author: CROTHERS, Justice.

text:
    2006 ND 25
    STATE of North Dakota, Plaintiff and Appellee v. Daniel Allen NIKLE, Defendant and Appellant.
    No. 20050172.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Kevin B. Spaeth, Grand Forks, for defendant and appellant; submitted on brief.
    Thomas H. Falck, Jr. and Anne M. Bo-ettger (legal intern), Grand Forks, for plaintiff and appellee; submitted on brief.
   CROTHERS, Justice.

[¶ 1] Daniel Allen Nikle appeals from a criminal judgment and commitment, following a jury trial in which Nikle was found guilty of two counts of felony delivery of methamphetamine. We affirm the judgment of the district court.

I

[¶ 2] Nikle was charged with three counts of delivery of methamphetamine. During voir dire for his jury trial the district court judge asked all persons in the jury pool whether they knew the people associated with or the circumstances surrounding the case. At one point, a member of the venire stated, “I think that I actually do recognize the defendant.... I know him from work at Super Target and also with the security there.” The judge asked, “[I]s there anything about your knowledge of him that would cause you difficulty to sit on this case?” The venireperson responded, “Well, I think that he came through my line and bought Sudafed.” Defense counsel did not object to this line of questioning and, in fact, continued to further question the venire-person about Sudafed, the restrictions on its purchase, and the “Methamphetamine Watch” program in general. Throughout these exchanges, the venireperson repeatedly assured both the judge and counsel that she could remain fair and impartial.

[¶ 3] The venireperson was not challenged for cause, and it does not appear a peremptory challenge was used to excuse her. She was ultimately not on the final jury which convicted Nikle on two of the three counts of delivery of methamphetamine.

[¶ 4] Nikle argues the venireper-son’s statement was so prejudicial that it was obvious error for the district court to fail to dismiss the entire jury panel. Alternatively, he argues he received ineffective assistance of counsel by virtue of his trial counsel’s failure to request dismissal of the panel, request a curative instruction, or object to the questioning.

II

[¶ 5] To establish obvious error, a defendant must show error occurred that 1) was plain, meaning it deviated from a legal rule under current law, and 2) affected substantial rights, meaning the outcome of the proceeding was affected. State v. Krull, 2005 ND 63, ¶ 6, 693 N.W.2d 631; N.D.R.Crim.P. 52(b).

[¶ 6] North Dakota has not established rules indicating the circumstances under which a venireperson’s comments would be so prejudicial that a judge must dismiss the pool in its entirety. However, holdings in the federal courts have shown great faith is placed in a juror’s ability to remain fair and impartial. In United States v. Small, the Tenth Circuit Court of Appeals' held a district court did not abuse its discretion in neither dismissing nor questioning a venire after one member of the panel made prejudicial remarks indicating his assumption of the defendants’ guilt. 423 F.3d 1164, 1178-80 (2005). Similarly, in Thompson v. Borg, a venireperson stated before a sequestered panel that the defendant had at one time pled guilty, but the Ninth Circuit Court of Appeals held this did not amount to pretrial publicity or taint the entire panel. 74 F.3d 1571, 1573-74 (1996).

[¶ 7] Statements made by members of the venire may rise to the level that the entire pool is tainted. Mach v. Stewart, 137 F.3d 630 (9th Cir.1997). In Mach, during selection of the jury for a child abuse case, a member of the venire who was a social worker made repeated statements regarding her experience with child abuse victims and her belief that such victims do not lie. Id. at 632-33. The Court of Appeals determined these statements amounted to expert testimony, and it was therefore error for the district court to reject Mach’s motion for a mistrial or, at a minimum, determine whether the jury had been “infected” by the statements. Id. at 633.

[¶ 8] Our precedent places much faith in jurors’ ability to maintain impartiality. Great weight is given to a potential juror’s claim that he or she will remain impartial. See City of Bismarck v. Holden, 522 N.W.2d 471, 474 (N.D.1994); State v. McLain, 301 N.W.2d 616, 622 (N.D.1981). Even in cases of pretrial publicity, we have held a change of venue is required only when a defendant demonstrates a reasonable likelihood of prejudice so pervasive that a fair and impartial jury could not be found. State v. Erickstad, 2000 ND 202, ¶ 7, 620 N.W.2d 136.

[¶ 9] Here, the venireperson’s statement pertained to neither Nikle’s past criminal activity nor the current charges. Although Nikle may be correct that the average North Dakota citizen associates Sudafed with manufacture of methamphetamine, the average citizen is also aware that it is not a crime to purchase or possess Sudafed. Furthermore, the venire-person’s statement was made at the beginning of the voir dire; following it, she repeatedly reported her ability to remain fair and impartial, and most if not all of the members of the jury panel were subsequently asked at some point whether they could remain fair and impartial. Giving great weight to the claims of individual members of the venire, we see no indication that any legal rule was violated when the court failed to reject the panel.

[¶ 10] Because prong one of the N.D.R.Crim.P. 52(b) obvious error analysis is not satisfied, it is not necessary to discuss prong two. However, we note that, considering the abundance of evidence favoring Nikle’s guilt, it is extremely doubtful that prejudice could be shown. Therefore, the district court’s decision to retain the venire was not obvious error.

Ill

[¶ 11] Nikle argues, alternatively, that he received ineffective assistance of counsel. The Strickland ineffective assistance of counsel test requires an appellate court to “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Furthermore, even when counsel is found to have erred, reversible error does not exist unless that error had an effect on the trial court’s judgment. Id. at 691, 104 S.Ct. 2052. See also State v. Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18.

[¶ 12] We believe defense counsel’s representation could reasonably be viewed as a trial strategy and was not so misguided as to fall outside the reasonable range of professional assistance. However, we need not address this prong of the ineffective assistance of counsel claim, as Nikle clearly fails to meet his burden on prong two. See Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809 (holding a court need not address both prongs of the ineffective assistance of counsel test if a defendant clearly fails to meet his burden on one of the prongs).

[¶ 13] To establish the second prong of his ineffective assistance of counsel claim, Nikle must show that trial counsel’s “errors” had an effect on the judgment. Palmer, 2002 ND 5, ¶ 11, 638 N.W.2d 18. Nikle failed to argue in his brief that the outcome at the district court would have changed had counsel acted differently, and we see no perceivable argument for such a claim. Ample evidence was admitted to support a finding of guilt, including a confidential informant’s testimony about drug buys he arranged with Nikle, testimony from police officers who wiretapped and supervised the informant during the buys, and the purchased methamphetamine itself. This evidence indicates the outcome of the trial would have been the same regardless of counsel’s conduct during voir dire and regardless of the jury empaneled. Nikle fails to establish prejudice, and his ineffective assistance of counsel claim is therefore without merit.

rv

[¶ 14] The district court did not commit obvious error in retaining the original jury panel, and Nikle has failed to establish he received ineffective assistance of counsel. The judgment of the district court is affirmed.

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


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2006 ND 21
    STATE of North Dakota, Plaintiff and Appellee v. Douglas FEIST, Defendant and Appellant.
    No. 20050152.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Sarah J. Gerhardt (argued), appearing under the Rule on the Limited Practice of Law by Law Students, and Lloyd C. Suhr (appeared), Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Justin J. Vinje (argued), appearing under the Rule on the Limited Practice of Law by Law Students, and Ralph A. Vinje (appeared), Vinje Law Firm, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Douglas Feist appeals from a criminal judgment entered on a plea of guilty to possession of a pipe bomb in violation of N.D.C.C. § 62.1-05-01. Because the district court, in accepting Feist’s guilty plea, failed to substantially comply with the requirements of N.D.R.Crim.P. 11(c) and because the record demonstrates confusion over what sort of plea agreement or sentencing recommendation existed, we reverse the judgment and remand to the district court to permit Feist to withdraw his guilty plea.

I.

[¶ 2] Feist and his friend, Andrew Greff, decided to make a bomb. In the early morning hours of July 10, 2004, Feist and Greff went down to the desert area of Kimball Bottoms south of Bismarck to detonate the bomb. Greff tried to light the bomb but the fuse kept going out. The fuse became dangerously low. Feist told Greff to throw the bomb in the river and forget about the whole thing. Greff wanted to pour gas on the bomb to get it to light. Feist became frightened that someone would get hurt, so Greff agreed to take Feist back to his house. But Greff decided to go back to the area and light the bomb.

[¶ 3] Soon after the explosion, Greff rushed to the hospital emergency room, screaming in pain, his left arm dismembered from his body near the mid bicep. According to a police report, his arm was “just a big pool of blood with some tendons running between the hand and the shoulder.” His arm was ultimately amputated.

[¶ 4] Feist was arrested when his name was found on some of the receipts for the bomb’s components. Feist told authorities he had a minimal role in making the bomb, and denied having any part in its detonation. He stated he did not think Greff would actually try to blow up the bomb after Greff took Feist home. Shortly after the incident, Feist was charged with possession of a bomb or explosive device, a class C felony.

[¶ 5] On August 18, 2004, the day set for the preliminary hearing, Feist pled guilty to the charge of possession of a bomb or explosive device.

THE COURT: Ok. Then as to the charge against you, um, how do you plead?
MR. FEIST: Ah, guilty Your Honor.
THE COURT: Other than discussions that may have occurred between your attorney and the State’s Attorney, has anybody threatened you in any way or promised you anything to get you to plead guilty today?
MR. FEIST: No Your Honor.

[¶ 6] The court did not ask if a plea agreement existed, and no mention of a plea agreement was made on the record during this proceeding. The case was continued for sentencing and for a pre-sen-tence investigation.

[¶ 7] On March 22, 2005, at the first sentencing hearing in the bomb case, Feist contended that he had a plea agreement with state’s attorney, Julie Lawyer. State’s attorney Lloyd Suhr, who was substituting on her behalf, was not aware of any agreement.

MR. VINJE: I think it’s actually a plea agreement Your Honor. Let me put it this way. If the Court’s prepared to accept the recommendation, we can go ahead. If the Court isn’t, then I think I need to have the attorney here that agreed to a plea agreement. And the recommendation is going to be for six months, the same as the co-defendant received.
MR. SUHR: Ms. Lawyer, ah, was both set for trial, which was continued today, Your Honor, and then also had a daycare emergency, which is why I’m appearing on her behalf. My discussion with her this morning was that she would be recommending a sentence identical to that received by the co-defendant. This was not articulated to me as a plea agreement. If Mr. Vinje wants to continue this because that was his understanding, I don’t have an objection. I’m just informing the Court the information I have when I became involved late this morning.
THE COURT: I have no note in my file that indicates that there was a plea agreement reached, that it would be a binding plea agreement.

The case was continued so that state’s attorney Lawyer could clear up the ambiguity on what agreement existed in the bomb case.

[¶ 8] In an unrelated offense, Feist was also charged with reckless endangerment for the possession of venomous snakes. The snakes consisted of a seven-inch long hot pink albino monocle cobra, a three-inch long Australian death adder, and a four-foot long East African green mamba. The snakes are among the world’s deadliest.

[¶ 9] On March 80, 2005, following the continuance on sentencing in the bomb case, the court held a combined change of plea hearing on the snake case, and a sentencing hearing on the bomb case. In the snake case, Feist pled guilty to a class A misdemeanor of reckless endangerment. The court then discussed the sentencing in the bomb case and inquired into the existence of a plea agreement.

THE COURT: Mr. Vinje you had indicated when we had a hearing a week ago that you were under the impression there was a plea agreement. We listened to the tape of the preliminary hearing. There was no mention of a plea agreement at that preliminary hearing.
MR. VINJE: The preliminary hearing on the snake?
THE COURT: On the bomb, he waived his preliminary hearing and pled guilty and at that time there was no mention of a plea agreement at that time.
MR. VINJE: It was my understanding that it was a plea agreement and, of course—
MS. LAWYER: I had clarified we had entered into one later but it covered both of these cases since only one of the cases was before the Court last time because the plea agreement — since that is the case there would [be] a plea agreement that we would be presenting to the Court ...
THE COURT: What’s the substance of your plea agreement?
MR. VINJE: Well, Your Honor, the plea agreement is that he serve 6 months in the Burleigh County Jail. That is the same sentence his co-defendant on both charges got although his co-defendant pled guilty to a felony on the snake case where he has just pled guilty to a misdemeanor.

[¶ 10] Lawyer went on to state the agreement in both cases would be for two years with all but six months suspended. The court responded that it would “reject the plea agreement. I would accept it on the snake case but I will not accept it on the explosives case.” Feist requested a jury trial on both cases, which the court apparently granted.

MR. VINJE: I guess set it for a jury trial then.
THE COURT: All right. Do you want to go to trial in both of the cases or—
MR. VINJE: We may as we will try both of them as long as we are going to be trying them.
THE COURT: All right, how long do you believe you will need for trial, Miss Lawyer?

[¶ 11] On April 13, 2005, the court issued a written order explaining the circumstances surrounding the alleged plea agreement. The court’s order noted that “the parties did not agree as to what plea agreement existed” but that later the “parties stated that there was an agreement between them.” The court’s written order ultimately denied the withdrawal of Feist’s guilty plea although there was no formal motion to withdraw a guilty plea in the record pending before the court at that time.

[¶ 12] On May 2, 2005, the court held a sentencing hearing in the bomb case. Feist again requested a withdrawal of his guilty plea. This time, state’s attorney Lawyer disagreed that there ever was a plea agreement.

MS. LAWYER: Your Honor, we dispute first of all this plea was entered into and is an open. There were no plea negotiations at that time. It was abundant at the first attempt to do sentencing when I was not present, but Mr. Suhr was. I had informed him that the plea was based on his — upon his plea of guilty to a separate charge and we would be making a — if there were a guilty plea in the other case, the plea agreement had no basis on the guilty plea in this matter.
That’s why it was not a plea agreement at the time of the original sentencing in this case because that other matter was not up before the court again. This plea was entered into before any negotiations whatsoever took place between the State and the defense. This was not a coerced plea.
There is nothing in the record to indicate that Mr. Feist was unaware of his right at the time that he entered his guilty plea and there was no indication that the guilty plea was entered that it was being offered as a conditional type of plea in any way whatsoever, so I think with the Information that has been provided, the Court has already made its ruling on that and there is nothing new that has been brought to you so I would move that we go to sentence at this time.
THE COURT: Thank you. I am going to deny the motion and we will proceed to sentencing.

[¶ 13] After hearing testimony and recommended sentences, the court sentenced Feist to “five years at the State Penitentiary with all but two years suspended for a period of five years.” Instead of receiving a two-year sentence with all but six months suspended as the co-defendant who detonated the bomb received, Feist received a five-year sentence with all but two years suspended.

[¶ 14] On appeal, Feist argues the court was required to allow him to withdraw his guilty plea under N.D.R.Crim.P. 11(d)(4), because a binding plea agreement existed. In the alternative, Feist argues under N.D.R.Crim.P. 32, the court abused its discretion in not allowing him to withdraw his plea of guilty, because not doing so resulted in a manifest injustice.

[¶ 15] The State argues there was no binding plea agreement; only a non-binding sentencing recommendation. Further, if there had been a plea agreement in existence, the parties would have disclosed the agreement when Feist entered his plea of guilty seven months before sentencing.

II.

[¶ 16] There is a significant difference between an agreement to make a nonbinding recommendation of sentence and a binding plea agreement under N.D.R.Crim.P. 11(d). State v. Thompson, 504 N.W.2d 315, 319 (N.D.1993). If the parties agree to a non-binding recommendation of sentence, the State fulfills its obligation when it makes the specified nonbinding recommendation, and the trial court may impose a harsher sentence than the one recommended without allowing the defendant to withdraw the guilty plea. Id. When presented with a binding plea agreement, the court is limited to three options: the court may accept the agreement, reject the agreement, or defer its decision until receipt of a presentence report. See N.D.R.Crim.P. 11(d)(2). If the court accepts a binding plea agreement, the court may not impose a sentence less favorable than the sentence provided for in the plea agreement. See N.D.R.Crim.P. 11(d)(3). If the court rejects a binding plea agreement, the court must inform the defendant it is not bound by the agreement, must allow the defendant to withdraw the plea, and must inform the defendant that if the defendant persists in pleading guilty, the court may impose a sentence less favorable than the one provided for in the plea agreement. See N.D.R.Crim.P. 11(d)(4); Peltier v. State, 2003 ND 27, ¶ 10, 657 N.W.2d 238.

[¶ 17] The precise nature and timing of the plea discussions in this case is unclear from the record. The State argues there was never a binding plea agreement. But Lawyer’s statements at the first sentencing hearing suggests otherwise. During the sentencing hearing, she admitted she “had entered into one later but it covered both of these cases.” The question becomes what her “one” was referring to. Because her response follows a discussion of a plea agreement, it would appear the “one” refers to a plea agreement. Furthermore, the district court judge suggests there was a plea agreement by stating “I reject the plea agreement ... on the explosives case.” At the final sentence hearing on May 2, 2005, Lawyer denies there ever being a plea agreement.

[¶ 18] The discussion on March 30, 2005, where the term “plea agreement” was mentioned, indicates at least that plea negotiations had occurred. This Court has held, “[i]n cases where the nature of a plea agreement is ambiguous, a trial court should clarify the matter on the record.” Peltier v. State, 2003 ND 27, ¶ 12 n. 1, 657 N.W.2d 238. Unfortunately, the court did not attempt to clarify the nature of the agreement on the record. Not every ambiguity in an agreement will be decided in favor of the defendant. In State v. Sisson, this Court held a district court was within its discretion in construing a defendant’s “implied ‘understanding’ ” as not being a condition of a plea agreement. 1997 ND 158, ¶ 6, 567 N.W.2d 839.

[¶ 19] A written plea agreement placed in the record would have eliminated the ambiguity of whether the defendant and state’s attorney had reached an agreement. But “[n]ot all plea agreements are reduced to writing.” State v. Farrell, 2000 ND 26, ¶ 16, 606 N.W.2d 524. If there was a plea agreement that was rejected, the district court violated N.D.R.Crim.P. 11(d)(4) in not allowing Feist to withdraw his guilty plea. Because we cannot conclusively determine there was an actual plea agreement in this case, we must decide if the withdrawal of the guilty plea was necessary to prevent a manifest injustice under N.D.R.Crim.P. 32.

[¶ 20] The court must allow the defendant to withdraw a plea of guilty whenever the defendant, “on a timely motion for withdrawal, proves withdrawal is necessary to correct a manifest injustice.” N.D.R.Crim.P. 32(d)(1). Alternatively, “[i]n the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw a plea of guilty as a matter of right once the plea has been accepted by the court.” N.D.R.Crim.P. 32(d)(3). But before sentencing, “the court in its discretion may allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.” Id.

[¶ 21] This Court has previously recognized “[cjourts and commentators have taken cognizance that Rule 32(d) should be liberally construed in favor of the defendant, and that leave to withdraw a guilty plea before sentencing should be freely granted.” State v. Millner, 409 N.W.2d 642, 644 (N.D.1987) (citing United States v. Punch, 709 F.2d 889, 893 n. 5 (5th Cir. 1983); United States v. Russell, 686 F.2d 35, 38 (D.C.Cir.1982); United States v. Navarro-Flores, 628 F.2d 1178, 1183 (9th Cir.1980); 3 Charles Alan Wright, Federal Practice & Procedure: Criminal 2d § 538, at 199 (1982)). “Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury.” Millner, 409 N.W.2d at 644 (quoting Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963)).

[¶ 22] The determination of a manifest injustice or the occurrence of a fair and just reason, are within the trial court’s discretion, and will be reversed on appeal only for an abuse of discretion. State v. Sisson, 1997 ND 158, ¶15, 567 N.W.2d 839. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. State v. Farrell, 2000 ND 26, ¶ 8, 606 N.W.2d 524.

[¶ 23] This case is similar to Farrell because in both cases “some promise had been made.” Id. at ¶ 18. In Farrell, we reversed and remanded because the defendant was confused on what his plea meant and because the district court did not comply with N.D.R.Crim.P. 11(c). Farrell, at ¶ 21. Following the entry of a guilty plea, Farrell immediately questioned the court on why he was being given a higher sentence than what he agreed to. Id. at ¶ 5. The district court stated “[b]ecause of your record. It was a recommendation. It wasn’t a plea bargain.” Id. Farrell responded with “[w]ell then I have a right to change my plea then also, don’t I?” Id. The district court refused to allow Farrell to withdraw his guilty plea. Id.

[¶ 24] Furthermore, as in Farrell, the district court failed to substantially comply with N.D.R.Crim.P. 11(c). Before a district court accepts a guilty plea, it must advise the defendant of certain rights. Farrell, at ¶ 9. The advice required to be given by Rule 11 is mandatory and binding on the court. Id. Although Rule 11 does not require any predetermined formality, the court must substantially comply with the procedural requirements of the rule. Id. A district court is required to “inquire as to whether the defendant’s willingness to plead guilty results from previous discussion between the prosecuting attorney and the defendant or the defendant’s attorney.” See N.D.R.Crim.P. 11(c). The purpose for the inquiry in N.D.R.Crim.P. 11(c) is for the district court to ascertain whether a guilty plea is the result of negotiations so the court can inquire further about the negotiation process to assess the defendant’s understanding of the terms of any resulting agreements. Farrell, at ¶ 15.

[¶ 25] In this case, the court failed to substantially comply with Rule 11(c). This resulted in confusion on the record demonstrating ambiguity about plea negotiations. Feist initially plead guilty. At the time of his plea, there is no discussion of an agreement during the hearing. But the court did not inquire whether discussions with the state’s attorney had occurred as required by Rule 11(c). By the time the bomb case was associated with the snake case, the record demonstrates discussions had occurred but there is confusion about the nature of what was agreed to. The court did not attempt to clarify the confusion on the record. See Peltier v. State, 2003 ND 27, ¶ 12, n. 1, 657 N.W.2d 238. The confusion likely occurred because multiple assistant state’s attorneys were involved in the two cases. The confusion was compounded when the court indicated it would reject the plea agreement and discussed setting both cases for trial, but then later denied Feist’s motion to withdraw his guilty plea.

[¶ 26] The court did not ask whether the guilty plea was the result of plea negotiations. The court merely asked: “Other than discussions that may have occurred between your attorney and the State’s Attorney, has anybody threatened you in any way or promised you anything to get you to plead guilty today?” No inquiry was ever made by the district court whether the guilty plea was the result of discussions with the state’s attorney. The court’s use of the phrase “other than” specifically excludes conversations with the state’s attorney. Under these circumstances, the court did not substantially comply with N.D.R.Crim.P. 11(c).

[¶ 27] Because the record shows the court did not substantially comply with the requirements of N.D.R.Crim.P. 11(c) and there was ambiguity apparent on the record as to whether a plea agreement existed between the parties, we conclude the withdrawal of Feist’s guilty plea is necessary to correct a manifest injustice. The court abused its discretion in not allowing Feist to withdraw his guilty plea.

III.

[¶ 28] We reverse the criminal judgment and remand the case to the district court to allow Feist to withdraw his guilty plea in the bomb case.

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


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 22
    In the Interest of B.V. Cynthia M. Feland, Petitioner and Appellee v. B.V., Respondent and Appellant.
    No. 20050300.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Cynthia M. Feland, Assistant State’s Attorney, Bismarck, ND, for petitioner and appellee.
    Kent M. Morrow, Bismarck, ND, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] B.V. appealed a district court order finding B.V. is a sexually dangerous individual as defined in N.D.C.C. § 25-03.3-01(8) and committing B.V. to the care, custody, and control of the Executive Director of the Department of Human Services until the Executive Director determines B.V. is safe to be at large and has received the maximum benefit of treatment. We affirm.

I

[¶ 2] On October 27, 2004, the Burleigh County State’s Attorney’s Office filed a Petition for Commitment of a Sexually Dangerous Person under N.D.C.C. ch. 25-03.3, seeking to commit B.V. as a sexually dangerous person. The petition for commitment was based upon B.V.’s convictions for gross sexual imposition involving a victim who was unaware that a sexual act was being committed upon him, gross sexual imposition involving a two to three-year-old female child, indecent exposure in front of children, a lewd act involving a six to seven-year-old female child, and indecent exposure in a public phone booth. A preliminary hearing on the State’s petition was held on November 1, 2004 with the district court ordering an evaluation of B.V. at the North Dakota State Hospital. On December 2, 2005, Joseph Belanger, Ph.D., filed a psychological evaluation of B.V.

[¶ 3] In a letter dated December 9, 2004, B V, through his attorney, requested the appointment of an independent evaluator. B.V.’s request was granted. In a second letter dated December 9, 2004, B.V., through his attorney, requested that the district court wait on his request for an independent evaluator until after Dr. Etherington’s report was received. Dr. Etherington’s report was received later that same day.

[¶ 4] Both Dr. Belanger and Dr. Ether-ington found B.V. suffers from four conditions that are relevant to the determination of his likelihood of re-offending. Both reports listed the following four conditions: pedophilia, sexually attracted to females, non-exclusive type; paraphilia, not otherwise specified, polymorphous, including nonconsenting persons, exhibitionism, and voyeurism; personality disorder, not otherwise specified, with antisocial and borderline traits; and alcohol dependence with physiological dependence, in a controlled environment. Both reports concluded B.V. is an individual with a number of mental disorders or a congenital or acquired condition that makes him likely to engage in future acts of sexually predatory conduct.

[¶ 5] In a letter dated December 14, 2005, B.V.’s attorney informed the district court that B.V. now wanted to have an independent evaluation. At the same time, B.V. requested that the commitment hearing, scheduled for December 16, 2005, be continued. B.V.’s requests were granted and the commitment hearing was rescheduled for February 9, 2005.

[¶ 6] On January 20, 2005, B.V.’s attorney requested another continuance of the commitment hearing stating B.V. had been unable to find an independent evaluator. The district court granted B.V.’s request for continuance on January 24, 2005.

[¶ 7] On January 27, 2005, at B.V.’s request, the district court appointed Dr. Cynthia Brooks to perform the independent evaluation. In a letter dated February 4, 2005, B.V.’s attorney informed the district court B.V. did not want a female evaluator and would refuse to cooperate with Dr. Brooks. On March 3, 2005, B.V.’s attorney sent the district court a proposed amended order appointing Dr. M.C. Brown to perform the evaluation and the district court signed an amended order appointing Dr. Brown.

[¶ 8] On April 27, 2005, B.V.’s attorney sent the district court a second amended order requesting the appointment of Dr. Peter C. Peterson to perform the evaluation. B.V.’s request contained no reason for his request to change evaluators again. On April 28, 2005, the district court signed a second amended order appointing Dr. Peterson to perform the evaluation.

[¶ 9] On June 2, 2005, B.V.’s attorney requested another change of the independent evaluator. B.V. sought to replace Dr. Peterson with Stacy Benson. The State responded to this request arguing B.V. was now requesting the appointment of a fourth independent evaluator without giving a justification for the request. The State also pointed out Stacy Benson was apparently female and B.V.’s reason for having the first appointed independent evaluator removed was because the first appointed independent evaluator was female. The State argued B.V. appeared to be stalling and no further appointments should be made. The district court stated it was apparent B.V. was attempting to delay resolution of the matter as long as possible and did not approve this requested change in evaluators. The district court stated Dr. Peterson would complete the independent evaluation.

[¶ 10] On June 15, 2005, B.V.’s attorney sent a letter to the district court stating B.V. was refusing to meet with Dr. Peterson. On June 16, the State notified the district court and B.V.’s attorney that the Burleigh County Sheriffs Department attempted to transport B.V. to his appointment with Dr. Peterson but B.V. refused to go and was not transported to his appointment. The district court notified B.V.’s attorney N.D.C.C. § 25-03.3-12 did not give B.V. the right to an independent evaluation by an expert of his choice and the district court made multiple attempts to accede to B.V.’s requests but no further modifications would be made. No independent evaluation was conducted.

[¶ 11] On August 4, 2005, B.V. filed a motion to dismiss the case stating the commitment hearing had not been held within 60 days after the preliminary hearing as required by N.D.C.C. § 25-03.3-13. The State responded to this motion arguing the delay in scheduling the hearing was due solely to B.V.’s actions, most specifically B.V.’s multiple requests for different independent evaluators. The district court denied this motion.

[¶ 12] On August 11, 2005, B.V.’s attorney filed a motion to continue his August 22, 2005 commitment hearing stating medical reasons were giving B.V. concern about his ability to concentrate and participate in the treatment hearing. The district court judge responded to the motion stating the only way he would grant the continuance was if a doctor provided information indicating a continuance was medically necessary. The judge also stated he was willing to hold the commitment hearing in Jamestown if travel was difficult for B.V.

[¶ 13] B.V.’s commitment hearing was held on August 22, 2005. The district court found B.V. to be a sexually dangerous individual as defined in N.D.C.C. ch. 25-03.3. The district court ordered B.V. committed to the care, custody, and control of the Executive Director of the Department of Human Services until, in the opinion of the Executive Director, B.V. is safe to be at large and has received the maximum benefit of treatment. The district court further granted the Executive Director the authority to place B.V. in an appropriate treatment facility or program at which treatment is available. The district court also ordered B.V. to have an examination of his mental condition at least once a year and to provide the report of his examination to the district court.

II

[¶ 14] B.V. argues the district court erred when it determined there was clear and convincing evidence B.V. is a sexually dangerous individual likely to engage in further acts of sexually predatory conduct. “Our standard of review for appeals from commitments of sexually dangerous individuals under N.D.C.C. eh. 25-03.3 is ‘a modified clearly erroneous’ standard.” Interest of D.V.A., 2004 ND 57, ¶ 7, 676 N.W.2d 776. We affirm a district court’s order of commitment unless it is induced by an erroneous view of the law or we are firmly convinced it is not supported by clear and convincing evidence. Id. The “State must produce two experts to independently establish two elements: (1) that the respondent has some sort of disorder and (2) that disorder makes him or her ‘likely to engage in further acts of sexually predatory conduct.’ ” Interest of M.B.K., 2002 ND 25, ¶ 11, 639 N.W.2d 473. The phrase “ ‘likely to engage in further acts of sexually predatory conduct’ as used in N.D.C.C. § 25-03.3-13 means that the respondent’s propensity towards sexual violence is of such a degree as to pose a threat to others.” Id. at ¶ 18. “This definition prevents a contest over percentage points and the results of other actuarial tools, and allows experts to use the fullness of their education, experience and resources available to them in order to determine if an individual poses a threat to society.” Id.

[¶ 15] At B.V.’s commitment hearing, the State produced two experts who established B.V. has a disorder or multiple disorders which make him likely to engage in further acts of sexually predatory conduct. There was ample evidence supporting the conclusion that B.V. suffers from a disorder which makes it likely he will engage in sexually predatory conduct in the future and the district court’s order was not induced by an erroneous view of the law. The district court’s findings were supported by clear and convincing evidence.

Ill

[¶ 16] B.V. argues the district court erred when it found factors surrounding B.V.’s termination from a sexual offender treatment program at the North Dakota State Penitentiary were not relevant at the commitment hearing. B.V. claims he had two witnesses at the commitment hearing who were going to testify about the circumstances surrounding B.V.’s prior participation in sexual offender treatment programs. At the commitment hearing, B.V.’s attorney asked Dr. Belan-ger a question regarding the difference between treatment options available at the State Hospital versus other community-based treatment programs. The district court judge asked B.V.’s attorney how that evidence was relevant to the determination required to be made at the commitment hearing. B.V.’s attorney responded it was his understanding under the statutory law that the district court had the ability to consider treatment options. The district court disagreed, stating the statute did not allow the district court to consider treatment options but rather allowed the district court only to commit the respondent into the care of the Department of Human Services and the department had the responsibility to consider treatment options. N.D.C.C. § 25-03.3-13. Therefore, the evidence regarding treatment options was not admitted into evidence based on these questions. B.V.’s attorney did not object to the district court’s determination but later made an offer of proof regarding the planned testimony of the two potential witnesses who were not called.

[¶ 17] “On appeal, we will not overturn a trial court’s decision regarding the admission or exclusion of evidence on the ground of relevancy unless the trial court abused its discretion.” State v. Haugen, 458 N.W.2d 288, 291 (N.D.1990). “A trial court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner.” Id. We' agree with the district court’s determination that N.D.C.C. § 25-03.3-18 does not allow the district court to consider or determine treatment options, but rather places that determination with the Department of Human Services. The district court did not act in an arbitrary, unconscionable, or unreasonable manner by not admitting evidence relating to sexual offender treatment programs.

IV

[¶ 18] B.V. argues he had the right to choose his own independent evaluator and the district court erred by not conducting the commitment hearing within the statutorily required sixty-day period following the preliminary hearing. Section 25-03.3-10, N.D.C.C., provides where a respondent is indigent, the district court will appoint a qualified expert for the respondent. The statute does not give an indigent respondent the right to choose the independent evaluator. Id. Here, the district court was more than indulgent in allowing B.V. to reject the appointment of two independent evaluators, each time appointing a new independent evaluator. The district court did not err when it denied B.V.’s request for a fourth independent evaluator.

[¶ 19] Section 25-03.3-13, N.D.C.C., provides that the commitment proceeding to determine whether the respondent is a sexually dangerous individual must be conducted within sixty days after the finding of probable cause. The statute allows the sixty-day time period to be extended for good cause. Id. B.V. has no plausible argument to say the delay in holding the commitment proceeding violated his rights in any way. See Holen v. N.D. Workers Comp. Bureau, 2000 ND 145, ¶ 9, 615 N.W.2d 141 (holding that to recover for delay in administrative proceedings, a claimant must show she was substantially prejudiced by the delay). The delays in holding the commitment hearing were caused by B.V.’s continual requests to change the independent evaluator and a later request to delay the hearing for medical reasons. Each time B.V. requested a change in the independent evaluator, he also requested to delay the hearing. .The district court did not err by not holding the commitment hearing within sixty days.

V

[¶20] Finally, B.V. argues the district court erred by not appointing new counsel or allowing B.V. to represent himself at the commitment hearing. On June 24, 2005, B.V. sent a letter to the district court asking for a new attorney. In his letter, B.V. asked the district court how he could make a request to represent himself if a new attorney was not appointed.

[¶ 21] “The right of an indigent to have counsel appointed does not translate into a right to have counsel of one’s own choosing, and a trial court has no duty to appoint specific counsel or to continually seek new counsel for capricious and difficult applicants.” Owens v. State, 1998 ND 106, ¶ 24, 578 N.W.2d 542. “[T]he matter of substitution of appointed counsel is committed to the sound discretion of the trial court and, absent a showing of good cause for the substitution, a refusal to substitute is not an abuse of discretion.” Interest of J.B., 410 N.W.2d 530, 532 (N.D.1987). When examining the request for newly appointed counsel the trial court should look at the rights of the respondent while considering judicial economy. Id. “The court should inquire on the record into the reasons for the complaints about counsel.” Id. The trial court should determine whether an irreconcilable conflict exists between counsel and respondent, whether new counsel would be confronted with the same conflict, the timing of the motion, the inconvenience to witnesses, the proclivity of the respondent to change counsel, and the quality of counsel. Id. at 533.

[¶ 22] B.V.’s letter requesting a change in counsel came after B.V.’s several successful attempts to continually delay the commitment hearing. The reasons for B.V.’s request, the lack of a showing of clear conflicts between B.V. and his counsel, the fact that new counsel would be subjected to the difficulties B.V. has shown throughout these proceedings, and the timing of the motion appearing to be another tactic of delay support the district court’s decision not to grant B.V.’s request for new counsel. In this instance, the district court did not abuse its discretion by denying B.V.’s request to appoint new counsel.

[¶ 23] B.V. did not make an outright request to represent himself in his letter to the district court, nor did he make such a request at the time of the hearing. However, we acknowledged that “[w]hile the United States Supreme Court has not recognized a constitutional right to self-representation in civil cases, many courts have ruled a litigant in a civil case cannot be coerced into accepting appointed counsel rather than proceeding pro se.” Owens v. State, 1998 ND 106, ¶24, 578 N.W.2d 542. Although we hold that a competent party in a civil case who wishes to represent himself cannot be coerced into accepting appointed counsel, here, B.V.’s letter to the district court was not a clear request to represent himself and it was within the district court’s discretion to deny B.V.’s request for new counsel without further discussion as to self-representation.

VI

[¶ 24] We affirm the district court’s order committing B.V. to the care, custody, and control of the Executive Director of the Department of Human Services until the Executive Director determines B.V. is safe to be at large and has received the maximum benefit of treatment.

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


author: SANDSTROM, Justice. MARING, Justice,

text:
    2006 ND 20
    Sheila PEREZ, Plaintiff and Appellant v. Ronnie NICHOLS, Defendant and Appellee.
    No. 20050228.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Collin P. Dobrovolny (argued), McGee, Hankla, Backes & Dobrovolny, Minot, N.D., and Samuel Kornhauser (on brief), San Francisco, CA, for plaintiff and appellant.
    Lolita G. Hartl Romanick (argued) and Kraig A. Wilson (on brief), Morley Law Firm, Ltd., Grand Forks, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Sheila Perez appeals the district court’s grant of summary judgment in favor of Ronnie Nichols in the lawsuit Perez filed for injuries she suffered while she was a passenger in Nichols’ van. On appeal, Perez argues there are questions of fact concerning whether Nichols kept a proper lookout while entering an intersection and whether Nichols was negligent for not having his van equipped with seat belts. Holding that no reasonable jury could conclude Nichols was negligent based on the facts of this case, we affirm.

I

[¶ 2] In May 1997, Perez was a passenger in a 1984 Dodge minivan owned and driven by Nichols. Perez testified at her deposition that she was sitting on the van’s middle bench seat, which had no seat belts. Nichols testified in his deposition that when the traffic light at an intersection turned green, he followed two other cars into the intersection. Another car was traveling on the exit ramp that intersected the street Nichols was traveling on. That car ran a red light, entered the intersection, and crashed into Nichols’ van. Perez testified the car was traveling at a high rate of speed, possibly 50 to 70 miles per hour. According to Perez, she had seen the car eight to ten car lengths away and warned Nichols. She contends she was thrown under the front seat and sustained serious injuries.

[¶ 3] Perez sued Nichols, claiming Nichols was negligent for not keeping a proper lookout while entering the intersection and for not equipping his van with seat belts. Nichols moved for summary judgment. The district court granted Nichols’ motion, concluding that no reasonable person could find Nichols negligent for following two other cars into an intersection with a green light and that he was not required to have the middle bench seat of his van equipped with seat belts.

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

II

[¶ 5] Perez argues summary judgment was inappropriate because there is a genuine issue of material fact concerning whether Nichols kept a proper lookout while entering the intersection. Rule 56(c), N.D.R.Civ.P., states, in part, “Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Summary judgment

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

Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257. The party moving for summary judgment must show that there are no genuine issues of material fact and that the case is appropriate for judgment as a matter of law. Id. “On appeal, the evidence must be viewed in the light most favorable to the opposing party, and that party must be given the benefit of all favorable inferences.” Hurt v. Freeland, 1999 ND 12, ¶ 7, 589 N.W.2d 551.

The party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact, and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact.

Id. at ¶ 8. “Mere speculation will not defeat a motion for summary judgment.” Ellingson v. Knudson, 498 N.W.2d 814, 818 (N.D.1993). We review the district court’s grant of summary judgment de novo, weighing the evidence in a light most favorable to the nonmoving party. Makeeff v. City of Bismarck, 2005 ND 60, ¶ 12, 693 N.W.2d 639.

HI

[¶ 6] To succeed in a negligence claim, the plaintiff must prove the defendant owed a duty to the plaintiff, the defendant failed to discharge that duty, and the plaintiff has suffered an injury that was proximately caused by the defendant’s negligence. Hurt, 1999 ND 12, ¶ 11, 589 N.W.2d 551 (quoting Diegel v. City of West Fargo, 546 N.W.2d 367, 370 (N.D.1996)). The driver of an automobile has a duty to keep a proper lookout, and failure to discharge that duty is negligence. Kelmis v. Cardinal Petroleum Co., 156 N.W.2d 710, 715 (N.D.1968).

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

[¶ 8] Nichols was stopped at a red traffic light. The parties do not dispute that when the light changed to green, Nichols proceeded into the intersection behind two other cars. A vehicle traveling at a high rate of speed on the cross street ran the red light and crashed into Nichols’ van. Perez testified she saw the car approximately eight to ten car lengths away and warned Nichols. Nichols testified he looked to see if the intersection was safe before entering it. Perez does not believe Nichols looked to see if the intersection was safe, because if he had, he should have seen the oncoming car. Perez also testified, however, that she does not know whether Nichols could have avoided the accident if he had seen the oncoming vehicle. She testified the impact occurred instantaneously after she yelled at Nichols. She did not know where Nichols was looking prior to the accident. The parties do not dispute that Nichols was not speeding or driving erratically. Perez also testified she does not believe Nichols was at fault for the accident.

[¶ 9] Examining these facts in a light most favorable to Perez, no reasonable jury could conclude Nichols was negligent. He had a green light. He followed two other cars into the intersection. Another car ran a red light and struck Nichols’ van. Nichols was not speeding or driving erratically. Perez could not identify what Nichols could have done to avoid the accident, and she does not believe the accident was his fault. Although negligence cases are generally inappropriate for summary judgment, no jury could conclude, under these facts, that Nichols breached his duty to keep a proper lookout or that Nichols proximately caused Perez’s injuries. The district court did not err when it granted summary judgment in favor of Nichols.

IV

[¶ 10] Perez also argues summary judgment is inappropriate because there is a genuine issue of material fact regarding whether Nichols was negligent for not having his van equipped with seat belts. She argues the district court erred when it concluded that Nichols could not be liable in tort for something he was not required to do under North Dakota law, specifically, equipping the van seat with seat belts. Nichols argues summary judgment was proper because the seat belt issue is relevant only to damages, not liability, and he had no duty to equip his wan with seat belts other than the front seats under the laws of North Dakota.

[¶ 11] Perez testified the middle bench seat did not have any seat belts, but the seat in the far back of the van did have seat belts. Nichols testified there were some seat belts on the bench seats, but he could not recall which bench seat, the middle seat or the back seat. Thus, the parties do not dispute that there were seat belts available to use in the back of the van.

[¶ 12] Regardless of whether or not there is a duty on behalf of a vehicle owner to equip his vehicle with seat belts, Perez would not be able to prove Nichol’s breached that duty. There were seat belts available for her to use, but she chose to sit in a seat that was not equipped with seat belts. Nichols did not tell her to sit on that seat. She could have sat in the seat where seat belts were available for her to use. Because the undisputed evidence is that there were seatbelts available for her to use, there is no genuine issue of material fact, and Perez’s claim fails as a matter of law. Hurt, 1999 ND 12, ¶ 8, 589 N.W.2d 551. We do not make any holding regarding whether an owner of a vehicle breaches any duties owed to a passenger by not equipping his vehicle with seat belts.

V

[¶ 13] No reasonable jury could conclude that Nichols was negligent or caused Perez’s injuries. Perez is also unable to prove Nichols breached a duty to equip his van with seat belts because there were seat belts available for her to use. The district court’s grant of summary judgment was proper. We affirm the dismissal of Perez’s case.

[¶ 14] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ., concur.

MARING, Justice,

concurring specially.

[¶ 15] A person driving a motor vehicle has a duty to keep a proper lookout and failure to do so is negligence. In this case, Perez claims she saw the other car eight to ten car lengths away traveling 50 to 70 miles per hour and yelled at Nichols. However, what is lacking in this case is evidence that even if Nichols had seen the other car when Perez saw it, he could have avoided the collision or taken any evasive action. Clearly, under our comparative fault law, a driver who enters an intersection on a green light may be found negligent if there is evidence that the driver had the opportunity to see and recognize the failure of another driver to yield and had the opportunity to avoid the collision. Here, there is evidence the driver, Nichols, had the opportunity to see and recognize the failure of the other driver to yield the right-of-way, but there is no evidence that even had he kept a proper lookout, there was an opportunity to avoid the collision. It is the lack of that evidence that justifies the summary judgment.

[¶ 16] I, therefore, concur specially.

[¶ 17] Máry Muehlen Maring


author: MARING, Justice.

text:
    2006 ND 16
    Leon HEWSON, Plaintiff and Appellant v. Joselyn A. HEWSON, n/k/a Joselyn A. Privratsky, Defendant and Appellee.
    No. 20050218.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Rhonda R. Ehlis of Hardy, Maus & Nordsven, P.C., Dickinson, N.D., for plaintiff and appellant.
    Todd A. Schwarz of Schwarz Law Office, Bismarck, N.D., for defendant and appel-lee.
   MARING, Justice.

[¶ 1] Leon Hewson appeals from the trial court’s amended judgment concluding he owes Joselyn Privratsky, formerly Jose-lyn Hewson, $17,852 to correct an unequal asset distribution resulting from the parties’ 1991 divorce. We conclude the trial court failed to clearly state the determined amount was a credit to Privratsky for any child support she may owe Hewson. We further conclude the trial court failed to make specific findings of how it arrived at the $17,852 figure. We, therefore, reverse and remand.

I

[¶ 2] The parties were divorced on July 22, 1991. Under the terms of the parties’ settlement agreement incorporated into the divorce judgment, Hewson received custody of the parties’ minor children. The parties agreed that Hewson would keep the majority of the marital assets to provide the children with support and he would be solely responsible for the children’s support due to Privratsky’s inability to afford more than $10 per child per month in support. The judgment stated that the agreement was contractual in nature and was not subject to modification by the parties or by any court. The judgment also stated that Hewson had agreed to indemnify Privratsky and hold her harmless for any future child support claims.

[¶ 3] In 1995, Hewson commenced an action through the Southwest Area Child Support Enforcement Unit, and the parties entered into a stipulation for Privrat-sky to pay child support of $126 per child per month. This stipulation was incorporated into an amended judgment. In 2003, Hewson requested a review of Privratsky’s child support obligation. The Southwest Area Child Support Enforcement Unit moved to increase Privratsky’s child support obligation. Privratsky objected, arguing that she had given up marital property in lieu of payment of child support. On February 3, 2004, after several continuances and a hearing, the trial court ordered that the value of the forfeited property be calculated and then used to offset a calculation of the amount of child support owed from the time of the divorce.

[¶ 4] In April 2004, Social Services removed the children from Hewson’s care. On May 19, 2004, following a motion by Privratsky, the trial court transferred custody of the two children to her. The court ordered Hewson to pay $1,146 a month in child support and terminated Privratsky’s child support obligation.

[¶ 5] On August 26, 2004, Privratsky moved for a clarification of the February 3, 2004, order. An amended motion was filed on September 30, 2004. A hearing was held on November 30, 2004. The trial court, in its January 27, 2005, order found that Privratsky had paid $12,852 in child support to Hewson since 1991. The Court then stated:

I have a strong feeling that after land valuation, credits and debits, due consideration for what everyone should and could have paid and done, that the bottom of the tape would show that Leon owes Joselyn around $18,000.
So from the disproportionate property division, Leon still owes Joselyn $17,852 which, by great co-incidence [sic], comes very close to the amount that Joselyn paid directly in child support plus about $5,000 in attorney’s fees.

On April 26, 2005, the trial court issued an amended order providing Hewson owed Privratsky $17,582 to correct the unequal asset distribution resulting from the 1991 divorce. Hewson appeals.

[¶ 6] Hewson argues the trial court clearly erred by ordering him to pay Priv-ratsky $17,852 and by failing to make specific findings of how it arrived at the $17,852 figure. Privratsky argues that, although the trial court could have provided a more detailed explanation of its calculations, enough evidence exists to support the trial court’s decision.

II

[¶ 7] It is unclear whether the trial court’s amended judgment only modifies the parties’ child support obligation or if it attempts to reopen the parties’ 1991 property settlement. It has long been the law in this state that a trial court “does not have continuing jurisdiction to modify a property distribution in a divorce judgment, but has continuing jurisdiction to modify child support.” Rueckert v. Rueckert, 499 N.W.2d 863, 867 (N.D.1993) (citations omitted); see Sinkler v. Sinkler, 49 N.D. 1144, 194 N.W. 817 (1923); see also N.D.C.C. § 14-05-24(2) (“The court may redistribute property in a postjudgment proceeding if a party has failed to disclose property and debts as required by rules adopted, by the supreme court or the party fails to comply with the terms of a court order distributing property and debts.”). We therefore conclude the trial court’s amended judgment modifies only the parties’ child support obligations.

[¶ 8] We review the interpretation of a divorce judgment as a question of law fully reviewable on appeal. Boumont v. Boumont, 2005 ND 20, ¶ 5, 691 N.W.2d 278. “Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and may, in some limited areas, be matters of discretion subject to the abuse of discretion standard of review.” Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made.” Id.

[¶ 9] Our legislature has codified a strong public policy in favor of ensuring minor children receive adequate support and maintenance from their parents. Tiokasin v. Haas, 370 N.W.2d 559, 562 (N.D.1985). Agreements between parents as to the support and maintenance of a child shall only be accepted by a trial court if they are in the child’s best interest. . Id. We held in Rueckert, that an agreement between parents purporting to prohibit or limit the power of a court to modify future child support violates public policy and is invalid. 499 N.W.2d at 868.

[¶ 10] Nevertheless, in Rueckert, our Court recognized that, as a matter of equity, a divorcing parent attempting to satisfy her child support obligation by foregoing a rightful share of the marital property is entitled to offset the amount of marital property given up against her child support obligation. Id. at 870-71. Under this equitable-offset remedy, a trial court must evaluate the obligor’s interest in the marital property relinquished in lieu of payment of child support, calculate the amount of child support that would have been correct from the original decree to the date of the latest motion to modify, compute the obligor’s child support obligation since the date of that motion under the guidelines, and offset the value of the obligor’s marital property waived. Reimer v. Reimer, 502 N.W.2d 231, 233-34 (N.D. 1993).

[¶ 11] The equitable offset remedy under Rueckert should not be understood to supercede a child’s right to support. By its nature, the Rueckert remedy is only to be applied when it is “the most equitable means of granting the parties the benefit of their property settlement agreement, while at the same time recognizing the important public policy of placing on both parents responsibility for the adequate support and maintenance of their minor children.” Rueckert, 499 N.W.2d at 871. An agreement between parents purporting to waive entirely the child support obligation of one parent in lieu of marital property and limiting the power of the court to modify future child support should not be approved by a trial court. However, in cases, like this, where such an agreement exists, forfeiture of marital property will only be considered “prepayment” of child support if equity demands and such a conclusion does not supercede the child’s right to support.

[¶ 12] In this case, the parties’ agreement was accepted by the trial court and incorporated into the judgment in 1991, before our Court decided Rueckert. Further, custody of the children changed from Hewson to Privratsky on April 21, 2004. Accordingly, the obligor is now Hewson. Additionally, one of the children is no longer a minor and child support is no longer required for that child. We conclude the trial court did not err in finding the Rueckert equitable-offset remedy is appropriate and will not adversely impact the children’s right to support.

[¶ 13] We further conclude the equitable-offset remedy gives Privratsky only a credit against her child support obligation in the amount of the forfeited marital property. See Rueckert, 499 N.W.2d at 870-71; Reimer, 502 N.W.2d at 233-34. Privratsky, who is benefiting from the Rueckert remedy, is not entitled to receive a payment of any remaining credit after her child support obligations have been paid. To the extent the trial court intended to redistribute the marital property, it erred in interpreting the law.

[¶ 14] A remaining issue is whether the trial court erred in its finding that the amount of the equitable offset is $17,852. “As a matter of law, the trial court must clearly set forth how it arrived at the amount of income and level of support.” Dufner v. Dufner, 2002 ND 47, ¶ 22, 640 N.W.2d 694. Here, the trial court states only a “strong feeling” as to what the “bottom of the tape would show.” The trial court does not make a finding of the amount of child support owed by Priv-ratsky to Hewson. By not clearly setting forth how it determined the equitable-offset amount or the amount of forfeited marital property we cannot determine if Priv-ratsky owes Hewson child support or is entitled to a future credit towards child support.

[¶ 15] On remand, the trial court should apply the method of determining the equitable offset laid out in Rueckert and Reimer. See Rueckert, 499 N.W.2d at 870; Reimer, 502 N.W.2d at 233-34. This requires that the trial court make specific findings of fact with regard to the evaluation of Privratsky’s interest in the marital property she relinquished in lieu of her child support obligation under the original divorce stipulation. The trial court must then calculate the amount of child support Privratsky would have owed from the time of the entry of the original divorce decree to the date of the first order establishing a child support obligation, the July 20, 1995, amendment to judgment. In doing so, the trial court must utilize the evidence of Privratsky’s gross income during that period and the guidelines in effect during that time. Then, the trial court must calculate the amount of child support Privratsky owed from the July 20, 1995, amended judgment through July 2, 2003,- the day before the Southwest Area Child Support Enforcement Unit’s motion to increase support. Geinert v. Geinert, 2002 ND 135, ¶ 10, 649 N.W.2d 237 (noting “a modification of child support generally should be made effective from the date of the motion to modify, absent good reason to set some other date. The trial court retains discretion to set some later effective date, but its reasons for doing so should be apparent or explained.”). As we recognized in Ruec-kert, a trial court cannot retroactively modify accrued but unpaid child support; therefore, in calculating the amount of child support that should have been paid between July 20, 1995, and July 2, 2003, the trial court must use the $126 a month amount the trial court ordered in its July 20, 1995, judgment. See Rueckert, 499 N.W.2d at 870 n. 4; see also Steffes v. Steffes, 1997 ND 49, ¶ 14, 560 N.W.2d 888; N.D.C.C. § 14-08.1-05. The trial court must then calculate the amount of child support owed under the guidelines from July 2, 2003, through April 20, 2004, the day before custody of the children changed from Hewson to Privratsky. Again, this calculation must utilize the evidence of Privratsky’s gross income during that period and the guidelines in effect during that time. After determining the total amount of child support owed, the trial court must make a finding of the amount of child support paid by Privratsky, and subtract that amount from the total owed. This amount of child support owed but unpaid must then be offset by the value of the marital property relinquished.

[¶ 16] Because custody of the children changed, if a credit remains in favor of Privratsky, this amount can be considered only as a possible credit toward child support owed to Hewson should custody again change hands. It is not an amount owed to Privratsky by Hewson.

Ill

[¶ 17] We reverse and remand for further proceedings consistent with this opinion.

[¶ 18] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ„ concur.


text:
    2006 ND 17
    Kim Marie KORYNTA, Plaintiff and Appellee v. Cameron Jon KORYNTA, Defendant and Appellant.
    No. 20050201.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Patti J. Jensen of Galstad, Jensen & McCann, PA, East Grand Forks, Minn, for defendant and appellant; submitted on briefs.
    Janis Martha DeRemer, Buxton, N.D. for plaintiff and appellee; submitted on briefs.
   MARING, Justice.

[¶ 1] Cameron Korynta appeals from a trial court’s order denying his motion for new trial or for reconsideration and order for amended judgment nunc pro tunc. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶ 2] Cameron and Kim Korynta were married in November 1995. At the time, Kim had a daughter from a previous marriage. Cameron adopted this daughter in 1997. During the marriage, the couple had four additional children.

[¶ 3] Kim filed for a divorce on November 14, 2003. A temporary order was entered on February 11, 2004, following cross motions for entry of an interim order. An amended temporary order was filed March 10, 2004. The temporary orders addressed temporary custody, child support, and related issues. A trial was held on August 3, 4, and 25, and September 14, 2004. The trial court entered its findings of fact, conclusions of law, and order for entry of judgment on January 31, 2005. Judgment was entered February 8, 2005.

[¶ 4] Cameron moved for a new trial or, in the alternative, for amended findings and conclusions and moved for reconsideration under Rule 59, N.D.R.Civ.P., on March 4, 2005. The trial court entered an order denying Cameron’s motions with the exception of clarifying that portion of the judgment concerning tax exemptions. An amended judgment nunc pro tunc was filed July 19, 2005.

[¶ 5] On appeal, Cameron argues the visitation schedule granted to him was not in the children’s best interests, the trial court erred when it assigned a negative valuation to a business Kim owned when calculating its distribution of marital assets, and the trial court’s calculation of his income for child support purposes was incorrect. He does not raise any issue on appeal with regard to the trial court’s ciar-ification of its judgment in its order for judgment nunc pro tunc.

II

[¶ 6] Cameron appeals from the trial court’s order denying his Rule 59 motion for a new trial and ordering an amended judgment nunc pro tunc. He also appeals from the denial of his motion to reconsider, which is treated by this Court like a motion to amend or alter under Rule 59(j). See Woodworth v. Chillemi, 1999 ND 43, ¶ 7, 590 N.W.2d 446. Cameron’s notice of appeal does not include any mention of the trial court’s February 8, 2005, judgment.

[¶ 7] “The standard a district court applies when faced with a motion for a new trial, under N.D.R.Civ.P. 59, and the standard this Court applies when reviewing the district court’s decision are distinct.” Brandt v. Milbrath, 2002 ND 117, ¶ 23, 647 N.W.2d 674. “[T]he standard for reviewing an order denying a motion for a new trial is, after viewing the evidence in the light most favorable to the verdict, whether there is sufficient evidence to justify the verdict.” Id. at ¶ 29. Here the case was tried to the court rather than a jury and we view the evidence in the light most favorable to the trial court’s findings of fact. This Court reviews a trial court’s denial of a N.D.R.Civ.P. 59(b) motion for a new trial under the abuse of discretion standard. Schneider v. Schaaf, 1999 ND 235, ¶ 12, 603 N.W.2d 869. Likewise, the decision of a trial court on a Rule 59(j) motion to amend is reviewed under the abuse of discretion standard. Woodworth, 1999 ND 43, ¶ 7, 590 N.W.2d 446. “A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” Schneider, at ¶ 12.

A

[¶ 8] Cameron argues the trial court erred in denying his motion because the visitation schedule approved by the trial court was not in the children’s best interests. In essence, Cameron asserts the trial court should have kept the visitation schedule created by the February 11, 2004, temporary order. Under the temporary order, Kim and Cameron shared custody of the five children, with Cameron having the children in his care each week from the end of his work day on Thursday until 3 p.m. on Sunday. Under the visitation schedule set out in the subsequent judgment, this visitation was reduced. Cameron argues that, to interrupt a schedule that had been in place for the children for thirteen months, the trial court should have had some evidence it was not in the children’s best interest.

[¶ 9] Kim counters, asserting Cameron was granted approximately 156 visitation nights per year in the amended temporary order. Cameron did not exercise all the visitation available to him under the temporary order and the judgment granted Cameron 125 nights per year plus Thursday evenings in off weeks. Kim asserts the trial court’s visitation schedule is generous and the children are not deprived.

[¶ 10] In denying Cameron’s motion for a new trial, the trial court explained its reasoning in deciding visitation stating it did not consider “shuttling the kids back and forth between two homes on a weekly basis as being in the children’s best interest especially in view of the communication issues between the parties.” The trial court also noted its decision was based, in part, on the parties’ failure to keep the children out of the parties’ conflicts with each other. We conclude the trial court did not abuse its discretion in denying the motion for a new trial or the motion to alter or amend the judgment with regard to visitation.

B

[¶ 11] Cameron argues the trial court erred when it assigned a negative valuation to Kim’s business when calculating the distribution of marital assets. Cameron argues the court failed to state there was a shareholder loan taken out on the business of $12,059 and a loan of $28,659. Cameron further argues the court’s decision is based on a bare assertion that the negative valuation was based on a tax return.

[¶ 12] Kim counters, asserting the trial court made great effort to explain its factual basis for the property valuation and division.

[¶ 13] In its order denying Cameron’s Rule 59 motion, the trial court explains:

The value of the Dakota Shopper was based upon the evidence presented during trial. As stated in paragraph 8 of the Court’s Findings, the value was based upon the 2003 corporate tax return and the plaintiffs testimony. The defendant offered no testimony or evidence with regard to the value of the Dakota Shopper. Further, .neither party provided any expert testimony with regard to valuation of this business.

A trial court’s valuation of property is presumed correct and we view the evidence presented in the light most favorable to the trial court’s findings of fact. Oldham v. Oldham, 2004 ND 62, ¶ 14, 677 N.W.2d 196. We conclude the trial court did not abuse its discretion in denying the motion for a new trial or the motion to alter or amend the judgment concerning the valuation of Kim’s business.

C

[¶ 14] Cameron argues the trial court erred in the calculation of his income for child support purposes. Cameron argues the trial court’s findings of fact show that, instead of using his income for the four years before trial to calculate his income for child support purposes, the trial court took a pay stub for the first six months of 2004 and extrapolated that amount out over twelve months. This, Cameron asserts, resulted in the court finding income in excess of $10,000 more than he had earned in the previous four years.

[¶ 15] Kim argues this calculation was correct because N.D. Admin. Code § 75-02-04.1-02(7), child support guidelines, state: “Income must be sufficiently documented through the use of tax returns, current wage statements, and other information to fully apprise the court of all gross income.” Kim appears to be arguing that extrapolating based on current wage statements is allowed by this language, although she does not cite to any authority to support her contention.

[¶ 16] In its findings of fact, the trial court found that Cameron’s income since 2000 is:

2000 Gross wages: $58,834 Farm net income: 805
2001 Gross wages: $61,498 Farm net income: $1,249
2002 Gross wages: $58,514 Farm net income: $1,635 Add’l emp. income $2,260
2003 Gross wages: $58,442 Farm net income: $1,755 Add’l emp. Income $ 748.

The trial court then takes Cameron’s average gross pay per month for the period between January 1, 2004, and July 17, 2004, ánd multiplies it by 12, equaling “anticipated gross wages for 2004 of $71,786.” The trial court continues that Cameron should recognize at least $1,755 in net farm income for 2004.

[¶ 17] This Court has stated:

To determine a child support obligation, a court must first calculate an obligor’s gross income. Gross income is income from any source. An obligor’s net income is used to compute the child support obligation. Net income is defined as gross annual income less various deductions and exemptions. A proper finding of net income is essential to determine the correct amount of child support under the child support guidelines.

Dufner, 2002 ND 47, ¶ 24, 640 N.W.2d 694 (citations omitted) (citing Hoverson v. Hoverson, 2001 ND 124, ¶ 35, 629 N.W.2d 573; and N.D. Admin. Code § 75-02-04.1-01(5) and (7), and N.D. Admin. Code § 75-02-04.1-02(3)). Under N.D. Admin. Code § 75-02-04.1-02, the guidelines provide:

6. The annual total of all income considered in determining a child support obligation must be determined and then divided by twelve in order to determine the obligor’s monthly net income.
7. Income must be sufficiently documented through the use of tax returns, current wage statements, and other information to fully apprise the court of all gross income. Where gross income is subject to fluctuation, particularly instances involving self-employment, information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations must be provided.
8. Calculations made under this chapter are ordinarily based upon recent past circumstances because past circumstances are typically a reliable indicator of future circumstances, particularly circumstances concerning income. If 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.
10. Each child support order must include a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined.

This Court has found it to be an error when a trial court extrapolates from less than a twelve-month period to determine imputed income under N.D. Admin. Code § 75-02-04.1-07(9). See Brandner v. Brandner, 2005 ND 111, ¶ 18, 698 N.W.2d 259; Christoffersen v. Giese, 2005 ND 17, ¶ 8, 691 N.W.2d 195; Logan v. Bush, 2000 ND 203, ¶ 21, 621 N.W.2d 314. Similarly, unless the trial court makes a determination that evidence of an obligor’s recent past circumstances is not a reliable indicator of his future circumstances, the trial court must not extrapolate an obligor’s income under N.D. Admin. Code § 75-02-04.1-02(8). In this case, Cameron presented pay stubs for January 1, 2004, to July 17, 2004, in addition to his tax .return statements for the prior four years. The trial court had ample and reliable information from which to calculate Cameron’s income over the previous twelve months.

[¶ 18] “The failure to properly apply the child support guidelines to the facts involves an error of law.” In Interest of N.C.C., 2000 ND 129, ¶12, 612 N.W.2d 561. The trial court states no appropriate reasons for its extrapolation of Cameron’s income. We therefore determine the trial court misapplied the law and reverse the trial court’s decision on this issue and remand.

[¶ 19] On remand, in making its calculation of Cameron’s correct support obligation, the trial court must also examine whether Cameron’s child support should be reduced due to extended visitation under N.D. Admin. Code § 75-02-04.1-08.1(1). Under the trial court’s ordered visitation schedule, Cameron’s total annual visitation would not meet or exceed the 164 nights per year that N.D. Admin. Code 75-02-04.1-08.1(1) states constitutes “extended visitation.”

D.

[¶ 20] Kim asks this Court to grant her attorney’s fees, pursuant to N.D.R.App.P. 38, for what she says is Cameron’s frivolous appeal. We deny Kim’s request for attorney’s fees.

Ill

[¶ 21] We hold the trial court did not abuse its discretion in denying the motions for a new trial or to alter or amend its findings on the visitation and valuation of the Dakota Shopper. However, the trial court did misapply the law by extrapolating Cameron’s 2004 income based on the first seven-and-a-half months of the year when it had evidence of his 2000 through July 2004 income. We therefore affirm in part and reverse and remand on the issue of Cameron’s child support obligation.

[¶ 22] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.