author: KAPSNER, Justice.

text:
    2000 ND 109
    AUCTION EFFERTZ, LTD., Plaintiff and Appellee, v. Larry SCHECHER, Defendant and Appellant.
    No. 990385.
    Supreme Court of North Dakota.
    May 25, 2000.

      Joseph J. Cichy, Olson Cichy, Bismarck, for plaintiff and appellee.
    Jerome C. Kettleson, Pearce & Durick, Bismarck, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Larry Schecher appealed from a judgment awarding Auction Effertz, Ltd., damages for its commission in selling Schecher’s cattle and dismissing Schecher’s. counterclaim seeking damages for breach of fiduciary duty by Neil Effertz. We hold the district court had personal jurisdiction over Schecher in this litigation. We further hold the district court’s findings Auction Effertz, Ltd., earned a commission and Neil Effertz did not breach his fiduciary duty to Schecher are not clearly erroneous. We affirm the damage award and the dismissal of the counterclaim.

I

[¶2] In the spring of 1997, Schecher placed a telephone call from his home in Bison, South Dakota, to Neil Effertz, the president of Auction Effertz, Ltd., a Bis-márck corporation engaged in cattle marketing, asking Effertz to find a buyer and negotiate a private treaty sale of Schecher’s herd of Charoláis cattle. By June 14, 1997, Schecher and Effertz finalized an oral agreement, under which Effertz agreed to act as Schecher’s agent to find a buyer for a private treaty sale of about 220 Charoláis cows and 70 to 90 heifer calves. Schecher informed Effertz the minimum price he would accept was $1,200 per head for the cows and $700 per head for the calves. The parties agreed Auction Ef-fertz, Ltd., would receive a five percent commission for locating a buyer and completing the private treaty sale. The parties understood it would not be easy to find a buyer for the sizable number of registered Charoláis cattle Schecher was attempting to sell, and they agreed that while Effertz attempted to find a buyer Schecher would make arrangements for an auction sale of the cattle in November 1997 if no private buyer could be found.

[¶ 3] Neil Effertz’s parents own a cattle operation in North Dakota known as the Effertz Key Ranch (“EKR”). They gifted each of their seven sons a share of the cattle operation and, consequently, Neil Effertz owns a seven percent ownership interest. Neil Effertz testified he initially had about five names of potential buyers for Schecher’s cattle, but by July 1997 he had only a party from Alabama and EKR as potential buyers. After Schecher had expended monies to prepare for the November auction, he told Effertz he would no longer accept $1,200 per head for the cattle but now required $1,250 per head. Thereafter, the only potential buyer was EKR. Schecher testified Effertz did not disclose EKR was the potential buyer until August 5, 1997, after Neil Effertz and Schecher shook hands on a general agreement as to the sale of the cattle. Schecher indicated he was pleased EKR was the buyer, and he later published a newspaper advertisement publicly thanking EKR for purchasing the cattle.

[¶ 4] The agreement included some exchange of cattle, and Schecher testified he worked out the details of the transaction with Roger Effertz, representing EKR, after the general agreement had been made on August 5, 1997. Shortly after negotiations were completed, EKR sent a $40,000 down payment on the purchase to Sehecher through Auction Effertz, Ltd., which withheld a $2,000 commission on that amount. In November 1997, Schecher came to Bismarck to attend an educational marketing program sponsored by EKR and at that time he received another $60,-000 payment by check written by Roger Effertz. On that same date, Schecher personally gave Neil Effertz a check in the amount of $3,000 as commission on the $60,000 payment. Schecher later hired Auction Effertz, Ltd., to auction some bulls and thereafter Schecher sent Auction Effertz, Ltd., a commission check in the amount of $2,386.75, with an explanation $700 of the amount was commission for the sale of the bulls and the remaining amount was the final payment of the commission for the earlier sale of the cows and calves.

[¶ 5] Auction Effertz, Ltd., did not cash Schecher’s last check, but instead sued

Schecher for unpaid commissions, claiming Schecher owed Auction Effertz, Ltd., $941 for commission on the bull auction and a balance of $10,512.50 on the prior sale of the Charoláis cattle and calves. Schecher answered, denying that he owed Auction Effertz, Ltd., additional commission monies, and Schecher counterclaimed for return of commission paid and for damages, asserting Auction Effertz, Ltd., breached its fiduciary duty as a sale’s agent for Schecher. After a hearing, the trial court found Auction Effertz., Ltd., did not breach its fiduciary duty to Schecher and concluded Schecher owed Auction Effertz, Ltd., commissions totaling $11,453.50 plus interest. Judgment for damages was entered, and Schecher appealed.

II

[¶ 6] Schecher asserts the oral agency agreement he made with Neil Effertz by placing a telephone call to Bismarck from his home in South Dakota is not a sufficient contact with North Dakota to give the district court personal jurisdiction over him. The relevant law on jurisdiction is found under N.D.R.Civ.P. 4(b)(2)(A) and (3), and provides in part:

(b) Jurisdiction Over Person.
(2) Personal Jurisdiction Based Upon Contacts. A court of this state may exercise personal jurisdiction over a person who acts directly or by an agent as to any claim for relief arising from the person’s having such contact with this state that the exercise of personal jurisdiction over the person does not offend against traditional notions of justice or fair play or the due process of law, under one or more of the following circumstances:
(A) transacting any business in this state;
(3) Limitation on Jurisdiction Based Upon Contacts. If jurisdiction over a person is based solely upon paragraph (2) of this subdivision, only a claim for relief arising from bases enumerated therein may be asserted against that person.

In United Accounts, Inc. v. Quackenbush, 434 N.W.2d 567, 569 (N.D.1989), we explained:

Rule 4(b)(2), North Dakota’s “long-arm” provision, is a codification of the principles announced in International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), in which the United States Supreme Court held that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” [Quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)]. Rule 4(b)(2) was “designed to permit the state courts to exercise personal jurisdiction to the fullest extent permitted by due process.” Hebron Brick Co. v. Robinson Brick & Tile Co., 234 N.W.2d 250, 255 (N.D.1975) (footnote omitted).

Recognizing that the phrase “transacting any business in this state” should be given an “expansive interpretation” by the courts, id. at 570, we resolve the question of whether the court had personal jurisdiction over Schecher by first determining if the requirements under N.D.R.Civ.P. 4(b)(2)(A) have been satisfied and, secondly, whether Schecher, as a nonresident, had sufficient contact with this state that the exercise of personal jurisdiction over him does not offend traditional 'notions of justice and fair play under the concept of due process of law. See, e.g., Hust v. Northern Log, Inc., 297 N.W.2d 429, 431 (N.D.1980).

[¶ 7] Schecher initiated the agency contract by placing a phone call to Auction Effertz, Ltd., in Bismarck. The agreement contemplated Effertz would facilitate the sale of' Schecher’s cattle by locating potential buyers and negotiating the terms of sale with the ultimate buyer. From the nature of the contract, one can infer much of that activity would be performed in North Dakota and some of it did, in fact, occur in North Dakota. Schecher accepted the terms of the negotiated sale arranged by Nei-1 Effertz, thereby agreeing to sell his herd of cattle to a North Dakota resident. Schecher also, while in North Dakota, made payment toward Effertz’s commission. Under analogous circumstances, other courts have found sufficient contact for personal jurisdiction over a nonresident party who had initiated a business transaction by telephone or other electronic medium within the forum state. See Neways, Inc. v. McCausland, 950 P.2d 420, 424 (Utah 1997) (prima facie showing of specific personal jurisdiction over nonresident who initiated telephone contacts within the forum state to sell papaya capsules in that state and accepted payments originating in the forum state); Beechem v. Pippin, 686 S.W.2d 356, 363 (Tex.App.1985) (traditional notions of fair play were not violated by exercising jurisdiction over nonresident who, by telephone contact to a business in the forum state of Texas, initiated agreement to lease equipment for use in the nonresident state); Mendelson v. Fleischmann, 386 F.Supp. 436, 438 (S.D.N.Y.1973) (conduct by owners of property in Ohio, who solicited a real estate broker licensed in New York to find a tenant for the Ohio property which entailed negotiation and other contract performance by the broker in New York, constituted transacting business within New York giving that state personal jurisdiction over the Ohio landowners); see also CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1268-69 (6th Cir.1996) (Texas resident, who subscribed over the Internet to a shareware service agreement with an Ohio corporation expressly stating the agreement was governed by and construed in accordance with Ohio law, had sufficient contacts with Ohio to give that state personal jurisdiction over him).

[¶ 8] Although the operative facts vary, in each of the above-cited cases a nonresident who initiated contact, by telephone or other electronic medium, seeking to have a resident of the forum state provide a product to or service on behalf of the nonresident caller was found to have sufficient minimal contact with the forum state to give it personal jurisdiction over that party. We conclude Schecher was transacting business in this state when he initiated contact by phone call to a North Dakota business and ultimately reached a contractual agreement to have the business provide agency services on his behalf, with some of the agency activity to be conducted within this state. Under these circumstances, we conclude the connection Schecher had with this state is such that he should have anticipated he could be sued here. By contacting Auction Effertz, Ltd., to be his sale’s agent, by allowing negotiations in North Dakota with potential buyers, and by making commission payments in this state for the agent’s negotiating efforts, we conclude, Schecher had sufficient minimum contacts with this state such that the maintenance of this lawsuit does not offend traditional notions of fair play and substantial justice in accord with the concept of due process of law. We, therefore, hold the district court had personal jurisdiction over Schecher in this lawsuit.

Ill

[¶ 9] Schecher asserts Auction Effertz, Ltd., is not entitled to its commission for the negotiated cattle sale, because Neil Effertz breached his fiduciary duty to Schecher by not sooner disclosing the buyer was EKR, a cattle operation in which Neil Effertz had an ownership interest. Agency is a relationship which results when one person, the principal, authorizes another, the agent, to act for him in dealing with third persons. N.D.C.C. § 3-01-01; Burlington Northern & Sante Fe Railway Co. v. Burlington Resources Oil & Gas Co., 1999 ND 39, ¶ 12, 590 N.W.2d 433. An authorization for a party to sell the property of another creates an agency relationship. See Coldwell Banker First Realty, Inc. v. Kane, 491 N.W.2d 716, 718-19 (N.D.1992). The existence and scope of a fiduciary duty depends upon the terms of the parties’ agreement. Grynberg v. Dome Petroleum Corp., 1999 ND 167, ¶ 21, 599 N.W.2d 261. In Burlington Northern, 1999 ND 39, ¶ 13, 590 N.W.2d 433, we discussed the general principles under which an agency must operate:

• Section 3-02-05(3), N.D.C.C., says “[a]n authority expressed in general terms, however broad, does not authorize an agent ... [t]o do any act which a trustee is forbidden to do by the provisions of sections 59-01-09 to 59-01-19, inclusive.” Under N.D.C.C. Ch. 59-01, a trustee must act with the highest good faith toward the beneficiary and not obtain any advantage over the beneficiary by the slightest concealment, see N.D.C.C. § 59-01-09, and a trustee must not take part in any transaction adverse to the beneficiary without obtaining the beneficiary’s permission after full disclosure of all facts which might affect the beneficiary’s own decision. See N.D.C.C. § 59-01-11.

The principle against self-dealing by an agent with regard to the business of his principal is well settled in the law. In Van Dusen v. Bigelow, 13 N.D. 277, 100 N.W. 723, 725 (1904), this Court discussed the courts’ aversion toward agent self-dealing and the consequences thereof, in a case in which an agent allegedly purchased the land of his principal without disclosing a third party had made an offer to purchase the land for a much larger sum:

It is claimed that he should have disclosed that he had an offer of $1,400 for the land when he bought it for $900, and that this was a fraudulent concealment. ... In Cook v. Berlin Woolen Mill Co., 43 Wis. 433, the court said: “But whatever may be the nature of the agency, a court of equity regards every purchase by an agent from his principal with jealous scrutiny, to see that the agent takes no advantage from the confidence of his principal....” Pomeroy on Equity Jurisprudence (volume 2, § 959) lays down the rule as follows: “Any unfairness, any underhanded dealing, any use of knowledge not communicated to the principal, any lack of the perfect good faith which equity requires, renders the transaction voidable, so that it will be ‘set aside ■ at the option of the principal. If, on the other hand, the agent imparted all his own knowledge concerning the matter, and advised his principal with candor and disinterestedness as though he himself were a stranger to the bargain, and paid a fair price, and the principal on his side acted with full knowledge of the subject-matter of the transaction and of the person with whom he was dealing, and gave a full and free consent — if all these are affirmatively proved, the presumption is overcome and the transaction is valid.”

[¶ 10] The trial court made the following relevant findings regarding Schecher’s argument Auction Effertz, Ltd., breached its fiduciary duty in arranging a sale of the cattle to EKR:

Effertz . disclosed to [Schecher] that EKR was the prospective purchaser and Schecher accepted the terms and conditions of the purchase offer.
The Court finds no facts to support [Schecher’s] counterclaim suggesting a breach [of] fiduciary duty or suggesting insider trading or advantages as a result of confidential information.

We review the trial court’s findings of fact under the clearly erroneous standard of N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if it is not supported by any evidence, if, although there is some evidence supporting the finding, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous conception, of the law. Burlington Northern, 1999 ND 39, ¶10, 590 N.W.2d 433. The record evidence supports the trial court’s findings on this issue.

[¶ 11] Neil Effertz disclosed to Schecher on August 5, 1997 that the buyer he had found was EKR, a cattle operation with which Schecher had previously dealt and was aware that it was owned by Neil Effertz’s parents and that Neil Effertz had a minority ownership interest. The record evidence also shows that Auction Effertz, Ltd., did not have an 'exclusive listing agreement to sell the cattle. There was expert testimony that, under those circumstances, an agent attempting to secure a private treaty sale of cattle will not early disclose a prospective buyer because of the potential for the seller to secretly negotiate a sale to avoid payment of the commission.

[¶ 12] The record shows there was time and opportunity for Schecher to reject the sale to EKR. after he learned EKR was the potential buyer. Schecher had alternatives to not sell the cattle or to proceed with his efforts to sell the cattle by auction in November 1997. The negotiated sale included an exchange of cattle between Schecher and EKR. Schecher testified that, after the general agreement had been reached on August 5,1997, details of the sale had to be finalized, and he negotiated those details with EKR by contacts with Roger Effertz. There was opportunity for Schecher, before finalizing the sale with Roger Effertz, to refuse the sale 'to EKR, because of Neil Effertz’s ownership interest and self dealing. Schecher, upon learning EKR was the buyer, chose to complete the sale to EKR. If there had been any wrongful self-dealing by Neil Effertz, the sale was voidable by Schecher. Van Dusen, 100 N.W. at 725. Schecher chose instead to validate the sale, and he cannot now complain about Neil Effertz’s self dealing or ownership interest in EKR.

[¶ 13] Schecher makes unsupported accusations that he should have received more money for the cattle and that Neil Effertz ttiok advantage of his knowledge about the lowest price Schecher would accept for the cattle. The record is devoid of evidence showing Neil Effertz failed to make a good faith attempt to negotiate a sale of the cattle for the most favorable price. Terry Robinson, the director of Livestock Services for the Farm and Ranch Guide and also owner and- operator of a cattle sale’s marketing firm, testified that during the fall of 1997 Charoláis cattle were selling at auction for $700 to $800 per head and calves were selling for $350 to $500. He also testified that in his opinion the price Schecher received for his cattle was “[v]ery fair.” That evidence contradicts Schecher’s assertion he received too low a price for his cattle. An inference can also be drawn from the record evidence that Neil Effertz had located a potential buyer in Alabama for Schecher’s cattle but when Schecher raised the minimum price he would áecept from $1,200 to $1,250 per head that potential buyer' was no longer interested.

[¶ 14] After agreeing to sell his cows and calves to EKR, Schecher hired Auction Effertz, Ltd., to sell some bulls. Thereafter, Schecher voluntarily made partial payments of commission for that bull auction and for the private treaty sale of the cattle to EKR. At some later time, Schecher became disgruntled about the cattle sale transaction and decided he would not pay the agreed commission. The trial court found Auction Effertz, Ltd., earned- its commission and did not breach its'fiduciary duty to Schecher. Having carefully reviewed the evidentiary record in this case, we are not left with a definite and firm conviction the trial court’s findings on this issue are clearly erroneous.

[¶ 15] Schecher’s counterclaim for damages is based upon the alleged breach'of fiduciary duty by Neil Effertz. -The trial court found the counterclaim was without merit and dismissed it. We find no error in the court’s ruling. . .

IV

[¶ 16] The judgment of the court awarding damages to Auction Effertz, Ltd., and dismissing Schecher’s counterclaim is affirmed.

[¶ 17] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ„ concur.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2000 ND 101
    STATE of North Dakota, COUNTY OF CASS, ex rel. D.D., and A.K.-D., a minor child, by and through his guardian ad litem. D.D., Plaintiff and Appellant, v. G.K., Defendant and Appellee.
    No. 990352.
    Supreme Court of North Dakota.
    May 25, 2000.

      C. Charles Chinquist, Fargo, N.D., for plaintiff and appellant.
    William Kirsehner of Kirschner Law Office, Fargo, N.D., for defendant and appel-lee.
   NEUMANN, Justice.

[¶ 1] D.D. appeals from the district court’s judgments and orders denying her motion to change custody, denying her motion for a new trial, and excluding an affidavit. We affirm.

[¶ 2] A.K.-D. (“the child”) was born on March 15, 1991. The parents never married. D.D. (“the mother”) had permanent custody from the child’s birth until September 8, 1997, when G.K. (“the father”) was granted permanent custody. The father previously had temporary custody during two separate periods while the mother was incarcerated. Following the change of custody, the mother had the child medically evaluated. Dr. Wendy L. Ward, a pediatric psychologist, diagnosed the child as having Attention Deficit Hyperactivity Disorder (“ADHD”), inattentive subtype. In February 1999, the mother moved for a change in custody back to her, alleging a significant change of circumstances.

[¶ 3] On June 30, 1999, and July 6, 1999, the district court held hearings. The mother attempted to introduce the affidavit of another parent whose child had ADHD and attended the same school. The district court excluded the affidavit. On July 6, 1999, the district court denied the motion to change custody. The mother moved for a new trial under Rule 59, N.D.R.Civ.P., arguing, (1) the- district court’s finding that the psychologists disagreed over the child’s ADHD diagnosis was not supported by the record, and (2) new evidence existed consisting of the child’s visual examination results. That examination was performed before the July 6, 1999, hearing, but the results were not available until after the hearing. Oh September 1, 1999, the district court denied the motion for a new trial. The district court entered judgment on November 4, 1999. The mother appeals.

[¶ 4] The mother argues the district court erred by denying her motion to change custody. We disagree. A district court’s custody modification decision is a finding of fact subject to a clearly erroneous standard of review. Interest of K.M.G., 2000 ND 50, ¶4, 607 N.W.2d 248. A finding of fact is clearly erroneous if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law. Id. at 114; Rule 52(a), N.D.R.Civ.P.

[¶ 5] The district court incorrectly made its finding under the significant or material change in circumstances analysis found in N.D.C.C. § 14-09-06.6(6), rather than applying the more rigorous requirements of N.D.C.C. § 14-09-06.6(l)-(5). See Interest of K.M.G., at ¶¶ 4-5. Section 14 — 09—06.6(1)—(5), N.D.C.C., limits the permissible bases for custody modifications brought or made within two years after a custody determination. Subsections (l)-(5) apply in this case because a custody determination was made in September 1997, and the mother moved for modification in February 1999. The legislature enacted more rigorous requirements for motions brought less than two years after a determination to allow “something of a moratorium for the family” during the two-year period after a custody determination. See Hearing on S.B. 2167 Before the Judiciary Committee, 55th N.D. Legis. Sess. (January 21, 1997) (testimony of Sherry Mills Moore, Chair of the Family Law Task Force). This statutory public policy is clearly contradicted by allowing modification hearings to take place before the two-year period has expired, unless prima facie proof of a statutory exception has been demonstrated. The district court erred by incorrectly applying N.D.C.C. § 14-09-06.6, but no objection was raised by either party.

[¶ 6] On appeal, the mother now asserts this Court should remand for a determination under N.D.C.C.- § 14-09-06.6(1) — (5) or, in the alternative, find the statute is satisfied. This Court does not consider arguments raised for the first time on appeal. Messer v. Bender, 1997 ND 103, ¶ 10, 564 N.W.2d 291. Moreover, a remand is unnecessary in this case because the district court has already denied her motion under the less stringent standard found in N.D.C.C. § 14-09-06.6(6). We will not' set aside a correct result merely because an incorrect, more relaxed standard was applied, if the result is the same under the correct law and reasoning. State Bank & Trust of Kenmare v. Brekke, 1999 ND 212, ¶ 8, 602 N.W.2d 681. There is evidence supporting the district court’s judgment, and we are not convinced a mistake has been made. See Interest of K.M.G., at ¶4. The district court did not err by denying the motion to change custody. See id. at ¶ 4. Rule 52(a), N.D.R.Civ.P.

[¶ 7] The mother also argues the district court erred by (1) excluding, as not relevant, the affidavit of another parent whose child with ADHD attended the same school, and had problems until transferring schools and taking the prescription drug Ritalin; (2) finding the psychologists disagreed over the child’s ADHD diagnosis; and (3) denying introduction of the child’s visual examination results as new evidence.

[¶ 8] We will not address these arguments because even if such evidence had been admitted the mother still would not have satisfied the more rigorous requirements of N.D.C.C. § 14-09-06.6(1)-(5) for a motion to modify custody brought within two years of a custody determination.

[¶ 9] The district court’s judgments and orders denying the motion to change custody, denying the motion for a new trial, and excluding an affidavit are affirmed.

[¶ 10] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.


text:
    2000 ND 105
    STATE of North Dakota, Plaintiff and Appellee, v. Steven Arlen TORGERSON, Defendant and Appellant.
    No. 990340.
    Supreme Court of North Dakota.
    May 25, 2000.
    Thomas K. Schoppert of Schoppert Law Firm, Minot, N.D., for defendant and appellant.
    Bruce A. Romanick, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee; argued by Erin Sandine, third-year law student.
   NEUMANN, Justice.

[¶ 1] Torgerson appeals from a judgment finding him guilty of driving under the influence of intoxicating liquor. Tor-gerson argues he is entitled to a new trial because the Burleigh County jury panel selection process is not random. We affirm.

[¶ 2] On May 9, 1999, Steven Torgerson was charged in Burleigh County with driving under the influence of intoxicating liquor. A jury trial was held on November 1, 1999. Before trial, Torgerson orally moved to disqualify the jury panel alleging the selection process was not .random. The trial court summoned the Clerk of the District Court to explain the jury panel selection process. Burleigh County jury panels are selected from a. jury list composed of voters and licensed drivers. The clerk randomly divides the jury list and-notifies the selected persons by mail. The notice instructs the selected persons to call the clerk’s office between 1:00 p.m. and 3:00 p.m., on the day before trial. The first persons to call in form the jury panel. After the court dismissed Torgerson’s motion, he again objected to the jury panel selection process and moved for a mistrial. The court denied the motion. Torgerson moved to certify the question to this Court. The court denied the motion. The jury found Torgerson guilty. Torgerson appeals.

[¶ 3] Torgerson argues the trial court improperly denied his motion to disqualify the jury panel, his motion for a mistrial, and his motion to certify a question. Those appealed motions essentially present a singular issue: Whether the Burleigh County jury panel selection process is “random.” That determination is a conclusion of law, or mixed question of law and fact, not a finding of fact. We fully review conclusions of law and mixed questions of law and fact under the de novo standard. State v. Lefthand, 523 N.W.2d 63, 67 (N.D.1994); State v. Owens, 1997 ND 212, ¶ 13, 570 N.W.2d 217.

[¶ 4] Generally, a jury panel challenge is governed by N.D.C.C. ch. 27-09.1. Section 27-09.1-12, N.D.C.C., provides:

1.Within seven days after the moving party discovered or by the exercise of diligence could have discovered the grounds therefor, and in any event before the petit jury is sworn to try the case, a party may move to stay the proceedings, and in a criminal case to quash the indictment or information, or for other appropriate relief, on the ground of a substantial failure to comply with this chapter in selecting the grand or petit jury.
2. Upon motion filed under subsection 1 containing a sworn statement of facts which, if true, would constitute a substantial failure:" to comply with this chapter, the moving party is entitled to present in support of the motion the testimony of the clerk, any relevant records and papers not public or otherwise available used by the clerk, and any other relevant evidence. If the court determines that in selecting either a grand jury or a petit jury there has been a substantial failure to comply with this chapter, the court shall stay the proceedings pending the selection of the jury in conformity with this chapter, quash an indictment or information, or grant other appropriate relief.
3. The procedures prescribed by this section are the exclusive means-by ■■ which a person accused of a crime, the'state, or a' party in a civil case may challenge a jury on the ground that the jury was not selected in conformity with [N.D.C.C., chapter 27-09.1, the Uniform Jury Selection and Service Act].

[¶ 5] The State argues Torgerson cannot object to the jury panel selection process because he failed to comply with N.D.C.C. § 27-09.1-12 by not filing the required motion. We disagree.

[¶ 6] Torgerson concedes he failed to comply with N.D.C.C. § 27-09.1-12. But, he asserts the State cannot demand a strict application of the statute because neither party raised the statute to the trial court. This Court does not consider arguments raised for the first time on appeal. State v. Goulet, 1999 ND 80, ¶ 11, 593 N.W.2d 345. Further, the trial court essentially followed the statutory procedure by allowing evidence explaining the jury panel selection process, including the clerk’s testimony. The State’s failure to raise the issue and the court’s allowance of the relevant evidence precludes strict application of N.D.C.C. § 27-09.1-12. Cf. State v. Fredericks, 507 N.W.2d 61, 64 (N.D.1993) (denying motion because defendant failed to follow N.D.C.C. § 27-09.1-12); People v. Faulk, 251 A.D.2d 345, 673 N.Y.S.2d 715 (1998) (failing to comply with the statutory requirements waived objection to jury panel composition). Thus, although the issue was irregularly raised, we will not dismiss Torgerson’s appeal for failure to file the motion.

[¶ 7] Torgerson argues he is entitled to a new trial because the Burleigh County jury panel selection process is not a “[rjandom selection procedure ... that provides each eligible and available person with an equal probability of selection.” See North Dakota Jury Selection Plan, Standard 3, Standards Relating to Juror Selection Use and Management. We disagree.

[If 8] Rule 9(2) and (3), N.D.Admin.R, provide, “the [North Dakota Jury Selection Plan] shall detail the procedures to be followed in selecting and managing jurors in order to implement the policies set forth in N.D.C.C. ch. 27-09.1” and “[a]ll courts conducting jury trials shall obtain jury panels in the manner prescribed by the [North Dakota Jury Selection Plan].” Section 27-09.1-01 provides jurors must “be selected at random from a fair cross section of the population of the area served by the court.”

[¶ 9] Jurisdictions have defined “random” or “randomness” differently. Random selection under the federal Jury Selection and Service Act is not defined as statistical randomness, but rather a system affording no room for impermissible discrimination against individuals or groups. United States v. Gregory, 730 F.2d 692, 699 (11th Cir.1984) (citing S.Rep. No. 891, 90th Cong., 1st Sess. 16, n. 9 (1967), U.S.Code Cong. & Admin.News 1968, p. 1792); see also Celotex Corp. v. Wilson, 607 A.2d 1223, 1228, n. 17 (Del. 1992) (applying the United States v. Gregory analysis to the Delaware Jury Act). But see United States v. Rioux, 97 F.3d 648 (2nd Cir.1996) (applying three statistical models to an underrepresentation analysis). “Randomness means that, at no time in the jury selection process will anyone involved in the action be able to know in advance, or manipulate, the list of names who will eventually compose the empaneled jury.” Williams v. Commonwealth, 734 S.W.2d 810, 812-13 (Ky.Ct.App.1987).

[A] party asserting a lack of randomness, in the absence of a substantial deviation from the statutory plan, must demonstrate a resulting exclusion of a constitutionally cognizable group. Courts which have addressed the question of resulting prejudice overwhelmingly have concluded that such a showing is necessary. When the original jury pool is valid, the selection process from that pool will be considered “random” in the “absence of any arbitrary attempt to exclude a class of persons from the jury.” McClendon v. United States, 8th Cir., 587 F.2d 384, 387 (1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1793, 60 L.Ed.2d 244 (1979) (footnote omitted); United States v. Davis, 10th Cir., 518 F.2d 81, cert. denied, 423 U.S. 997, 96 S.Ct. 425, 46 L.Ed.2d 371 (1975); United States v. Butts, M.D.Fla., 514 F.Supp. 1225, 1236 (1981) (“absent a showing that some cognizable group was excluded from the jury selection process, no substantial violation will lie.”); United States v. Haley, N.D.Ga., 521 F.Supp. 290, 295 (1981) (principles of randomness violated by impermissible discrimination against individuals or groups); United States v. Gregory, 11th Cir., 730 F.2d 692, 699 (1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170-71, 84 L.Ed.2d 321 (1985) (discriminatory selection of jurors required to violate Federal Act).
However, some federal eases have held that a party need not show actual prejudice to establish a “substantial failure” to comply. United States v. Nelson, 9th Cir., 718 F.2d 315, 318 (1983); United States v. Okiyama, 9th Cir., 521 F.2d 601, 604 (1975). In United States v. Kennedy, 5th Cir., 548 F.2d 608, cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977), the court ruled that a statutory violation which directly affects the random'nature of the jury selection is sufficient without demonstrating that the violation excluded some cognizable group. The court rejected the challenge on appeal, however, because the defendant had failed to perfect his objection to the jury at the trial level with the appropriate sworn statement required by the Federal Act. Significantly, the court also rejected the defendant’s claim that the use of volunteer jurors violated his due process rights. The court noted that such a claim requires a showing the selection process “tended to exclude or underrepresent some discernable class of persons.... ” 548 F.2d at 614.

Gattis v. State, 637 A.2d 808, 815-16 (Del.1994).

[¶ 10] Torgerson asserts the Burleigh County process is not random because potential jury panel members may not have a telephone, or telephone access from 1:00 p.m to 3:00 p.m. We disagree.

[¶ 11] No case law directly examines the randomness of already summoned jurors calling in by telephone to form jury panels, but courts have concluded juror summoning by telephone is random. Summoning jurors by telephone does not discriminate “against those of the lower economic class, i.e., those who don’t own a phone.” State v. Chatman, 109 Ariz. 275, 508 P.2d 739, 742 (Ariz.1973). A jury panel drawn from a list of registered voters and summoned by telephone calls, being placed between 2:00 p.m. and 4:00 p.m., was not improper without a showing of prejudice. State v. Mojarro Padilla, 107 Ariz. 134, 483 P.2d 549, 552 (Ariz.1971), overruled on other grounds. Regardless of whether persons without telephones or persons who are away from home during the day are a distinctive group for purposes of establishing prima facie case of discrimination in selection of jury venire panel, such a showing would be irrelevant in light of the defendant’s failure to demonstrate systematic exclusion. Singleton v. A.L. Lockhart, 871 F.2d 1395, 1399 (8th Cir.1989).

Appellant nevertheless- maintains that the summoning methods used here defeat the otherwise random' selection process. The significance of this possibility lies in the fact that a non-random process of actual selection of jurors might result in the systematic exclusion of distinct and constitutionally identifiable segments of the population even though there were no such exclusions from the initial pool or venire. Although appellant here asserts that such a distinctive and identifiable segment of the population was excluded, that is, blacks and working people, appellant offers no factual basis underlying his claim. Rojas v. State, 288 So.2d 234 (Fla.1973), cert., den., 419 U.S. 851, 95 S.Ct. 93, 42 L.Ed.2d 82 (1974). In other words, appellant offered no evidence below showing a link between ownership of a telephone at one’s residence and membership in the classes appellant asserts were excluded.
Furthermore, even if we assume that appellant has sufficiently identified a distinctive and identifiable segment of the community excluded from his trial by the selection process, that is, persons without telephones at their personal residences, and persons with telephones who were working, appellant’s claim is still unavailing. Not every factually distinguishable group has -been given constitutionally ‘identifiable’ status in terms of achieving a representative, cross-section of the community in the jury venire, and selection procedures effecting such non-recognized groups -have been upheld even where the procedure utilized in fact excludes these groups. U.S. v. Ross, 468 F.2d 1213 (9th Cir.1972); U.S. ex rel Chestnut v. Criminal Court, 442 F.2d 611 (2d Cir.1971). Here, the asserted ‘identifiable’ group — persons who either do not possess residential telephones, or if they do, are working people — has not been designated a constitutionally protected segment of the community. Cf. Hitchcock v. State, 413 So.2d 741, 745 (Fla.1982), cert. den., 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982) (mothers with young children do not comprise a constitutionally significant class).

Carwise v. State, 454 So.2d 707, 709-10 (1984) (footnote omitted).

[¶ 12] However, the Montana Supreme Court recently held telephone summoning frustrates the random nature of a jury selection process. State v. LaMere, 2000 MT 45, — Mont.-, 2 P.3d 204, 220-21 (2000). In LaMere, the defendant established a factual basis showing prejudice and systematic exclusion.

LaMere presented statistics establishing significant disparity in telephone service to residents above and below the poverty line; the evidence also established that the disparity was significantly enhanced when the representative numbers of Anglo Americans and Native Americans in the community were factored in. Moreover, LaMere introduced a statistician’s affidavit opining, inter alia, that the telephonic summoning procedure used in Cascade County resulted in below-poverty households being seven times more likely to be excluded from jury participation.

Id. at -, 2 P.3d at 223 (Gray, J., specially concurring).

[¶ 13] Here, Torgerson has not provided any factual basis showing the Burleigh County jury panel selection process is prejudicial, actually excludes, systematically excludes, or statistically excludes potential jury panel members without a telephone, or telephone access from 1:00 p.m. to 3:00 p.m. The limited record in this case simply does not develop the facts sufficiently to establish “a substantial failure to comply with [Chapter 27-09.1].” See N.D.C.C. § 27-09.1-12(2).

[¶ 14] Torgerson also asserts the Bur-leigh County process is not random because jury panels are formed from the first potential jurors to call in. We disagree.

[¶ 15] The Burleigh County process is numerical and no systematic exclusion of a protected group exists. See Boston v. Bowersox, 202 F.3d 1001 (8th Cir.1999). Boston provides:

[t]he jury selection process was a random one because, as Bowersox states in his brief, ‘the jury’s supervisor’s decision to send the first forty-five members of the “qualified jury list” to arrive at the courthouse to the trial judge’s courtroom for jury selection in Boston’s case ... was not race-based or gender-based; instead, it was numerical ... and there was certainly no systematic exclusion.’ See Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) (to establish violation of fair cross-section requirement, petitioner must show distinctive group in community was systematically excluded in jury selection process).

Id. at 1002.

[¶ 16] Again, Torgerson’s failure to provide any factual basis showing prejudice or systematic exclusion does not develop the record sufficiently to establish “a substantial failure to comply with [Chapter 27-09.1].” See N.D.C.C. § 27-09.1-12(2).

[¶ 17] The judgment is affirmed.

[¶ 18] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.


text:
    2000 ND 108
    Wayne REID and Ann Reid, Plaintiffs and Appellants, v. CUPRUM SA, de C.U., Defendant and Appellee.
    No. 990338.
    Supreme Court of North Dakota.
    May 25, 2000.
    B. Kent Buckingham (argued), Midland, TX, and Michael J. Maus (appeared), Hardy, Maus & Nordsven, Dickinson, for plaintiffs and appellants.
    Michael C. Waller, Mackoff, Kellogg, Kirby & Kloster, PC, Dickinson, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Wayne and Ann Reid appealed from a judgment dismissing their products liability action against Cuprum SA, de C.U. The Reids ask- this Court to adopt and apply the doctrine of equitable tolling of a statute of limitations to their action. We need not decide whether to adopt the doctrine, because the Reids do not meet the requirements for its application. We affirm.'

I

[¶ 2] In a complaint dated February • 6, 1996, the Reids alleged Wayne Reid was seriously injured on June 9, 1992, while properly using a defective stepladder designed, manufactured, marketed, sold, and placed into the stream of commerce by Cuprum. The Reids alleged Cuprum

is a foreign corporation doing business in the State of North Dakota at all relevant times hereto, although not registered to do so, with its principal place of business located at Diego Diaz de Ber-langa, No. 132, Nogalar, San Nicolas de los Garza, Monterrey, N.L., Mexico CP 66480. Said Defendant is engaged in business in this state, but has neither designated nor maintained a resident agent for service of process.

[¶ 3] On February 15,1996, the sheriff of Stark County signed a return indicating the summons and complaint had been delivered to him for service on February 13, 1996, and after search and inquiry, he was unable to find or make personal service on Cuprum in North Dakota.

[¶ 4] On May 14, 1996, the Reids filed the summons, complaint, and sheriffs return in‘the District Court for Stark County. The summons was published in the Dickinson Press for three consecutive weeks beginning on May 17, 1996. On May 21, 1996, the Reids moved the court under N.D.R.Civ.P. 4(f)(3) for an order regarding the method of service of process. The Reids proposed service by publication under N.D.R.Civ.P. 4, together with mailing the summons and complaint to Cuprum and forwarding a separate summons and complaint to Cuprum by Federal Express.

' [¶ 5] On May 29, 1996, the Reids withdrew their motion for an order regarding the method of service of process, and they moved to extend the statute of limitations from June 9, 1996, to June 9, 1997. In support of their motion, the Reids claimed they had attempted to serve Cuprum by several methods, the exclusive procedure for service in Mexico was under the Inter-American Convention on Letters Rogato-ry, service by that procedure would take six to twelve months, they had filed the complaint and served Cuprum by mail, Federal Express and publication, and the statute of limitations for their claim would expire on June 6, 1996, unless extended by the court. The trial court initially extended the statute of limitations for one year. On June 18, 1996, Cuprum specially appeared through counsel, claiming the court lacked personal jurisdiction over it and there was insufficient service of process. Cuprum moved to vacate the court’s order extending the statute of limitations. In September 1996, the court granted Cup-rum’s motion to vacate the extension.

[¶ 6] In December 1997, the District Court Administrator mailed to the parties’ counsel a notice of intent to dismiss without prejudice under N.D.R.Civ.P. 40(e). The Reids’ counsel submitted a December 12,1997 affidavit, stating:

2. In September of 1996, Letter Ro-gatory Forms signed by the Judge were submitted to APS International, Ltd., for purpose of service upon the Defendant.
3. On November 5, 1996, the undersigned received confirmation that the documents were transmitted to appropriate authorities for service abroad through diplomatic channels. The estimated time frame for service was up to one year. It was noted, however, that it was not unusual for service to take over one year.
4. On July 30, 1997, the undersigned was informed that confirmation had not been received from the Office of Foreign Litigation at the U.S. Department of Justice that the foreign authorities had returned a response. A letter of inquiry was sent to the U.S. Department of Justice.

The trial court declined to dismiss the Reids’ action under N.D.R.Civ.P. 40(e), stating “an action is not commenced until service of a summons (Rule 3, N.D.R.Civ. P.), and if there is no action pending there is no need to enter an order of dismissal.”

[¶ 7] Service of process was effectuated on Cuprum on December 10, 1998, under N.D.R.Civ.P. 4(f)(1), see fn. 1, and the Inter-American Convention on Letters Ro-gatory. Cuprum then answered and moved for summary judgment, claiming the Reids’ action was barred by the six-year statute of limitations in N.D.C.C. § 28-01-16. The Reids resisted Cuprum’s motion to dismiss,, arguing their attempts to serve Cuprum within the statute of limitations constituted commencement' of the action under N.D.C.C. § 28-01-38, and, alternatively, the statute of limitations was equitably tolled.

[¶ 8] The trial court initially decided the Reids had not met all the requirements, for application of the doctrine of equitable tolling. On reconsideration, the court decided the Reids met all the requirements for equitable tolling,.but declined to apply the doctrine because North Dakota has not enacted a “savings statute” and has not judicially adopted the doctrine. The court also rejected the Reids’ argument, their attempts to serve Cuprum within the statute of limitations constituted commencement of the action under N.D.C.C. § 28-01-88. The Reids appealed.

II

[¶ 9] Relying on Braaten v. Deere & Co., 1997 ND 202, 569 N.W.2d 563, and Burr v. Trinity Med. Ctr., 492 N.W.2d 904 (N.D. 1992), the Reids argue the doctrine of equitable tolling of the statute of limitations should be adopted and applied to this case. The Reids argue they diligently and persistently asserted their rights from the moment they were sure they had a valid claim against Cuprum, and there was no way to predict or control the more than two years necessary to effect service on Cuprum. The Reids argue these extraordinary circumstances and the interests of justice require application of the doctrine of equitable tolling to allow their claims to proceed.

[¶ 10] In both Braaten, 1997 ND 202, ¶ 14, 569 N.W.2d 563,- and Burr, 492 N.W.2d at 910, we cited Addison v.. State, 21 Cal.3d 313, 146 Cal.Rptr. 224, 578 P.2d 941, 943-44 (1978), for the California standard that application of the doctrine of equitable tolling requires the plaintiff to show three things: (1) timely notice, (2) lack of prejudice to the defendant, and (3) reasonable and good-faith conduct on the part of the plaintiff. We decided the facts of both Braaten and Burr did not warrant application of the doctrine.

[¶ 11] In Braaten, 1997 ND 202, ¶ 20, 569 N.W.2d 563, we concluded a trial court did not abuse its discretion in refusing to apply the doctrine of equitable tolling. We said the plaintiff did not act in good faith in initially claiming federal diversity jurisdiction and filing an action in federal court, because there was no arguable issue of federal jurisdiction under a federal diversity statute- and the plaintiffs “[i]mprudent legal practice is' not reasonable conduct and would not invoke equitable tolling.” Id. at ¶ 16. We said the plaintiff should have been aware of severe jurisdictional problems when the defendants filed motions to dismiss the federal action for lack of diversity jurisdiction, and, instead of trying to protect her lawsuit by filing an immediate state claim, the plaintiff waited for over a month for certain dismissal by the federal court. Id. at ¶ 18. We concluded the plaintiff failed to establish reasonable and good-faith conduct necessary for equitable tolling. Id. at ¶ 19.

[¶ 12] In Burr, 492 N.W.2d at 906, a plaintiff initially filed an action against government and medical defendants in federal court. The plaintiff settled with the government defendants. The medical defendants then moved to dismiss, arguing the federal court lacked diversity jurisdiction and pendent party jurisdiction. The federal court dismissed without prejudice the plaintiffs action against the medical defendants, and, three months later, the plaintiff sued the medical defendants in North Dakota state court. The state court dismissed the plaintiffs action against the medical defendants as time barred. We affirmed the dismissal, ruling even if we were to apply the doctrine of equitable tolling, the plaintiff would still lose because she did not satisfy all of the requirements of the doctrine. Id. at 910-11. We concluded the plaintiff was not diligent and her failure to conduct any discovery vis-a-vis the medical defendants was prejudicial to those defendants. Id.

[¶ 13] Here, the trial court decided the Reids had met all the requirements for equitable tolling, but declined to apply the doctrine because North Dakota has not enacted a savings statute and has not judicially adopted the doctrine. We conclude the trial court misapplied the requirements for the doctrine and abused its discretion in deciding the Reids met all of those requirements. See Braaten, 1997 ND 202, ¶¶ 9, 13, 569 N.W.2d 563 (applying abuse of discretion standard).

[¶ 14] In Addison, 146 Cal.Rptr. 224, 578 P.2d at 943 (citations omitted), the California Supreme Court explained California courts have

adhered to a general policy which favors relieving plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage.
In like fashion and more recently, we unanimously held that the statute of limitations on a personal injury action is tolled while plaintiff asserts a workers’ compensation remedy against defendant. In such a case, we noted, defendant can claim no substantial prejudice, having received timely notice of possible tort liability upon filing of the compensation claim, and having ample opportunity to gather defense evidence in the event a court action ultimately is filed. We also noted the long settled rule that whenever exhaustion of administrative remedies is a prerequisite to a civil action the running of the limitations period is suspended during the administrative proceedings and we stated that “regardless of whether the exhaustion of one remedy is a prerequisite to the pursuit of another, if the defendant is not prejudiced thereby, the running of the limitations period is tolled ‘[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.’ ”

[¶ 15] Addison and subsequent California decisions have said the equitable tolling doctrine operates to protect the claim of a plaintiff who has several legal remedies and, reasonably and in good faith, pursues one of the remedies thereby tolling the limitation for the other remedies. See, e.g., Maginn v. City of Glendale, 72 Cal. App.4th 1102, 85 Cal.Rptr.2d 639, 644 (1999); 65 Butterfield v. Chicago Title Ins. Co., 70 Cal.App.4th 1047, 83 Cal.Rptr.2d 40, 50 (1999); Collier v. City of Pasadena, 142 Cal.App.3d 917, 191 Cal.Rptr. 681 (1983). Under the California formulation, the requirement for timely notice means the claim or proceeding that tolls the statute of limitations must have been timely commenced within the applicable statutory period. Collier, 191 Cal.Rptr. at 685.

[¶ 16] We are not persuaded the doctrine of equitable tolling applies to this case, because the Reids’ failure to commence their action within the statute of limitations was not the result of their timely pursuit of one of several other available legal remedies which may have tolled the statute of limitations for this action. See Addison, 578 P.2d at 943; Collier, 191 CaLRptr. at 685. Rather, the Reids’ failure to commence their action within the statute of limitations resulted from their failure to effectuate timely service of process on Cuprum in this action. Moreover, although the Reids’ complaint is dated February 6, 1996, the record reflects they pursued other insufficient procedures for service of process until September 1996 when “Letter Rogatory Forms signed by the Judge were submitted to APS International, Ltd.,” for service on Cuprum. Although in May 1996 the Reids moved the trial court under N.D.R.Civ.P. 4(f)(3) for an order regarding service of process, see fn. 1, the Reids withdrew that motion later in May 1996- when they moved to extend the statute of limitations. The Reids did not renew their motion for an order regarding service of process after the trial court vacated its order extending the statute of limitations. The Reids’ imprudent legal practice is not reasonable conduct, see Braaten, 1997 ND 202, ¶ 16, 569 N.W.2d 563, and their failure, to ask the trial court for direction under N.D.R.Civ.P. 4(f)(3) does not constitute reasonable conduct. Under these circumstances, we conclude even if we were to adopt equitable tolling, the Reids have not met the requirements for application of the doctrine.

[¶ 17] We affirm the judgment dismissing the Reids’ action.

[¶ 18] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.

      . Rule 4(f), N.D.R.Civ.P., provides, in part:

        (f) Service Upon a Person in a Foreign Country.

      Unless otherwise provided by law, service upon an individual, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:
      (1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or
      (3) by any other means not prohibited by international agreement as may be directed by the court.... Unless otherwise provided by law, service must be effected upon a foreign corporation, partnership or other unincorporated association, that is subject to suit under a common name, in a place not within any judicial district of the United States in the manner prescribed for individuals in this subdivision except personal delivery as provided in paragraph (2)(C)(i).

      . When they filed the motion, the Reids believed their action was subject to a four-year statute of limitations. Both the Reids and Cuprum now agree the action is subject to a six-year statute of limitations under N.D.C.C. § 28-01-16.

      . On appeal the Reids do not argue their attempts to serve Cuprum within the statute of limitations is equivalent to the commencement of the action under N.D.C.C. § 28-01-38.


author: KAPSNER, Justice. VANDE WALLE,

text:
    2000 ND 113
    Karen D. SCHIFF, Plaintiff and Appellant, v. Gary D. SCHIFF, Defendant and Appellee.
    No. 990335.
    Supreme Court of North Dakota.
    May 25, 2000.

      Patti Jo Jensen, Galstad, Jensen & McCann, PA, East Grand Forks, MN, for plaintiff and appellant.
    Mary E. Seaworth, Howe & Seaworth, Grand Forks, N.D., for defendant and ap-pellee.
   KAPSNER, Justice.

[¶ 1] Karen D. Schiff appeals from a divorce judgment, challenging the terms of visitation and the child support and spousal support awards. We affirm the trial court’s decision on visitation and spousal support, but reverse the decision on child support and remand for a redetermination of that award.

I

[¶ 2] Karen Schiff and Gary D. Schiff were married in Moorhead, Minnesota on September 3, 1984, when she was 25 years old and he was 32 years old. The couple moved to Fort Lauderdale, Florida, where Karen worked as a court reporter and Gary worked as a stockbroker. On March 11, 1990, the couple’s first son was born. Shortly after the birth, Gary purchased a Subway franchise in the Fort Lauderdale area. During this time period, Gary was addicted to prescription drugs, mainly Per-cocet, a pain medication. In 1992, he entered a drug rehabilitation treatment program and, according to Gary, he has not abused drugs since then.

[¶ 3] Gary became acquainted with the owner of Subway, and after Gary sold his Subway franchise, he accepted a position with Subway International as the regional manager for Australia. In late 1992, the family moved to Brisbane, Australia. Karen did not work outside the home while they lived in Australia, and on July 26, 1993, the couple’s second son was born. After about two and one-half years in Australia, Gary was given an opportunity to become Subway International’s regional manager for the Pacific Asian market. Gary would be required to move to one of the Asian countries he was overseeing, but Karen did not want to move to Asia because of the amount of travel involved with Gary’s job. When Gary began his new position in 1995, Karen and the children left Australia and moved to Phoenix, Arizona, where her parents lived.

[¶ 4] While Karen and the children lived in Phoenix, Gary would travel from Asia to visit them about once every six weeks. Because Gary continually traveled overseas for his job, he did not set up a home base in an Asian country and considered Phoenix his home. Karen and the children lived in Phoenix from August 1995 until June 1996, when she and the boys moved to Grand Forks. Karen had grown up in North Dakota and had numerous relatives and friends in the area. Karen found employment as a medical transcriptionist and commenced this divorce action in August 1996.

[¶ 5] In March 1997, the trial court issued a temporary order granting Karen custody of the children and Gary “reasonable visitation as agreed upon between the parties,” and ordering Gary to pay $1,936 per month child support and $800 per month “temporary spousal maintenance” pending trial of the divorce action. Visitation quickly became troublesome, on occasion necessitating the intervention of both parties’ counsel as well as the trial court. Karen alleged Gary was again abusing drugs and attempted to limit visitation to times she could supervise the visits. She opposed any attempt by Gary to exercise visitation away from the Grand Forks area.

[¶ 6] The divorce trial took place in September 1998. At that time, Karen was employed as a clerical worker for a local court reporter and was beginning to do some court reporting work, securing a percentage split of income from each job. Karen and the boys were living in a rented townhouse in Grand Forks. Gary was still employed with Subway International as the regional manager for the Pacific Asian market. When not traveling on business or for visitation purposes, Gary lives in an apartment complex in Manila, Philippines. Gary agreed Karen should have physical custody of the boys, but sought reasonable visitation including extended summer visitation during which he could bring the boys to stay with him in Asia.

[¶ 7] The trial court orally rendered its decision in July 1999, and judgment was entered in October 1999. The court awarded physical custody of the children to Karen and awarded Gary unsupervised “reasonable and liberal visitation.” Those visitation rights included six weeks during the summer, commencing in 2000, during which Gary would be allowed to take the boys along with him to Asia where he works. The court ordered that Gary pay $1,231 per month in child support. The court awarded Karen $800 per month in rehabilitative spousal support “for refresher training as a court reporter or other occupation of Karen’s choice commencing November 1, 1999 and ending October 30, 2000 at which time the jurisdiction of the court as to spousal support shall end.” Karen appealed.

II

[¶ 8] Karen argues the trial court erred in granting Gary extended summer visitation each year because it would be contrary to the boys’ best interests.

[¶ 9] District courts have the authority to allow a noncustodial parent visitation rights. Ackerman v. Ackerman, 1999 ND 135, ¶ 13, 596 N.W.2d 332. The primary purpose of visitation is to promote the best interests of the children, not the wishes or desires of the parents. Moilan v. Moilan, 1999 ND 103, ¶ 29, 598 N.W.2d 81. Visitation with the noncustodial parent is presumed to be in the child’s best interests and is not merely a privilege of the noncustodial parent, but a right of the child. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 21, 603 N.W.2d 896. A noncustodial parent should be deprived of visitation only if “visitation is likely to endanger the child’s physical or emotional health.” N.D.C.C. § 14-05-22(2); Ackerman at ¶ 13. Denying a noncustodial parent visitation with a child is an onerous restriction, such that physical or emotional harm resulting from the visitation must be demonstrated in detail before it is imposed. Hendrickson at ¶ 21.

[¶ 10] A trial court’s decision on visitation is a finding of fact which will not be reversed on appeal unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Zuger v. Zuger, 1997 ND 97, ¶ 36, 563 N.W.2d 804. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction that a mistake has been made. State ex rel. Melling v. Ness, 1999 ND 73, ¶ 7, 592 N.W.2d 565.

[¶ 11] Karen argues the trial court erred in granting Gary extended summer visitation because of Gary’s “drug use and addiction compounded by the ready availability of the medications to which he is addicted overseas,” Gary’s “inappropriate use of pornographic materials at a point where the boys could view them,” Gary’s “lack of involvement over the years with the boys,” “issues of domestic violence,” and “the inherent danger of travel overseas where [Gary] is employed.”

A

[¶ 12] Karen argues restricted visitation is appropriate because Gary is addicted to prescription drugs. See generally Lohstreter v. Lohstreter, 1998 ND 7, ¶¶ 9-18, 574 N.W.2d 790 (upholding visitation restrictions where noncustodial parent had continuing problem with alcohol). Gary testified about his abuse of drugs in the years before 1992. He admitted to “a lot of drug use in college” during the mid-1970s. After college he was fired from several jobs because of his drug use. Criminal charges were filed against him for forging a prescription for Qua'aludes and he underwent his first drug treatment program in 1977 under order of a Florida court. He voluntarily entered drug treatment programs in 1983 and 1992. Gary testified why he had not been in any drug rehabilitation centers since 1992:

I was at a point in my life where I was running a Subway store and I was taking a lot of pills, basically Percocet, and it got to a point where I was sick and tired of being sick and tired of the whole thing and I guess it was my bottom and that treatment program worked. I was ready to, you know, to turn it over to a higher power and since then things have been good.

[¶ 13] Karen testified that after completion of Gary’s 1992 drug rehabilitation program, she discovered foil packs at their home containing Phenergan and Tylenol with codeine pills. Gary acknowledged that as late as 1997 he occasionally used Valium on long overseas flights to help him sleep and Tylenol with codeine for headaches. At the 1998 divorce trial, however, Gary testified he no longer used any drugs and denied ever being under the influence of drugs when he cared for the children.

[¶ 14] Karen also testified that during their marriage Gary had pornographic material in their home, but Gary testified he kept those materials on a shelf in his closet and never showed them to the boys.

[¶ 15] The trial court found:

[Wjhatever Mr. Schiff had done in his premarriage years he appears to have certainly led a life of a successful business man in his later years, not only successful personally but financially, and the Court is reasonably persuaded if his present conduct was like his former conduct he couldn’t succeed [like] he does ... [T]here must have been a change for the better. And so it appears that throughout the marriage that Gary has attempted to be a productive member of society and has accomplished that goal.

[¶ 16] The trial court essentially found that Gary had. changed over the years and his former behavior currently posed no threat to the well being of his children. The trial court’s finding on this issue is supported by the record and is not clearly erroneous.

B

[¶ 17] Karen contends the trial court erred in granting Gary extended summer visitation because he was not involved with the boys while they were growing up.

[¶ 18] Gary testified he was present at the older child’s birth and held him every day. Gary was proud of his son and described that period as “probably the best time of my life.” Gary admitted Karen primarily cared for the older child, but having purchased a Subway franchise, Gary spent a great amount of time tending to the business. Gary testified he spent his free time with the child.

[¶ 19] Gary was also- present at the younger son’s birth in Australia, and spent time caring for the older son while Karen was in the hospital. Gary’s business travel in Australia was not extensive, requiring that he “leave occasionally for a couple days.” Gary spent considerable time playing with the boys and taking walks with them to explore Australian wildlife. When Gary became the first regional manager for Subway International’s Pacific Asian market, Gary wanted to move the family to one of the countries in his territory so he could be closer to Karen and the boys, but Karen refused. Gary testified the Asian job was the only position available for him with Subway International, and he did not believe he could obtain a comparable job with another company in the United States. Since then, Gary has been able to visit the children about once every six weeks. The trial court found “[tjhis is the only way that Gary can maintain a relationship with his children and still maintain the current employment.”

[¶ 20] The evidence does not support Karen’s argument that Gary has essentially “abandoned” his children, or that he would be unable to care for them during extended visitation periods.

C

[¶ 21] Karen argues the trial court ignored evidence of domestic violence which should limit the amount of visitation awarded to Gary. Karen testified that in late 1984 or early 1985, she confronted Gary about pornographic material found in the house and he “pushed me up against [a] brick wall.” Karen testified that in 1990, when the older son was six months old, Gary became angry when Karen discovered pills in a dresser drawer and “tossed” the child on the bed. Karen testified that Gary slapped her once during an airline flight in early 1993. Karen also testified that while she was in labor with the younger child in July 1993, Gary slapped, rather than massaged, her lower back during contractions. According to Karen, Gary verbally assaulted her in front of the older child in July 1995. The last incident occurred in August 1998 when Gary was exercising visitation at a hotel in Grand Forks. Because she believed Gary was using drugs, Karen went to his hotel room and began searching for drugs in the drawers. According to Karen, Gary “[g]rabbed me by my arms and shoved me up against the wall and was holding me there.”

[¶ 22] Gary denied throwing the older son on the bed, slapping Karen during the airline flight, and verbally assaulting her. Gary remembered rubbing Karen’s back during labor, but denied hitting her back. Gary claimed Karen attacked him once when they lived in Australia and she obtained bruises on her arm from him trying to hold her back and defend himself. With regard to the Grand Forks incident, Gary testified he attempted to stop Karen from searching through his personal items at the hotel room and tried to hold her back, but then left the room and called police. When the police officer arrived, Gary had scratches on his hand and his leg was bleeding from being kicked. The officer testified Gary declined to press charges against Karen. Prompted by Karen’s complaints, Social Services investigated the situation. The Child Protection Team determined “no services would be required or recommended,” and encouraged the parties to “work together toward the best interest of the children.”

[¶ 23] Domestic violence can affect a noncustodial parent’s visitation rights:

If the court finds that a parent has perpetrated domestic violence and that parent does not have custody, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, the court shall allow only supervised child visitation with that parent unless there is a showing by clear and convincing evidence that unsupervised visitation would not endanger the child’s physical or emotional health.

N.D.C.C. § 14-05-22(3). The evidence on domestic violence in this case was disputed, but the trial court made no specific findings on Karen’s allegations of domestic violence.

[¶ 24] While it would have been helpful if the trial court had addressed this evidence, we have said specific factual findings are not required when the evidence of domestic violence does not rise to the level of triggering the domestic violence presumption. See Holtz v. Holtz, 1999 ND 105, ¶27, 595 N.W.2d 1. Karen has not alleged a single incident of violence which resulted in serious bodily injury or involved the use of a dangerous weapon. Karen also has not alleged a pattern of domestic violence within a reasonable time proximate to the proceedings. Indeed, with regard to the most recent alleged incident of domestic violence in August 1998, Gary requested that police not arrest Karen. We conclude Karen’s allegations are insufficient as a matter of law to raise the domestic violence presumption. See, e.g., Brown v. Brown, 1999 ND 199, ¶ 18, 600 N.W.2d 869 (holding domestic violence under statutory definition does not include name-calling). Even though evidence of domestic violence that does not trigger the presumption can still be considered, see Reeves v. Chepulis, 1999 ND ’63, ¶ 15, 591 N.W.2d 791, we presume the trial court did not view this evidence as necessitating restricted visitation.

[¶ 25] Moreover, it appears from Karen’s appellate brief that she no longer objects to ' unsupervised' visitation, so long as the visits occur in the United States. Karen has thus effectively conceded that unsupervised visitation will not endanger the children’s physical or emotional health. See Zuger, 1997 ND 97, ¶ 36, 563 N.W.2d 804. Therefore, supervised visitation under N.D.C.C. § 14-05-22(3) is not required.

D

[¶ 26] Karen’s strongest objection to the visitation award is to extended summer visitation during which Gary can take the boys to Asia. Karen does not argue Gary will abscond with the children while overseas, but argues there is an “inherent danger” in overseas travel, and political instability in some Asian countries demonstrates this aspect of the visitation award would be detrimental to the best interests of the boys.

[¶ 27] When there is a long distance between the homes of the custodial and noncustodial parents, we have approved visitation schedules which provide less frequent, but extended, visitation periods to preserve the noncustodial parent’s ability to foster and develop a relationship with the child. See, e.g., Tibor v. Tibor, 1999 ND 150, ¶ 24, 598 N.W.2d 480. In these circumstances, “extended visitation during the summer months is likely the only feasible way to facilitate visitation from the standpoint of economics and transportation.” Love v. DeWall, 1999 ND 139, ¶ 13, 598 N.W.2d 106. There is no presumption that overseas visitation is detrimental to a child’s best interests. See, e.g., Sumra v. Sumra, 1997 ND 62, ¶ 17, 561 N.W.2d 290; Bergstrom v. Bergstrom, 320 N.W.2d 119, 124 (N.D.1982) (Vande-Walle, J., concurring in part and dissenting in part). As we said in Ness, 1999 ND 73, ¶ 23, 592 N.W.2d 565, “modern transportation has allowed the measure of distance to be done in hours rather than days, and instant communication is available through phone links between a parent and child who live apart.”

[IT 28] Gary testified that during extended summer visitation, he would have the boys spend some time with his mother in Florida and then take them to Asia. Gary testified his apartment building in Manila is a secured building in a safe area of the city. Gary said when working he would either leave the boys with a day care center operated out of the apartment complex or hire a nanny to care for them. Although Gary currently spends only about nine days per month at his Manila home, he testified:

Well, during the time that they’re there, whether it’s a whole summer, probably shorter, I would work out my schedule so that I would spend more time there. And I can’t say I’d spend all the time there but they would be well cared for if I did have to leave town for anything and possibly I envision trips where I could take them to see some other areas too. I envision this as like an educational thing, a cultural thing where they could learn about other parts of the world. So I’d like to take them with as much as I could.

[¶ 29] At the time the trial court rendered its oral decision in July 1999, the older child was nine years old and the younger was six years old. The court required that Gary accompany the boys on the trips and further required the boys receive “immunizations directed by the United States public health authority as being the appropriate and required immunizations for their age and the places where they are to travel.” In addressing Karen’s concerns, the trial court stated:

I think next year (summer 2000) would probably be ideal for a first trip of this sort. We live in a world [ ] economy ... I think it would be of great educational value for the boys to be able to make such a trip with their father next year.... Mr. Sehiff is an accomplished traveler and I think that we could depend upon him to look after the safety and well-being of his children and that absent some disruption of civil order in any of those particular countries he should not be prohibited from taking the children to those countries.... [A] person needs to be on their guard, you need to be on your guard when you go to a big city in America.... [W]e have to be not xenophobic about travel in the foreign countries....
So I think there’s a great lesson for the children with concern through the careful — and I’m sure Gary would be careful with them — tutelage of their father.

[¶ 80] On this record, we cannot say that the trial court’s award of extended overseas summer visitation to Gary is clearly erroneous.

Ill

[¶ 31] Karen argues the trial court erred in calculating the child support award. Child support determinations involve questions of law which are subject to a de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and, in some limited areas, may involve matters of discretion subject to the abuse of discretion standard of review. Richter v. Houser, 1999 ND 147, ¶8, 598 N.W.2d 193. A proper finding of net income is essential to a determination of the correct amount of child support under the child support guidelines. Schumacher v. Schumacher, 1999 ND 149, ¶ 33, 598 N.W.2d 131.

[¶ 32] Gary testified his income is derived from various employment sources. Gary receives a salary, a new store opening bonus, a bonus based on the net income of the stores in his region, a longevity bonus every three years, a royalty gains bonus, a new development agent bonus, and a year end bonus equal to one or two weeks of salary. After combining Gary’s salary and bonuses, the court computed Gary’s net monthly income to be $5,288 per month. Because of the substantial travel expenses incurred by Gary for visitation purposes, the trial court reduced the net monthly income amount by $944 under N.D. Admin. Code § 75-02-04.1-09(2)(i), to arrive at a net monthly income of $4,344, and set Gary’s child support obligation at $1,231 per month.

A

[¶ 33] Karen argues the trial court erred in deviating from the guidelines because “the record is devoid of any evidence regarding travel expenses.” However, Gary presented evidence that his visitation travel expenses averaged approximately $1,450 per month. The trial court reduced this amount by about one-third because “Gary will personally benefit from these travel expenses.... ” The trial court’s reduction for travel expenses is within the parameters of the evidence and is not clearly erroneous.

B

[¶ 34] Karen argues the trial court erred in failing to include the value of Gary’s inland income in determining his child support obligation.

[¶35] Under the child support guidelines, gross income includes the “value of in-kind income received on a regular basis.... ” N.D. Admin. Code § 75-02-04.1-01(5)(b). “In-kind income” is “the receipt of any valuable right, property or property interest, ... including ... use of property, including living quarters at no charge or less than the customary charge, and the use of consumable property or services at no charge or less than the customary charge.” N.D. Admin. ■ Code § .75-02-04.1-01(6). The value of- in-kind income must be considered in determining an obligor’s gross income. Cook v. Eggers, 1999 ND 97, ¶ 6, 593 N.W.2d 781.

[¶ 36] Karen contends Gary’s living expenses are minimal because he spends only nine days per month at his home and travels the rest of the time, for which his lodging, food and other travel expenses are paid by Subway International. According to Karen, these paid travel expenses are in-kind income which must be included in the child support calculation. Assuming for purposes of argument these paid travel expenses qualify as in-kind income, there must be evidence of the value of the items a party seeks to have included as in-kind income before the trial court may include those items in calculating an obligor’s gross income. See Wilhelm v. Wilhelm, 1998 ND 140, ¶ 9, 582 N.W.2d 6. There was no evidence ■presented about the value of Gary’s travel expenses. Consequently, the trial court did not err in failing’to include the value of in-kind income in its computation of gross income.

C

[¶ 37] Karen contends the trial court erred in failing to include in the child support calculation a $36,000 longevity bonus Gary receives every three years from Subway International. Gary last received the longevity bonus in 1998 and was scheduled to receive another one in 2001 if he continued in his present position with Subway International. The trial court deemed this income as a “speculative future bonus” and declined to consider it, reasoning:

It is the Court’s opinion under the facts of this case that the stated possibility of a future bonus should not be engrafted upon the very substantial support already ordered in this case. Should such bonus or bonuses become a regular part of Gary’s employment package, the statutes and regulations governing review and amendment of child support orders are adequate to meet the need.

(Emphasis in original). We believe the trial court erred in failing to include Gary’s longevity bonus in the child support calculation.

[¶ 38] Recurrent payments must be considered in computing a parent’s future child support obligation. See Shaver v. Kopp, 545 N.W.2d 170, 175-76 (N.D.1996). Averaging fluctuating income is also appropriate under the child support guidelines. See Larson v. Larson, 1998 ND 156, ¶ 9, 582 N.W.2d 657. The guidelines specifically provide “[w]here gross income is subject to fluctuation, ... information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations must be provided.” N.D. Admin. Code § 75-02-04.1-02(7).

[¶ 39] Gary testified the longevity bonus “is paid once every three years for sticking it out overseas. And then it’s renewed for another three years so it’s a commitment for three years.” Gary further explained the $36,000 is paid only after the employee completes the three year commitment, and no partial bonuses are paid for less than three years of overseas service. Gary testified he “may he returning to the U.S. if the opportunity arises,” “possibly next year,” because the constant traveling associated with his job is “a tough life.” However, Gary had no concrete plans to leave his position as regional manager for the Pacific Asian market.

[¶40] The evidence clearly shows that Gary will receive the longevity bonus in 2001 if he “stick[s] it out overseas.” Whether Gary remains employed overseas appears to be within his control. Given these circumstances, the “only truly speculative scenario” is Gary will not receive the $36,000 bonus in 2001. Fox v. Fox, 1999 ND 68, ¶ 15, 592 N.W.2d 541. See also Welder v. Welder, 520 N.W.2d 813, 818 (N.D.1994). We conclude the trial court erred in not averaging the $36,000 longevity bonus over the three years it is intended to compensate Gary for his overseas employment. Adding $12,000 to Gary’s annual income for each of the three years the bonus covers is more appropriate than requiring a redetermination of Gary’s support obligation when his annual income suddenly balloons by $36,000 in 2001. If Gary obtains different employment, he may move for an appropriate adjustment if warranted by the circumstances. We therefore reverse the child support award and remand for recomputation and consideration of the longevity bonus.

IV

[¶ 41] Karen argues the trial court erred in limiting the duration of her spousal support award to one year. The trial court awarded Karen rehabilitative spousal support of $800 per month from November 1999 through October 2000.

[¶ 42] Upon granting a divorce, the trial court may compel either of the parties to make such suitable allowances to the other for support as the court may deem just. N.D.C.C. § 14-05-24. Rehabilitative spousal support is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of divorce by increasing the disadvantaged spouse’s earning capacity. Riehl v. Riehl, 1999 ND 107, ¶ 12, 595 N.W.2d 10. Rehabilitative spousal support is particularly appropriate when one spouse has bypassed opportunities or lost advantages as a consequence of the marriage or when one spouse has contributed during the marriage to the other’s increased earning capacity or moved to further the other’s career. Moilan, 1999 ND 103, ¶ 11, 598 N.W.2d 81. Although temporary spousal support to rehabilitate a disadvantaged spouse is preferred, it may be required indefinitely to maintain a spouse who cannot be adequately restored to independent economic status. Greenwood v. Greenwood, 1999 ND 126, ¶ 9, 596 N.W.2d 317. A relevant factor in setting the amount of support for a disadvantaged spouse is the distribution of marital property and the liquidity or income-producing nature of the property distributed to the disadvantaged spouse. Wetzel v. Wetzel, 1999 ND 29, ¶ 20, 589 N.W.2d 889. A trial court’s spousal support determination is treated as a finding of fact and will not be reversed unless it is clearly erroneous. Schumacher, 1999 ND 149, ¶ 28, 598 N.W.2d 131.

[¶ 43] The trial court valued the marital estate at $94,351 and awarded Karen assets totaling $48,650 and Gary assets totaling $45,701. Gary was allocated $26,200 of the marital debt and Karen was allocated $7,500 of the marital debt. Both parties are relatively healthy. After graduating from high school Karen attended Moor-head State University for two years and obtained an associate of arts degree. She then attended the Minnesota School of Business for two years and obtained her certificate in court reporting in 1981. Pri- or to the family’s move to Australia in 1992, Karen worked as a court reporter, earning as much as $60,000 one year. Karen was not employed outside the home after the family moved to Australia, but cared for the children. At the time of trial, Karen was working for Lanelle’s Reporting Service. When she first started, Karen was performing clerical duties and being paid $7.50 per hour. She has since then begun to perform court reporting services for a percentage split of the income from each job. Karen testified she was earning between $500 and $800 per month. Karen testified in order to be self-employed and competitive in the court reporting market she needed new equipment costing about $9,400. Gary’s current salary with Subway International, including bonuses, is almost $70,000 per year. In the years in which he receives the longevity bonus, his annual income can exceed $100,000.

[¶ 44] During the trial, Karen requested $800 per month spousal support for ‘‘‘anywhere from eight to ten years.” The trial court noted Karen “is a relatively young woman,” she is skilled as" a court reporter, and has the ability to “go free-lance, working with another free-lance company or independent self-employed person or on officialships.” The court recognized Karen needed “some retraining to bring her back to speed,” but noted that since the interim spousal support award of $800 per month was entered in March 1997, Karen had already received more than $25,000 in spousal support. The one year of spousal support awarded in the divorce decree will yield almost $10,000 of additional income. Karen has the professional skills and training to earn a significant income. The parties’ marriage was relatively long-term, but Karen, received a much larger share of the net marital estate.

[¶ 45] We conclude the trial court’s award of $800 per month in rehabilitative spousal support for an additional one year period is not clearly erroneous under the circumstances of this ease.

V

[¶ 46] Karen argues this case should be reversed because of the substantial delay between the divorce trial and the court’s ultimate decision. The trial was held in September 1998. The trial court rendered an oral decision in July 1999, about ten months after trial, arid judgment was not entered until October 1999, about 13 months after trial.

[¶ 47] Karen relies on Stewart v. North Dakota Workers Compensation Bureau, 1999 ND 174, ¶¶ 20-29, 599 N.W.2d 280, where we held the Bureau’s more than nine-month delay in issuing an appealable order and providing a post-termination hearing violated due process. However, Stewart -is distinguishable because the Bureau, which caused the delay, was an adverse party in' the proceeding. In the present case, the delay was not caused by a party to the proceeding, but- by the court itself.

[¶ 48] We do not condone the lengthy delay between trial and decision in this case. However, a party complaining about delay in the decisionmaking process must demonstrate that the court committed an error of fact or law resulting from the delay to obtain relief. . See State v. Bonner, 361 N.W.2d 605, 612 (N.D.1985) (holding trial, court’s grant of 55-day continuance during jury trial, and continuing with same jury, was not reversible error where appellant failed to demonstrate “the existence of prejudice in law or fact on this issue”). Here, Karen has not shown an error of fact or law resulted from the delay itself.

[¶ 49] We conclude Karen’s argument that the divorce judgment should be reversed because of the delay between trial and decision is without merit.

VI

[¶ 50] We affirm the trial court’s decision on visitation and spousal support. We reverse the decision on child support and remand for a redetermination of that award based on the inclusion of the proper amount of Gary’s upcoming longevity bonus. We deny Karen’s request for appointment of a different trial judge on remand.

[¶ 51] WILLIAM A. NEUMANN, DALE V. SANDSTROM, MARY MUEHLEN MARING, JJ., concur.

VANDE WALLE,

Chief Justice, concurring and dissenting.

[¶ 52] I concur in the majority opinion with the exception of part III C. Because I do not agree the child support guidelines provide for income averaging in this instance, I dissent to that part of the opinion.

[¶ 53] I do not disagree that the longevity bonus is income when received. It obviously is. N.D. Admin. Code § 75-02-04.1-01(5)(a)(b). However, I do not believe it is income until received. Insofar as the guidelines rely on the federal income tax return, N.D. Admin. Code § 75-02-04.1-02(7), to document “gross income,” to require the inclusion of the bonus before it is actually earned is contrary to the guidelines.

[¶ 54] I am particularly concerned about the majority’s “income averaging” of the bonus. It is earned by working for three years but it is not earned proportionately each year under Gary’s employment contract. All three years must be completed. The guidelines use income averaging but it is apparently limited to income from self-employment. N.D. Admin. Code § 75-02-04.1-05(5). Even in that instance, it is limited to the “most recent” five years of business operations.

[¶ 55] I have no doubt Karen should share in the bonus when it is received. The trial court should make provisions that if the bonus is earned in 2001 the child support payments will increase accordingly for that year and then be reduced until the next bonus is earned. See, Helbling v. Helbling, 541 N.W.2d 443, 448-49 (N.D.1995) (VandeWalle, C.J., concurring) (observing better procedure is for trial court to automatically provide for a reduction in support when the effect of a “windfall” ceases).

[¶ 56] The majority’s provision for averaging the longevity bonus has merit, but I do not find support for the procedure in the guidelines. The majority states averaging fluctuating income is appropriate under the guidelines and quotes in part N.D. Admin. Code § 75-02-04.1-02(7). That section provides in total:

Income must be documented through the use of tax returns, current wage statements, and other information sufficiently to full apprise the court of all gross income. Where gross income is subject to fluctuation, particularly in instances involving self-employment, information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations must be provided.” (Emphasis added).

Gary is not self employed.

[¶ 57] I would direct the trial court to amend the judgment to provide that if in the year 2001 Gary receives the longevity bonus his child support obligation should increase accordingly for that year and reduce for the following year. See N.D. Admin. Code § 75-02-04.1-02(8) (stating “[i]f circumstances that materially affect the child support obligation are very likely to change in the near future, consideration may be given to the likely future circumstances.”).

[¶ 58] Gerald W. Vande Walle, C.J.