dakota.
    July 13, 2005.
    Jay A. Schmitz (on brief), Assistant State’s Attorney, Jamestown, ND, for petitioner and appellee.
    Thomas E. Merrick (on brief), Jamestown, ND, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] C.H. appeals an Order for Hospitalization and Treatment with Medication, arguing there was not clear and convincing evidence he is a person requiring treatment. We affirm.

I.

[¶ 2] C.H. was admitted to the North Dakota State Hospital (“State Hospital”) for 14 days by an Order for Hospitalization and Treatment dated April 27, 2005. C.H. has been diagnosed with Schizoaffective Disorder, bi-polar type, with symptoms including anger, irritability, and rapid and pressured speech. He received treatment at the State Hospital three times between 1998 and 2003. C.H. denies he has a mental illness and refuses to take sufficient amounts of medication. He visited the Grand Forks County Courthouse numerous times, exhibiting erratic behavior that, while non-threatening, caused the people at the courthouse to be “on guard.” C.H. also went to the Northeast Human Service Center to request the mental illness diagnosis be removed from his medical records because he believed the diagnosis was interfering with his attempts to find employment and join the National Guard. He was non-aggressive during this visit but appeared paranoid and manic, speaking of an ongoing psychological operation against him.

[¶ 3] After a hearing held May 20, 2005, the district court found C.H. requires hospitalization and medication to prevent a deterioration in his condition that could result in C.H. becoming dangerous to himself and others. He was ordered treated and medicated for “a period not to exceed 90 days.”

II.

[¶ 4] This Court reviews the “procedures, findings, and conclusions of the lower court.” Interest of H.G., 2001 ND 142, ¶ 3, 632 N.W.2d 458. The lower court’s findings should be based upon clear and convincing evidence, and this Court reviews those findings under the clearly erroneous standard. Id. A finding is clearly erroneous when it is induced by an erroneous view of the law, not supported by evidence, or this Court has a definite and firm conviction, based on the entire evidence, a mistake has been made. Id.

[¶ 5] In commitment proceedings, the petitioner has the burden of proving the respondent is a “person requiring treatment.” H.G., 2001 ND 142, ¶4, 632 N.W.2d 458. There is a presumption against treatment. Id. Section 25-03.1-02(12), N.D.C.C., states, in pertinent part:

“Person requiring treatment” means a person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property. “Serious risk of harm” means a substantial likelihood of:
d. Substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon evidence of objective facts to establish the loss of cognitive or volitional control over the person’s thoughts or actions or based upon acts, threats, or patterns in the person’s treatment history, current condition, and other relevant factors, including the effect of the person’s mental condition on the person’s ability to consent.

[¶ 6] A two-step process is used to determine whether someone is a “person requiring treatment.” H.G., 2001 ND 142, ¶ 4, 632 N.W.2d 458. The court must first find the person is mentally ill, and then “the court must find that there is a reasonable expectation that if the person is not hospitalized there exists a serious risk of harm to himself, others, or property.” Id. (quoting In the Interest of J.A.D., 492 N.W.2d 82, 88 (N.D.1992)). Testimony at the hearing established C.H. suffers from Schizoaffective Disorder, bi-polar type, satisfying the first prong of the test. C.H. argues the district court’s findings on the second prong were erroneous.

[¶ 7] In support of the order, the district court found:

The following statements, behaviors, or conditions are evidence of danger to self, others, or property: [C.H.] has been loitering at the Grand Forks County Courthouse with no apparent purpose. He has made bizarre statements to employees and has been obsessed with expunging his mental health records. When given the opportunity to contact a superior at the Northeast Human Service Center, he has failed to put his complaints in writing. His thoughts are way beyond rational.
A treatment program other than hospitalization would not be adequate to meet [C.H.’s] needs or sufficient to prevent harm or injuries to [C.H.] or others. The specific risks if [C.H.] is not hospitalized are that he will continue to deteriorate and become more obsessive and paranoid. He will put himself into situations where he will end up in fights. He will continue to annoy people at the Northeast Human Service Center and the Grand Forks County Courthouse.

[¶ 8] C.H. argues all of the testimony noted that his behavior, while bizarre, never physically endangered himself or others. The courthouse deputy testified C.H.’s comments, while non-threatening, were “borderline” threatening. He further testified C.H.’s “incoherent ramblings” put him “on guard.” A social worker from the Northeast Human Service Center testified C.H. has a history of physical aggression, citing the existence of three restraining orders against him. C.H. acknowledged his ex-wife has a restraining order against him. Both the deputy and the social worker testified C.H. was verbal, disruptive, and used foul language. There was testimony C.H. was involved in a fight with construction workers in a bar in Thompson, North Dakota, because he would not stop “preaching” to them when they requested he stop. Further testimony indicated C.H. made threatening comments to his family and a groomsman at his brother’s wedding rehearsal dinner. C.H. admitted these incidents occurred but claims they were misunderstandings.

[¶ 9] On this record, there was sufficient evidence to support the court’s finding that C.H. would suffer “substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property” unless he received treatment. We conclude the commitment order was not clearly erroneous.

[¶ 10] We affirm.

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


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2005 ND 133
    CITIBANK (SOUTH DAKOTA) NA, Plaintiff and Appellee v. Sarah M. REIKOWSKI, Defendant and Appellant.
    No. 20050043.
    Supreme Court of North Dakota.
    July 13, 2005.

      Charles L. Dendy, Johnson, Rodenburg & Lauinger, Bismarck, ND, for plaintiff and appellee.
    Sarah M. Reikowski-Hart (on brief), pro se, Spiritwood, ND, defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Sarah Reikowski, now known as Sarah Reikowski-Hart, appealed from a default judgment and a denial of her motion for relief from the default judgment. We conclude the trial court misapplied the law in denying Reikowski’s motion for relief from the default judgment, and we reverse and remand for further proceedings.

I

[IF 2] On July 20, 2004, Citibank sued Reikowski, alleging she had failed to pay Citibank $13,612.45 due on a credit card account. Although Reikowski corresponded with counsel for Citibank, she did not formally answer, and in October 2004, Citibank moved for a default judgment under N.D.R.Civ.P. 55(a)(3). The trial court granted Citibank’s motion, and a default judgment was entered on October 14, 2004. In November 2004, Reikowski moved to dismiss the complaint and moved for a new trial and for relief from the default judgment. On December 6, 2004, the trial court denied Reikowski’s motions to dismiss and for a new trial, but granted her motion for relief from the default judgment provided she serve and file an answer by December 27, 2004. The court stated that if Reikowski failed to file an answer by that date, the default judgment would remain in effect.

[¶ 3] Reikowski served and filed an answer and counterclaim on December 27, 2004, but an issue arose regarding whether she also was required to pay a filing fee with her answer. According to Reikowski, she was informed there was a $50 filing fee, but the record is not clear as to when she was informed of the fee. On January 3, 2005, she filed a petition for waiver of the filing fee. On January 4, 2005, the trial court denied Reikowski’s petition for waiver of the filing fee, stating “default judgment still in effect as answer (fee not pd) not filed.” Reikowski moved to reconsider, stating she filed her answer on December 27, 2004, and she was told there might be a filing fee, but the person at the clerk’s office “was not sure and no one was there that she could ask at that time.” According to Reikowski, she was informed someone would contact her about the fee, and she was later informed there would be a $50 filing fee. Reikowski sought to have the fee waived and sought a refund of the $50 she included with her motion to reconsider. The trial court denied Reikowski’s motion to reconsider and. let the default judgment stand.

Elf 4] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The 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 and 28-27-02.

II

[¶ 5] Reikowski argues the trial court erred in deciding her answer was not timely because it was not accompanied by a filing fee, and the court erred in denying her motion for relief from the default judgment.

[¶ 6] We review the trial court’s denial of a motion for relief from a default judgment to determine whether the court abused its discretion. Federal Land Bank v. Lillehaugen, 370 N.W.2d 517, 518 (N.D.1985). A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law. US Bank v. Arnold, 2001 ND 130, ¶ 21, 631 N.W.2d 150 (quoting T.F. James Co. v. Vakoch, 2001 ND 112, ¶5, 628 N.W.2d 298). Because we prefer decisions on the merits, trial courts should be more lenient when entertaining motions to vacate default judgments as distinguished from judgments entered after a trial on the merits. Suburban Sales & Service, Inc. v. District Court of Ramsey County, 290 N.W.2d 247, 252 (N.D.1980); Perdue v. Sherman, 246 N.W.2d 491, 496 (N.D.1976).

[¶ 7] Reikowski served and filed her answer within the time specified by the trial court. The issue in this case involves the effect of her failure to pay the filing fee when she filed her answer. Section 27 — 05.2—03(l)(b), N.D.C.C., deals with fees charged by the district court clerk in civil cases and provides that the clerk shall charge a $50 fee for filing an answer. The statute does not explicitly require the fee to be paid in advance or when the answer is filed. Cf. N.D.C.C. § 27-03-05 (“clerk of the Supreme Court shall charge and collect in advance a fee of one hundred twenty-five dollars upon the filing in the Supreme Court of the record in any cause upon appeal”). Section 27-05.2-03(1), N.D.C.C., also incorporates the provisions for waiver of fees in N.D.C.C. § 27-01-07, which authorizes the court to waive any filing fees with or without a hearing upon the filing of an in forma pauperis petition accompanied by a sworn affidavit relating information about indigency.

[¶ 8] In Husebye v. Jaeger, 534 N.W.2d 811, 815 (N.D.1995), .this Court discussed “filing” in the context of construing a constitutional provision requiring a referendum petition to be “submitted” to the secretary of state within ninety days after filing the measure with the secretary of state. This Court said “ ‘filing’ requires not only presentment of the document to the public official, but the officer’s action of accepting it and placing it into the official records of the office for public examination.” Id. This Court said “[fliling implies not only presentation, but official action to place the document into the permanent record.” Id. Although Husebye did not involve any filing fee issues, it provides some context for the requirements for filing a document.

[¶ 9] Citibank does not dispute that a question about the filing fee arose when Reikowski filed her answer on December 27, 2004. The record is not clear as to when she was informed there would'be a $50 filing fee for her answer. According .to Reikowski, when she filed her answer on December 27, 2004, the clerk’s office was not staffed, but an adjacent window was staffed, and the person at that window was not sure about the filing fee, and no one was there to ask at that time. According to Reikowski, she was informed someone would contact her about the fee, and “Irene” contacted her at a later date and told her there was a $50 filing fee. According to Reikowski, she was informed about the procedure for waiver of fees, and she promptly filed a request for waiver of fees.

[¶ 10] The clerk’s office did not require Reikowski to pay the filing fee when her answer was accepted and filed. The record reflects Reikowski was attempting to respond to the issues about the filing fee. The record also includes two handwritten notations that state: “Sarah & 'Patrick 646-6903 Irene — please call if there is a fee,” and “12-30-04 spoke to Sarah — she will send $50 answer fee.” Reikowski received instructions from court personnel about the filing fee and ostensibly followed those directions. Moreover, Reikowski filed a request for waiver of the filing fee, and she submitted the $50 filing fee when she filed her motion to reconsider. Section 27 — 05.2—03(l)(b), N.D.C.C., provides that the clérk shall charge a $50 fee for filing an answer but it incorporates provisions for a waiver of the fee. Before accepting and filing an answer, a clerk should require the filing fee to be paid or waived; however, if the clerk does not do so, the statute does not invalidate the filing of the answer. Under these circumstances, we conclude the trial court misapplied the law in effectively deciding Reikowski’s failure to pay the filing fee when her answer was filed left the default judgment intact and violated N.D.C.C. §' 27-05.2-03(í)(b). We conclude the trial court misapplied the law in denying Reikowski’s motion for relief from the default judgment.

Ill

[¶ 11] We reverse the order denying Reikowski relief from the default judgment and remand for further proceedings.

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


author: VANDE WALLE, Chief Justice.

text:
    2005 ND 128
    Charles E. SYVERTSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20050016.
    Supreme Court of North Dakota.
    July 13, 2005.
    Rehearing Denied Aug. 18, 2005.

      Tracy A. Gompf, Fargo, ND, for petitioner and appellant.
    Mark R. Boening, Assistant State’s Attorney, Fargo, ND, for respondent and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Syvertson appealed from a district court judgment denying his application for post-conviction relief. We affirm.

I

[¶ 2] In August 1998, Syvertson entered a conditional plea of guilty to gross sexual imposition and kidnaping. Syvertson appealed, and we affirmed in State v. Syvertson, 1999 ND 137, 597 N.W.2d 644. In July 1997, Syvertson was charged with two counts of gross sexual imposition that resulted in a jury’s guilty verdict on both counts. Syvertson appealed, and we affirmed in State v. Syvertson, 1999 ND 134, 597 N.W.2d 652. In Syvertson v. State, 2000 ND 185, 620 N.W.2d 362, we affirmed the judgment denying Syvertson’s application for post-conviction relief.

[¶ 3] Syvertson’s current appeal involves background information he recently obtained regarding Dr. Kottke, the North Dakota State Hospital physician that completed his initial psychiatric evaluation in 1997. Dr. Kottke was disciplined in Minnesota and North Dakota for improper sexual conduct with female patients, nurses, and staff.

II

[¶ 4] Our review of post-conviction relief proceedings is well established.

Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. In post-conviction relief proceedings, a district court’s findings of fact will not be disturbed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by the evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction that a mistake has been made. Questions of law are fully reviewable on appeal of a post-conviction proceeding.

Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d 390 (citations omitted).

[¶ 5] Syvertson argues the information regarding Dr. Kottke’s medical license could have been used to impeach Dr. Kott-ke’s testimony if the State had called him as a witness; therefore, the State’s failure to discover this evidence violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

[¶ 6] “In Brady, the United States Supreme Court held that suppression by the prosecution of evidence favorL able to an accused violates due process if the evidence is material to guilt or punishment.” City of Grand Forks v. Ramstad, 2003 ND 41, ¶ 9, 658 N.W.2d 731 (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194). The United States Supreme Court extended the Brady rule to the “suppression of impeachment evidence that might have affected the outcome of the trial.” State v. Sievers, 543 N.W.2d 491, 495-96 (N.D.1996) (citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). To establish a Brady violation, the defendant must prove: “(1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.” State v. Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345.

[¶ 7] Here, Syvertson fails to establish the initial element of a Brady violation. To establish the first element, Sy-vertson argues that the North Dakota State Hospital’s .knowledge of Dr. Kottke’s background should be imputed to the Cass County State’s Attorney’s Office. This argument is unsuccessful for several reasons. Dr. Kottke became involved in the case when Syvertson requested a psychological evaluation. The State did not join in this request. After Dr. Kottke’s report of the evaluation was filed with the court, the State subpoenaed Dr. Kottke as a potential witness to rebut Syvertson’s mental competency defense. However, Syvertson withdrew his mental competency defense before trial, and Dr. Kottke never testified. Syvertson admits that during his trial, the State was unaware of any matters related to Dr. Kottke’s medical license.

[¶ -8] Syvertson’s sole argument to establish the first Brady element is that the State Hospital’s knowledge should be imputed to the prosecution. However, Sy-vertson does not cite any law supporting this contention, and the weight of authority is against such an imputation. See, e.g., In re Steele, 32 Cal.4th 682, 10 Cal.Rptr.3d 536, 85 P.3d 444, 453 (2004) (noting the “prosecution cannot reasonably be held responsible for evidence in the possession of all governmental agencies, including those not involved in the investigation or prosecution of the case”); In re C.J., 166 Ill.2d 264, 209 Ill.Dec. 775, 652 N.E.2d 315, 318 (1995) (refusing to “conclude that the knowledge of every State employee who is involved in a criminal case is imputed to the prosecution”); Ohio v. Mosley, No. 00CA2739, 2001 WL 888376, at *2, 2001 Ohio App. Lexis 3332, at **6-7 (Ohio Ct. App. July 18, 2001) (noting the “prosecuto-rial machinery” does not' extend to emergency medical technicians and firefighters who “were not gathering evidence, attempting to solve a crime, or prosecuting appellant”). The State Hospital is one component of the North Dakota mental health delivery system serving the specialized populations of the mentally ill, N.D.C.C. § 25-02-03, and is not an arm of the criminal justice system. We refuse to impute the State Hospital’s knowledge to the prosecution and are unwilling to place such an onerous burden on the State’s Attorney’s Office. Because Syvertson failed to establish the initial element of a Brady violation, we do not address the remaining three elements. We conclude Syvertson failed to establish a Brady violation.

Ill

[¶ 9] Syvertson also argues the district court erred in failing to grant him post-conviction relief based on newly discovered evidence regarding Dr. Kottke’s background. Post-conviction relief may be granted when “[ejvidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice.” N.D.C.C. § 29-32.1-01(l)(e). This is Similar to a request for a new trial based on newly discovered evidence under N.D.R.Crim.P. 33 and requires the same proof to prevail. Grey-wind v. State, 2004 ND 213, ¶ 18, 689 N.W.2d 390. We have explained:

Under N.D.R.Crim.P. 33(a), the trial court may grant a new trial to the defendant if required in the interests of justice. To prevail on a motion for a new trial on the ground of newly discovered evidence, the defendant must show (1) the evidence was discovered after trial, (2) the failure to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the weight and quality of the newly discovered evidence would likely result in an acquittal. State v. VanNatta, 506 N.W.2d 63, 70 (N.D.1993). A motion for new trial based upon newly discovered evidence rests within the discretion of the trial court, and we will not reverse the court’s denial of the motion unless the court has abused its discretion. Id. If the newly discovered evidence is of such a nature that it is not likely to be believed by the jury or to change the results of the original trial, the court’s denial of the new trial motion is not an abuse of discretion. State v. Garcia, 462 N.W.2d 123, 124 (N.D.1990).

State v. Steinbach, 1998 ND 18, ¶ 22, 575 N.W.2d 193. The information about Dr. Kottke’s background was published in a 1993 article in the St. Paul Pioneer Press. This information was not hidden away, it was publicly disseminated in 1993 and easily accessible. We conclude Syvertson failed to establish that “the failure to learn about the evidence at the time of trial was not the result of the defendant’s lack of diligence.” Id.

IV

, [¶ 10] Syvertson contends the State’s conduct was so outrageous under the due process principles of the . Fourteenth Amendment to be sufficient to bar the prosecution from invoking the judicial process to obtain a conviction.. In his claim of outrageous conduct, Syvertson includes the conduct of the Cass County State’s Attorney’s Office, the North Dakota State Medical Board, the North Dakota State Hospital, and Dr. Kottke. We refused to impute the knowledge of all State entities to the prosecution and concluded Syvertson failed to establish a Brady violation. Regardless of whether knowledge is imputed to other State agencies, on this record, Syvertson is unable to prove the State’s conduct was outrageous.

V

[¶ 11] We affirm the denial of Syvert-son’s application for post-conviction relief.

[¶ 12] DALE Y. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.


author:
VANDE WALLE, Chief Justice.
      DALE V. SANDSTROM.

text:
    2005 ND 132
    Frances M. REINEKE n/k/a Frances M. Michels, Plaintiff and Appellant v. Ronald K. REINEKE, Defendant and Appellee.
    No. 20050006.
    Supreme Court of North Dakota.
    July 13, 2005.
    Brenda A. Neubauer, Neubauer & Oster, Bismarck, N.D., for plaintiff and appellant.
    Ronald K. Reineke, pro se, Mandan, N.D., defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Frances Michels appealed a second amended judgment that increased her spousal-support award. Michels argues the increase is insufficient to fulfill her enhanced burden to satisfy debt discharged in bankruptcy by her ex-husband, Ronald Reineke. We reverse the second amended judgment and remand for further proceedings to reconsider the amount and duration of the spousal-support payments.

[¶ 2] Michels and Reineke were divorced pursuant to a district court judgment that awarded Michels possession of the parties’ marital home and ordered her to satisfy the first home mortgage. The parties were to split the second home mortgage, which, at the time of the original divorce judgment, was erroneously valued at approximately $35,000. The true amount of the second mortgage is approximately $70,000. This loan is paid at a rate of $433.22 per month, and each party was responsible for half of this payment, or $216.61. Following the divorce, Reineke filed for Chapter 7 Bankruptcy and listed the second mortgage as an obligation. Reineke succeeded in discharging this obligation pursuant to his bankruptcy petition. In response, Michels filed a N.D.R.Civ.P. 60(b) motion with the district court to increase her spousal-support award to remedy her now-heightened obligation to satisfy the entire second mortgage.

[¶ 3] The district court increased Michels’ spousal-support award from $300 per month to $650 per month for a duration of 4 years, beginning on October 15, 2004. The parties original divorce judgment stated that the $300-per-month award would begin on November 15, 2002, and continue through November 15, 2006. Although Michels’ motion was brought under N.D.R.Civ.P. 60(b), the district court has continuing jurisdiction to modify the parties’ spousal-support arrangement. N.D.C.C. § 14-05-24.1; see Reineke v. Reineke, 2003 ND 167, ¶23, 670 N.W.2d 841.

•I.

[¶ 4] Michels concedes the monthly increase in spousal support is sufficient to cover her ex-husband’s obligation under the second mortgage, but she contends the duration of these payments is too short. Michels believes the district court should have revisited the applicable Ruff-Fischer guidelines in making its spousal-support determination, considered an award of permanent spousal support, and contemplated awarding her proceeds from her ex-husband’s retirement account. Michels asserts the trial court failed to enforce an indemnification clause in the parties’ divorce judgment that held each party harmless as to the other party’s obligation under the second mortgage.

[¶ 5] In contrast, Reineke asserts the trial court erred in raising his spousal-support obligation. • By letting Michels collect on the second mortgage, Reineke rationalizes the district court treated her as a creditor. Reineke contends Michels, as a creditor, should not be allowed to collect on a debt discharged in bankruptcy. In the alternative, . Reineke argues the district court addressed- and effectively satisfied the indemnification clause in the .parties’ divorce judgment by raising his spousal-support obligation.

[¶ 6] The U.S. bankruptcy laws contain exceptions that prohibit discharging debt in certain circumstances. One such exception is 11 U.S.C. § 523(a)(5), which provides that a discharge under Chapter 7 does not discharge an individual debtor from any debt “to a ... former spouse ... for alimony to, maintenance for, or support of such spouse ... in connection'«with a separation agreement, divorce, decree or ... property settlement agreement.” The relevant question is whether the-debt sought to be discharged is in the nature of alimony, maintenance, or support, which would make the debt nondischargeable, or whether the debt stems from a property division or property settlement, which renders the debt dis-chargeable. In re Marriage of Clements, 134 Cal.App.3d 737, 184 Cal.Rptr. 756, 759 (1982). Here, we can infer the bankruptcy court viewed Reineke’s obligation to satisfy half of the second mortgage as being in the nature of a property division, which would explain the court’s decision to discharge the debt. The parties’ divorce judgment specifically labeled this mortgage obligation a “property and debt division” and made separate arrangements for spousal support. Furthermore,- Reineke’s payments under the second mortgage were not made directly to Michels. See 11 U.S.C. § 523(a)(5)(A) (discussing the assignment of debt to another entity).

[¶ 7] It is less clear whether the bankruptcy court considered the indemnification agreement between the parties. Rei-neke’s Bankruptcy Schedules noted that Michels was a co-debtor on the second mortgage, but the record on appeal does not reveal whether the bankruptcy court considered Michels’ potential claims against Reineke. There are conflicting views about the status of indemnification agreements in these situations. Some courts have stated that enforcement of indemnification agreements depends on the nature of the underlying debt sought to be discharged. Clements, 184 Cal.Rptr. at 759 (citing H.R.Rep. No. 95-595, 95th Cong., 1st Sess., at 364 (1977), U.S.Code Cong. & Admin.News 1978, at 5787, which provides for this result). If the indemnification agreement relates to alimony, maintenance, or support, the agreement is nondischargeable. Id. In contrast, if the indemnification agreement relates to debt from a property division, both the underlying debt and the indemnification agreement are dischargeable. Id. Bankruptcy courts have similarly cited the explicit provisions of H.R.Rep. No. 95-595, 95th Cong., 1st Sess., at 364 (1977), U.S.Code Cong. & Admin.News 1978, at 5787, and S.Rep. No. 95-989, at 79 (1978), 95th Cong., 2nd Sess. 1978, 1978 U.S.Code. Cong. & Admin.News. 5787 at 5864-65, for the proposition that a debtor’s agreement to indemnify a former spouse against third-party debt survives discharge if, and only if, the underlying liability is actually in the nature of maintenance or support. In re Lewis, 39 B.R. 842, 844-45 & n. 4 (Bankr.W.D.N.Y.1984); see also In re Daiker, 5 B.R. 348 (Bankr. D.Minn.1980) (after rejecting the argument that the debtor’s assumption of certain joint debts constituted maintenance or support, the bankruptcy court similarly rejected the argument that the debtor’s obligation to indemnify his ex-spouse was, in and of itself, an agreement for maintenance and support).

[¶ 8] Other courts have suggested that an ex-spouse’s right to indemnification or subrogation might survive a discharge of the underlying property-settlement debt in bankruptcy. See In re Lang, 11 B.R. 428 (Bankr.W.D.N.Y.1981) (holding that, although ex-husbands could discharge debt payable directly to ex-wives’ attorneys, the discharge does not eliminate the debtors’ obligations for the fees to their former wives, who, through indemnification or subrogation, obtain a nondischargeable right to payment); see also Oakley v. Oakley, 39 Conn.Supp. 13, 466 A.2d 1197, 1199-1200 (1983) (after finding that debt arising from a property settlement was dischargeable, the court, citing Lang, refused to “express or intimate its opinion on the contractual obligation of the defendant to the plaintiff under the separation agreement”).

[¶ 9] “State and federal courts have concurrent jurisdiction to determine whether an obligation is one for property settlement or one for alimony and support.” Siragusa v. Siragusa, 108 Nev. 987, 843 P.2d 807, 812 (1992); see also Hopkins v. Hopkins, 487 A.2d 500, 503 (R.I.1985) (same). Although there is persuasive case law favoring the discharge of an indemnification agreement where the underlying debt originated from a property settlement, we are hesitant to adjudicate the status of the parties’ indemnification agreement because it is unclear whether the bankruptcy court dealt with this matter. Furthermore, there are independent state-law principles upon which to resolve this case.

[¶ 10] Regardless of the status of the parties’ indemnification agreement, numerous courts, including our own, have relied on state spousal-support provisions to modify support in response to a debtor’s declaration of bankruptcy. These cases have addressed a multitude of situations, including modifications of spousal support where property-settlement debt is discharged and an indemnification agreement is either similarly discharged or is not present. See, e.g., In re Marriage of Clements, 134 Cal.App.3d 737, 184 Cal. Rptr. 756, 759-61 (1982); Foster v. Childers, 416 N.W.2d 781, 785-86 (Minn.Ct.App. 1987); Coakley v. Coakley, 400 N.W.2d 436, 440-41 (Minn.Ct.App.1987); Siegel v. Siegel, 243 N.J.Super. 211, 578 A.2d 1269, 1270-71 (Ch.Div.1990); Siragusa, 843 P.2d at 811-13; Kopp v. Kopp, 2001 ND 41, ¶¶ 2-3, 11-12, 622 N.W.2d 726; Hopkins, 487 A.2d at 504-05; In re Marriage of Myers, 54 Wash.App. 233, 773 P.2d 118, 120-22 (1989); Eckert v. Eckert, 144 Wis.2d 770, 424 N.W.2d 759, 760-61 (Ct. App.1988). In Kopp, we addressed a situation where an ex-wife sought relief from a divorce judgment under N.D.R.Civ.P. 60(b). Kopp, at ¶ 3. We affirmed the trial court’s award of spousal support, two retirement accounts, and the cash value of two life insurance policies to rectify what the trial judge called a “terrific disparity” in the parties’ financial situations resulting from the ex-husband’s bankruptcy discharge. Id. at ¶¶ 3,12.

[¶ 11] Further, many of the courts cited above rejected arguments similar to those advanced by Reineke, namely that a discharge in bankruptcy precludes a state court from using the law of domestic relations to “override” the federal court’s determination or “re-create” the discharged debt. Clements, 184 Cal.Rptr. at 759-61; Siegel, 578 A.2d at 1270-71; Siragusa, 843 P.2d at 811-13; Myers, 773 P.2d at 120-22; Eckert, 424 N.W.2d at 761-63. These courts emphasized domestic relations is a field particularly suited to state control and noted that federal courts have traditionally been respectful of a state’s decision to modify spousal-support awards. Another court has noted that “imposition of additional support obligations by a state court judge who has carefully retained jurisdiction to do so should be properly understood as just one more exception of those kinds of debts Congress considered more important than the [debtor’s] fresh start.” In re Danley, 14 B.R. 493, 495 (Bankr.D.N.M.1981).

[¶ 12] A trial court “may require one party to pay spousal support to the other party for any period of time.” N.D.C.C. § 14-05-24.1. A trial court’s determination of spousal support is reviewed as a finding of fact and will only be overturned if it is clearly erroneous. Corbett v. Corbett, 2002 ND 103, ¶4, 646 N.W.2d 677. To modify an award of spousal support, there must be a showing of a material change in circumstances, which “is something substantially affecting the financial abilities or needs of a party.” Sommer v. Sommer, 2001 ND 191, ¶ 18, 636 N.W.2d 423.

[¶ 13] Here, the trial court increased Michels’ spousal-support award by $350 per month for approximately 2 years and extended the period of time in which the $650-per-month award was paid for an additional 2 years. The trial court awarded Michels roughly $24,000 in additional spousal support when Reineke’s share of the second mortgage is $35,000. And, while Michels’ receipt of $24,000 over the next 4 years will significantly exceed her ex-husband’s former obligation under the second mortgage for this same period of time, i.e., $216.61 per month for 4 years, or roughly $10,400, the trial court’s rationale for awarding these “excess” funds is unexplained. Under the circumstances, the trial court may have intended to offset the “unjustifiable windfall to [Reineke] at [Mi-chels’] expense” created by the bankruptcy “wholly nullifying the equitable nature of the original divorce judgment.” See Kopp, 2001 ND 41, ¶ 11, 622 N.W.2d 726.

[¶ 14] However, if the trial court’s objective was to restore Michels to her prior position, the second amended judgment does not do so. Other courts confronting similar situations have affirmed modifications of spousal-support awards that mirror the economic impact experienced by the parties. See Clements, 184 Cal.Rptr. at 757-58 (ex-husband obtained an order from the trial court allowing him to reduce his ex-wife’s spousal-support award in direct proportion to the payments he was making on ex-wife’s discharged debt); Danley, 14 B.R. at 494-95 (bankruptcy court did not disturb state court’s decision to award additional support in the amount of the discharged debt).

[¶ 15] We remand to the trial court for further proceedings to reconsider the amount and duration of these payments. The trial court should explain its rationale for awarding higher payments for a shorter period of time, yet ultimately leaving Michels with a deficit. If the trial court had an objective other than restoring Mi-chels to her prior position, this objective is unknown to us.

[¶ 16] Michels argues the trial court erred in not revisiting the Ruff-Fiseher guidelines in making its support determination. We have previously stated that “[w]hen awarding spousal support, the trial court is to apply the Ruff-Fischer guidelines.” van Oosting v. van Oosting, 521 N.W.2d 93, 100 (N.D.1994). Further, “[i]n deciding whether to award spousal support, the trial court must consider the-Ruff-Fiseher guidelines.” Lili v. Lili, 520 N.W.2d 855, 856 (N.D.1994). Although these quotes imply the Ruff-Fiseher guidelines possess their greatest weight in the context of initial decisions to award spousal support, the guidelines can and should be applied in other contexts, including certain decisions to modify spousal support. Nonetheless, we will not require a trial court confronted with this unique situation, a modification of spousal support stemming from a discharge of a debt with a readily ascertainable value, to consider the Ruff-Fiseher guidelines anew or be found to be in error.

[¶ 17] In light of our holding, we do not further consider Michels’ other arguments regarding permanent spousal support and a redistribution of the parties’ property division through an award of Reineke’s retirement account.

[¶ 18] We reverse the second amended judgment and remand for further proceedings to reconsider the amount and duration of the spousal-support payments.

[¶ 19] CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.

DALE V. SANDSTROM.

I concur in the result.


author: GILBERTSON, Chief Justice.

text:
    2005 SD 83
    In the Matter of the DISCIPLINE OF Michael P. ORTNER, as an Attorney at Law.
    No. 23548.
    Supreme Court of South Dakota.
    Argued May 24, 2005.
    Decided June 29, 2005.

      Gene N. Lebrun of Lynn, Jackson, Shultz & Lebrun, Rapid City, SD, for Michael P. Ortner.
    Robert B. Frieberg, Beresford, SD, for Disciplinary Board.
   GILBERTSON, Chief Justice.

[¶ 1.] Following the release of this Court’s decision in Reaser v. Reaser, 2004 SD 116, 688 N.W.2d 429, the Disciplinary Board of the State Bar of South Dakota generated a complaint against Michael P. Ortner. Following its investigation and hearing in the matter, the Disciplinary Board filed findings of fact, conclusions of law, and a formal accusation against Ort-ner. This Board recommended that Ort-ner be publicly censured for his violation of the Rules of Professional Conduct. Ortner admitted the allegations in the formal accusation that followed. When an accused attorney admits the allegations, this Court “shall proceed to render such judgment as the case requires.” SDCL 16-19-68.

GENERAL BACKGROUND

[¶ 2.] Ortner is sixty-three years old. He graduated from the University of South Dakota with a degree in political science in 1965. Following graduate work and a fellowship, he worked for the governor of Iowa, was an assistant city manager in Sioux City, Iowa, and was-a researcher for the Midwestern Office of the Council of State Government. He began working for South Dakota’s Legislative Research Council in 1970, eventually becoming its director.

[¶ 3.] In 1976 Ortner entered the University of South Dakota’s School of Law. He was one of fourteen graduating in December 1978 and said that he was at the top of these fourteen.

[¶ 4.] Since being admitted to the State Bar of South Dakota Ortner has practiced in Hot Springs, South Dakota. His focus consists mainly of real estate work, estate planning and probate. In the course of his practice he has represented “numerous clients in divorce and family law areas,” although he attempts to avoid divorces involving minor children and never handles contested custody cases.

[¶ 5.] Ortner has been the subject of three prior complaints before the Disciplinary Board. Two were dismissed as frivolous. For the third, in 2001, he received an admonition for a technical, unintentional violation of the Rules of Professional Conduct which govern conflicts of interest.

[¶ 6.] Throughout his career Ortner has been active in non-profit service organizations, community boards, bar committees and state and county commissions. His outside interests include fishing and scuba diving.

FACTS

[¶ 7.] Throughout their marriage David and Jami Reaser lived on David’s family ranch where he worked. For twenty years Ortner helped the family with branding. 'When David initiated divorce proceedings in 1999 he retained Ortner to represent him. Jami did not have a lawyer. Ortner was aware that Jami’s mother and stepfather were South Dakota lawyers and he assumed that they were assisting her.

[¶ 8.] Ortner prepared a stipulation regarding child custody, child support, alimony and property division which David and Jami signed. Pursuant to this stipulation David received custody of the children and relieved Jami of any child support obligation. Jami waived alimony. Ortner was aware of Circuit Judge Kern’s policy to require child support in divorce decrees because when he presented the stipulation and decree of divorce to Judge Kern, he specifically “advised her there was something unusual about this particular stipulation for this divorce and that was that there was no provision in it for child support.” Judge Kern refused to grant the divorce due to the omission of any provision for child support.

[¶ 9.] Ortner advised David that whoever did not have primary custody of the children would have to pay child support. Since David was receiving custody, Ortner advised him that he could simply tear up any checks he received for child support. David discussed the proposal with Jami who, according to Ortner, definitely wanted something in writing.

[¶ 10.] Ortner revised the stipulation to include a provision for child support:

[Jami] is required to pay child support for the minor children in the total amount of $250.00 per month, except during those summer months when she has the children for visitation. During those summer months, [David] shall pay $250.00 per month for support of the minor children. Said support shall continue until the younger child graduates from high school or turns 19 years of age, whichever is earlier.

The judgment decreeing dissolution of marriage that Ortner drafted incorporated the stipulation, “it being the intention of this court that all of the terms and conditions of said Stipulation be made an express part of this Decree of Dissolution.”

[¶ 11.] At the time Ortner drafted these documents he also drafted a “Private Contractual Agreement Between Parties” which provided:

It is hereby stipulated and agreed by and between David R. Reaser, the Plaintiff, and Jami D. Reaser, the Defendant, subject to the approval of the above-named Court, that in the event the Court does see fit to grant [David] hereto a dissolution as prayed for in his Complaint, the same shall be upon the terms and conditions as set forth in the Stipulation and Agreement, except that the parties further privately stipulate and agree between themselves as follows:
I.
That [David] agrees that he will not seek to collect the Two Hundred Fifty Dollars ($250.00) per month child support ordered to be paid by [Jami],
II.
[Jami] stipulates and agrees that during those times when she has custody of the minor children for visitation purposes in the summer for one month or longer that she will not seek to collect child support from [David].
III.
Both parties stipulate and agree and contract as set forth above even though the Court itself has ordered payment of child support. The basis of the agreement for the dissolution of the marriage was that no child support be paid and this agreement carries out that earlier agreement reached by the parties.

[¶ 12.] On March 29,1999 Jami came to Ortner’s office and signed the revised stipulation and the private contractual agreement. David signed the documents the next day. Judge Kern signed the judgment decreeing dissolution of marriage which incorporated the revised stipulation on April 1. It was filed on April 6, 1999. At no time did Ortner advise Judge Kern of the private contractual agreement.

[¶ 13.] In May 2002 Jami moved for a change in custody and sought child support. Circuit Judge Thomas Trimble heard the motions and learned of the existence of the private contractual agreement. He denied the motion for a change of custody and advised David that he was free to seek child support from Jami.

[¶ 14.] In the fall of 2002 David initiated a child support action against Jami. The child support referee’s recommendations that Jami pay current child support and arrearages were adopted by the circuit court. Jami’s motions to set aside the interim order of support and eliminate the arrearages were heard by Judge John J. Delaney. Judge Delaney learned about the private contractual agreement and expressed serious concerns about the deception created by it. During this proceeding Ortner filed an “Affidavit Regarding Motion to Deny Claim for Arrears” which was dated April 1, 2003.

[¶ 15.] Ortner’s affidavit states:

Comes now Michael Ortner, and for his Affidavit states and affirms as follows:
1. That Affiant is an attorney in practice in Hot Springs;
2. That Affiant has been active in a private general practice of law in Hot Springs for over twenty years;
3. That in the course of his practice Affiant has represented numerous clients in divorce and family law matters;
4. That in the early part of 1999 he spoke with David Reaser about preparing pleadings for divorce;
5. That the Stipulation and Divorce Decree were prepared -by Affiant following his conversations with Mr. Reaser;
6. That Mr. Reaser instructed Affi-ant that the documents were to be prepared to reflect that no ongoing child support would be required to be paid by .his ex-wife, now known as Jami Twiss;
7. That Affiant initially submitted the Stipulation ahd Decree of Divorce for review by the Court with no requirement for payment of ongoing child support;
8.. That after a conference, with the Court the Stipulation and Decree of Divorce were modified to include a . child support provision;
9.That prior to submitting, the second Decree to the Court Affiant drafted a document of private agreement between Mr. Reaser and Ms. Twiss;
10. That under the terms of that private agreement, Ms. Twiss was to have no duty to pay ongoing support despite the language of the Divorce Decree;
11. That it was Affiant’s understanding that one of .the reasons the parties had entered into such an agreement for no payment of support was that Ms. Twiss had agreed not to contest custody of the two minor children, and Ms. Twiss had also agreed not to seek any alimony or other property settlement despite the fact that the couple had been married for over thirteen years;
12. That after preparing the agreement of nonsupport, the parties signed it in Affiant’s office, [Ms. Twiss] on March 29, 1999 and [Mr. Reaser] on March 30,1999;
13. Affiant informed [Ms. Twiss] that even though the private agreement should be binding on the parties themselves it would not be binding upon the Court;
14. The parties also requested that Affiant retain the original of the signed Private Contractual Agreement in his office where it still remains;
' 15. That after the parties entered into this written agreement the Decree of Divorce was subsequently signed by the Circuit Court Judge.

Further Affiant sayeth no.t.

[¶ 16.] Judge Delaney filed findings of fact, conclusions of law and an order vacating judgment in regard to child custody, visitation, alimony and property settlement on November 18, 2003. Judge Delaney did so essentially sua sponte, because of the private contractual agreement and the court’s findings of fraud upon the court.

[¶ 17.] David appealed. In Reaser v. Reaser he contended “that the court erred because the motion to set aside this decree was not made within one year as required by SDCL 15 — 6—60(b).” Id., 2004 SD 116 at ¶ 15, 688 N.W.2d at 434.

[¶ 18.] In Reaser this Court noted that because David did not challenge Judge Delaney’s findings that Judge Kern would not have entered the decree had she known of the private contractual agreement, “it does not appear that there is any dispute that this decree was obtained by a fraud upon the court.” Id., 2004 SD 116 at ¶ 17, 688 N.W.2d at 435. The Court noted that SDCL 15 — 6—60(b) does not set any rigid time limit on a court to set aside a judgment for fraud upon the court.

This type of fraud is different than that associated with fraud upon the parties. ‘Fraud upon the court’ should, we believe, embrace only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication ... In addition, it has been said that ‘[i]n order to set aside a judgment or order because of fraud upon the court under Rule 60(b), ... it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’ Courts have found fraud upon the court only where there has been the most egregious conduct involving a corruption of the judicial process itself. Examples are bribery of judges, employment of counsel to ‘influence’ the court, bribery of the jury, and the involvement of an attorney (an officer of the court) in the perpetration of fraud.

Id., 2004 SD 116 at ¶ 19, 688 N.W.2d at 435 (quoting Gifford v. Bowling, 86 S.D. 615, 625, 200 N.W.2d 379, 384 (1972)).

[¶ 19.] In Reaser v. Reaser we examined Ortner’s conduct in light of Judge Delaney’s findings:

Here, under Judge Delaney’s findings, the actions of these parties and the attorney are egregious conduct involving corruption of the judicial process itself. Considering those findings, this fraudulent conduct may have violated a criminal statute, and it certainly violated the Rules of Professional Conduct for attorneys.
* * *
Moreover, under the trial court’s findings, Ortner’s preparation of, and participation in, the concealment of the private agreement violated the Rules of Professional Conduct. “Because the courts of this state must rely upon the assistance of attorneys to ascertain the truth of matters before them, attorneys must be fair and forthright with the courts.” Matter of Discipline of Mines, 523 N.W.2d 424, 426 (S.D.1994) (citing Matter of Discipline of Schmidt, 491 N.W.2d 754, 755 (S.D.1992)). Moreover, “the requirement of candor towards the tribunal goes beyond simply telling a portion of the truth. It requires every attorney to be fully honest and forthright.” In re Discipline of Wilka, 2001 SD 148, ¶ 15, 638 N.W.2d 245, 249. It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Mines, 523 N.W.2d at 426.
Ortner’s conduct appears to violate that duty of candor toward the court. Rule 3.3 of the Rules of Professional Conduct provides in relevant part that:
(a) A lawyer shall not knowingly:
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall timely take reasonable remedial measures, including, if necessary, disclosure to the tribunal....
(d) In an ex parte proceeding, except grand juries and applications for search warrants, a lawyer shall inform the .tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Here, the trial court’s findings indicate that both Ortner,and the parties were dishonest in their representations and disclosures to the original divorce court. Their participation in, preparation of, and failure to disclose the “private agreement” allowed them to circumvent the original trial court’s express direction. It was egregious conduct that corrupted the judicial process ■ through the involvement of an officer of the court. This type of fraud upon the court is not subject to the Rule 60(b) one year time limitation. Consequently, Judge Delaney was authorized, upon his own motion, to vacate the relevant portions of the decree despite the fact that it had been in effect for over four years.

Id., 2004 SD 116 at ¶ 19-23, 688 N.W.2d at 435-436.

[¶ 20.] This Court’s opinion in Reaser v. Reaser was handed down on October 13, 2004. Six days later, on October 19, 2004, Ortner wrote to Judge Kern:

Dear Judge Kern:
As hollow as it may seem at this late date, I cannot adequately express how deeply I apologize to you for the way I mishandled the Reaser divorce five and one-half years ago.
My heart and emotions totally got in the way of my brain and legal training. I had been going to brandings with David Reaser and his father -for nearly twenty years at that time, and David was so adamant about not accepting any child support from his wife that I went ahead and prepared the private agreement for them to sign. ■ I had no intent to defraud the. Court or violate any laws. While trying to help a- client I have totally jeopardized twenty-six years of law practice and nearly forty years of public service and service to the public.
You had always treated me with total honesty and fairness and that is what makes me so sick and ashamed about the way I handled this matter.
When this came to light in April 2003, I did an affidavit admitting to everything that had occurred. Since that date I have not had a decent night of sleep. In twenty-six years there has been one private reprimand from the Disciplinary Board and two investigations in criminal cases which were found to be frivolous and were sealed.
What I did in this case clearly violated the Rules of Professional Responsibility, and I am ready to accept whatever action is recommended by the Disciplinary Board.
Respectfully submitted,
/s/
MICHAEL P. ORTNER LAWYER

[¶ 21.] The Disciplinary Board generated a complaint against Ortner based upon his conduct in Reaser v. Reaser. In its Notice of Hearing the Disciplinary Board informed Ortner that:

The allegations indicate possible violations of the Rules of Professional Conduct, including but not limited to:
Rule 1.7 concerning conflicts of interest;
Rule 3.3 concerning candor;
Rule 8.4(a), (c) and (d) concerning misconduct and violation of SDCL 16-16-18, SDCL 16-18-13, and SDCL 16-18-19.

[¶ 22.] Ortner’s hearing before the Disciplinary Board took one hour on January 7, 2004. Ortner was the sole witness. Exhibits introduced at the hearing included Ortner’s April 21, 2003 Affidavit Regarding Motion to Deny Claim for Arrears, Ortner’s letter of apology to Judge Kern, a letter of support from Southern Hills Bar Association members, a letter of support from Judge A.P. Fuller, and a letter of support from Judge Kern dated January 4, 2005.

[¶ 23.] On February 15, 2005 the Disciplinary Board entered its findings of fact, conclusions of law, recommendations, and formal accusation. The Board found, in part,

23.Ortner’s conduct toward Judge Kern was not based on an intent to defraud the trial court, nor did he intend to violate any laws. His failure to recognize the potential relevance to Judge Kern of the parties’ private agreement and to heed his corresponding duty to disclose the agreement to Judge Kern was an isolated and extreme aberration from his normal course of conduct, and is not likely to ever be repeated.
24. As a result of the publication of Reaser v. Reaser, Ortner already has experienced considerable public humiliation and notoriety, as well as personal grief and anguish.
[¶ 24.] The Board concluded:
25. While Ortner violated Rules 3.3 and 8.4 of the Rules of Professional Conduct, no public interest or professional purpose would be served by suspending Ortner’s privilege to practice law.

[¶ 25.] The Board recommended, in part:

1. Michael Ortner be censured for his violation of the Rules of Professional Conduct.

STANDARD OF REVIEW

[¶ 26.] This Court gives careful, due consideration to the Disciplinary Board’s findings of fact because it had the advantage of encountering the witness first hand. In re Arendt, 2004 SD 83, 684 N.W.2d 79. We do not defer to a recommended sanction. In re Discipline of Laprath, 2003 SD 114, 670 N.W.2d 41. “The final determination for the appropriate discipline of a member of the State Bar rests firmly with the wisdom of this Court.” Matter of Discipline of Wehde, 517 N.W.2d 132, 133 (S.D.1994).

LEGAL ANALYSIS

[¶ 27.] Article V, Section 12 of the South Dakota Constitution places an affirmative duty on this Court to “govern terms of courts, admissions to the bar and discipline of members of the bar.” We defined our constitutional regulatory relationship with the bar in Supreme Court Rule 78-1, Rule 11(a) which is codified at SDCL 16-19-31:

The license to practice law in this state is a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the court. It is the duty of every recipient of that privilege to conduct himself [and herself] at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law.

The purpose of the disciplinary process is to protect the public from fraudulent, unethical or incompetent practices by attorneys. Matter of Discipline of Kallenberger, 493 N.W.2d 709 (S.D.1992). It is also intended to deter like conduct by other attorneys. In re Discipline of Eicher, 2003 SD 40, 661 N.W.2d 354. The disciplinary process is not conducted to punish the lawyer. Petition of Pier, 1997 SD 23, 561 N.W.2d 297.

The preservation of trust in the legal professional is essential. Pier, 1997 SD 23 at ¶ 8, 561 N.W.2d at 299. Lawyers in the practice of law have a formidable responsibility to protect their clients’ “property, their freedom, and at times their very lives.” Matter of Chamley, 349 N.W.2d 56, 58 (S.D.1984). “Only by providing high quality lawyering can the integrity of the legal profession remain inveterate and the confidence of the public and the Bar remain strong.” Wehde, 517 N.W.2d at 133.

In re Discipline of Mattson, 2002 SD 112, ¶ 40, 651 N.W.2d 278, 286.

[¶ 28.] An attorney possesses and exercises “substantial power and authority.” Discipline of Laprath, 2003 SD 114 at ¶ 42, 670 N.W.2d at 55. “A certificate of admission to the bar is a pilot’s license which authorizes its possessor to assume full control of important affairs of others and to guide and safeguard them when, without such assistance, they would be helpless.” In re Egan, 52 S.D. 394, 402, 218 N.W. 1, 4 (1928)(quoting In re Kerl, 32 Idaho 737,188 P.40 (1920)). ■

[¶ 29.] This Court’s decisions have made it clear that parents in South Dakota, as a matter of public policy and statutory duty, have ah obligation to provide support for their children. Thomas v. Hague, 2002 SD 12, 639 N.W.2d 520. Ortner, in the course of his twenty-five plus years of practice, “represented numerous clients in divorce, and family law matters” and was charged with this knowledge of black letter law.

[¶ 30.] Rather than advising David concerning child support obligations, Ortner followed his client’s directive and drafted the original stipulation and divorce decree which omitted the payment of on-going child support. When Ortner submitted the documents to Judge Kern, she refused to enter a decree that provided no support.

[¶31.] Ortner advised David of Judge Kern’s , position and suggested that the stipulation and decree provide for support. He then advised- David that he could tear up the support checks, thereby thwarting the intention of the child support obligation. When David advised Ortner that Jami insisted on a written agreement waiving child support Ortner did not advise him that parties cannot make a valid irrevocable contract relieving them of the duty to support their minor children. Thomas, 2002 SD 12 at ¶8, 639 N.W.2d at 521. Rather, he prepared a revised stipulation providing for child support and a private contractual agreement where each party agreed to “not seek to collect child support” from the other. Ortner advised Jami, who was unrepresented, that the private contractual agreement bound the parties.

[¶ 32.] When Ortner presented the revised stipulation providing for child support and- the decree incorporating its terms to Judge Kern she signed the decree. ' As the Disciplinary Board found, “Ortner did not advise Judge Kern of the parties’ intent to not actually collect child support from each other, nor did he inform her of the existence of their written agreement to that' effect.”- Moreover, Ortner admitted at the Disciplinary Board hearing that in one other case he had prepared a similar type' of secret agreement in an attempt to avoid paying child support. In Eicher, 2003 SD 40 at ¶29, 661 N.W.2d at 364, and previous cases we examined, the attorney’s motive behind his misconduct:

, As we said in Dorothy, 2000 SD 23 at ¶ 47, 605 N.W.2d at 507:

This clearly was not an isolated incident where emotions of the moment in the heat of litigation overcame better judgment. In re Snyder, 472 U.S. 634, 647, 105 S.Ct. 2874, 2882, 86 . L.Ed.2d 504, 514 (1985). The worst of it was prepared or written out in advance with sufficient time to reflect on the inflammatory contents of the statements before they were delivered.
“Moreover, these acts were not an isolated ‘foolish and negligent’ incident, id. They were' intentional ...” Mattson, 2002 SD 112 at ¶ 55, 651 N.W.2d at 289.

[¶ 33.] The Disciplinary Board also found, however, that “Ortner’s conduct toward Judge Kern was not based on an intent to defraud the trial court, nor did he intend to violate any laws.” This language basically adopts language in Ort-ner’s letter of apology to Judge Kern. It is not consistent with Ortner’s admission that when he initially sought approval of the decree without child support, he specifically called that matter to Judge Kern’s attention as he knew it was her policy to require child support. The Board’s finding also fails to appropriately consider the fact that Judge Delaney found that the “secret agreement purports to do precisely what the court had specifically refused to approve” and was “contrary to the court’s previous direction to counsel.” It is not consistent with Judge Delaney’s conclusion that the divorce was obtained by fraud upon the court. It is also at odds with this Court’s conclusion in Reaser v. Reaser that Ortner was dishonest in his representation and disclosures to Judge Kern, circumvented Judge Kern’s express direction and engaged in “egregious conduct that corrupted the judicial process through the involvement of an officer of the court.” Reaser, 2004 SD 116 at ¶23, 688 N.W.2d at 436.

[¶ 34.] The egregious conduct of committing fraud upon the court also violates SDCL 16-16-18 (Oath of Attorney which provides, in part, “I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law[.]”), SDCL 16-18-13 (Attorney’s duty to respect courts), SDCL 16-18-19 (Attorney’s duty to use truthful means), and SDCL 16-18-26(1) (Misdemeanor to practice deceit or collusion with intent to deceive the court). As such, the Board’s finding is clearly erroneous.

[¶ 35.] We agree with the Disciplinary Board’s finding that Ortner violated Rules 3.3 (Candor Toward the Tribunal) and 8.4 (Misconduct) of the Rules of Professional Conduct.

We cannot overemphasize the importance of attorneys in this state being absolutely fair with the court. Every court ... has the right to rely upon an attorney to assist it in ascertaining the truth of the case before it. Therefore, candor and fairness should characterize the conduct of an attorney at the beginning, during, and at the close of the litigation.

Matter of Bihlmeyer, 515 N.W.2d 236, 239 (S.D.1994). “Attorneys have the responsibility to present the record with accuracy and candor.” In re Discipline of Dorothy, 2000 SD 23, ¶ 51, 605 N.W.2d 493, 509.

APPROPRIATE DISCIPLINE

[¶ 36.] The disciplinary options at this Court’s disposal are private reprimand, public censure, placement on probationary status, suspension for up to three years and disbarment. Mattson, 2002 SD 112 at ¶ 51, 651 N.W.2d at 288; SDCL 16-19-35. The appropriate discipline in a particular case is determined by considering the seriousness of the misconduct, the likelihood that it or similar misconduct will be repeated, and the attorney’s prior record. Discipline of Eicher, 2003 SD 40 at ¶ 47, 661 NW2d at 369.

[¶ 37.] Without question Ortner has led a life of public service. His disciplinary history is minimal. Custer and Fall River County attorneys have found him honest and ethical in legal matters. The judge he deceived views his deception as an isolated act that will not be repeated. Weighing against this, however, is that Ortner’s conduct in this matter was a direct fraud on the court which corrupted the delicate balance of judicial fact finding, went to the heart of legal decision making and constituted egregious conduct by an officer of the court that corrupted the judicial process

[¶ 38.] The Board found that Ortner was sincerely sorry for his misconduct. However that must be significantly tempered by the fact he did not self-report and only apologized after the acts were discovered by Judge Trimble and Judge Delaney and were examined and published in Reaser v. Reaser. Ortner allowed them to remain a significant fraud on the court until that discovery. Ortner only admitted his misconduct after publication of Reaser even though his letter to Judge Kern indicated that when “this came to light in April of 2003, I did an affidavit admitting to everything that had occurred. Since that date I have not had a decent night of sleep.” Thus, Ortner admitted he was clearly aware of his ethical violations no later than April 2003 to the point where he could not sleep because of its seriousness. Nevertheless he waited an additional sixteen months to apologize and never did self report to the Disciplinary Board.

[¶ 39.] In its finding the Disciplinary Board found that as a result of the publication of Reaser v. Reaser, Ortner has “already experienced considerable public humiliation and notoriety, as well as personal grief and anguish.” The Board’s rationale is inconsistent with our holding since statehood that the purpose of an attorney disciplinary proceeding is for the protection of the public and not to punish the offending attorney. Publicity and personal grief are not factors in deciding appropriate discipline. “Under art V, § 12 of our Constitution, this Court, and not the media nor any third party, is solely charged with the responsibility for determining what is appropriate discipline in an attorney misconduct ease.” Discipline of Mattson, 2002 SD 112 at ¶ 51, 651 N.W.2d at 288; Discipline of Wilka, 2001 SD 148, ¶ 17, 638 N.W.2d 245, 250; Discipline of Dorothy, 2000 SD 23 at ¶ 40, 605 N.W.2d at 505; Matter of Discipline of Hopewell, 507 N.W.2d 911, 917 (1993).

[¶ 40.] The citizens of this state and those non-residents who seek relief in our Courts have a right to expect that as far as humanly possible, the fact finders, be they a jury or a judge will attempt to find the true facts and correctly apply the law. Witnesses take oaths to tell the truth. Jurors take oaths to do their duty. Judges take an oath consistent with their calling. All of this crumbles should an attorney violate his oath and perpetrate a fraud upon the court.

[¶ 41.] Circuit judges routinely are called upon to decide important cases. “The power which the people of this state have entrusted to a circuit court judge affects the people’s lives, welfare and property to no small extent.” Matter of Discipline of Hopewell, 507 N.W.2d at 917 (quoting Cummings v. Mickelson, 495 N.W.2d 493, 496 (S.D.1993))'. This was an issue involving child support. While Jami and David protected their respective interests, the trial court which properly protected the best interests of the children by refusing to waive child support at the outset, was ultimately duped by Ortner’s actions. This made the trial court’s already difficult duty to provide for the interests of the children, now impossible:

“This state has an interest in protecting the welfare of its children which includes their standard of living.” Feltman v. Feltman, 434 N.W.2d 590, 592 (S.D.1989). All too often in setting child support, “[t]here are simply too few dollars to meet even the most modest standard of living ... [and judges] are called upon to apportion poverty and its accompanying misery.” State ex rel V.K.H. v. S.W., 442 N.W.2d 920, 925 (S.D.1989) (Gilbertson, Circuit Judge, concurring).

Ochs v. Nelson, 538 N.W.2d 527, 531 (S.D.1995).

[¶ 42.] Unfortunately when we examine the issue of an attorney intentionally misleading a court or other similar acts, we do not find a case of first impression. Clearly it has been an on-going issue which has faced this Court with disappointing regularity. In re Arendt, 2004 SD 83, 684 N.W.2d 79; In re Discipline of Laprath, 2003 SD 114, 670 N.W.2d 41; In re Discipline of Eicher, 2003 SD 40, 661 N.W.2d 354; In re Discipline of Wilka, 2001 SD 148, 638 N.W.2d 245; In re Discipline of Dorothy, 2000 SD 23, 605 N.W.2d 493; Matter of Bihlmeyer, 515 N.W.2d 236; Matter of Discipline of Hopewell, 507 N.W.2d 911; Matter of Discipline of Schmidt, 491 N.W.2d 754.

[¶ 43.] In some cases we have examined an attorney’s misrepresentation and have determined that public censure was the appropriate discipline:

“This Court has previously imposed public censure for misrepresentations to the court.” Bihlmeyer, 515 N.W.2d 236 at 238 (holding public censure appropriate for attorney who ■ misrepresented a fee agreement to a workers’ compensation tribunal) (citations omitted). See also Matter of Discipline of Mines, 523 N.W.2d 424 (S.D.1994)(holding public censure appropriate for attorney who failed to remedy inadvertent misrepresentations relied upon by the court in resolving proceeding against attorney); Matter of Discipline of Schmidt, 491 N.W.2d 754 (S.D.1992)(holding public censure appropriate for attorney who intentionally omitted required affidavit that nonresident attorney participating in trial had not been subject to disciplinary action); Matter of Discipline of Rensch, 333 N.W.2d 713 (S.D.1983)(holding public censure appropriate for attorney who misrepresented to judge status of fee arrangement with purportedly indigent defendant in criminal prosecution). Wdiile Wilka may not have directly lied to the court, he intentionally evaded the plain and understandable questions of Judge Severson. In doing so, he misled the court and misrepresented the evidence as being more than it was.

Discipline of Wilka, 2001 SD 148 at ¶ 14, 638 N.W.2d 245 at 249. We warned, however, “[p]ublie censure in this type of case has been the penalty of the past, but whether it will be in the future is debatable and the whole Bar should take note of this.” Mines, 523 N.W.2d at 427.

[¶ 44.] This Court suspended Eicher, in part, for failure to let the court know he was in possession of a video tape which he claimed to be missing and essential to the defense of his client. In Matter of Voorhees, 294 N.W.2d 646 (S.D.1980) we disbarred an attorney who forged a document to obtain a greater federal payment for a business enterprise.

[¶ 45.] Most recently, the Board recommended the 120 day suspension of an attorney who violated Rules 3.3 and 8.4, SDCL 16-18-26(1) and SDCL 16-18-19. In re Arendt, 2004 SD 83 at ¶ 14, 684 N.W.2d at 79. In 1995 Arendt entered a business transaction with a client but failed to advise the client of the requirements of Rule 1.8. In response to the Board’s inquiry, Arendt submitted a document purported to be a copy of a 1995 letter to the client advising him of the requirements of Rule 1.8. The letter was a fabrication. When the Disciplinary Board informed Arendt’s counsel of its concerns about the letter’s accuracy, Ar-endt admitted that he had created the letter to mislead the Board and promptly advised the Board that the document was false. In testimony before the Board Ar-endt admitted the letter was false and was remorseful.

[¶ 46.] The Disciplinary Board concluded that “no public interest or professional purpose would be served by suspending Ortner’s privilege to practice law.” Its recommendation of a public censure cannot be accepted by this Court in light of the conduct in Voorhees; Eicher and most recently Arendt where the Board recommended suspension only months before this case.

[¶ 47.] It is difficult to conceive of a more blatant act of fraud than that committed in Ortner’s drafting of the private contractual agreement and his participation in its execution which were directly contrary to the trial court’s express direction after reviewing the first stipulation. This cannot be viewed as accidental or an honest mistake as Ortner has conceded that he knew prior to this case that it was Judge Kern’s policy to require child support in divorce cases involving minor children. This private agreement did exactly what the trial court refused to approve after Ortner previously called the proposed no-support provision to the court’s attention. The subsequent execution of the decree of dissolution was predicated on the revised stipulation’s provision providing for meaningful child support. Ortner failed to self report for approximately six years. It was only after Judges Trimble and Delaney discovered the private contractual agreement that Ortner admitted his conduct. His apology to Judge Kern came only after the release of our decision in Reaser v. Reaser where his conduct became public. Moreover, he admitted he prepared a similar “secret agreement” on another occasion.

[¶ 48.] Lawyers must guard against conduct that diminishes public confidence in the legal system. See Matter of Estate of Schuldt, 428 N.W.2d 251 (S.D.1988). While the legal profession is largely self-governing, the ultimate authority over the profession is vested with this Court, Art V, § 12 of the South Dakota Constitution. The preamble to the South Dakota Rules of Professional Conduct provides, in part:

The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

It is clear from the frequency of this type of misconduct that public censure is not providing sufficient deterrence to adequately protect the public in the future.

[¶ 49.] Had there been a history of violations by Ortner or if we suspected he was likely to repeat such acts in the future, for the protection of the public our only appropriate course of action would be to enter an order of disbarment. Our review of the record indicates that such does not appear to be the case.

[¶ 50.] Nevertheless, we once again stress the duty SDCL 16-19-31 places upon this Court:

[T]he license to practice law in this state is a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and as an officer of the court. It is the duty of every recipient of that privilege to conduct himself [and herself] at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law.

See also Laprath, 2003 SD 114 at ¶ 43, 670 N.W.2d at 55-56. Moreover:

By admitting an attorney to its bar, the court presents him to the public as worthy of its confidence in all of his professional duties and relations. If after-wards it come [sic] to the knowledge of the court that he has become unworthy, it is its duty to withdraw that indorsement [sic], and thereby cease to hold . him out to the public as worthy of professional employment.

In re Ramsey, 24 S.D. 266, 274, 123 N.W. 726, 729 (1909) (quoting Serfass’ Case, 116 Pa. 455, 9 A. 674; In re Elliott, 18 S.D. 264, 100 N.W. 431 (1904)).

[¶ 51.] After reviewing this record we conclude that Ortner’s conduct was of such egregious professional nature that it is in the best interests of the public and the legal profession to suspend him from the practice of law for a period of nine months.

[¶ 52.] Pursuant to SDCL 16-19-35(2) a judgment of suspension will be entered for a period of nine months effective July 29, 2005. Within ten days after the effective date of the suspension order, Ortner shall file with the Supreme Court an affidavit showing:

1) That he has fully complied with the provisions of the order and with this chapter; and
2) All other state, federal, and administrative jurisdictions to which he is admitted to practice. Such affidavit shall also set forth the residence or other address of the disbarred or suspended attorney where communications may thereafter be directed to him.

SDCL 16-19-80.

[¶ 53.] Prior to any application for reinstatement Ortner must take and pass the Multistate Professional Responsibility Examination. He must also reimburse the State Bar of South Dakota and the Unified Judicial System for expenses allowed under SDCL 16-19-70.2.

[¶ 54.] Upon expiration of his suspension Ortner may file a petition for reinstatement pursuant to SDCL 16-19-87. He must also submit an affidavit to this Court stating:

1. He has reviewed the Rules of Professional Conduct;
2. He pledges he will devote every effort in his future practice to fully abide by the South Dakota Rules of Professional Conduct;
3. He recognizes fully that his conduct violated the Rules of Professional Conduct by which he is bound;
4. He has taken and passed the Multi-state Professional Responsibility Examination;
5. He has reimbursed the State Bar of South Dakota and the Unified Judicial System; and
6. Upon reinstatement, he will maintain professional malpractice insurance along with proof thereof.

[¶ 55.] ZINTER and MEIERHENRY, Justices, and WILBUR, Circuit Judge and MILLER, Retired Justice, concur.

[¶ 56.] WILBUR, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 57.] MILLER, Retired Justice, for KONENKAMP, Justice, disqualified.

      . The court found, in relevant part:
      11. That at the institution of these proceedings [David] was represented by Mr. Michael Ortner.
      12. That at the institution of the divorce proceedings [Jami] was unrepresented.
      13. That prior to the completion of the divorce action [David] transferred his interest in the family ranching operation back to his father and mother.
      14. That a stipulated divorce, placing custody of the children with [David], waiving alimony claims by [Jami], and waiving any child support to be paid by [Jami] to [David], was presented to the [c]ourt.
      15. The [c]ourt refused to issue a [d]ivorce [d]ecree based on the initial stipulated agreement because child support was not meaningfully addressed.
      16. A second Stipulation was prepared and submitted to the [c]ourt which purported to establish a child support obligation from [Jami] to [David],
      17. At the time the second Stipulation was prepared, unbeknownst [to the] [c]ourt there was a contemporaneous agreement between the parties [that] again waived any support obligation from [Jami] to [David].
      18. Neither Stipulation disclosed to the [c]ourt the underlying financial circumstances of the parties, nor did it alert the [c]ourt to the fact that there may have been a gross inequity in the division of property between the parties.
      19. There is no evidence upon which a[c]ourt can conclude that [Jami] was informed of her rights or of the size and value of the marital estate prior to the preparation of the Divorce Stipulation.
      20. [Judge Kern] executed the Divorce Decree ignorant of the fact that the parties had entered into a secret agreement drafted by counsel for [David] to bar the collection of any support by [David] from [Jami],
      21. The secret agreement purports to do precisely what [Judge Kern] had specifically refused to approve, and the execution of the Decree was predicated upon the express representation, through the Stipulation, that a meaningful support obligation was established.
      22. The "secret” or undisclosed agreement entered into between the parties was contrary to [Judge Kern's] previous direction to counsel after review of the first [Stipulation.
      23. That [Judge Kern] would not have executed the Decree of Divorce, based upon the second [Stipulation presented to it, had it been specifically advised by counsel and had it known that in fact the contemporaneous agreement waiving child support had been made.
      24. The waivers of support and alimony appear to the [c]ourt to be intended to preclude any property division in funds or ranch property of the parties’ sizeable interest in the family ranching operation.
      25. The purported transfer from [David] to his father, during these divorce proceedings, of his interest in the family ranch operation was not an arms length transaction when considered in light of the income tax records and other limited financial information made available to the [c]ourt.
      26. That when [Jami] subsequently moved for custody of the children in 2002, [David] "reneged” upon the secret agreement and attempted to obtain several years of past due child support.
      27. That the review of the issues of support and visitation[,] which gave rise to these proceedings^] led to the [c]ourt’s discovery of the fraud perpetrated upon it in the course of the initial proceedings, granting the Divorce Decree.

      . Dear Chairman Turbak and Members of the Board:
      I have been asked by Gene Lebrun to write a letter of recommendation to the Board on behalf of Michael Ortner. Obviously this places me in an unusual situation as I was the judge Mr. Ortner deceived by his conduct in the Reasor [sic] v. Reasor [sic] divorce proceeding. I certainly do not condone Mr. Ortner's conduct and believe that the Supreme Court, in its decision, sent a strong message to Mr. Ortner and a powerful reminder to the Bar regarding its obligation of candor to the Court.
      After much consideration, I have decided to write this letter on Mr. Ortner’s behalf because I believe from my observations of his practice, that this incident was an aberration rather than the standard operating procedure for Mr. Ortner. As you may know, the Seventh Circuit Judicial Court rotates coverage of the Hot Springs docket on a yearly basis. I covered this docket in 1999 and during that year had numerous contacts with Mr. Ortner as court convened in Hot Springs between two and four times each month. He appeared before me dozens of times and on all occasions, was well prepared, courteous and professional. He is a compassionate person and seems to be a gentle soul. He has a good reputation in the community and I never had cause to question his honesty.
      Unfortunately, not all attorneys enjoy this level of trust with the judges before whom they practice. There are lawyers who are not explicitly trusted by the bench as a consequence of their practice habits. Their pleadings, arguments and authorities are closely scrutinized for accuracy. Mr. Ort-ner was not that kind of an attorney. He had never misrepresented any fact or issue to me in any proceeding. I find his conduct in the Reasor [sic] case surprising and out of character.
      Mr. Ortner sent me an apology letter after the Supreme Court issued its opinion. Certainly one could perceive this as self-serving in light of the inevitability of these proceedings. It is my belief, however, that his remorse is very deep and sincere and that he is devastated by his conduct and its consequences.
      Few lawyers who deceive a court are caught so completely in their lie or reprimanded so publicly. You are charged with the difficult responsibility of determining the sanctions which should now be imposed. It is my view that this is an isolated act of dishonesty and that he will not repeat this mistake.
      Sincerely,
      /s/
      Janine M. Kern Circuit Court Judge

      . While the Disciplinary Board had before it the documents Ortner drafted and our analysis in Reaser v. Reaser, the only witness to testify at the hearing in this case was Ortner. The Board, in effect, heard only the defense case and did not have the opportunity to hear from the Reasers, Judge Delaney or Judge Kern. We have had the opportunity to consider the same evidence, and in addition, Ort-ner's concession at oral argument that he was aware of the significance Judge Kern placed on having child support provisions in divorce cases.

      . Rule 3.3 provides, in part:
      (a)A lawyer shall not knowingly:
      ⅜ ‡ ⅝
      (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall timely take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. However, in a criminal matter, the lawyer shall not participate with the client in the presentation of the client's testimony which the lawyer knows to be false.

      (d) In an ex parte proceeding, except grand juries and applications for search warrants, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

      . Rule 8.4 provides, in part:
      It is professional misconduct for a lawyer to:
      (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
      (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
      (d) engage in conduct that is prejudicial to the administration of justice[.]

      . We note that under the ABA Standards for Imposing Lawyer Discipline, which we have not adopted, disbarment would be the appropriate discipline. Rule 6.11.
      The same rationale has been in effect in this jurisdiction since the adoption of our first Territorial Code in 1877. Under SDCL 16-19-34, "An attorney and counselor who is guilty of deceit or collusion, or consents thereto, with intent to deceive a court or judge, or party to an action or proceeding, is liable to be disbarred, and shall forfeit to the injured party treble damages to be recovered in a civil action.”